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McElmurry v. Ingebritson

United States District Court, E.D. Washington

November 13, 2017

EDWARD MCELMURRY and EVA MCELMURRY, INDIVIDUALLY and the marital community thereof, Plaintiffs,


          Stanley A. Bastian, United States District Judge.

         Before the Court is Plaintiffs' Motion for Summary Judgment, ECF No. 20. The Court held a hearing on November 7, 2017, in Spokane, Washington. Plaintiffs were represented by Troy Nelson and Ryan Best, and Defendants by Markus Louvier. The Court took the motion under advisement. For the reasons stated herein, Plaintiffs' motion is denied.


         On November 30, 2017, Plaintiffs Edward and Eva McElmurry filed a Complaint for Legal Malpractice against Russel and Jane Doe Ingebritson and Agents/Owners of Ingebritson and Associates. ECF No. 1. Plaintiffs allege that Edward McElmurry (“Plaintiff”) was injured in a car accident on the job while employed with BNSF Railroad (“BNSF”). Plaintiff contends that Russell Ingebritson (“Defendant”) agreed to represent him on a contingent fee basis in a Federal Employers Liability Act (“FELA”), 45 U.S.C. § 51, et seq., lawsuit against BNSF. Plaintiff further alleges that Defendant failed to file a FELA action prior to the expiration of the statute of limitations. Accordingly, Plaintiff brings a legal malpractice action to recover damages from the injuries he suffered.

         Disputed Facts

         Plaintiff was an electronic technician working in the telecommunications department for BNSF. In June 2012, the BNSF Pasco yard was short staffed and Plaintiff was ordered to drive to Pasco to assist in a projects completion. For travel, Plaintiff was provided a 1997 BNSF Jeep Cherokee. On June 15, 2012, Plaintiff was driving to Spokane from Pasco in the work vehicle and was on-the-clock. Near the Cheney-Tyler exit, Plaintiff slowed his speed due to an accident when he was rear-ended by a large SUV traveling at full highway speed. He was injured in the accident. Plaintiff notes that the Jeep did not have reflective tape on the back and was not equipped with a strong metal mesh barrier between the driver compartment and the rear like several other BNSF vehicles.

         After the accident, Plaintiff hired Jim Sweetser to represent him in an underinsured motorist lawsuit against the other driver. Sweester, however, was unfamiliar with FELA and advised Plaintiff to retain a different attorney; the union recommended Defendant.

         Plaintiff proffers the following. Plaintiff spoke to Defendant around October or November of 2014. Defendant stated he would pursue a FELA action on behalf of Plaintiff on a contingency fee basis. In late 2014, Plaintiff gave Andrew Day of BNSF a settlement demand letter drafted by Sweester, which Defendant later asked to see, along with medical records. Plaintiff had several additional phone calls with Defendant and told his coworkers that Defendant was representing him in a FELA action. Defendant later became aware that Plaintiff may have a claim against BNSF for asbestosis and advised Plaintiff on the same. When Day asked Plaintiff to give a statement, Plaintiff called Defendant, who advised Plaintiff not to give a statement. The statute of limitations expired in June 2015; no lawsuit was filed.

         Defendant offers the following version of the facts. Defendant received a call from Plaintiff in 2014. Due to Defendant's membership in DLC (full name unknown), he is obligated to provide free assistance to union members. Defendant agreed to hear Plaintiff out. Plaintiff stated that a former attorney obtained a $300, 000 settlement on his behalf and Plaintiff was angry about the one-third contingency fee collected. Defendant stated it was unlikely anything could be done with the settlement and proceeded to explain FELA and noted that BNSF's negligence would have to be the cause of Plaintiff's injuries. Defendant expressed doubt that Plaintiff had a viable FELA claim, stating that it was unlikely that reflective tape would have any impact on the occurrence of an accident that occurred in broad-daylight.

         From the outset, Plaintiff understood the three-year statute of limitations. Defendant was clear that he would not represent Plaintiff, but would help him explore other potential claims. Plaintiff never asked for Defendant's formal representation, nor did the parties enter into a fee agreement. Plaintiff and Defendant exchanged more phone calls. Defendant explained any future claim would be accompanied by a standard written fee agreement. At the time Defendant was engaged in an epidemiological study with the union because potential conditions and diseases could arise out of workplace exposures. Defendant stated he would explore to see if Plaintiff may have a claim and considered the current and future health of his wife. The parties engaged in no discussions about a fee arrangement or the handling of costs. Plaintiff stopped calling Defendant and while the parties did interact from time to time, Defendant never agreed to act as Plaintiff's attorney, the firm did not represent Plaintiff, and Defendant did not open or begin the process of opening a litigation file. Defendant did not ask to contact Plaintiff's prior attorney nor did he receive any file materials from the prior case. Plaintiff never asked what Defendant was doing, ask for copies of papers, ask Defendant to do something or inquire as to what Defendant had done on his behalf. Indeed, Plaintiff interacted directly with BNSF, as he would be free to do as an unrepresented employee; he never asked Defendant to contact BNSF.

         Legal Standard

         Summary judgment is appropriate if the pleadings, discovery, and affidavits demonstrate there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed.R.Civ.P. 56(c)). There is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party has the burden of showing the absence of a genuine issue of fact for trial. Celotex, 477 U.S. at 325.

         When considering a motion for summary judgment, the Court neither weighs evidence nor assesses credibility; instead, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. When relevant facts are not in dispute, summary judgment as a matter of law is appropriate, Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999), but “[i]f ...

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