Thorsen v. Richmond Soc'y for the Prevention of Cruelty to Animals
292 Va. 257
Va.2016Background
- In 2003 testator Alice Dumville hired attorney James Thorsen to draft a will leaving her entire estate to her mother, and if the mother predeceased her, to the Richmond Society for the Prevention of Cruelty to Animals (RSPCA).
- Thorsen prepared the will; Dumville executed it. Due to a drafting error, the will as written gave only tangible personal property to the RSPCA, while other assets passed to heirs at law.
- After Dumville died in 2008 (her mother having predeceased her), the RSPCA received only the tangible estate (~$72,000) rather than the intended residuary (~$675,000).
- The RSPCA sued Thorsen for breach of contract/professional negligence as an intended third-party beneficiary of the attorney-client contract; Thorsen demurred and pleaded the statute of limitations.
- Trial court found Thorsen admitted he failed to implement Dumville’s intent and entered judgment for the RSPCA for damages; Thorsen appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Code § 55-22 (third-party beneficiary statute) requires a written contract | RSPCA proceeded under common law third-party beneficiary theory; statute not essential | Thorsen: §55-22 applies only to written "instruments," so oral contract claims barred | Court: §55-22 applies to written instruments but does not abolish common-law third-party beneficiary claims on oral contracts; demurrer properly overruled |
| Whether RSPCA (nonclient) has standing to sue attorney for malpractice as an intended third-party beneficiary | RSPCA: Dumville and Thorsen clearly and definitely intended RSPCA to benefit; contract created duty to RSPCA | Thorsen: strict privity to attorney-client relationship bars nonclient malpractice claims | Court: Virginia recognizes narrow third-party beneficiary claims against attorneys where the contract clearly intends to benefit the nonclient; RSPCA pleaded sufficient facts and has standing |
| Whether contingent or residuary beneficiaries can be "clearly and definitely intended" third-party beneficiaries as a matter of law | RSPCA: named residuary contingent beneficiary can be intended beneficiary depending on facts | Thorsen: contingent/residuary beneficiaries cannot be definitely intended as matter of law | Court: No per se rule; residuary and contingent beneficiaries may be third-party beneficiaries; factual inquiry required |
| Whether statute of limitations barred the claim | RSPCA: cause of action accrues at testator's death (no injury before death), so claim timely | Thorsen: breach (and accrual) occurred when will was drafted in 2003; limitations ran in 2006 | Court: Cause of action for a testamentary beneficiary accrues at testator's death; plea in bar denied |
Key Cases Cited
- Copenhaver v. Rogers, 238 Va. 361 (Va. 1989) (third-party beneficiary test: plaintiff must be a "clearly and definitely intended" beneficiary of the contract between client and lawyer)
- Ward v. Ernst & Young, 246 Va. 317 (Va. 1993) (privity may be satisfied by showing third-party beneficiary status)
- Johnson v. Hart, 279 Va. 617 (Va. 2010) (discusses standing and assignment limits in malpractice claims; distinguished here)
- MacLellan v. Throckmorton, 235 Va. 341 (Va. 1988) (statute of limitations for attorney services runs when representation for that undertaking is completed)
- Oleyar v. Kerr, 217 Va. 88 (Va. 1976) (legal malpractice actions sound in contract in Virginia)
- Van Dam v. Gay, 280 Va. 457 (Va. 2010) (cause of action accrual principles; beneficiaries have only bare expectancy until testator's death)
- National Sav. Bank v. Ward, 100 U.S. 195 (U.S. 1880) (general rule that attorney's obligations run to client, not third parties)
- Lucas v. Hamm, 56 Cal.2d 583 (Cal. 1961) (recognizes malpractice claim by intended beneficiaries of will drafting)