Bailey, et al. v. Buskey, et al.

2014 DNH 057

Opinion

Bailey, et al. v. Buskey, et al. 12-CV-396-SM 3/20/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Chase Bailey, Individually, and Jesse Ian Bailey, as Trustee of the Chase Bailey Insurance Trust, Plaintiffs

v.

Lynn Buskey, Shawn McCarthy, Case No. 12-cv-396-SM and Buskey & McCarthy, LLP, Opinion No. 2014 DNH 057 Defendants/Third-Party Plaintiffs

Michael E. Chubrich, and Michael E. Chubrich, P.A., Third-Party Defendants

O R D E R

Before the court is third-party defendants, Michael Chubrich

and Michael Chubrich, P.A.'s, motion to dismiss the third-party

complaint, doc. no. 32. Chubrich argues that the complaint is

time-barred and, in any event, fails to state a viable claim.

The third-party complaint was timely, having been filed

prior to the resolution of plaintiffs' claim against the

defendants and with plaintiffs' consent. See N.H. Rev. Stat.

Ann. 507:7-g(III) and (IV) ("[I]f and only if the plaintiff in

the principal action agrees, a defendant seeking contribution may

bring an action prior to the resolution of the plaintiff's

principal action, and such action shall be consolidated for all

purpose with the principal action."). Moreover, the third-party complaint states a claim for

contribution against Chubrich because it plausibly asserts that

Chubrich's independent acts of alleged malpractice contributed to

plaintiffs' ultimate injury. See RSA 507:7-g(III) ("A right of

contribution exists between or among 2 or more persons who are

jointly or severally liable upon the same indivisible claim, or

otherwise liable for the same injury death or harm"). See also

Trull v. Volkswagen of Am., Inc., 145 N.H. 259, 266 (2000)

("[T]wo or more tortfeasors may be jointly and severally liable

where their negligence, through their independent acts, produces

a single, indivisible injury."). See also Schauer v. Joyce, 54

N.Y.2d 1, 5, 429 N.E. 2d 83, 84 (1981) (in third-party suit by

original attorney against attorney who replaced him, "[t]he

relevant guestion under [the contribution statute] ... is not

whether [the replacement attorney] owed a duty to [the original

attorney], but whether [the attorneys] each owed a duty to [the

plaintiff-client], and by breaching their respective duties

contributed to her ultimate injuries.").

Contrary to Chubrich's argument, the contribution claim is

not barred by the general rule, announced in MacMillan v.

Scheffy, 147 N.H. 362, 365 (2001), that a non-client cannot hold

an attorney liable for malpractice. The rule is aimed at

preserving an attorney's loyalty to the client. See id. ("Where

a client's interest is involved in a proceeding that is

2 adversarial in nature, the existence of a duty of the attorney to

another person would interfere with the undivided loyalty which

the attorney owes his client and would detract from achieving the

most advantageous position for his client.") (quotation marks

omitted). That policy, however, is not "defeated by allowing a

claim for contribution or indemnity by one attorney against

another for alleged negligence in the representation of the same

client." Brown v. LaChance, 477 N.W. 2d 296, 301 (Wis. Ap p .

1991). To the contrary, "allowing such claims promotes that

policy by assuring that any attorney who negligently represents a

client may be held liable." Id.

For these reasons, Chubrich's motion to dismiss the third-

party complaint, doc. no. 3_2, is necessarily denied.

SO ORDERED.

/teven J/ McAuliffe nited States District Judge

March 20, 2014

cc: Michael E. Chubrich, Esq. Kristyn D. Kaupas, Esq. Robert A. McCall, Esq. Sean T. O'Connell, Esq. Alan K. Tannenwald, Esq.