Shan Wolfe v. Joe Kimmel
2020 CA 001480
| Ky. Ct. App. | Dec 2, 2021Background
- Wolfe and Lampley formed GenCare, Inc.; Wolfe received legal advice from Attorney Joe Kimmel (~April 2016) about leaving and forming a competing business (Legacy) and taking clients/employees.
- Wolfe began operating Legacy in late July 2016 and then resigned as a GenCare officer; Lampley/GenCare sued Wolfe, Legacy, and employees on August 19, 2016.
- Kimmel referred Wolfe to Attorney Todd Farmer; Wolfe alleges Farmer immediately told her Kimmel’s advice was incorrect and that she could not take clients or employees.
- Wolfe settled the GenCare suit on July 17, 2017.
- Wolfe filed a legal malpractice complaint against Kimmel on February 14, 2018; Kimmel moved for summary judgment arguing the one-year statute of limitations (KRS 413.245) had expired; the trial court granted summary judgment and Wolfe appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the one-year statute of limitations for legal malpractice accrue where attorney advice leads to subsequent litigation? | Wolfe: SOL does not run until legal harm is "fixed and non-speculative," i.e., after the subsequent litigation is resolved. | Kimmel: SOL accrues when the negligent act and resulting damages are reasonably ascertainable (here, by August 2016). | Accrual occurred by August 2016 when Wolfe was informed by Farmer and the GenCare suit was filed; malpractice suit (filed Feb 2018) was time-barred. |
| Must damages be specified as a dollar amount or must plaintiff await settlement before filing malpractice claim? | Wolfe: Damages were speculative until the underlying suit resolved; therefore claim not ripe until settlement. | Kimmel: No dollar-amount certainty is required; accrual when it is reasonably ascertainable that damages will flow. | Court: Damages need not be quantified; statute begins when damages are reasonably ascertainable, not upon final settlement. |
Key Cases Cited
- Alagia Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121 (Ky. 1994) (where damages were speculative, statute did not run until the IRS claim was resolved)
- Michels v. Sklavos, 869 S.W.2d 728 (Ky. 1994) (KRS 413.245 contains both occurrence and discovery limitations)
- Pedigo v. Breen, 169 S.W.3d 831 (Ky. 2004) (damage has occurred once it is certain damages will flow from negligence)
- Matherly Land Surveying, Inc. v. Gardiner Park Dev., LLC, 230 S.W.3d 586 (Ky. 2007) (statute begins running once potential damages are apparent)
- Saalwaechter v. Carroll, 525 S.W.3d 100 (Ky. App. 2017) (statute of limitations may commence before conclusion of subsequent litigation once injury is irrevocable/non-speculative)
- Doe v. Golden & Walters, PLLC, 173 S.W.3d 260 (Ky. App. 2005) (discussed but distinguished on the question of when damages must be fixed)
- Bd. of Educ. of Estill County v. Zurich Ins. Co., 180 F. Supp. 2d 890 (E.D. Ky. 2002) (interpreting Kentucky law: "fixed and non-speculative" does not require a specific dollar amount to trigger limitations)