Insurance Coverage Not a Jury Question Legal Malpractice case
Here, the plaintiffs hired the defendant lawyer to file a wrongful death case for them against their deceased's co-employees. Suit was not filed within the limitations period. At trial, the judge permitted the jury to determine if the employers insurance would have covered the claims against the co-employees. The jury found that it would and found for the plaintiffs. The trial court then granted the defendant's motion for judgment notwithstanding the verdict, finding it was error to let the question of insurance coverage go to the jury. The appellate court affirmed, finding that insurance policies are to be interpreted as a matter of law.
Policies for commercial general liability and excess liability umbrella unambiguously did not cover bodily injuries caused by employees. Employees had no assets of their own, so no recovery would have been possible in a wrongful death action against them. Therefore, failure to timely file wrongful death action against employees did not damage plaintiffs and defendant is not liable for attorney malpractice. Policies’ terms are a matter of law, not a jury question, so it was error to submit the case to the jury, and defendants were entitled to judgment notwithstanding the verdict.
Semsa Selimanovic, Alen Selimanovic, Dervis Selimanovic and Jarvis Selimanovic, Appellants, v. Daniel P. Finney, Jr., d/b/a Daniel P. Finney, Jr., Attorney At Law, Respondent.
