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McLister v. Epstein & Lawrence8/8/1996
In this legal malpractice action, plaintiff, Henry B. McLister, appeals from the judgment of the trial court in favor of defendants Epstein and Lawrence, P.C. (the law firm) and James Miller. Plaintiff also challenges the dismissal of his breach of contract claim against the law firm and Miller, and his claim for negligent supervision against defendant Scott Lawrence. We affirm in part, reverse in part, and remand with directions.
On March 3, 1989, a health care aide employed by the plaintiff injured herself when she fell down some stairs in his home. A claims adjuster for plaintiff's homeowner insurance carrier negotiated a settlement with the aide and, in exchange, obtained a release of claims against plaintiff. The adjuster, however, failed to take necessary steps to have the agreement approved by the Division of Workers' Compensation so that it would constitute a binding release of the aide's workers' compensation claim against plaintiff.
When the aide later brought a workers' compensation claim, plaintiff retained the defendant law firm to represent him. Lawrence, a partner in the firm, assigned the case to Miller, an associate attorney. Although plaintiff was required by law to have workers' compensation insurance for his home health care aides, he had not obtained such coverage.
Miller defended the case solely on the theory that the release obtained by the insurance company operated as an election of remedies. Following a hearing, an administrative law Judge ruled in favor of the aide. The ruling was reversed by the Industrial Claim Appeals Panel, but ultimately reinstated by a division of this court. See Cook v. McLister, 820 P.2d 1167 (Colo. App. 1991).
Thereafter, plaintiff brought an action against the insurance company based on negligence, breach of contract, fraud, and estoppel to deny coverage. In a separate action, plaintiff alleged that defendants had acted negligently in representing him in the workers' compensation case and had breached both their fiduciary duties and the attorney-client contract. Plaintiff also alleged that Lawrence had been negligent in supervising Miller.
The cases were consolidated and tried to a jury. Over plaintiff's objections, the court instructed the jury on comparative negligence and also gave an instruction stating that it is not a defense to negligence that a person is unaware that his or her conduct constitutes a violation of the law. The court dismissed plaintiff's negligent supervision claim against Lawrence because of plaintiff's failure to present expert testimony regarding the standard of care. The court also dismissed plaintiff's claim for breach of contract on the ground that it was subsumed by his malpractice claim.
The jury found in favor of the insurance company and also in favor of defendants on plaintiff's breach of fiduciary duty claim. While the jury concluded that defendants had been negligent and that the negligence had caused plaintiff's damages, it concluded that plaintiff had also been negligent and that the percentage that his own negligence or fault had contributed to his damages was 81% Accordingly, the court entered judgment in defendants' favor. On appeal, plaintiff challenges only the judgment in favor of the law firm and Miller and the dismissal of the claim against Lawrence.
I.
Plaintiff first contends that the trial court erred in giving a comparative negligence instruction. We agree.
Although comparative negligence is a defense to a claim of legal malpractice in Colorado, see Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990), the client's alleged negligence must relate to t
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