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Defense Firm Accused of Botching Case Received Through Political Connection
Legal malpractice claim alleges firm cost insurer $250,000 loss
New Jersey Law Journal
November 04, 2008
In a rare malpractice complaint against a defense firm, an insurer charges that Cleary, Alfieri & Jones obtained a personal injury case against New Jersey's Monmouth County through political connections and botched it, causing a $250,000 loss.
North River Insurance Co. is suing the Matawan, N.J., firm and PMA Management Group, the third-party administrator of Monmouth County's self-insurance program. The county settled the underlying case for $450,000 and paid $200,000 of it, leaving excess carrier North River with a bill for the remainder.
Among the defendants is Caroline Casagrande, a former Cleary Alfieri lawyer who is now a first-term Republican assemblywoman from Monmouth County.
As a second-year associate in 2003, Casagrande was assigned as the primary lawyer on the underlying personal injury matter "without sufficient experience to defend a serious but defensible claim," according to the complaint in North River Insurance Co. v. Cleary, Alfieri & Jones , MRS-L-2008-07.
The case has been under way in Morris County for a year without publicity, but politically charged questions are now bubbling to the surface: Did the firm obtain the work through political connections? Was it incapable of doing the work or unwilling to do a good job because it was getting a flat rate? And if any of that is true, is it relevant to the malpractice claim?
The insurance company's lawyer, William Voorhees, who has a firm in Morristown, N.J., subpoenaed name partner James Cleary for a Sept. 18 deposition and told him to bring documents about political contributions, county contracts and governmental appointments of lawyers in the firm.
Cleary has been an assistant county counsel and counsel to the Western Monmouth Utilities Authority.
He has moved for a protective order to block his deposition and document production, saying the plaintiff is merely trying to embarrass and annoy the firm. "I cannot fathom what relevance the documents requested by counsel have to the prosecution of this legal malpractice matter," he wrote in a certification.
The motion is on Superior Court Judge W. Hunt Dumont's calendar for Friday.
None of the litigants or their attorneys would comment on the substance of the case, which centers on whether the firm committed malpractice in Carpenter v. Monmouth , Mon-L-6133-02. But the pleadings tell most of the story.
On May 1, 2002, Carol Carpenter, a 56-year-old woman with diabetes, kidney disease, heart problems and gangrene in her toes, was riding in a county medical transportation bus to a dialysis session when she fell out of her wheelchair and broke her right leg. Doctors amputated the leg two weeks later.
Carpenter turned to one of the New Jersey shore's best-known personal injury lawyers, Richard Ansell of Ansell, Zaro, Grimm & Aaron in Ocean, N.J., and after he filed suit in January 2003 he listed damages of $1 million.
Partner Linda Grasso Jones was given overall responsibility for the file, but in contrast to Ansell's thorough and aggressive work for Carpenter, the defense firm made serious errors, according to North River's malpractice expert, Robert McAndrew of Morristown.
McAndrew said nothing in the file suggested that the firm had made a detailed evaluation of liability or damages as late as December 2003 or tried to secure the bus or take a detailed statement from the driver.
Up to March 10, 2004, the firm hadn't requested that Carpenter submit to an independent medical evaluation or request depositions of Carpenter's treating physicians and it never sought depositions of her husband and son, McAndrew said.
"A review of the Cleary file indicates that none of the attorneys who handled the case were in the least familiar with the duties of defense counsel, or even the rudiments of litigation practice," McAndrew said.
As an associate with one year of experience, Casagrande should have received close supervision, but didn't, and her memos showed she wasn't well versed in the facts, McAndrew said. She suggested the case was worth $100,000 but didn't say why, according to McAndrew.
"A look at her analysis of the damages issue also reveals that she had totally missed the point," he added. She focused on whether the injuries led to the amputation, he said. The real issues were whether Carpenter's pre-existing condition put her at risk for losing her leg and the extent of her pre-accident disabilities, he said.
He estimated that the legitimate settlement value was $200,000, but by the time North River took over the case and brought in its own counsel, the Morgan Law Firm in Livingston, N.J., it was too late to submit better expert reports and the $450,000 settlement was a done deal, he said.
FIRM STAUNCH IN ITS DEFENSE
The firm is fighting back. "The defendants deny the material allegations of the complaint and will continue to vigorously defend against the claim," says malpractice defense counsel Jason Feinstein of Sterns Weinroth in Trenton, N.J.
The number of malpractice suits against insurance defense firms is increasing, according to lawyers who defend such cases, but no studies have quantified the rise since 2003, when an American Bar Association panel reported that the 6 percent hike over the previous four years was the largest increase against any practice niche.
The suit against Cleary Alfieri is a subcategory: suits by carriers with excess or umbrella coverage against firms called in by the primary carrier. And in this case, the plaintiff is suggesting that the suit isn't against an insurance defense firm but a firm getting such work because of political connections.
"The Cleary firm was eligible for this appointment by virtue of its political activities rather than by virtue of its qualifications as an insurance defense firm," the complaint says. The Carpenter case was a tough one, the complaint said. "It required skillful defense counsel rather than political appointees, a fact which PMA knew or should have known."
In the subpoena for Cleary's deposition, the plaintiff asked for copies of the firm's Web-site postings and ads for the past five years, a list of all government appointments received by any lawyer in the firm for the five years ending Dec. 31, 2005, and a list of all political contributions by lawyers in the firm.
Voorhees' certification in defense of the request doesn't include documents supporting his argument about politics. But he says the firm's reputation as a municipal law and real estate firm and an Internet blog that describes the firm as a "Republican Power House" raise questions about whether the firm was qualified to handle the Carpenter case.
He also points to an August 2004 memo in which Jones asked PMA to switch to hourly payments from the flat rate set at the outset, because the case required much work and was likely to be tried. She said in the memo that Assistant County Counsel Robert Faccone of Carton & Faccone in Avon, N.J., had no objection.
Faccone did not return a call on Friday and the pleadings don't give the amounts of the rates or whether the request was granted.
It's a fair inference, Voorhees says in his certification, that the firm deliberately provided a less than adequate "flat rate" representation by a "lowly associate."
Defense counsel Feinstein says in his motion for a protective order that if Voorhees wants to explore whether Jones and Casagrande were qualified, he can do it by questioning them.
He called the document request a fishing expedition about political ties not related to the Carpenter defense and "stretches beyond the permissible bounds of allowable discovery."
As for Cleary, he says in his certification that he can't figure out why his deposition is necessary in an inquiry about a case in which he had no participation or first-hand knowledge of the representation.
"I consider the request to take my deposition in this matter nothing more than an attempt by counsel to annoy, embarrass and harass the firm and myself," he says.
