Lehouillier v. Gallegos, 2019 CO 8

Background

Della Gallegos retained attorney Patric LeHouillier to sue her radiologist, Dr. Steven Hughes, for failing to diagnose a brain tumor in 2006 that later required invasive surgeries and caused lasting injuries.
LeHouillier sent a 2010 letter to Dr. Hughes’ insurer but later decided not to pursue the malpractice suit; Gallegos alleges she was not informed and the statute of limitations then expired on the medical-malpractice claim.
Gallegos sued LeHouillier for legal malpractice, claiming his negligence caused loss of the underlying judgment she otherwise would have obtained against Dr. Hughes.
At trial Gallegos introduced the letter but offered no direct evidence that Dr. Hughes had insurance or other assets making a judgment collectible; the jury awarded over $1.6 million.
The court of appeals reversed, holding collectibility is an affirmative defense for the attorney to prove; the Colorado Supreme Court granted certiorari to decide which party bears the burden to prove collectibility.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Who bears the burden to prove whether an underlying judgment would have been collectible in an attorney-malpractice claim?	Gallegos: plaintiff need not prove collectibility; defendant should raise uncollectibility as an affirmative defense.	LeHouillier: plaintiff must prove collectibility as part of proving causation and damages.	Colorado Supreme Court: plaintiff bears the burden to prove collectibility because it is integral to causation and damages in negligence.
Whether Lawson v. Sigfrid allocated the burden of proving collectibility to plaintiffs	Gallegos relied on interpretations saying Lawson placed burden on plaintiff.	LeHouillier argued Lawson did not decide burden allocation.	Court: Lawson recognized collectibility matters but did not allocate the burden; it did not resolve this question.
Whether treating collectibility as affirmative defense is appropriate	Gallegos: shifting burden to defendant avoids unfairness since defendant is better positioned to prove insolvency.	LeHouillier: affirmative-defense approach contradicts tort law by forcing defendant to disprove plaintiff’s causation and damages.	Court: treating uncollectibility as affirmative defense is illogical; it would require defendant to negate essential elements of plaintiff’s prima facie case.
Whether Gallegos proved collectibility in this case	Gallegos pointed to letter and statutory duty of physicians to carry liability insurance.	LeHouillier highlighted absence of evidence that Dr. Hughes actually had coverage or assets.	Court: Gallegos failed to prove collectibility; remanded for new trial because burden allocation was not clear at trial and issue surfaced after plaintiff rested.

Key Cases Cited

Lawson v. Sigfrid, 262 P. 1018 (Colo. 1927) (early Colorado decision recognizing insolvency of underlying defendant defeats malpractice damages but did not allocate burden of proof)
Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78 (Colo. 1999) (requires plaintiff to prove the “case within a case” in legal malpractice)
Hopp & Flesch, LLC v. Backstreet, 123 P.3d 1176 (Colo. 2005) (discusses elements of attorney professional‑negligence claims)
Schmidt v. Coogan, 335 P.3d 424 (Wash. 2014) (collectibility linked to causation and damages; majority treating plaintiff burden aligns with tort law)
Klump v. Duffus, 71 F.3d 1368 (7th Cir. 1995) (collectibility requirement prevents speculative or windfall damages in malpractice actions)
Paterek v. Petersen & Ibold, 890 N.E.2d 316 (Ohio 2008) (discusses burden and logical link between collectibility and plaintiff’s damages)