Employment Law Daily Potential tort liability looms for attorneys who failed to include employee’s retaliation claim
Wednesday, November 29, 2017

Potential tort liability looms for attorneys who failed to include employee’s retaliation claim

By Brandi O. Brown, J.D.

Attorneys who previously represented a former Goodyear employee in his lawsuit against his employer will have to respond to the employee’s tort claims against them, the Tenth Circuit ruled, reversing and vacating in part a district court’s dismissal of those claims. The claims against the attorneys essentially asserted that they “fell short of the ordinary standard of learning or skill in the legal community” by failing to include the employee’s claim for workers’ compensation retaliation in his legal complaint against Goodyear. The lower court erred in concluding that the employee’s claims did not sound in tort. Summary judgment in favor of the attorneys on their former client’s breach of contract claim was affirmed, however (Sylvia v. Wisler, November 22, 2017, Holmes, J.).

While working for Goodyear Tire & Rubber Co., the employee sustained several on-the-job injuries for which he filed workers’ comp claims. Eventually he was fired. He filed an EEOC charge, and he also was awarded substantial compensation for his workers’ comp claims by the Kansas Division of Workers’ Compensation. He received his EEOC right to sue letter in 2011 and retained attorneys from the law firm Wisler & Trevino to file suit on his behalf against Goodyear. Although the employee alleged that the attorneys orally agreed to file five claims, including disability discrimination claims, FMLA retaliation and discrimination claims, and a workers’ comp retaliation claim, the written contract with the firm stated only that it would file suit “on one or more of these claims.” Indeed, when the suit was filed, it did not include the retaliation claims. When the employee asked why the retaliation claims were not included, he alleges he was told that they would be filed later; they were never filed.

New attorney. Shortly thereafter, the firm dissolved, and only one of the attorneys, Wisler, continued to represent the employee. Meanwhile, the employee received a favorable decision from the Social Security Administration awarding him disability benefits. Wisler then believed the employee no longer had a good claim against Goodyear and discussed with him the possibility of dismissing his federal case. The employee allegedly asked him to wait until he had found another attorney but acquiesced after receiving assurances that he would be able to refile. The employee’s new attorney filed suit against Goodyear alleging four claims: FMLA interference and retaliation, wrongful discharge under ERISA, and discrimination under the ADA. No workers’ comp retaliation claim was included, however, because, according to the employee, by that time it was time-barred. The court dismissed the ADA claim as untimely and the remaining claims were settled with Goodyear.

Malpractice suit. In 2013, the employee sued the two attorneys who had originally represented him alleging legal malpractice and breach of contract. He alleged that they failed to represent him with reasonable care and skill, they failed to include a workers’ comp retaliation claim, and Wisler erroneously advised him that his claims were well-preserved and could be refiled. He also claimed that the failure to assert a workers’ comp retaliation claim was a breach of contract. Responding to a motion to dismiss, the district court granted the motion as to the tort claims, but not the contract claims. The attorneys later filed a motion for summary judgment with regards to the latter, which was granted, and the employee appealed both dispositions.

Kansas’s take on tort-contract dividing line. On appeal, the Tenth Circuit ruled that the tort claims should not have been dismissed. Under applicable Kansas law, claims filed by clients against their attorneys can sound in either contract or tort, depending on the circumstances. After reviewing a handful of cases decided by the Kansas Supreme Court and the Kansas Court of Appeals, the Tenth Circuit concluded that while the line dividing contract and tort claims based on claims such as these was “not always bright,” a general rule could be described: “In brief,” the court explained, “a claim that a lawyer failed to perform acts in his legal representation of a client that were the subject of bargained-for promises sounds in contract, whereas a claim that an attorney’s acts or omissions in carrying out a representation fell short of the ordinary standard of learning or skill in the legal community sounds in tort.”

Claims sounded in tort. As for the claims against Wisler, the employee had asserted that he had committed two breaches of duty: first by failing to amend the complaint against Goodyear to include a claim of workers’ compensation retaliation, which resulted in that claim becoming time-barred; and second, by voluntarily dismissing the employee’s case after advising him, erroneously, that he would be able to refile all claims, which resulted in his ADA discrimination claim also becoming time-barred. The employee alleged that the loss of these claims caused major devaluation of his claims against Goodyear.

First breach. According to the appeals court, the lower court erred in concluding that the first breach claim did not sound in tort. Contrary to the district court’s conclusion, the existence of a contractual relationship “should not have the effect of transforming any subsequent malpractice claims by [the employee] related to such filing into ones sounding solely in contract.” In fact, the employee’s allegation was essentially that Wisler had been negligent by failing to amend the complaint and that negligence caused the workers’ comp claim to be time-barred. In other words, he alleged that Wisler’s representation “fell short of the ordinary standard of learning or skill in the legal community” and, thus, he properly stated a claim sounding in tort.

Second breach. The district court did not address the second claim of breach in its analysis and, thus, the appeals court concluded that it should be remanded. As for the malpractice claim against the second attorney for failure to include the workers’ compensation retaliation claim, the court likewise concluded that, construed naturally, the employee alleged that he had “failed to exercise the skill and knowledge required of an attorney” by failing to amend the complaint claim before withdrawing from the attorney-client relationship. That claim was also revived as adequately pleaded as a malpractice claim sounding in tort.

The court affirmed the district court’s grant of summary judgment with regards to the contract claims.

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