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Legal malpractice suit in Maryland settled after federal judge let

Daily Record, The (Baltimore), Jul 11, 2006 by Ann W. Parks

A law firm whose client chose to take her motor tort suit elsewhere 10 weeks before Maryland's statute of limitations expired was not entitled to summary judgment in a legal malpractice case based on the firm's failure to file a timely suit in Pennsylvania, a federal judge in Baltimore has held.

Plaintiff Michelle E. Norton's decision to go with the Baltimore County firm of Lebowitz & Mzhen instead of her initial choice, The Sperling Law Office P.C., also of Baltimore County, did not interrupt the chain of causation in her malpractice suit against Sperling.

Such an interruption occurs only when the later-retained attorney had enough time to right the wrong committed by the client's previous attorney, U.S. District Judge J. Frederick Motz wrote.

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In this case, the second law firm did not have enough time to determine whether the tort suit - stemming from a Pennsylvania car accident involving two Pennsylvania residents - could have been validly filed in Maryland, the judge ruled.

Here - Lebowitz could not reasonably have been expected to ascertain in ten weeks that Maryland was a proper forum, Motz wrote.

Robert W. Hesselbacher Jr., who represented the Sperling firm, said 10 weeks should have been sufficient for the new counsel to investigate the motor tort defendant's ties to Maryland and to file suit here.

There are many decisions in our country holding that if successor counsel has an opportunity to file suit before the statute of limitations has passed, it breaks the chain of causation, Hesselbacher said. This case had a little different wrinkle, where there were two states involved.

Motz's ruling was made in February but issued last week as a published opinion, giving it value as precedent. In the interim, the suit between Norton and the Sperling firm has settled; Hesselbacher declined to disclose the terms of that settlement.

Mason-Dixon line

On July 16, 2002, Norton, who lived in Pennsylvania and worked in Maryland, was involved in an automobile accident with Kyle Evans, who also lived in Pennsylvania and worked in Maryland. The accident occurred in Pennsylvania, just north of the Maryland state line.

Norton retained the Sperling firm to represent her in a tort suit against Evans but, according to the opinion, Sperling did not file a complaint in Pennsylvania before July 16, 2004. Pennsylvania generally has a two-year limitations period for tort suits; Maryland has a three-year limit.

In May 2005, Norton consulted Lebowitz & Mzhen, which informed her that the statute of limitations period in Pennsylvania had expired. Norton then dropped Sperling, hired Lebowitz and sued Sperling for malpractice.

Neither the Sperling nor Lebowitz firms attempted to file a motor tort complaint in Maryland before the July 2005 statute of limitations expired here.

In a motion for summary judgment in the malpractice case, Sperling contended that the motor tort defendant, Evans, could have been sued in Maryland. The Lebowitz firm's failure to file a complaint here, it claimed, precluded any damage from Sperling's failure to file suit in Pennsylvania.

Motz disagreed. To have substantial justification for bringing a case, the judge noted, the litigant's position must be within the realm of legitimate advocacy under Maryland Rule 1-341.

In order for Lebowitz to have filed suit in Maryland without running afoul of Rule 1-341, and in accordance with its professional obligations, it needed enough facts to make a legitimate claim that Evans had 'continuous and systematic contacts' with the state to justify the exercise of general personal jurisdiction over the tort defendant, Motz wrote.

The only information the Lebowitz firm received was the accident report and the name of Evans' insurer, the judge noted.

He rejected Sperling's argument that Lebowitz could have gleaned any Maryland connection from the fact that the accident occurred between northbound vehicles just above the Pennsylvania line in the early evening of a workday.

That argument borders on frivolous, Motz wrote. Nothing about the time or location of the accident remotely suggests the continuous and systematic contacts with Maryland necessary to hale a Pennsylvania resident into a Maryland court.

Motz noted that Sperling itself had not investigated initially whether Evans had any ties to Maryland. And it was not reasonable, the judge wrote, for Lebowitz to either go digging to unearth Evans' complete background or to contact Evans personally.

Leonard J. Sperling declined to comment on the case; Jack David Lebowitz did not return a call for comment before press time.

WHAT THE COURT HELD

Case:

Norton v. The Sperling Law Office, P.C., et al., USDMD 05-1478, Opinion by Motz, J. Decided Feb. 24, 2006; published July 5, 2006.

Issue:

Was a Maryland law firm entitled to summary judgment in a legal malpractice case alleging it failed to timely file a motor tort case in Pennsylvania, where the client retained new counsel which did not file the motor tort suit in Maryland within Maryland's longer statute of limitations?

Legal malpractice suit in Maryland settled after federal judge let

Daily Record, The (Baltimore), Jul 11, 2006 by Ann W. Parks

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