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Trial lawyers specializing in personal injury and civil litigation

Legal malpractice case based on "too early filing" is dismissed

Jason and Laura Hull were injured in a collision involving a semitractor and trailer.  They hired Ronald Steinberg to represent them and file a "third-party" personal injury claim against the owner and driver of the semi.  Both Hulls claimed that they were suffering from neck and back pain, but apparently neither could point to persuasive, objective manifestations of demonstrable injuries.  In any event, the suit was filed 8 months after the injuries were suffered, and approximately one- and one-half years after the wreck the trial judge granted summary disposition of the claims, holding that neither Hull had demonstrated a "serious impairment of bodily function." 

By the time of the latter ruling the Hulls had moved to Mississippi.  They informed Steinberg some time later that their injury condition had deteriorated and Steinberg filed a motion with the Court to convert the dismissal to make it "without prejudice," so that he could re-file the claim with stronger medical proofs.  The trial judge refused to change his ruling, and the Hulls sued Steinberg for malpractice.

The Hulls claimed that Steinberg should have anticipated that their injuries would not meet the no fault "threshold" and should have waited longer before filing their lawsuit.  They also criticized his preparation for the summary disposition motion and for their depositions, claiming that he did not adequately prepare them to demonstrate that their injuries had "seriously impaired" their lifestyle.  Steinberg's attorneys cited his banker's box of  Hull's medical records and his anticipation that the "serious impairment" threshold would change and argued that his timing of the lawsuit was a legitimate exercise of attorney judgment.

The Trial Judge agreed with Steinberg's attorneys and dismissed the Hull's malpractice lawsuit.  The Court of Appeals unanimously agreed and upheld the decision on appeal.  It noted that the Hulls conceded that Steinberg acted in good faith and that his decisions were not outside the "norm" for a lawyer of ordinary skill and judgment. It also pointed out that while Steinberg could not necessarily anticipate that the Hull's medical condition would deteriorate with hospitalizations for depression and anxiety, he would have needed to balance these changes--if he foresaw them--with the fact that both had returned to work and therefore it could be argued that their conditions had improved.

In any event, the case clearly demonstrates one of the inherent conflicts of timing personal injury cases.  If a wrongdoer owes an injury victim money, it makes little sense to delay the time-consuming process of litigating, and liquidating, that debt.  Nevertheless, filing a claim too soon, where the victim bears the burden of proving the extent and duration of the injury, puts a full recovery at risk.  When the recovery is dependent upon proof of a "threshold" injury, filing the claim too early can put the entire recovery at risk.

We try to counsel clients and potential clients that this is a situation where patience may be an essential virtue--even though memories can fade and the opportunity-cost of money may argue in favor of immediate filing.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262