Garcia v. Kozlov, Seaton, Romanini, & Brooks, P.C.

845 A.2d 602 (2004)

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Nature of the Case

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Facts

P was injured in a multi-vehicle car accident. P suffered injuries, including, among other things: a dislocating kneecap requiring surgery; a cut tongue; a chipped tooth; chronic headache and neck pain; Temporomandibular Joint Dysfunction (TMJ); and a psychological adjustment disorder relating to the accident. An associate with the D law firm filed suit on behalf of P against Forman, Marut, and Ignall for negligence. The complaint did not name Ertel as a defendant. The law firm later discovered a conflict of interest with an insurance company implicated in the case and referred the matter to Michael Gentlesk, Esq., who was then retained by P. Gentlesk successfully moved to amend the complaint to name Ertel but Ertel successfully moved to be dismissed from the action based on the applicable statute of limitations. P settled her claims against the other drivers for a total of $87,000. P then filed a legal malpractice complaint against D, alleging that the law firm and its associate were negligent in failing to name Ertel, causing P to settle her case for less than its true value. At trial D claimed that the matter should instead be tried solely as a 'suit within a suit,' and that P should be precluded from presenting evidence indicating that she had not come to a stop prior to the first impact, that Gentlesk should be barred from testifying, and that the settlement in the underlying case should operate as a bar to the legal malpractice action. The trial court granted P's motion and denied D's requests. P proffered evidence of the underlying car accident. P testified that Gentlesk told her the value of her case was between $200,000 and $250,000 and that she should take the settlement offered because the absence of Ertel in the case would preclude full recovery. According to P, Gentlesk told her Ertel was at fault for the accident and that she should settle with the remaining defendants and sue D. P testified that she would not have taken the settlement in full satisfaction of all her claims if it were not for the reservation of right to bring a malpractice action. Gentlesk also testified to the same facts. P also presented the testimony of a malpractice expert, Douglas Calhoun Esq., who expressed the opinion that D deviated from the standard of care when it failed to sue Ertel within the statute of limitations. Calhoun also testified that New Jersey's comparative negligence law, combined with the absence of Ertel from the underlying action, hampered P's ability to recover full compensation for her injuries. Calhoun opined that P acted reasonably in settling her case for $87,000. The trial court struck Calhoun's testimony regarding Ertel's percentage of fault, leaving that for the jury to determine. D's expert, Timothy Barnes, Esq., opined that D's failure to include Ertel in the suit was not malpractice because P's deposition testimony showed that she had come to a full stop prior to hitting the Marut vehicle. According to Barnes, that placed primary responsibility for the accident on Ignall, who hit P. Barnes concluded that the $87,000 was a reasonable settlement given her own negligence in failing to activate her hazard lights or to pull to the right. The trial court decided the issue of negligence in favor of P as a matter of law, finding Barnes's opinion a net opinion. The court ruled that P acted reasonably in settling. The court awarded P $92,460 in actual damages and prejudgment interest. D appealed. It reversed the trial court for departing from the 'suit within a suit' method. P appealed.