Pamela Sue Hook v. Tito Trevino, Individually, and Tito Trevino D/B/A Trevino Law Offices
839 N.W.2d 434
| Iowa | 2013Background
- Pamela Hook was injured in a 2000 auto collision; she hired attorney Tito Trevino on a contingent-fee basis to sue the driver, Carl Lippolt.
- Trevino filed suit only against Lippolt; Lippolt later disclosed he was a volunteer driver for the Iowa Department of Human Services and invoked Iowa’s volunteer-immunity statute (Iowa Code § 669.24).
- The Iowa Supreme Court in Hook v. Lippolt held Lippolt personally immune and that Hook’s tort claim against the State was time-barred; Hook then sued Trevino for legal malpractice (filed 2010), alleging failure to identify/ sue the state and to timely pursue an administrative claim.
- A jury found Trevino negligent and awarded damages totaling $473,000 (including stipulated medicals); the district court entered judgment and awarded interest from the malpractice filing date; it denied Trevino’s request to set off the contingent fee and denied Hook additional prejudgment interest.
- On appeal the Iowa Supreme Court addressed three issues of first impression: (1) whether a volunteer’s personal immunity bars a respondeat superior claim against the State, (2) whether the negligent lawyer’s contingent fee should be set off from malpractice damages, and (3) the proper accrual date for interest on the malpractice judgment.
Issues
| Issue | Plaintiff's Argument (Hook) | Defendant's Argument (Trevino) | Held |
|---|---|---|---|
| Whether volunteer immunity for the agent bars respondeat superior liability of the State | Volunteer immunity is personal to the volunteer and should not bar the State’s vicarious liability | Volunteer immunity should extend to the State and preclude a timely respondeat superior claim | Volunteer immunity is personal to the volunteer and does not extend to the State; State can be vicariously liable for volunteer negligence |
| Whether Trevino’s contingent fee should be deducted from malpractice damages | No—deduction would credit Trevino for a fee he never earned and would leave Hook worse off after paying replacement counsel | Yes—malpractice damages should reflect the plaintiff’s net recovery in the underlying case (deduct contingent fee) | Denied setoff; Court adopts majority/Restatement (Third) approach: do not deduct contingent fee the negligent lawyer never earned |
| Whether Trevino may obtain a quantum meruit offset for services performed | N/A (Hook opposes any deduction) | Alternatively, Trevino seeks offset by reasonable value of services (quantum meruit) | Court leaves open possibility but denies on this record for lack of proof of value or benefit; no quantum meruit offset awarded |
| Proper accrual date for interest on malpractice judgment | Interest should run from the date the underlying action would have been tried/ gone to judgment (i.e., when damages became complete) | Interest should run from the malpractice filing date or judgment in malpractice case; no hypothetical prior judgment exists | Malpractice plaintiff recovers the interest she would have obtained in the underlying tort action; interest here accrues from December 9, 2004 (court’s estimate of when underlying case would have been tried) |
Key Cases Cited
- Hook v. Lippolt, 755 N.W.2d 514 (Iowa 2008) (prior decision dismissing underlying tort claims on immunity and statute-of-limitations grounds)
- Sladek v. K Mart Corp., 493 N.W.2d 838 (Iowa 1992) (measure of legal malpractice damages is to make client whole)
- Opperman v. Allied Mut. Ins. Co., 652 N.W.2d 139 (Iowa 2002) (insurer liable for interest from date original tort action was filed because UIM measure mirrors underlying tort recovery)
- Wilson v. Farm Bureau Mut. Ins. Co., 770 N.W.2d 324 (Iowa 2009) (applied Opperman rule for accrual of prejudgment interest in UIM context)
- Smith v. CRST Int’l, Inc., 553 N.W.2d 890 (Iowa 1996) (vicarious liability statutes focus on agent’s negligence, not agent’s immunity or liability)
- Estate of Dean ex rel. Dean v. Air Exec, Inc., 534 N.W.2d 103 (Iowa 1995) (statutory immunity personal to agent does not necessarily bar owner’s vicarious liability)
- Peppmeier v. Murphy, 708 N.W.2d 57 (Iowa 2005) (adjudication that agent was not negligent can preclude vicarious-liability claims)
- Kulish v. Ellsworth, 566 N.W.2d 885 (Iowa 1997) (governmental immunity analysis and interplay with vicarious liability)
- Campagnola v. Mulholland, Minion & Roe, 555 N.E.2d 611 (N.Y. 1990) (rejecting contingent-fee deduction in malpractice damages)
- Shoemake v. Ferrer, 225 P.3d 990 (Wash. 2010) (adopting Restatement (Third) approach: do not deduct negligent lawyer’s contingent fee)