Matoesian denies motion to dismiss in legal malpractice case

Madison County Circuit Judge Andreas Matoesian has denied a law firm’s motion to dismiss a Wayne County woman’s legal malpractice case that accuses her lawyer of failing to file a third party personal injury claim before the statute of limitations expired. Plaintiff Pamela Kay Sons filed her lawsuit on Oct. 15 against Dawn Louise Marlow and Reed & Bruhn Professional Corporation, citing negligence. According to her complaint, Sons was employed at the Medicine Shoppe in Fairfield on May 28, 2009, when she fell into an unprotected hole in the floor, which was obscured by duct work from repairs being performed by Hayes Plumbing and Heating Inc.
Sons says that on Jan. 17, 2011, she retained Marlow to represent her in a personal injury claim, and on Feb. 9, 2011, the defendants filed an application for adjustment of claim against Ed Lucy Inc., doing business as the Medicine Shoppe. The complaint states that Sons discharged the defendants on Aug. 6, 2013, and retained attorney Ryan R. Rice, who informed her that a third party negligence claim against Hayes Plumbing and Heating had been a viable cause of action but had expired due to the statute of limitations on May 28, 2013. The defendants are accused of failing to investigate the third party claim, advise plaintiff that she had a third party claim or refer plaintiff to a trial attorney to pursue the third party claim, all before the statute of limitations ran out. The defendants filed a motion to dismiss the complaint on Nov. 24, arguing that their representation to the worker’s compensation claim was limited by the Attorney Representation Agreement. “There is no doubt that the defendants undertook only the representation of the plaintiff in the worker’s compensation claim,” the motion states. “In fact, they could only undertake representation of the plaintiff in the worker’s compensation claim because to do otherwise would have been contrary to the scope of representation set forth in the retention letter.” The plaintiff opposed the defendants’ motion in her Dec. 8 response, arguing that the defendants’ retention letter is “at the very least factually ambiguous regarding the defendants’ scope of injury.” Sons explains in her response that the defendants agreed to represent the plaintiff regarding her personal injuries and “med pay” in the letter, meaning their duties stretched beyond the worker’s compensation claim. At the very least, they could have referred the plaintiff to another attorney to investigate the third party claim, she argues. On Jan. 16, Matoesian denied the defendants’ motion to dismiss. The plaintiff seeks more than $50,000 in damages. R. Courtney Hughes of Hughes Law Firm in Carbondale represents Sons. Barry S. Noeltner and Gregory C. Flatt of Heyl, Royster, Voelker & Allen in Edwardsville represent the defendants. Madison County Circuit Court case number 14-L-1400