Little v. MiddletonLittle v. Middleton
Appellee-defendants entered into a written agreement to provide legal representation to appellant-plaintiff “for the purpose of investigation and bringing suit against BETTY GIVENS CHAPMAN for certain damages and injuries sustained by [appellant] on July 2, 1986 as a result of BETTY GIVENS CHAPMAN running into the rear of the automobile ... in which [appellant] was a passenger. . . .” Eventually, appellant agreed to settle her tort claim for the full $25,000 policy limits of Chapman’s automobile liability insurance coverage and, in connection with this settlement, she signed a written release of “Susan Y. Chapman and Betty Chapman, their heirs, executors, administrators, agents and assigns,
and all other persons, firms or corporations liable or who might be claimed to be liable, . . .
from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which
When appellant’s own insurer thereafter based its refusal to pay her claim for uninsured motorist (UM) benefits upon her execution of the release, she brought this legal malpractice action against appellees. Appellant’s complaint alleged, in material part, that appellees’ “acts and omissions ... in failing to obtain and review [her] own automobile insurance policy, ... to inform and advise [her] of the potential effect of the general release upon her anticipated claims for UM benefits, ... to file suit and obtain a judgment, ... to obtain the consent of the UM insurance carriers to any settlement, and . . . to preserve [her] ability to properly present her UM claim, all constituted the performance of legal services in a manner far below the standard of skill, care and diligence normally possessed and utilized by other attorneys who represent clients in personal injury cases under the same or similar circumstances.”
After discovery, cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of appellees and denied appellant’s motion. Appellant appeals from the trial court’s order on the cross-motions for summary judgment.
1. The trial court did not indicate the reason for its grant of summary judgment in favor of appellees. However, appellees’ motion relied exclusively upon the holding of
Berman v. Rubin,
The decision in
Berman
assumed the attorney’s negligence but nevertheless held that there could be no recovery since the client must read what he signs and becomes bound thereby. However,
“Berman
itself recognized . . . that its holding was a limited one and that the court’s ‘decision should not be read to state or imply that an attorney may not be held responsible for his negligent draftsmanship whenever the client can or does read the document. Indeed, where the
The attorney’s alleged negligence in
Berman
related only to a
factual
issue. Despite the fact that the agreement that the client read and signed clearly and unambiguously provided that he had a specific financial obligation to
each
of his children
and
to his wife, he maintained that the extent of his financial obligations had been misrepresented to him by his attorney. Unlike
Berman,
the alleged negligence attributed to appellees in the instant case does
not
relate so much to a factual issue as it does to the
legal effect
of the release that appellant signed. Appellant maintains that appellees were negligent in their representation because the release inured to the benefit of her UM carrier. There are perhaps few areas of Georgia law in which legal expertise and precision are more crucial than in the negotiation and execution of releases. See generally
Posey v. Medical Center-West,
2. Appellees’ further contention that their motion for summary judgment was properly granted because, pursuant to the terms of the retainer agreement, they undertook to represent appellant only as to her claim against Chapman and not as to her claim for UM benefits is without merit. Appellees contracted to investigate and to bring suit against Chapman. Appellant’s own UM coverage was a potential source of satisfaction of any recovery by her against Chapman. A determination of the potential sources of satisfaction in a given case may require, and indeed often does require, the professional services of an attorney. A layman, even though aware of his tort remedy, may not have the requisite legal knowledge as to his contractual rights and thus may be unable to appreciate the full range of the possible adverse consequences of executing a general settlement agreement with the tortfeasor. In the instant case, appellant’s expert has averred that the applicable standard of care required that appellees inquire into and then pursue alternate sources of satisfaction of appellant’s potential recovery against Chapman, specifically appellant’s entitlement to UM benefits, and that appellees’ failure to do so was legal malpractice. The essence of appellees’ contention is that the terms of their retainer agreement relieve them from liability for that alleged negligence. An attorney may not relieve himself by contract of the duty to exercise reasonable care and an attempt to do so is void as against public policy. See
Emory Univ. v. Porubiansky,
3. As previously noted, “[Reasonable minds could disagree as to whether [the release] in the instant case did require a legal knowledge or explanation to become clear to a layman . . . and whether the attorney’s [failure to inform appellant fully] as to the effect of [the release] constituted the proximate cause of appellant’s injury. [Cit.]” Kushner v. McLarty, supra at 403 (1). It follows that the trial court erroneously granted summary judgment in favor of appellees but correctly denied appellant’s motion for summary judgment.
Judgment affirmed in part and reversed in part.