Copp v. Atwood CV-04-337-JD 01/24/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin C. Copp
v. Civil No. 03-288-JD Opinion No. 2005 DNH 010 Bradford T. Atwood and Clauson & Atwood
O R D E R
Kevin C. Copp was involved in a two-car accident in 1999 on
Route 89 in Lebanon, New Hampshire. After his former attorney,
Bradford T. Atwood, and Atwood's law firm, Clauson & Atwood,
failed to bring suit against the driver of the other car within
the time allowed by the statute of limitations, Copp retained new
counsel and filed suit against Atwood and Clauson & Atwood,
alleging professional negligence and violation of the New
Hampshire Consumer Protection Act, New Hampshire Revised Statutes
Annotated ("RSA") § 358-A:10. The parties have filed motions for
partial summary judgment.1
1Copp included a cross motion for partial summary judgment on his Consumer Protection Act claim as part of his objection to the defendants' motion. Under the local rules of this court, "[m]otions, other than those submitted during trial, shall be considered only if submitted separately from other filings and only if the word 'motion' appears in the title." LR 7.1(a) (1). Therefore, the court will not consider Copp's cross motion on his Consumer Protection Act claim. Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All
reasonable inferences and all credibility issues are resolved in
favor of the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
Background
The accident occurred on May 4, 1999, when the driver of the
other car involved in the accident, Pamela Kvam, attempted to
turn across both lanes of Route 89 to a crossover on the median
strip in order to get to the northbound side of the highway.
Kvam slowed to nearly a stop pulling toward the shoulder in the
right lane and then abruptly turned across both lanes, heading
for the median. Copp hit Kvam's car, which caused his car to
leave the road and roll over several times in the median area.
2 In August of 2001, Copp contacted Atwood to represent him in
connection with the accident. Copp and Atwood signed a
contingent fee agreement in January of 2002. The time to file
suit passed on May 4, 2002. The defendants do not dispute that
suit was not filed within the time allowed by the statute of
limitations. They also do not dispute that they violated the
standard of care for purposes of liability as to the professional
negligence claim.
Copp made several telephone calls to Atwood during November
and December of 2002 to inguire about the status of his case.
Atwood did not take his calls or return them. Copp then sent
letters in January and February of 2003, reguesting an update.
Copp represents that when he was unable to reach Atwood after
calls on five consecutive days, he finally got through by
pretending to be someone else. Atwood gave him excuses for not
responding to his inguiries. In a later conversation, Atwood
admitted that he missed the filing deadline. Copp filed this
action in July of 2003.
Discussion
Copp moves for partial summary judgment as to liability on
his professional negligence claim. The defendants object,
asserting that material factual issues must be decided by a jury
3 as to the underlying case against Kvam. The defendants move for
partial summary judgment as to Copp's Consumer Protection Act
claim.
A. Professional Negligence
"In a legal malpractice case, a plaintiff must prove: (1)
that an attorney-client relationship existed, which placed a duty
upon the attorney to exercise reasonable professional care, skill
and knowledge in providing legal services to that client; (2) a
breach of that duty; and (3) resultant harm legally caused by
that breach." Mclntire v. Lee, 149 N.H. 160, 165 (2003). If the
plaintiff contends that the harm caused by his attorney's
negligence was the loss of a legal action, he must prove that he
would have been successful but for his attorney's negligence.
Id. To prove damages, the plaintiff must show the amount of the
judgment that he would have received in the underlying case and
that the judgment would have been collectible. Carbone v.
Tierney, 2004 WL 2827247, at *8 (N.H. Dec. 10, 2004) .
The defendants concede that an attorney client relationship
existed and that they breached the duty owed to Copp as their
client. Because Copp seeks summary judgment on only the issue of
liability, not damages, the amount of the judgment in the
underlying case and whether that judgment would have been
4 collectible from Kvam are not issues that need to be resolved for
purposes of the present motion. Therefore, the only question in
dispute for purposes of summary judgment is whether, based on the
undisputed facts presented here, Copp would have been able to
establish Kvam's liability for negligence in a suit against her.
To succeed on a negligence claim against Kvam, Copp would
have to prove that she owed him a duty, that she breached the
duty, and that the breach proximately caused his injury.
Carignan v. N.H. Int'l Speedway, Inc., 858 A.2d 536, 540 (N.H.
2004). A duty exists, under common law, to use reasonable care
to avoid foreseeable risks of harm. Goodwin v. James, 124 N.H.
579, 583 (1991); Patterson v. Corliss, 112 N.H. 480, 484 (1972).
In addition, statutes, such as traffic laws, impose duties on
drivers, and violation of such statutes constitutes legal fault.
See Mullin v. Joy, 145 N.H. 96, 97 (2000); Marguay v. Eno, 139
N.H. 708, 713 (1995) .
As presented for purposes of summary judgment, the factual
background about the accident is undisputed. Kvam was driving
southbound on Route 89 looking for exit 20. When she realized
she had missed the exit, she decided to make a u-turn across the
median to reverse direction. She saw a crossover in the median,
slowed down, almost coming to a stop, and pulled over to the
right side of the highway toward the shoulder. When Copp saw her
5 do that, he moved into the passing lane to go around her. The
speed limit was sixty-five miles per hour, and Copp states that
he was traveling at sixty-five.
As Copp moved into the passing lane, Kvam abruptly turned
across both lanes toward the median, directly in front of Copp.
He hit her car in the driver's door. The impact spun Kvam's car
and sent Copp's car beyond the shoulder where it rolled over
three times in the median coming to rest on the driver's door.
Copp was pinned in the car and had to be extricated by emergency
personnel who responded to the accident. Copp was injured in the
accident, although the extent of his injuries is disputed.
Witnesses to the accident said that Copp had nowhere to go
to avoid the accident. The crossover was marked, and Kvam said
after the accident that she knew she was not supposed to drive
over the median on the crossover. She was convicted of
attempting to make an illegal u-turn through the median in
violation of RSA 265:26.2
It is undisputed that the defendants' failure to bring suit
within the time allowed caused Copp to lose the opportunity to
sue Kvam to recover for the injuries he sustained in the
accident. Ordinarily, a jury decides the factual issues of the
2RSA 265:26 prohibits driving across a median area on a divided highway.
6 underlying suit, as a substitute for the jury trial the plaintiff
would have had but for his attorney's negligence. Witte v.
Desmarais, 136 N.H. 178, 189 (1992). In this case, however, the
undisputed facts, as presented for summary judgment, do not
reguire a jury's decision as to Copp's success on the merits of
his claim against Kvam.
No reasonable jury could find that Kvam used reasonable care
to avoid a foreseeable risk of harm when she turned across Route
89 to make an illegal turn through the median. Similarly, no
reasonable jury could find that she did not violate her statutory
duty not to make an illegal turn through the median. See, e.g.,
Mullin, 145 N.H. 97-98. Further, Kvam's violation of those
duties caused the accident which injured Copp.
The defendants argue, nevertheless, that Copp was
comparatively negligent.3 Under New Hampshire's comparative
fault statute, the plaintiff's fault does not bar recovery "if
such fault was not greater than the fault of the defendant, or
the defendants in the aggregate if recovery is allowed against
more than one defendant, but the damages awarded shall be
diminished in proportion to the amount of fault attributed to the
plaintiff by general verdict." RSA 507:7. The party asserting
3The defendants describe Copp's fault as "comparable."
7 comparative fault bears the burden of proving it. Id. To
present the issue of comparative fault to a jury, the defendant
must present "some tangible evidence" of such fault. Townsend v.
Legere, 141 N.H. 593, 595 (1997). If reasonable jurors could
only reach a decision on the issue "by conjecture, chance, or
doubtful and unsatisfactory speculation, it is the duty of the
trial court to withdraw the issue from the consideration of the
jury." Id.
Relying on a statement in Copp's medical record that he was
in a "high speed (65-70) rollover" accident, the defendants argue
that Copp was speeding at the time of the accident and was
therefore at fault. Assuming that Copp was going seventy, where
the speed limit was sixty-five, there is no evidence in the
record that his speed was the cause or a contributing cause of
the accident. No reasonable person would have anticipated that
Kvam, after slowing to almost a stop on the far right side of the
highway, would abruptly turn across both lanes of traffic to
illegally cross the median. To avoid summary judgment on
liability, the defendants must show that a factual dispute exists
as to whether Copp was at fault because of his speed and whether
his fault was greater than Kvam's fault in causing the accident.
Given the undisputed circumstances of the accident, the
defendants have not carried their burden. Copp has shown that no factual issue remains to be decided
by a jury as to Kvam's negligence and the defendants' liability
on his professional negligence claim. Therefore, Copp is
entitled to partial summary judgment as to the issue of liability
on his professional negligence claim, leaving the issue of
damages to be resolved either by the parties in settlement or, if
necessary, by a jury.4
B. Consumer Protection Act
Under the Consumer Protection Act, "[a]ny person injured by
another's use of any method, act or practice declared unlawful
under this chapter may bring an action for damages . . . ." RSA
358-A:10. A plaintiff may recover the statutory minimum award
and attorney's fees by showing a violation of the Act without any
showing of actual damages. Preferred Nat'l Ins. Co. v.
Docusearch, 149 N.H. 759, 767 (2003); Carter v. Lachance, 146
N.H. 11, 14 (2001). Effective on July 17, 2002, the legislature
amended RSA 358-A:3 so that it no longer excluded the practice of
law from the scope of the Act. See RSA 358-A:3 (West 2004);
Averill v. Cox, 145 N.H. 328, 332 (2000) (construing prior
version of RSA 358-A:3).
4Ihis decision does not address whether a comparative fault defense would be available on the damages issue. The defendants move for partial summary judgment on the
ground that by July 17, 2002, when the Act first applied to the
practice of law, the statute of limitations deadline had passed
and their actions or failure to act caused no further injury to
Copp. They contend, and Copp does not dispute, that the
amendment to RSA 358-A:3 does not apply retroactively to cover
the defendants' failure to bring suit before May 4, 2002. They
also contend that their actions do not constitute violations of
the Act. Copp argues that because he does not have to show
actual damages to be entitled to the minimum damages award of
$1000 and attorney's fees under the statute, he can maintain his
claim by showing only a violation of the statute.
1. Inj ury.
The Act reguires that the plaintiff be "injured by another's
use of any method, act or practice declared unlawful under this
chapter" to bring an action. RSA 358-A:10 (emphasis added) . In
Carter, the New Hampshire Supreme Court explained that an award
of the statutory minimum provided in RSA 358-A:10 is not based on
the "actual damages suffered," but is instead a penalty imposed
on the violator. Id. at 14. As such, it appears that although
the court used the term "damages" rather than injury, the court
intended that a violation of the Act would constitute an injury
10 entitling the injured party to recover the statutory minimum as a
penalty against the violator. In Preferred Nat'l Ins., the court
followed Carter and reiterated that RSA 358-A does not reguire a
showing of "actual damages" for an award of statutory damages and
attorney's fees, again without explaining the relationship
between "damages" and "injury." 149 N.H. at 767. The context of
the decision demonstrates that the court used "damages" to mean
"injuries." Id. Therefore, the cases hold that a plaintiff need
only prove that he was subjected to a violation of RSA 358-A:2 to
be entitled to statutory damages and attorney's fees.
That interpretation of New Hampshire law is strengthened by
the Massachusetts Supreme Judicial Court's decision that a
violation of the Massachusetts Consumer Protection Act alone is
an injury that entitles the party subjected to the violation to
recover statutory damages. See Aspinall v. Philip Morris Cos.,
Inc., 813 N.E.2d 476, 490-91 (Mass. 2004) (citing Leardi v.
Brown, 474 N.E.2d 1094, 1102 (Mass. 1985)). The New Hampshire
Supreme Court has previously found the Supreme Judicial Court's
interpretation of the Massachusetts Act persuasive for purposes
of deciding a standing issue under 358-A. See Remsburg v.
Docusearch, 149 N.H. 148, 160 (2003). Therefore, if the
defendants violated RSA 358-A:2 in their relationship with Copp,
he will be entitled to statutory damages and attorney's fees.
11 2. Violation of RSA 358-A:2.
The defendants argue that they did not violate RSA 358-A:2
because their conduct after July 17, 2002, did not involve any
unfair or deceptive act or practice in trade or commerce, as
defined in the Act. They contend that their actions after July
17, 2002, were not "trade or commerce" because those actions did
not involve "advertising, offering for sale, sale, or distribu
tion of any services." RSA 358-A:1, II. The distinction they
make is that the Act covers the commercial aspects of legal
practice but not the competence of the professional services
provided.
Before the last amendment, RSA 358-A:3, I (1995) excluded
trade or commerce that was "otherwise permitted under laws as
administered by any regulatory board or officer acting under
statutory authority of this state or of the United States."
"Trade or commerce" was defined, in pertinent part, as it is now
to "include the advertising, offering for sale, sale, or
distribution of any services." The New Hampshire Supreme Court
interpreted RSA 358-A:3, I to exempt the practice of law from the
scope of the Consumer Protection Act. Averill, 145 N.H. at 332.
Although the defendants in Ave rill argued that the exemption
provided by RSA 358-A:3, I should be limited to the "non
commercial" aspects of legal practice, id. at 330, the supreme
12 court did not make that distinction. This court is not inclined
to do so now in the absence of any guidance that the supreme
court would likely change its interpretation of the Act.5
Copp does not cite any of the examples of prohibited conduct
provided in RSA 358-A:2. To determine what other acts are
unlawful under RSA 358-A:2, the court "look[s] to the federal
courts' interpretation of the Federal Trade Commission Act for
guidance." Milford Lumber Co., Inc. v. RCB Realty, Inc., 147
N.H. 15, 19 (2001); accord State v. Moran, 861 A.2d 763, 765-66
(N.H. 2004). The Federal Trade Commission test, adopted by the
New Hampshire Supreme Court, asks:
(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise - whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other business men.)
Milford Lumber, 147 N.H. at 19. At the same time, however, the
challenged conduct must be of the type as described in RSA 358-
A:2, that is, "'the objectionable conduct must attain a level of
5Ihe concurring opinion by Justice Thayer in Rousseau v. Eshleman, 129 N.H. 306, 312 (1987), and the dissent by Justice Johnson in Rousseau v. Eshleman, 128 N.H. 564, 570 (1986), are not persuasive because their opinions have not been adopted by the majority of the court.
13 rascality that would raise an eyebrow of someone inured to the
rough and tumble of the world of commerce.'" Moran, 8 61 A.2d at
765 (quoting Milford Lumber, 147 N.H. at 17). The New Hampshire
Supreme Court has held that its regulation of the practice of law
through the Rules of Professional Conduct "protects consumers
from the same fraud and unfair practices as RSA chapter 358-A."
Aver11, 145 N.H. at 333. The "Scope" section of the Rules of
Professional Conduct, however, cautions that violation of a rule
should not provide a cause of action and that the rules are not
designed to be a basis for civil liability. See Wong v. Ekberg,
148 N.H. 369, 375 (2002). Therefore, in some circumstances,
violation of the rules may provide evidence of unfair or
deceptive practices under the Act, see, e.g.. Sears Roebuck & Co.
v. Goldstone & Sudalter, P.C., 128 F.3d 10, 19 (1st Cir. 1997),
but a violation of the rules, standing alone, would not be
sufficient to prove a claim under RSA 358-A:2.
In support of his claim, Copp contends that the defendants
engaged in unfair and deceptive practices, after July 17, 2002,
by failing to keep him informed of the progress of his case. He
points to New Hampshire Rule of Professional Conduct 1.4(a) that
states: "A lawyer shall keep a client reasonably informed
regarding the status of a matter and promptly comply with
reasonable requests for information." Copp asserts that the
14 defendants violated Rule 1.4(a) and violated RSA 358-A:2 by
intentionally not telling him that they failed to file his suit
against Kvam in a timely manner and by not keeping him informed
despite his inguiries.
The defendants do not deny that they failed to notify Copp
when they missed the limitations deadline or that they avoided
his inguiries. They argue based on cases from Washington and New
Jersey that, as a matter of law, their conduct is not
sufficiently deceptive to support a claim under the Consumer
Protection Act. Those cases are not persuasive as to the
interpretation of New Hampshire law. Therefore, a jury guestion
remains as to whether the defendants' conduct violated the Act.
The defendants are not entitled to summary judgment on Copp's
Consumer Protection Act claim. Copp is limited, however, to the
statutory minimum award and attorney's fees, as he has
represented in his objection to the defendants' motion.
Conclusion
For the foregoing reasons, the plaintiff's motion for
partial summary judgment (document no. 12) on the issue of the
defendants' liability on his professional negligence claim is
granted. The defendant's motion for summary judgment (document
15 no. 9) on the plaintiff's Consumer Protection Act claim is
denied.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
January 24, 2005
cc: John C. Kissinger, Esguire Francis X. Quinn Jr., Esguire