by Christopher J. Graham and Joseph P. Kelly

Schmidt v. Coogan, 287 P.3d 681 (Wash. App. Oct. 30, 2012)

Defendant attorney granted new trial on damages in legal malpractice case. The legal malpractice plaintiff was injured in a slip and fall at a grocery store. Defendant attorney failed to file plaintiff’s suit against the grocery store within the statute of limitations. The attorney was found liable at trial and damages were awarded. Defendant attorney was granted a new trial on damages only because plaintiff failed to prove collectability. Plaintiff’s damages needed to be limited to what she could recover from the grocery store if defendant attorney timely filed suit. “Courts consider collectability of the underlying judgment to prevent the plaintiff from receiving a windfall because it would be inequitable for the plaintiff to be able to obtain a greater judgment against the attorney than the judgment that the plaintiff could have collected from the third party.”