CUFFIE et al. v. ARMSTRONG et al.
A20A0072
In the Court of Appeals of Georgia
May 19, 2020
REESE, P. J., MARKLE and COLVIN, JJ. MARKLE, Judge.
FIFTH DIVISION. NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules).
We review a trial court‘s denial of a motion for reconsideration for abuse of discretion. Stephens v. Alan v. Mock Const. Co., 302 Ga. App. 280, 281 (1) (690 SE2d 225) (2010). “An abuse of discretion occurs where the trial court significantly misapplies the law or clearly errs in a material factual finding.” (Citation and punctuation omitted.) Postell v. Alfa Ins. Corp., 332 Ga. App. 22, 28 (2) (a) (iii) (772 SE2d 793) (2015). When considering a motion to dismiss, the trial court, and this Court, must construe the pleadings in the light most favorable to the plaintiff, and resolve any doubts in the plaintiff‘s favor. Bd. of Regents of Univ. System of Ga. v. Brooks, 324 Ga. App. 15, 15-16 (749 SE2d 23) (2013).
So viewed, the record shows that the accident occurred in early August 2009. Jarvis Gibson, the driver of one of the cars involved in the accident, was charged with various driving violations based on the accident. A few days after the accident, Armstrong hired Cuffie, and she signed a written contract for representation.1
In January 2010, Cuffie received a letter from State Farm regarding underinsured motorist (“UM“) coverage under the Armstrong‘s policy. Neither Cuffie nor anyone else from the Cuffie Firm followed up on the UM coverage or presented a UM claim to State Farm.
On March 2, 2010, the Cuffie Firm filed a wrongful death and personal injury suit against Gibson and the others involved in the accident, and their respective insurance companies and employers: RLI Insurance Company, Milan Express Company, Raymond Smith, Patrick Riley, and United Road Services. On November 2, 2011, a jury acquitted Gibson of all criminal charges arising from the accident.
In March 2015, Armstrong‘s husband‘s employer, Siemens Corporation, sued Armstrong to collect on an ERISA lien that had been filed against her for medical bills related to her own injuries. Armstrong ultimately settled the lien for $84,885.29, which was more than the original lien, and she incurred significant attorney fees in defending the ERISA suit.
In 2017, Armstrong filed suit for legal malpractice against the Cuffie Firm. She voluntarily dismissed that action and then timely filed the instant renewal action, alleging breach of contract and breach of fiduciary duty arising from the failure to seek UM coverage or to advise her about the ERISA lien.2 She also sought attorney fees under
The Cuffie Firm filed its answer and counterclaim, and moved to dismiss the complaint as barred by the applicable statute of limitations. Relying on
The trial court denied the motion to dismiss, summarily finding that the claims were timely filed. The Cuffie Firm moved for reconsideration, which the trial court also denied, and the Cuffie Firm then requested and received a certificate of immediate review. We granted the application for interlocutory review, and this appeal followed.
1.
The Cuffie Firm first argues that the trial court erred in denying its motion to dismiss the malpractice claims arising from its alleged failure to seek UM coverage because the complaint was untimely and not subject to the tolling provisions of
“Whether a cause of action is barred by the statute of limitation generally is a mixed question of law and fact, but the question is one of law for the court when the facts are not disputed.” Harrison v. McAfee, 338 Ga. App. 393, 395 (2) (788 SE2d 872) (2016).3
In Georgia, “an action for attorney malpractice accrues and the period of limitations begins to run, from the date of the attorney‘s breach of duty, that is, from the date of the alleged negligent or unskillful act.” (Punctuation omitted.) Royal v. Harrington, 194 Ga. App. 457, 457-458 (390 SE2d 668) (1990). When a person injured in a car accident learns after bringing an action that the vehicle involved was uninsured or underinsured,
Here, Armstrong alleged, and the record showed, that the Cuffie Firm knew or should have known in January 2010 that a potential claim for UM coverage existed against State Farm. And this information preceded the filing of the wrongful death suit in March 2010. Thus, under
Armstrong contends, however, that the statute of limitations was tolled under
But Armstrong‘s interpretation misapplies
[t]he running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated[.]
(Emphasis supplied.)
Our analysis here is guided by basic principles of statutory construction. When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. (Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013). “It is well settled that where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” (Citation and punctuation omitted.) Norred v. Teaver, 320 Ga. App. 508, 512 (740 SE2d 251) (2013).
The plain language of
Therefore, Armstrong‘s suit for legal malpractice based on the failure to recover UM benefits was time barred because it was filed more than four years after the alleged malpractice occurred, and
2.
The Cuffie Firm next argues that the trial court erred in denying its motion to dismiss the claims arising from its alleged failure to advise Armstrong of the ERISA lien because this claim was also untimely. We are not persuaded.
In her complaint, Armstrong alleged that the Cuffie Firm failed to advise her that she would be held responsible for the ERISA lien arising from her own injuries, and this resulted in her having to settle the lien with Siemens Corporation for more than the original lien was worth and to incur substantial attorney fees. The Cuffie Firm argues that this claim accrued on May 21, 2013, when Armstrong signed the settlement closing statement. See Villani v. Hughes, 279 Ga. App. 618, 619 (3) (631 SE2d 709) (2006) (“The statute of limitation for legal malpractice is triggered immediately upon the commission of the wrongful act.“) (punctuation omitted). Thus, it argues that the complaint, filed in July 2017, was outside the four-year limitations period.
The closing statement provided:
It is expressly understood, as my Attorney explained, that any outstanding bill(s) for medical services provided to my husband, Joseph Johnson, presently known or unknown, that may be due and payable, are the responsibility of the Estate. He further advised that if I do not compensate or reach an agreement with providers/facilities or payers (i.e., Medicare or other(s)) of the services provided, the Estate may be sued.
(Emphasis supplied.) Notably, nothing in this statement addresses Armstrong‘s own medical expenses. Moreover, in her complaint, Armstrong alleged that the Cuffie Firm told her that the lien would be “handled” and she did not learn it had not been until she was sued to collect on it. Thus, the date on which this claim accrued remains in dispute. And, because this was before the trial court on a motion to dismiss, “the trial court must construe all allegations and all evidence most favorably to the respondent, and thereupon must determine whether, under any state of facts, the plaintiffs have stated a claim on which relief can be granted.” (Citation and emphasis omitted.) Wright v. Swint, 224 Ga. App. 417, 418-419 (1) (480 SE2d 878) (1997). Because it is possible that Armstrong could show that this claim accrued within the applicable limitations period, the trial court properly denied the motion to dismiss this claim.
3.
Finally, although the parties do not address the claim for attorney fees under
Accordingly, the trial court erred when it failed to dismiss the claims arising from the alleged failure to obtain UM benefits, and we reverse the trial court‘s order on this claim. The trial court‘s denial of the motion to dismiss arising from the alleged failure to advise Armstrong of the ERISA lien and for attorney fees is affirmed.
Judgment affirmed in part; reversed in part. Reese, P. J., and Colvin, J., concur.
Notes
A statute of limitation has as its purpose the limiting of the time period in which an action may be brought, thereby providing a date certain after which potential defendants can no longer be held liable for claims brought on such actions. Prescribing periods of limitation is a legislative, not a judicial, function. We have described a statute of limitation as a rule limiting the time in which a party may bring an action for a right which has already accrued. Statutes of limitation are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The expiration of the statute of limitation may be raised as a defense to an action.
(Citations and punctuation omitted). Dept. of Pub. Safety v. Ragsdale, __ Ga. __ (839 SE2d 541, 543) (2020).