The Doctors Company, App v. Bennett Bigelow & Leedom, P.s., Resp
72163-1
Wash. Ct. App.May 26, 2015Background
- TDC insured three medical defendants in a malpractice suit and retained Bennettt Bigelow & Leedom (BBL) to defend the insureds; BBL attorneys represented the insureds (not TDC) and did not obtain written conflict waivers.
- TDC communicated with BBL about conflicts and received legal input from BBL attorneys, but TDC did not assert below that a direct attorney–client relationship with BBL was formed.
- Expert opinion conflicts emerged (Dr. Manning’s views), prompting TDC to conclude BBL should withdraw; BBL withdrew six weeks before trial for an undisclosed conflict.
- The underlying malpractice action settled for amounts exceeding policy limits; TDC then sued BBL for malpractice among other theories.
- The trial court granted summary judgment for BBL, holding BBL owed no duty of care to TDC as a nonclient; TDC appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BBL owed TDC a duty as a direct attorney–client | TDC: it sought and received legal advice from BBL about conflicts, creating a direct attorney–client relationship | BBL: clients were the insureds; TDC never preserved a direct-client theory below | Not reviewed on appeal — TDC failed to preserve this theory in trial court |
| Whether Washington should adopt Restatement (Third) § 51 (duty to nonclients) | TDC: courts should adopt §51 to allow insurer malpractice claims against defense counsel | BBL: Washington Supreme Court already declined to adopt §51; Trask governs | Court declined to adopt §51 (followed Stewart Title rejection) |
| Whether BBL owed TDC a duty under Trask multifactor test | TDC: tripartite defense relationship and alignment of interests make insurer an intended beneficiary | BBL: insureds were the intended beneficiaries; alignment alone insufficient; no intent to benefit insurer | No duty — Trask’s first factor (intended beneficiary) not met; summary judgment affirmed |
| Whether alternative tort theories (e.g., negligent misrepresentation) were preserved | TDC: cited misrepresentations by BBL attorneys and later submitted authorities | BBL: such theories were not raised on summary judgment and not addressed by trial court | Not considered on appeal — negligent-misrepresentation theory not preserved below |
Key Cases Cited
- Trask v. Butler, 123 Wn.2d 835 (holding Washington’s multifactor test for attorney duty to nonclients)
- Stewart Title Guaranty Co. v. Sterling Sav. Bank, 178 Wn.2d 561 (rejecting adoption of Restatement § 51 and holding insurer must show intended-beneficiary status under Trask)
- Bohn v. Cody, 119 Wn.2d 357 (discussing privity and limits on malpractice liability)
- Clark County Fire Dist. No. 5 v. Bullivant Houser Bailey P.C., 180 Wn. App. 689 (applying Trask in insurance-defense context; insurer not intended beneficiary)