92 So. 3d 1077
La. Ct. App.2012Background
- Brassette hired Exnicios Legal Center to represent her in a federal action against FDA and its employee for injuries from a 2005 automobile accident.
- FDA case proceeded in U.S. District Court, and in 2008 the court limited Brassette’s damages to $30,000 after an unopposed motion to limit ad damnum.
- Exnicios allegedly settled Brassette’s case for $22,000 without her consultation or authorization as she sought ongoing medical treatment.
- Brassette terminated Exnicios and later settled with the FDA for $22,000 in November 2008, releasing all related claims.
- December 2008 Brassette filed a legal malpractice action against Exnicios and insurer for damages suffered due to alleged incompetence.
- Trial court granted summary judgment for defendants; it held the settlement lacked reservation of rights and precluded the malpractice claim; Brassette appealed seeking reversal and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brassette’s settlement precludes her malpractice claim. | Brassette argues MB Industries allows relief; settlement does not bar all claims. | Exnicios contends settlement, with no reservation of rights, bars malpractice claim as a matter of law. | No per se bar; genuine issues of material fact remain; remand. |
| Whether the failure to oppose the motion to limit ad damnum constitutes malpractice per se. | Brassette asserts defendant’s inaction harmed her, constituting negligence per se. | Exnicios argues no proof of negligence per se; damages are limited by the ad damnum order. | Not established as per se negligence; issues of reasonableness and mitigation still unresolved. |
| Whether the appropriate standard involves mitigation under MB Industries and whether Brassette acted reasonably. | Brassette acted reasonably under the circumstances to settle given the court limit. | Exnicios argues prudent actions would have pursued appeal or reopening the limit. | Genuine issues of material fact; not all facts show reasonable prudence; remand for fact-finding. |
Key Cases Cited
- MB Industries, LLC v. CNA Insurance Company, 74 So.3d 1173 (La. 2011) (settlement does not automatically bar malpractice suit; depends on reasonableness and mitigation factors)
- Murphy v. Gilsbar, 834 So.2d 669 (La.App. 1st Cir. 2002) (equitable estoppel via nonparticipation; not controlling where MB Industries limits waiver)
- Campbell v. Markel American Insurance Company, 822 So.2d 617 (La.App. 1st Cir. 2001) (deference to trial court findings on evidence; summary judgment standards)