Potter v Secrest Wardle, et al, unpublished per curiam opinion of the court of appeals, issued May 8, 2007 (Docket No. 265002)

Link: http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20070508_C265002_51_265002.OPN.PDF

Underlying case or transaction: Medical malpractice litigation

Key Concepts: (1) respondeat superior; (2) duplicative claims; (3) causation

On January 11, 2000, Fleischmann, an attorney employed by defendant Brookover, Fleischmann & Carr ("Brookover"), agreed to represent plaintiff is a medical malpractice action against Dr. R.S. Nair. Although Fleischmann sent Dr. Nair a notice of a claim pursuant to MCL 600.2912(b), Fleischmann never filed a malpractice complaint in court.

From January 2000 to September 2003, Fleischmann led plaintiff to believe that a lawsuit was pending in circuit court. In March 2002, Fleischmann joined defendant Secrest Wardle. While employed at Secrest Wardle, Fleischmann continued to mislead plaintiff. In October 2003, plaintiff discovered that no malpractice suit had ever been filed on his behalf. Plaintiff subsequently filed an action against Fleischmann, Brookover and Secrest Wardle for malpractice, breach of fiduciary duty, fraud, and intentional and negligent infliction of emotional distress. The claims against Fleischmann were dismissed because any debts that he may have owed to the plaintiff were discharged during Fleischmann's bankruptcy.


The lower court also dismissed plaintiff's claims against Brookover and Secrest Wardle. On appeal, the plaintiff argued that the lower court erred in dismissing the claims against Secrest Wardle. The court of appeals disagreed finding that Secrest Wardle could not be liable for Fleischmann's actions under the doctrine of respondeat superior.


Under that doctrine "an employer may be vicariously liable for the acts of an employee committed within the scope of his employment." Helsel v Morcom, 219 Mich App 14, 21 (1996). Conversely, an employer cannot be held liable for an act committed by the employee that is beyond the scope of his or her employment. Borsuk v Wheeler, 133 Mich App 403, 410 (1984). "Intentional and reckless torts are generally held to be beyond the scope of employment." Id. An employer may be held liable under the doctrine of respondeat superior where the employee was promoting or furthering the employer's business in some way, or if the employee committed a tort while involved in a service of benefit to the employer. Kester v Mattis, Inc, 44 Mich App 22, 24 (1972). But no vicarious liability exists if the employee steps aside from his employment in order to accomplish some purpose of his own or acts outside the scope of the employee's authority. Bryant v Brannen, 180 Mich App 87, 98-99 (1989).


Here, Secrest Wardle was not vicariously liable for Fleischmann's acts because (1) Fleischmann entered into an attorney-client relationship with plaintiff while he was employed by Brookover; (2) there was no evidence that Secrest Wardle was a party to the contingency fee agreement between plaintiff and Fleischmann; (3) Fleischmann never notified anyone at Secrest Wardle that he was representing plaintiff in a lawsuit; and (4) Secrest Wardle never gave Fleischmann authority to represent Fleischmann.

Next, plaintiff argued that the trial court erred in holding that his causes of action for intentional torts in this case were merely duplicative of his legal malpractice claims. The court of appeals agreed in part, but held that the error was harmless.

Plaintiff claimed that his claims for breach of fiduciary duty, fraud and intentional infliction of emotional distress should not fail because they merely reiterated his legal malpractice claim. Defendants argued otherwise relying on Aldred v O'Hara-Bruce, 184 Mich App 488 (1990) and Barnard v Dilly, 134 Mich App 375 (1984). The court of appeals explained that those case do not stand for the proposition that claims arising out of an attorney-client relationship can only sound in negligence. Rather, they merely provide that the applicable period of limitations depends on the theory actually pleaded where the same facts support either of two different causes of action.

Generally, when characterizing potentially duplicative claims in a legal malpractice context, a court should read a plaintiff's complaint as a whole and determine the type of interest allegedly harmed and how this is claimed to have occurred. Aldred at 490. When a plaintiff alleges negligent legal representation, the claim is one of legal malpractice. Id. But, when the interest involved in a claim for damages differs from the interest involved in a legal malpractice case, they may stand as separate claims. See e.g., Brownell v Garber, 199 Mich App 519, 532 (1993).

For example, the plaintiff claimed that Fleischmann breached his fiduciary duty to him. A breach of fiduciary duty claim differs from a legal malpractice claim because '[t]he conduct required to constitute a breach of fiduciary duty requires a more culpable state of mind than the negligence required for malpractice." Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 47 (2005). Here, plaintiff had alleged that Fleischmann had "intentionally misled . . . [plaintiff] into believing that he had a case pending against Dr. Nair." The allegation that Fleischmann misled him into believing he had a pending case "appears to satisfy the requirement of a culpable state of mind that is sufficient to support a cause of action for breach of fiduciary duty." Id. Under the facts in this case, the court held that plaintiff's claim for breach of fiduciary duty was not duplicative of his legal malpractice claim.

The court of appeals also held that the plaintiff stated a claim for intentional fraud and that "the interest involved in a claim for damages arising out of fraudulent misrepresentation differs from the interest involved in a case alleging that a professional breached the applicable standard of care." Brownell, supra at 532.

Similarly, the court of appeals held that plaintiff's claim for intentional infliction of emotional distress was not duplicative of his malpractice claim because the interest protected -- relief from a defendant's outrageous conduct -- appears to differ from the interest involved in a legal malpractice case. Therefore, the trial court erred in granting Brookover's motion on this ground.

Although the trial court had erred in holding that plaintiff's breach of fiduciary duty, fraud, and intentional infliction of emotional distress claims were duplicative of his malpractice claim, summary disposition was still proper because, as a matter of law, Brookover was not vicariously liable for Fleischmann's intentional torts.

As explained above, an employer is generally not liable for the intentional torts of its employees. Moreover, there was no evidence that Brookover benefited in any way from Fleischmann's actions.

Finally, the malpractice claims were appropriately dismissed because the plaintiff did not allege a valid underlying medical malpractice claim. Where the alleged malpractice results from the failure to diligently pursue or timely file a client's claim, a plaintiff seeking to establish proximate cause and injury in fact, must show that but for the attorney's alleged malpractice he would have been successful in the underlying suit. Estate of Mitchell v Doughtery, 249 Mich App 667, 676 (2002).