ILNews

Justices rule on lawyer liablity coverage case

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

  5. Hi, Who can I speak to regarding advertising today? Thanks, Gary

ADVERTISEMENT