No Fault Available Coverage is Important to Injured Client

Lawyer Commits Malpractice When He Fails to Advise Client of Insurance Coverage

A bodily injury plaintiff who needed surgery asked his lawyer several times to determine if the No-Fault (PIP) coverage would pay for needed spinal surgery resulting from an accident. The lawyer ignored the requests, the client had the surgery, only to get a bill from the hospital for $105,000 he was not prepared to pay.

In Heon Kim v. Andrew Park, Law Offices of Andrew Park, PC, and Andrew Park, PC, and Sim & Park, LLP, Docket No. A-3138-17T4, Superior Court of New Jersey Appellate Division (August 2, 2019) the lawyer appealed from a July 28, 2017 judgment for $23,000 in damages and approximately $36,000 in counsel fees and expenses entered against defendant Andrew Park after a two-day legal malpractice bench trial.

  1. Defendant’s amended notice of appeal states that he appeals only from the denial of his motion for reconsideration. Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either the court has expressed its decision based upon a palpably incorrect or irrational basis, or
  2. it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence.

THE MALPRACTICE SUIT

Plaintiff Heon Kim hired defendant, an attorney, to represent him in a personal injury action arising from a motor vehicle accident in April 2006. During the course of litigation, defendant did not respond to plaintiff’s several inquiries about whether his personal injury protection (PIP) would cover accident-related back surgery he was considering.

After three postponements of the surgery and no word from the lawyer defendant concerning coverage, plaintiff underwent surgery on his lumbar spine, assuming it would be covered by insurance. A week after the surgery, on June 23, the lawsuit was resolved through mediation for $500,000. Plaintiff realized approximately $331,000.

After the settlement, plaintiff, having indeed exhausted his PIP benefits, received a demand from the hospital for approximately $105,000 for his recent surgery. The hospital thereafter sought collection of the unpaid bill. Defendant initially represented plaintiff with respect to the hospital’s collection suit, but after defendant, through inaction, allowed a mandatory arbitration award for the full amount of the bill to be entered, plaintiff retained his current counsel, who filed for a trial de novo. Plaintiff ultimately paid his current counsel $5000 to settle the hospital collection action for $18,000.

Plaintiff thereafter sued defendant for malpractice on the theory that defendant should have investigated whether plaintiff had exhausted his PIP coverage and informed plaintiff of his responsibility for the hospital bill before plaintiff’s surgery and before the settlement of the accident claim. Plaintiff testified he could not afford surgery unless he had PIP coverage, and postponed surgery until he believed defendant was able to “contact the insurance company” and “take care of the whole thing.”

THE TRIAL

After a bench trial, the judge issued a written opinion in which he concluded that defendant failed to act in accordance with the professional standard of care he owed plaintiff by failing to ascertain PIP coverage and failing to communicate with plaintiff about the coverage. The judge based his decision on defendant’s failure to advise plaintiff of the consequences of accepting the settlement without addressing the outstanding medical bill. The court concluded that plaintiff was damaged in the amount of $18,000, which is what he ultimately paid to the hospital to resolve his medical bill, and $5000 in legal fees charged by the firm that resolved the collection action. The court also awarded $27,604 in legal fees, and $8350 in costs on the successful malpractice claim.

ANALYSIS

Legal malpractice is a variation on the tort of negligence. Thus, to prevail on a legal malpractice claim, a plaintiff must prove a deviation from the standard, proximate causation, and damages.

Plaintiff’s expert opined that defendant’s conduct fell below the standard of care for lawyers by “executing the settlement without first resolving the insurance coverage issue or at least informing [plaintiff] of his exposure to a lawsuit by the hospital.” Plaintiff’s expert opined that this lapse in communication and failure to fully explain the settlement constituted malpractice. Defendant presented no opposing expert. The trial court found defendant did not give sufficient information to plaintiff to allow plaintiff the informed choice as to whether or not to forgo the back surgery.

The New Jersey Supreme Court held that the medical concept of informed consent should not be imported into the legal malpractice area. But, that is not to say that a legal malpractice claimant’s testimony concerning whether he or she would have entered into a transaction, if adequately informed of its risks, is irrelevant.

The trial court found that defendant did not inform plaintiff that his PIP coverage was exhausted, although plaintiff sought this information. The court also found that defendant’s negligence in not answering plaintiff’s questions led to costly surgery plaintiff might not otherwise have undergone. This finding was based on plaintiff’s testimony, which the court found credible. The trial judge did not abuse his discretion in denying reconsideration of his judgment.

Summary judgment was proper where the evidence is so one-sided that one party must prevail as a matter of law.

ZALMA OPINION

The common person, like the plaintiff, trust their lawyers and doctors to take care of them. Perhaps they are naive in trusting the professionals without questions. Regardless, even the naive are entitled to the fair, reasonable and professional advice from the doctors and lawyers who promise to care for the injured person. In this case, a simple inquiry to the PIP insurer, would have provided the plaintiff with the information he needed. Because the lawyer was slothful, according to the trial and appellate courts, he was required to pay damages to his client.


© 2019 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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