Settle at Your Own Risk


By: Dana Maine and Kevin Stone

The Georgia Court of Appeals issued an opinion last week in Jim Tidwell Ford v. Bashuk, A15A2030 applying the rule that settlement of an underlying suit may sever causation in a subsequent legal malpractice action.  The underlying suit in Bashuk, brought in federal court, involved a claim by a Jim Tidwell Ford customer who had fallen off of a platform and was injured. The customer prevailed at a jury trial and received an award of more than a million dollars.  Bashuk represented Jim Tidwell Ford through the conclusion of the trial, at which time appellate counsel was brought in.  An appeal was filed with the Eleventh Circuit but was dismissed upon settlement of the personal injury suit for $600,000.  While the Court of Appeals acknowledged that the issue of causation and whether a legal malpractice defendant’s conduct is too remote from the claimed injury is usually a decision left to a jury, in this case, which was plain and undisputed, it was appropriate for the court to make the decision as a matter of law. 

In reaching its decision, the Court of Appeals examined whether the appeal in the personal injury suit made the case viable for purposes of the rule that settlement of a viable underlying claim severs proximate cause.  In ruling  in Bashuk’s favor, the Court of Appeals concluded that the trial court properly found that there were legitimate issues with some of the evidentiary rulings the personal injury trial judge made about admissibility of medical testimony.  There was a chance, the Court of Appeals concluded, that the Eleventh Circuit would have found that the trial judge erred in his rulings and might have ordered a new trial. The legal malpractice defendant was not required to prove with certainty that the Eleventh Circuit would have ruled in the former client’s favor.  It was sufficient to sever causation that from the case law, “it appears at least possible” that the Eleventh Circuit may have reversed the verdict in the personal injury case. 

Every legal malpractice case with a settlement of the underlying case should be analyzed under the Bashuk rationale. Depending on the posture of the case, it might even be possible to bring an early dispositive motion applying the settlement/lack of causation rule. 

(We will monitor the docket for  an application for writ of certiorari to the Georgia Supreme Court and update this blog accordingly.)