Opinion
15-P-1257
03-20-2017
Emma LAHEY & others v. AIKEN & AIKEN, P.C., & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Emma Lahey and her parents, William Lahey and Janet Lahey, brought suit in Superior Court against the defendants, a law firm, Aiken & Aiken, P.C., and attorneys Paul Aiken and Steven Aiken, alleging legal malpractice. The plaintiffs complained that the dismissal of their suit against the town of Barnstable (town) resulted from the defendants' negligence in failing to (1) execute a written presentment to the town pursuant to G. L. c. 258, § 4, (2) advise them of the requirement to make written presentment to the town, and (3) properly investigate their claims against the town. Concluding that the plaintiffs failed to demonstrate the loss of a viable claim against the town, the judge entered summary judgment in favor of the defendants. We affirm.
1. Background . The plaintiffs retained the defendants in January, 2008, to represent them in their claims of negligence and loss of consortium arising from a March 16, 2007, collision between a vehicle operated by Emma and a vehicle operated by a town employee. Emma provided the defendants with a police incident report and the first name of a potential witness. There were no photographs of the accident scene, and Emma had no recollection of the accident herself. In March, 2008, after several unsuccessful attempts to reach the plaintiffs, the defendants closed their file. In their closing communication to the plaintiffs, the defendants advised the plaintiffs that they had three years from the date of the accident to file suit, but did not notify the plaintiffs of their obligation to make written presentment of their claims to the town's executive officer within two years of the accident date. The defendants' failure to either make presentment to the town or notify the plaintiffs of their obligation to make such timely presentment forms the crux of the plaintiffs' legal malpractice claim.
Discussion . We review a grant of summary judgment de novo, to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc . v. Liberty Mut. Ins. Co ., 410 Mass. 117, 120 (1991). In doing so, "[w]e may consider any ground supporting the judgment." Ibid . To prevail in a legal malpractice case, a plaintiff must establish (1) the existence of an attorney-client relationship, (2) a breach of the relevant standard of care, (3) a causal connection, and (4) damages. Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C ., 25 Mass. App. Ct. 107, 111 (1987). We focus our discussion, as did the judge, on the element of causation.
To satisfy the element of causation, a plaintiff must demonstrate that but for the attorney's negligence she "probably would have been successful in the prosecution of the litigation giving rise to the malpractice claim." Id . at 113. "This is what brings about the ‘trial within a trial,’ see Fishman v. Brooks , 396 Mass. 643, 647 (1986), wherein the fact finder determines what the result of the underlying case would probably have been had the attorney not been negligent." Frullo v. Landenberger , 61 Mass. App. Ct. 814, 818 (2004).
The defendants do not dispute that they neither executed a written presentment to the town nor advised the plaintiffs of their obligation to make such presentment to the executive officer of the town within two years from the date of the accident. See G. L. c. 258, § 4. Nevertheless, the defendants contend that the plaintiffs' legal malpractice fails under two alternative theories.
First, the defendants claim that on the basis of a letter that the plaintiffs' insurance carrier sent to the town, the plaintiffs reasonably could have, but did not, defend against the town's motion to dismiss Emma's complaint against the town. See note 3, infra . The defendants argue, therefore, that it was the plaintiffs' own conduct that was the proximate cause of the dismissal of Emma's lawsuit against the town. The defendants next argue that they cannot be held liable for the dismissal of claims that had no probability of success. They contend that the plaintiffs are unable to demonstrate that the town's vehicle was operated negligently.
1. The town's motion to dismiss . In a letter dated February 23, 2009, the plaintiffs' insurance carrier notified the town of the nature of the plaintiffs' claims. The insurance carrier also informed the plaintiffs that, between the plaintiffs and the carrier, only one claim could be brought against the town. Consequently, the insurance carrier inquired of the plaintiffs whether they intended to file suit. Then, in December, 2009, the insurance carrier notified the plaintiffs that it did not intend to pursue any claims against the town and, on March 16, 2010, Emma filed suit against the town.
The record indicates that only Emma brought suit against the town, alleging negligent training of the driver of the vehicle that hit her, and negligent operation of a town vehicle. William's and Janet's suit against the town for loss of consortium would have derived from Emma's negligence claim.
The town moved to dismiss Emma's complaint, asserting as grounds, Emma's failure to make written presentment of her claims pursuant to G. L. c. 258, § 4. Emma did not oppose the town's motion to dismiss on the basis that the town was on notice as to the nature of her claims as a result of the February 23, 2009, communication from the plaintiffs' insurance carrier. Given that Emma had a reasonable basis on which she could have opposed the motion to dismiss but did not do so, we do not see how it is the defendants' conduct that proximately caused the dismissal of Emma's complaint against the town. See Colucci , supra at 111; Baghdady v. Lubin & Meyer, P.C ., 55 Mass. App. Ct. 316, 321 (2002).
2. Success of the negligence claims . Moreover, even assuming that the insurance carrier's letter dated February 23, 2009, could not be properly characterized for purposes of the statute as written presentment by the plaintiffs, the plaintiffs have, nevertheless, failed to demonstrate their probable success on the merits of their claims against the town. The record here is devoid of any evidence of negligent operation by the driver of the town's vehicle. See generally Bernal v. Weitz , 54 Mass. App. Ct. 394, 396 (2002) ("Plaintiffs have the burden of proving every element of their negligence claim"). There is no evidence that he was speeding, driving erratically, or failed to take appropriate action to avoid the collision.
According to the police report, Emma's vehicle (Jeep) first collided with another vehicle (Dodge). "[The] Town of Barnstable ... vehicle.... was struck following th[at] initial head on collision"; "icy road conditions likely factored into the accident." An independent witness reported that she "did not feel that any vehicle was driving erratically or out of control." According to the town vehicle operator, "he was traveling behind [the Dodge] and observed both vehicles spinning out of control. [H]e attempted to swerve to the right to avoid any collision, but was unable to avoid colli[ding] with the Jeep." Emma, who had no memory of the accident, did not offer a contrary statement about the accident. Rather, the plaintiffs suggest that for the collision to have occurred, the driver of the town vehicle was either speeding or driving too closely behind the Dodge in front of him. However, nothing in the record supports such an inference. The record is silent as to the town vehicle's rate of speed or its distance from the vehicle in front of it, see Colucci , 25 Mass. App. Ct. at 113, and we cannot infer a vehicle's speed solely from the extent of damage the vehicle has sustained. Compare Lenehan v. Travers , 288 Mass. 156, 159 (1934) ("The damage to the [plaintiff's] car and the speed necessary to produce it were not matters within the ordinary experience and knowledge of men in general, and expert testimony was competent to aid in determining the speed of the motor vehicles, since that question was important to be considered"). We are also unpersuaded by the plaintiffs' bald assertion that the operator of the town vehicle could have avoided the collision by swerving to the right, as the record is uncontroverted that he did swerve to the right but was unable to avoid colliding with Emma's vehicle nonetheless.
The plaintiffs complain that the judge improperly excluded the reports of several experts because the reports did not comply with the applicable rules of civil procedure. However, even if the technical deficiencies could have been properly corrected, the expert reports here suffered from substantive deficiencies, as they were based on speculative assumptions. See Grassi Design Group, Inc . v. Bank of America, N.A ., 74 Mass. App. Ct. 456, 461-462 (2009).
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The plaintiffs claim also that the accident was caused by the town's failure to properly train the driver. This assertion is equally unavailing. Even if the town vehicle's driver was poorly trained, the plaintiffs have failed to demonstrate how better training could have assisted the driver in avoiding the collision. Put another way, there is no evidence that there was anything the driver could have done differently to avoid colliding with Emma's vehicle. See Franchi v. Stella , 42 Mass. App. Ct. 251, 255 (1997) ("it is elementary that a tort claimant must prove that the injury for which the claimant seeks compensation more likely than not was the consequence of the defendant's negligence; or, in the familiar language of the law, the negligence must have been the proximate cause of the harm"). See also O'Connor v. SmithKline Bio-Science Labs ., 36 Mass. App. Ct. 360, 363 (1994). Because the plaintiffs cannot demonstrate on this record that they probably would have been successful in their claims of negligence against the town, their legal malpractice claim against the defendants must fail. Accordingly, summary judgment in favor of the defendants was properly granted. See Kourouvacilis v. General Motors Corp ., 410 Mass. 706, 716 (1991).
Finally, although we affirm the entry of summary judgment, we do not characterize the plaintiffs' appeal as "frivolous," see Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979); therefore, we deny the defendants' request for attorney's fees and costs.
Judgment affirmed .