2017 COA 35
Colo. Ct. App.2017Background
- In 2006 Della Gallegos underwent an MRI by Dr. Steven Hughes; a meningioma allegedly visible then was diagnosed only in 2009 after it had grown, requiring multiple craniotomies.
- Gallegos retained attorney Patric LeHouillier to sue Hughes; LeHouillier investigated but in 2010 decided not to pursue the malpractice claim and did not memorialize his withdrawal in writing.
- The medical-malpractice statute of limitations expired, and Gallegos sued LeHouillier for legal malpractice, alleging his failure to pursue the underlying claim caused her loss.
- At trial the jury found LeHouillier negligent and awarded damages to Gallegos; however the trial court required Gallegos to prove that any judgment she would have obtained against Dr. Hughes would have been collectible.
- The record contained no evidence that a judgment against Hughes would have been collectible (no proof of insurance or assets, and Hughes never responded to defense counsel’s letter).
- The Court of Appeals reversed and remanded: it concluded (1) there was no evidence of collectibility to support the judgment, and (2) the trial court erred in placing the burden on Gallegos — the defendant attorney must plead and prove uncollectibility as an affirmative defense on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears the burden to prove that a hypothetical judgment in the underlying case would have been collectible? | Gallegos: collectibility is an affirmative defense; LeHouillier must prove judgment would be uncollectible. | LeHouillier: collectibility is an element of Gallegos’s prima facie malpractice case; she must prove collectibility. | The court held collectibility is an affirmative defense the attorney must raise and prove. |
| Was there evidence that a judgment against Dr. Hughes would have been collectible? | Gallegos: circumstantial evidence (defense letter urging Hughes to contact insurer; statutory insurance requirement) permitted an inference of coverage. | LeHouillier: Gallegos presented no proof of insurance or assets; burden properly on her. | The court held the record lacked any evidence of collectibility; judgment cannot stand on that basis. |
| Effect of Lawson v. Sigfrid on burden allocation | Gallegos: Lawson supports treating collectibility as relevant but not allocating burden to plaintiff. | LeHouillier: Lawson and some authorities have been read to require plaintiff to prove collectibility. | The court concluded Lawson did not allocate the burden to the plaintiff; it only recognized collectibility’s relevance. |
| Remedy given erroneous burden allocation | Gallegos: despite erroneous instruction she offered enough evidence to prove collectibility. | LeHouillier: JNOV or directed verdict warranted because Gallegos failed to prove collectibility. | The court reversed the judgment and remanded for a new trial, instructing defendant to plead and prove uncollectibility if raised. |
Key Cases Cited
- Hopp & Flesch, LLC v. Backstreet, 123 P.3d 1176 (Colo. 2005) (legal malpractice requires breach of professional duty that proximately injures client)
- Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78 (Colo. 1999) (plaintiff must prove the "case within a case" — that underlying claim would have succeeded)
- Lawson v. Sigfrid, 262 P. 1018 (Colo. 1927) (recognizes collectibility of an underlying judgment is pertinent to malpractice but did not allocate burden of proof)
- Paterek v. Petersen & Ibold, 890 N.E.2d 316 (Ohio 2008) (majority-rule rationale: collectibility is tied to damages the plaintiff must prove)
- Schmidt v. Coogan, 335 P.3d 424 (Wash. 2014) (adopts minority view: attorney must prove uncollectibility as affirmative defense)
- Green v. Castle Concrete Co., 509 P.2d 588 (Colo. 1973) (absence of proof on an essential issue warrants reversal when record is devoid of evidence)