998 N.W.2d 343
S.D.2023Background
- On Dec. 21, 2016 Doug Barr was severely injured in a car crash caused by Stuart Hughes, a UJS law clerk who had been working at a courthouse in Parker that day.
- Hughes was reimbursed for his roundtrip travel to Parker from his home but, after the court day, drove to Sioux Falls to attend a family holiday dinner; the crash occurred while he was en route to Sioux Falls.
- Brewers (a friend) and attorneys Cole and Sims represented the Barrs; they sued Hughes but did not give SDCL 3-21-2 notice to the State within 180 days and did not assert a claim against the State.
- The Barrs settled with Hughes for his $500,000 policy limits and then sued their attorneys for malpractice, alleging failure to timely notify the State and thereby forgoing additional PEPL coverage.
- The circuit court granted summary judgment for the attorneys, holding Hughes substantially deviated from his employment (traveling for a personal family dinner) so the PEPL fund would not cover the accident; the Barrs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether malpractice plaintiffs must prove the underlying claim would have succeeded but for counsel's malpractice | Barr: only must show underlying claim was viable (relying on Robinson-Podoll) | Attorneys: must prove underlying claim would have succeeded; no "loss of chance" for such malpractice claims | Held: Plaintiff must prove the underlying claim would have been successful (case-within-a-case remains required) |
| Whether Hughes was acting within scope of employment at time of crash (so PEPL coverage would apply) | Barr: travel to remote courthouses is within duties; disputed facts preclude summary judgment | Attorneys: Hughes substantially deviated to attend a family dinner, abandoning work purpose; no PEPL coverage | Held: Hughes substantially deviated as a matter of law; no PEPL coverage; summary judgment for attorneys affirmed |
Key Cases Cited
- Zhi Gang Zhang v. Rasmus, 932 N.W.2d 153 (S.D. 2019) (reaffirms case-within-a-case requirement in legal malpractice)
- Haberer v. Rice, 511 N.W.2d 279 (S.D. 1994) (describes proof requirements for legal malpractice and the case-within-a-case doctrine)
- Robinson-Podoll v. Harmelink, Fox & Ravnsborg Law Off., 939 N.W.2d 32 (S.D. 2020) (discussed but not read to displace case-within-a-case requirement)
- Jorgenson v. Vener, 616 N.W.2d 366 (S.D. 2000) (initially adopted the loss-of-chance doctrine in medical malpractice; later abrogated by statute)
- Jorgenson v. Vener, 640 N.W.2d 485 (S.D. 2002) (post-appeal decision contextualizing loss-of-chance jurisprudence)
- S.D. Pub. Entity Pool for Liab. v. Winger, 566 N.W.2d 125 (S.D. 1997) (establishes scope-of-employment and substantial-deviation/frolic principles)