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Misery loves company. A judge, however, won’t let Glastonbury, Conn.-based Brown, Paindiris & Scott share some of its potential malpractice liability with Waterbury, Conn.’s Carmody & Torrance through an apportionment claim. According to a decision last month by Hartford Superior Court Judge Robert B. Shapiro, it appears that in Connecticut a legal malpractice defendant would have a better chance of claiming the client was to blame than trying to apportion fault to another law firm. The dispute arose from Brown, Paindiris & Scott’s suit to collect $145,000 in legal fees from former client HerbaSway Laboratories Inc. The Wallingford-based health drink outfit fought back with a counterclaim for malpractice. HerbaSway claims Brown Paindiris neglected to figure out that HerbaSway’s insurance would cover its legal defense in the case of James Zhou v. HerbaSway, et al., brought by a former founder of the company. When alerted, the insurers agreed to defend going forward, but refused to pick up the costs of the first 2 1/2 years before Hanover Insurance Co., of Worcester, Mass., was notified of the Zhou lawsuit. Seeking to bring Carmody & Torrance in as a defendant, Brown Paindiris claimed it worked with Carmody lawyers during the Zhou case and they should bear part of the responsibility if any negligence is proven. Zhou is suing HerbaSway in state and federal court claiming wrongful discharge and misappropriation of his inventions. Carmody lawyers handled intellectual property aspects of the case, according to the court file. Carmody is now HerbaSway’s firm of record in that litigation. Joseph V. Meaney Jr., of Hartford’s Cranmore, FitzGerald & Meaney, represented Brown Paindiris in the malpractice suit. He argued that a legal malpractice case should be no different than other negligence claims, allowing setoff and counterclaims as partial defenses. Meaney cited the 1988 appellate court ruling in Somma v. Gracey, a first-impression case that upheld the defense of comparative negligence in a legal malpractice claim. When a portion of the negligence is attributable to the person recovering, it concluded, damages are proportionally reduced. “We see no basis for distinguishing between actions for legal malpractice and other claims sounding in negligence,” Justice Flemming L. Norcott Jr. wrote in Somma. HerbaSway’s lawyer, Christopher M. Licari of New Haven’s Licari & Walsh, filed a summary judgment motion protesting the attempt to spread blame to Carmody & Torrance. Licari cited both public policy arguments and the basic language of the apportionment statutes. Interestingly, no appellate-level court in Connecticut has ruled on whether a law firm can reduce its malpractice exposure by blaming successor counsel involved in the work, according to Judge Trial Referee Richard M. Rittenband in the case of Gauthier v. Kearns, which Licari cited in HerbaSway’s brief. In that 2001 case, a client sued attorney John F. Kearns III, of West Hartford’s Kearns & Kearns, for setting up trusts that failed to transfer enough assets from her mother’s estate to qualify the mother for Medicaid coverage. In the HerbaSway matter, Shapiro disallowed apportionment of the blame for legal malpractice, based on the plain meaning of the apportionment statutes. The right of a defendant to bring in a third-party apportionment defendant is limited to “causes of action based on negligence … to recover damages resulting from personal injury, wrongful death or damage to property …” Since HerbaSway was only seeking the economic loss of its defense costs before the insurance took over, the damages in question were not due to personal injury, death or property damage. Shapiro concluded he lacked subject matter jurisdiction over the legal malpractice apportionment complaint, since the statute doesn’t support it, and dismissed the claim against Carmody & Torrance.

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