Attorneys – Tort/Negligence – Legal Malpractice Claim – Case Within a Case – Snowy Road Fishtail – Arbitration — Civil Practice – Service of Process

Tarrant v. Hudson (Lawyers Weekly No. 12-16-0847, 22 pp.) (Martha A. Geer, J.) Appealed from Wake County Superior Court. (Abraham Penn Jones & Paul G. Gessner, JJ.) N.C. App. Unpub.

Holding: Even though the defendant-attorneys failed to file a personal injury action on behalf of plaintiff before the statute of limitations expired, and even though plaintiff later obtained a default judgment against the driver and owner of the other car involved in his accident, since plaintiff only showed that the other car fishtailed and spun out on an icy, snowy road, plaintiff failed to prove that the other driver was negligent. Therefore, he failed to prove the “case within a case” necessary to show the attorneys committed legal malpractice when they missed the filing deadline.

We affirm summary judgment for defendants.

Even though there was an arbitration agreement between plaintiff and his uninsured motorist carrier, the defendant-attorneys were not parties to the insurance contract; therefore, they were not bound by the arbitration clause. This is true even with respect to the “case within a case.”

While defendant Crosby-Zuravel was, at one time, employed by the defendant-law firm, she left the firm almost four months before plaintiff’s accident occurred.

The acceptance of service that Crosby-Zuravel signed – which was drafted by plaintiff’s counsel – identified her as one of three partners in the firm. This appears to have been a clerical error. Plaintiff has presented no evidence disputing Crosby-Zuravel’s evidence that, in signing the acceptance of service, she was only accepting service on her own behalf. Nor has plaintiff presented any evidence apart from the acceptance of service suggesting that Crosby-Zuravel was in fact a partner or employee of the firm during the relevant time.

The acceptance of service, under the circumstances of this case, is insufficient to give rise to an issue of fact regarding Crosby-Zuravel’s liability to plaintiff for negligence by a lawyer associated with the firm.

Where defendants were not parties to plaintiff’s action against the driver and owner of the other car, they were not able to prevent entry of the default judgment or to compel the introduction of evidence. While plaintiff appears to argue that defendants should have intervened, he cites no authority that suggests that the potential for intervention is sufficient to establish privity for purposes of collateral estoppel. Because defendants were not parties or privies to the default judgment, the trial court properly declined to apply the doctrine of collateral estoppel.

Affirmed.