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(c) 2018 Jon L Gelman, All Rights Reserved.

Sunday, November 19, 2017

Client Communications and Equitable Tolling

When injured workers’ have disappointing experiences flowing from work-related injuries the road becomes difficult for all participants in the process, including the attorneys involved. A client’s understanding of the basic process is necessary to prevent future controversies.


Facts
An employee was injured when a truck of cement was dumped upon him in August 2001. The claimant sought representation from one attorney for both a workers’ compensation claim and a civil lawsuit. Things went sour along the way after an alleged poor result in the liability action and during the subsequent resolution of the workers’ compensation claim. The result was a legal malpractice action.

The worker filed a workers’ compensation case against his employer and also filed a civil action against the operator of the concrete truck and the subcontractor that employed the operator.

In the fall of 2005 the liability case was settled, with the consent of the injured worker, for $178,000. The employee signed a release in October 2005 and the proceeds were distributed.

During March 2007, there was a fracturing of the of client-attorney relationship and the attorney filed a motion to be relieved of counsel in the workers’ compensation matter. The claimant then retained superseding counsel. The workers’ compensation award amounted to a temporary disability benefit of $123,000 which was subject to a lien to $177,916.35.

In 2013, a legal malpractice case was pursued by the injured worker against his original workers’ compensation/civil action attorney alleging that his lawyer concealed that two medical expert reports were bared in the civil action because of his failure to timely serve them, and for the failure to provide correct advice as to reimbursement of medical bills in the workers’ compensation action.

The Trial Court dismissed the workers’ legal malpractice case on a motion for summary judgment. The worker appealed, and the Appellate Division, in a per curiam opinion, reversed and remanded the case for a discovery hearing.

On appeal, the plaintiff alleged: equitable tolling of the statute of limitations, requested a Lopez hearing, and sought to file an amended complaint alleging fraud. The defendant, attorney, alleged: there was no need for a Lopez hearing; the cause of action accrued in October 2005 when the civil action was settled (statute of limitations) and the release was signed; and the that his litigation strategy was not to use the two workers’ compensation experts as he had retained another expert instead.

Holding
The Appellate Court held that a Lopez hearing, to determine credibility, was required to ascertain the fact as to whether. “…the statute of limitations begins to run only when the client suffers actual damage and discovers, or through the use of reasonable diligence should discover, the facts essential to the malpractice claim.”

Analysis
The case highlights the need to constantly, adequately and thoroughly, maintain good communications between the client and an attorney concerning all aspects of the litigation. Most injured workers are never were involved in work-related litigation except for their initial accident. The litigation techniques and law are foreign to them. As in this instance, workers’ compensation claims are often long and arduous journeys making for even more obstacles for the client to gain an understanding and acceptance of the process.


Hager v Howard D. Popper, Esq., Docket Number A-2009-15T4, ___A.3d___, 2017 WL 5507956 (Decided November 17, 2017).
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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