VA: Underlying Personal Injury Claim
Facts: In 2003, Leo Williams (Client) retained Louis Joynes, II and David Dildy (Attorneys) to represent him in a personal injury claim that stemmed from an automobile accident involving two other vehicles—one driven and owned by a Virginia resident (Brown) and one driven by a Maryland resident (Kiker) and owned by a Maryland corporation (Millstone Enterprises, Inc. (Millstone)). On June 1, 2005, Attorneys filed a motion for judgment against Kiker, Millstone, and Brown; the motion was denied for failure to comply with the state’s two-year statute of limitations. Attorneys advised Client that he might maintain an action against Kiker and Millstone under Maryland’s three-year statutory period, but that the action would not apply to Brown. Attorneys suggested Client hire a Maryland attorney. After allegedly receiving advice from numerous Maryland attorneys that litigating the case in Maryland posed “too many problems,” Client decided not to file the action in Maryland. In January 2006, Client brought a malpractice action against Attorneys in Virginia based upon their failure to timely file the initial personal injury action. Client alleged that “but for” Attorneys’ negligence, he would have been able to recover damages against Kiker, Millstone and Brown. In their motion for summary judgment, Attorneys denied that they were the proximate cause of Client’s lost personal injury action and asserted that Client’s own failure to file in Maryland was a superseding event, which severed their liability.
Issue: Is a client’s failure to file a personal injury action in a foreign jurisdiction a superseding event, which severs the link of proximate causation between the attorney’s failure to timely file the initial action and the client’s loss of his personal injury claim?
Ruling: No. In Virginia, a superseding act that severs causation arises only when that act “entirely supplants the operation of the initial tortfeasor’s negligence [so that] that the intervening act alone, without any contributing negligence by the initial tortfeasor… causes the injury.” An intervening act will not be deemed “superseding” when it is “set in motion by the initial tortfeasor’s negligence.” Here, Attorneys’ failure to file the Virginia action set in motion the need for Client to consider filing a Maryland lawsuit. As a matter of law, Client’s failure to file the action in Maryland could not be deemed “superseding.” Moreover, since Brown was not subject to Maryland’s jurisdiction, Attorneys’ failure to file the Virginia action provided sole cause for the permanent exclusion of Brown from the suit. Client’s decision not to file suit in Maryland had no bearing on the loss of personal injury claim against Brown and thus, could not have severed the link of proximate causation between Attorneys’ negligence and his loss of claim.
Lesson: Lawyers cannot circumvent liability by claiming that clients have a duty to correct their mistakes.