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Treble Damages in Massachusetts Legal Malpractice 93A Case, plus Attorney Fees

Our office undertakes litigation with a personal injury and legal malpractice focus. While not many lawyers in Massachusetts will represent the victims of legal malpractice, our firm’s mission is to uphold the trustworthiness of the profession. When the facts are clear, the Courts of Massachusetts will uphold the law and find legal malpractice, treble damages and award attorney fees.

We received a unique result in the below described case we tried before Judge Johnson, Chief Judge of the Boston Municipal Court, sitting as a Superior Court Justice.

On February 2, 1992, Bruce Correll, a 747 captain, was on a layover in Boston dining at a local restaurant. While eating his taco salad he bit into a rock about 3/8 inch in diameter which resulted in damage to a tooth in the lower front and center of his mouth. Mr. Correll presented to his dentist in Colorado who diagnosed an “angular crack in his lower front tooth number 24.”

Mr. Correll was referred to a Boston attorney, entered into a contingent fee agreement, and provided the rock, dental records and a dental report from his treating dentist to counsel. The attorney promised to file suit “long before” the statute of limitation would run, and in fact, the day before the statute ran, on February 1, 1995, counsel filed a lawsuit on Mr. Corell’s behalf in Suffolk Superior Court. Unfortunately, counsel failed to serve the defendant, and when the Court entered a Judgment of Dismissal Under Standing Order 1-88, counsel failed to file a motion to resurrect the case.

For six years, Mr. Correll called and wrote to his counsel requesting the status of his case. Counsel responded by sending letters and phone messages claiming such falsehoods as “Your case is simply waiting for a trial date to be assigned” and “Next time, contrive to be injured in a state where cases get to trial sometime in the lifetime of the parties. Your case is pending and sitting.”

When Mr. Correll finally was informed of the loss of his rights, he retained the Law Office of Neil Burns to pursue a legal malpractice claim. Upon receipt of a standard 93A letter, defense counsel for the negligent attorney made a nominal offer of settlement and responded as follows: “Your demand for relief is a classic case of overreaching that clients often engage in when they make a claim against a former attorney. Negligence by an attorney is not a license to seek the sun, moon, stars and everything beyond.” Defendants not only refused to increase their initial offer but filed an Offer of Judgment, pursuant to Rule 68, thereby ending fruitful negotiations.

At the time of trial, in December 2004, Correll’s dental expert, Dr. Paul Ponte, of Dartmouth, Massachusetts, testified that in his opinion Mr. Correll had an enamel fracture. Notwithstanding the defendants’ argument that there had been no treatment for over 12 years, and that that damage was nothing more than a “craze line,” Dr. Ponte testified that there was still a need for a crown and root canal.

Attorney Deborah Gold-Alexander was certified as an expert at trial. Her testimony, with respect to proper civil procedure assisted the Court in finding 93A damages against the defendant counsel. In its decision, the court cited McEvoy Travel v. Norton (1990) stating that under Chapter “93A section 2. Liability can arise from fraudulent conduct.” “Partlow’s long-practiced deception was still pending is fraudulent conduct that violates 93A. Moreover, Partlow actively misled Correll to believe that not only would trial be forthcoming but also that settlement was still possible. Indeed, Partlow did not acknowledge that Correll’s case was lost until 3 months after Correll was first informed by” his prior firm. “Such conduct is of an egregious nature that justifies the award of treble damages. See Brown v. Leclair” (1985)

Of additional significance is that the Court held the law firm, which was organized as a professional corporation, “vicariously liable” because counsel “acted at all times as an employee and agent of the law firm.”

After judgment entered, the parties negotiated a settlement that included the judgment, interest, expert fees, and legal fees.