Justices rule on lawyer liablity coverage case

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Questions exist as to whether the professional liability coverage carrier for a disbarred attorney misled two former clients about helping them collect on legal malpractice claims. In a ruling on Tuesday, the Indiana Supreme Court reversed and remanded the case of Michael Ashby and Randy O’Brien v. The Bar Plan Mutual Insurance Company and C. Bruce Davidson, Jr., No. 49S04-1011-CV-635, for further proceedings.

The case involves ex-Indianapolis lawyer, Clifton Bruce Davidson Jr., a former police officer-turned-attorney who deserted his law practice in 2003 and went on a multi-state bank robbing spree before eventually ending up in federal prison and being disbarred by the Indiana Supreme Court in August 2004. The Bar Plan Mutual Insurance Company issued a policy to Davidson in 2003 without being informed of any existing issues, such as malpractice allegations by two prisoner clients, Michael Ashby and Randy O’Brien, who Davidson represented prior to leaving his practice.

The clients tried to collect through the insurance carrier, but the Bar Plan refused to indemnify Davidson because he hadn’t complied with the contract requirements. Under the policy secured before he abandoned his practice, Davidson was supposed to provide written notice of any claim. In this case, he was running from the law during the relevant time period and did not do that. Instead, Ashby and O’Brien notified the Bar Plan of their claims. The insurer argued that was not sufficient to meet the policy requirements.

Marion Superior Judge Robyn Moberly granted summary judgment for the Bar Plan, but the Indiana Court of Appeals last summer reversed that judgment and remanded for trial proceedings on grounds that the clients’ actual notice was sufficient. The Indiana Supreme Court granted transfer in November, and the justices have unanimously found enough issues exist for further proceedings.

On the question of coverage, the justices held the Bar Plan has established no genuine issues of fact exist about Davidson’s failure to comply with the policy condition requiring personal notification of a claim; he didn’t and that’s clear, the justices determined. But that isn’t dispositive because Ashby and O’Brien also argued against summary judgment on grounds of waiver and estoppel.

Written communications between the clients and the Bar Plan don’t make it clear the insurer wasn’t implying coverage, the court determined.

“Conspicuously absent was any caution about possible non-coverage due to the absence of written notice from Davidson, the insured,” Justice Brent Dickson wrote. “From the designated materials, we find genuine issues of fact as to whether Ashby and O’Brien, and their counsel, were misled to believe that the Bar Plan provided professional liability coverage for Davidson with respect to their claims.”

As a result of that, it’s unclear at this point whether Ashby and O’Brien might have detrimentally relied on that belief and that is something that should be examined at the trial level, the justices found.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.