PIERRE, S.D. (Legal Newsline) - Lawyers who represented a man who was injured in a car accident with a vehicle driven by a South Dakota employee didn’t commit malpractice by failing to sue the state, the South Dakota Supreme Court ruled, rejecting arguments there was evidence the driver at fault was on duty at the time.
Citing a law the South Dakota legislature passed to eliminate the possibility of “loss of chance” professional malpractice suits, the high court upheld the dismissal of the lawsuit against lawyers Jeffrey Cole, William Sims and Gregory Brewers.
Doug Barr and his wife sued their lawyers after settling a personal injury suit against Stuart Hughes for $500,000 from his personal insurance company. They argued the attorneys missed the deadline to notify the state of a potential claim over the accident and failed to inform them of the possibility of collecting from a state insurance pool.
Hughes, a state employee, lived in Vermillion but was driving to a family event in Sioux Falls when his vehicle ran a stop sign and collided with Barr’s car. Hughes had been working in Parker that day and was compensated for mileage to and from his home in his personal vehicle, although he wasn’t compensated for the side trip to Sioux Falls. He did obtain workers’ compensation benefits for his injuries.
The trial court ruled Hughes wasn’t acting in the scope of employment when the accident occurred since he wasn’t driving home. The South Dakota Supreme Court agreed in an Oct. 4 decision, that affirmed the “trial within a trial” doctrine for legal malpractice, where plaintiffs not only must prove their lawyers made a mistake, but that they would have won a lawsuit but for that mistake.
In this case, the court ruled, there was no question Hughes was acting outside the scope of employment and it would have been useless to apply to the state insurance fund for money. The court rejected a looser standard for legal malpractice claims, citing South Dakota law.
“Requiring plaintiffs to prove that the underlying claim would have been successful is logical and proper,” the court said. “If the underlying claim would not have resulted in a favorable outcome for the clients, then there would have been no injury to remedy.”
Barr was represented by Schoenbeck & Erickson, while his former attorneys were represented by Bangs, McCullen, Butler, Foye & Simmons.