Madison - St. Clair Record

Monday, September 16, 2019

Attorney sued for allegedly failing to apply client for veteran benefits to prevent Medicare spend-down seeks to dismiss suit

By Heather Isringhausen Gvillo | Nov 11, 2015


Attorney Tammy Julian of Farrell Hamilton & Julian in Godfrey seeks to dismiss a legal malpractice suit alleging she negligently prepared a trust, which resulted in loss of estate assets.

According to plaintiff Abby Benson Razer’s lawsuit filed in August, she claims the late Orville Benson, who died in 2009, retained Julian in April 2007 for the purpose of creating an irrevocable living trust, under which Razer was a beneficiary.

Following Benson’s death, his surviving wife, Shirley Benson, believed she would be protected from a Medicare spend-down under the terms of the trust. However, the plaintiff claims the trust did not protect Benson’s assets, which were spent down approximately $400,000, the suit states.

Razer alleges Julian was negligent in failing to inquire whether the Bensons had any handicapped relatives and failing to apply for veteran benefits available to the decedent under Illinois law, which would have spared the asset spend-down and allowed Shirley Benson more available assets for her care.

Julian filed a motion to dismiss the complaint on Nov. 9 through attorney Brent Baldwin of The Baldwin Law Group in St. Louis. She argues that the plaintiff failed to state a legally sufficient claim for negligence.

“The general rule in Illinois is that an attorney can only be liable in negligence to his client and not to non-client third parties.”

“Defendant’s alleged failure to apply for Illinois Veteran’s benefits on behalf of plaintiff’s grandfather, Orville Benson, does not fit into any exception to the general rule,” the motion states.

She adds that Razer provided no facts showing that Julian owed a duty to apply for Illinois veteran’s benefits on her grandfather’s behalf and, therefore, lacks standing to sue for the alleged wrongdoing.

Julian also argues that Razer’s claims are time barred. She explains the alleged negligence occurred in April 2007, but the case wasn’t filed until more than six years later in August 2015. As a result, she argues the lawsuit should be dismissed based on the statute of repose.

Razer seeks a judgment in excess of $50,000, plus costs of the suit.

The plaintiff is represented by William K. Meehan of the Meehan Law Firm in University City, Mo.

Madison County Circuit Court case number 15-L-1092

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