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Bleck v. Power

September 4, 2008

AURORE BLECK, APPELLANT,
v.
DAVID F. POWER, APPELLEE.



Appeal from the Superior Court of the District of Columbia Civil Division (CA-83-07) (Hon. Jennifer Anderson, Trial Judge).

The opinion of the court was delivered by: Glickman, Associate Judge

Argued June 19, 2008

Before REID, GLICKMAN and FISHER, Associate Judges.

Aurore Bleck sued her former attorney, David F. Power, for legal malpractice. Judge Anderson granted Power's motion to dismiss the suit as barred by the three-year statute of limitations. Bleck has appealed, contending that she brought suit within three years of the date on which her cause of action accrued. We disagree with that contention and affirm the judgment of the Superior Court.

I.

As an employee of the National Academy of Sciences between 1986 and 1998, Aurore Bleck was covered by a long-term disability (LTD) insurance policy issued by Teachers' Insurance and Annuity Association of America (TIAA). In 1997, Bleck filed a claim under the policy for LTD benefits. After TIAA determined that she was not "totally disabled" and denied her claim in March 1998, Bleck retained attorney David Power to represent her in seeking reconsideration. On May 14, 1999, however, TIAA rendered a final decision denying Bleck's claim and terminating her benefits. A few months later, Power advised Bleck that her right to sue TIAA on her LTD benefits claim had "matured," and he agreed to bring the lawsuit on her behalf.

Power filed Bleck's suit against TIAA in the United States District Court for the District of Columbia on May 10, 2002. TIAA moved to dismiss the suit as time-barred by a policy provision specifying that any action to recover benefits had to be brought within two years from the end of the time within which proof of total disability was required. The district court granted TIAA's motion on July 29, 2003.*fn1

Bleck discharged Power and hired new counsel, who, on August 12, 2003, moved the district court to reconsider its ruling. The court treated the motion as one "to alter or amend a judgment" pursuant to Federal Rule of Civil Procedure 59 (e) and denied it on January 7, 2004. Bleck did not file an appeal.

Nearly three years later, on January 5, 2007, Bleck commenced the present legal malpractice action against Power in District of Columbia Superior Court. Her complaint alleged "[t]hat [Power] was negligent in failing to file [Bleck's] lawsuit [against TIAA] within the proper time of two (2) years as set forth in the contract" of insurance. Pursuant to Civil Rule 12 (b)(6),*fn2 Power moved to dismiss the complaint as barred by the three-year statute of limitations. Power argued that the limitations period began to run on July 29, 2003, when the district court dismissed Bleck's lawsuit against TIAA. Bleck countered that the statute of limitations did not begin to run on her claim against Power until the district court denied her Rule 59 (e) motion on January 7, 2004. Rejecting Bleck's argument, Judge Anderson granted Power's motion to dismiss Bleck's complaint.

II.

Power's Rule 12 (b)(6) motion to dismiss challenged the legal sufficiency of Bleck's complaint to state a viable claim for relief in light of the statute of limitations. Our review is de novo, presuming the complaint's factual allegations to be true and construing them in the light most favorable to Bleck.*fn3

A legal malpractice action in the District of Columbia must be filed within three years "from the time the right to maintain the action accrues."*fn4 At the earliest, the action accrues "when the plaintiff has sustained some injury, even if the injury occurs prior to the time at which the precise amount of damages can be ascertained."*fn5 The term "injury" encompasses any "loss or impairment of a right, remedy or interest, or the imposition of a liability."*fn6 Under the "discovery rule," however, "a plaintiff's right of action in a legal malpractice case does not accrue until the plaintiff has knowledge of, or by the exercise of reasonable diligence should have knowledge of (1) the existence of the injury; (2) its cause in fact; and (3) some evidence of wrongdoing."*fn7 In addition, under the "continuous representation rule," a client's legal malpractice claim "does not accrue until the attorney's representation concerning the particular matter in issue is terminated"*fn8 (even if the client knows before then that her attorney has made an injurious error).

Applying the foregoing principles to this case, Bleck was injured by Power's alleged negligence when he missed the contractual deadline for commencing an action against TIAA, thereby forfeiting her claim for LTD benefits.*fn9 Bleck could have initiated a malpractice action against Power immediately, without first pursuing her futile suit in federal district court; for in cases where an attorney has missed a deadline for filing suit, "[t]he injury occurred when the client's action was legally subject to dismissal, rather than the actual, but fortuitous, date of dismissal."*fn10 Bleck may not have known of Power's error when he committed it, and he continued to represent her for some time thereafter. But by August 2003, Bleck knew Power had missed the contractual filing deadline, and she had replaced him with new counsel. This was more than three years before she sued Power.

We addressed a similar situation in Weisberg v. Williams, Connolly & Califano.*fn11 The appellants in that case sued their former law firm ("WC&C") for neglecting to file a Federal Tort Claims Act (FTCA) complaint on their behalf against the government before the statute of limitations had run on the major part of their claims. This Court rejected the contention that appellants' cause of action for malpractice accrued only when they received the district court's ruling that their FTCA claims were time-barred. That date, we said, was "well beyond the point at which appellants suffered injury."*fn12 Rather, we held, the appellants' cause of action for malpractice accrued, at the latest, once they had obtained new counsel in the FTCA case and were on notice of the government's assertion of a statute of limitations defense to their FTCA claims.*f ...


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