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7th Circuit: no liability insurance coverage for associate’s error

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The 7th Circuit Court of Appeals agreed with a Northern District judge’s conclusion that a Dyer law firm’s professional liability insurer did not have to cover a mistake by an associate in a client’s failed business deal because the firm didn’t timely notify its insurer of a potential malpractice claim.

Koransky Bouwer & Poracky P.C. represented George Novogroder when he sought to buy four drugstores in Ohio from Newtown Oldacre McDonald LLC. Three of the four sales closed without issue; the fourth sale never came to fruition because an associate at the law firm inadvertently misfiled the executed contract. On Feb 22, 2007, Newton’s attorney sent a letter to the firm saying the seller rescinds its signature and declares the contract null and void since it did not receive the executed contract. The associate attempted to fix the problem by sending the contract, but the seller still did not want to continue the sale.

This led to litigation being filed in both Alabama and Ohio in March of that year. Also during this time, Koransky Bouwer & Poracky renewed its professional liability insurance with The Bar Plan Mutual Insurance Co., but did not notify the firm of a potential malpractice claim from Novogroder. When the Alabama court, which concluded it had jurisdiction over the case, ruled in favor of Newtown, Novogroder told the firm he was going to file a malpractice claim over the failed transaction. After receiving a formal notice of claim, the firm notified its insurer in August.

But The Bar Plan concluded through an investigation that the firm knew of the potential malpractice claim in February, before it renewed its policy for another year. Based on language in the policy, the insurer declined to represent the firm or indemnify it. Judge William Lee ruled in favor of the insurer on its motion for summary judgment.

In Koransky, Bouwer & Poracky P.C. v. The Bar Plan Mutual Insurance Co., 12-1579, the 7th Circuit looked at the language of the policy in effect at the time the law firm made its claim and agreed with Lee that the firm did not timely notify The Bar Plan as soon as it had reason to think that the failure to deliver the contract to the seller might result in a claim. The policy required the insurer to be notified if an act or omission “may” give rise to a claim, not just when one is filed.

“It may well be difficult to determine exactly when an act or omission ‘might reasonably be expected to be the basis of’ a malpractice claim. But this case is not a close one. Buyer believed that the parties had formed a binding agreement. However, as a result of Koransky & Bouwer’s failure to deliver the executed contract, Seller refused to complete the deal and active litigation ensued,” Judge Daniel Manion wrote.

“Once the Alabama case was filed, Koransky & Bouwer knew or should have known that the only thing standing between it and a probable malpractice claim was the question of whether the Alabama state court would exercise jurisdiction. No matter how we construe the record, it is clear that a reasonable attorney would have recognized that his failure to deliver the contract, in light of the communications and legal activity that quickly followed, was an omission that could reasonably be expected to be the basis of a malpractice claim.”

 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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