Georgia May Join Minority View of Assignability of Legal Malpractice Claims


By Dana Maine
Georgia may be on its way to joining the minority of states holding that, under some circumstances, legal malpractice claims can be assigned.  In a case of first impression, the Georgia Court of Appeals held in Villanueva v. First American Title Insurance Company that “malpractice claims are not per se unassignable.”  The case, however, is on its way to the Georgia Supreme Court with the chance that that court will pass a binding precedent along the lines of the opinion from the Court of Appeals. 

The facts of the case are not unusual.  The defendant-attorney, Derick Villanueva, began working with the Moss Firm in January 2007.  Three months later, he opened a new firm, Moss & Villanueva, with his boss George Moss.  Shortly thereafter, in May 2007, Villanueva acted as the closing attorney and settlement agent for a mortgage refinance.  As part of that transaction, Villanueva signed closing instructions issued by Homecomings Financial, LLC, which was replacing two prior mortgages on the property totaling almost $1.2 million.  As part of the closing instructions, Villanueva acknowledged that he was to pay off the earlier mortgages.
As part of the closing activities, Homecomings wired the refinance funds to an escrow account used by Villanueva’s old firm because the account for the new firm had not been established at the time of the closing.  Unfortunately, a non-lawyer who had access to the escrow account withdrew funds from the account and the previous mortgages were not paid in full.
Homecomings’ title insurer, First American Title Insurance Company, paid off the balances on the previous mortgages.  Thereafter, First American filed suit against Villaneuva accusing him of committing malpractice by failing to pay off the mortgages.  First American based its malpractice claim on its right as assignee from Homecomings, which was included in the closing protection letter First American issued to Homecomings.
In his summary judgment motion, Villanueva argued that the malpractice claim was not assignable.  In reaching its conclusion about assignability, the Court of Appeals cited to the general rule that permits assignment of a right of action “if it involves, directly or indirectly, a right of property,” while “[a] right of action for personal torts or for injuries arising from fraud to the assignor may not be assigned.”  O.C.G.A. § 44-12-24.  The court held that the damage involved in this case, as with most legal malpractice claims, involves financial loss which is akin to injury to property; therefore, these claims are assignable.  Discounting the public policy concerns relied upon by the majority of state courts to bar the assignment of legal malpractice claims, the Georgia court said the code section has been in place since 1895 and the legislature has not seen fit to amend it to prohibit the assignment of these claims.  Therefore, the court saw no reason to read the prohibition into the statute.
The vast majority of legal malpractice claims involve financial loss and will now be assignable in Georgia.  The pool of potential plaintiffs for legal malpractice claims has just expanded exponentially.  If this ruling stands, we can expect insurers to cover the increased risk with a corresponding increase in premiums.  As a practical matter, in these difficult economic times, malpractice insurance now represents an additional source of funds from which a disgruntled litigant can seek recompense.
Villanueva has already filed a notice of intent to take this matter to the Georgia Supreme Court.  An opinion from that court likely will take a year.
For more information, contact Dana Maine at 770.818.1408 or