United States District Court, E.D. Washington
EDWARD MCELMURRY and EVA MCELMURRY, INDIVIDUALLY and the marital community thereof, Plaintiffs,
RUSSELL INGEBRITSON and JANE DOE INGEBRITSON INDIVIDUALLY, and the marital community thereof and AGENTS/ OWNERS OF INGEBRITSON and ASSOCIATES, A MINNESOTA ENITY, Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY
Stanley A. Bastian, United States District Judge.
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.
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.
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.
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
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.
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.
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.
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.
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 ...