Nichols v. Keller

19 Cal. Rptr. 2d 601 (1993)

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Nature of the Case

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Facts

Zurn Industries employed P at a cogeneration plant construction project. Zurn was a subcontractor, and Kiewit Industrial was the general contractor on the project. P had been a union boilermaker for over 24 years. P was working on scaffolding approximately 50 feet above the ground. P claimed he was working on the uppermost level of scaffolding with no workers above him. However, a coworker declared there were individuals working on an unfinished catwalk above P. P completed a heliarc weld and removed his welding 'hood,' which left only a cloth cap on his head. P reached for his hard hat when something hit him on the head. P never saw the object that hit him on the head. Someone told him it was a piece of steel approximately four inches by four inches by one-quarter-inch thick. P got 16 stitches, and the emergency room doctor released P to 'light duty' work for a one-week period. P returned to his regular work as a welder approximately one week after that. P met with Fulfer (D), an attorney to discuss P's legal rights and remedies. D had P sign a workers' compensation application for adjudication of claim. Fulfer (D) then associated Keller (D) to prosecute the workers' compensation claim. Sometime in 1989, P spoke with union employees, and they suggested P meet with another attorney and scheduled an appointment with Butler. P learned for the first time that a third-party claim could and very likely should have been brought. On March 21, 1990, P filed a complaint for damages or legal malpractice and negligent spoliation of evidence against Ds. Ds filed a motion for summary judgment. The court held it was undisputed that the representation was undertaken for the limited purpose of the workman's compensation claim. It held that an attorney's obligation does not include a duty to advise on all possible alternatives no matter how remote or tenuous. It also held that the statute of limitations had tolled. P appealed.