335 P.3d 424
Wash.2014Background
- Schmidt slipped in 1995 and hired Coogan to sue Grocery Outlet; wrong defendant named in 1998, suit dismissed as time-barred.
- Schmidt sued Coogan for negligence and breach of contract; 2003 trial awarded $32,000 past economic and $180,000 noneconomic damages.
- A new damages trial was ordered due to trial errors; appellate court later remanded on damages issues.
- Schmidt sought to amend to add outrage/reckless infliction of emotional distress in 2010; trial court denied.
- Coogan argued collectibility of the underlying judgment was required; jury awarded $83,733.16 plus interest; appellate court reversed on collectibility issue.
- Washington Supreme Court held: uncollectibility is an affirmative defense to be pleaded by the attorney; emotional distress damages are not available absent egregious conduct or a sensitive representation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is collectibility an element of legal malpractice? | Schmidt—collectibility relevant to damages; client must prove loss from uncollectible judgment. | Coogan—collectibility is an element of damages to prove loss from negligently lost claim. | Uncollectibility is an affirmative defense for the attorney to prove. |
| Are emotional distress damages available in legal malpractice claims? | Schmidt seeks emotional distress damages due to attorney’s conduct affecting her; damages should be broader. | Coogan asserts emotional distress damages are not available in standard legal malpractice cases. | Emotional distress damages available only if egregious conduct or sensitive/personal representation foreseeably causes distress. |
| Do the facts support emotional distress damages in this case? | Schmidt’s distress arising from malpractice could be compensable. | Coogan’s conduct was not egregious and the matter was not emotionally sensitive. | Damages limited to pecuniary loss; no emotional distress or attorney-fee recovery awarded. |
Key Cases Cited
- Ang v. Martin, 154 Wn.2d 477 (2005) (establishes elements; discuss collectibility relevance in damages)
- Hizey v. Carpenter, 119 Wn.2d 251 (1992) (duty, breach, and proximate causation in tort)
- Matson v. Weidenkopf, 101 Wn. App. 472 (2000) (measure of damages proximate to client’s loss)
- Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20 (Alaska 1998) (collectibility burden shifted to defendant in some jurisdictions)
- Price v. State, 114 Wn. App. 65 (2002) (preexisting relationship affects availability of emotional distress damages)
- Coventry Assocs. v. American States Ins. Co., 136 Wn.2d 269 (1998) (emotional distress considerations in insurer bad faith; related reasoning)
- Shoemake v. Ferrer, 168 Wn.2d 193 (2010) (attorney fees in malpractice not routinely recoverable)