United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit October 1, 2003
Charles R. Fulbruge III
Clerk
No. 01-50981
B.J. HALL,
Plaintiff – Appellant – Cross-Appellee,
VERSUS
WHITE, GETGEY, MEYER & CO., LPA,
Defendant – Appellee – Cross-Appellant.
Appeals from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, EMILIO M. GARZA, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
B. J. Hall brought this legal malpractice action against
White, Getgey, Meyer & Co., LPA (“White/Getgey”), the law firm that
represented him in a suit for disability benefits against Hartford
Life and Accident Insurance Company (“Hartford”). Hall alleged
that the firm’s failure to supplement responses to interrogatories
led to the exclusion of his medical expert witnesses at trial and
forced him to settle with Hartford for a nominal amount. This case
went to trial, and the jury returned a verdict in Hall’s favor and
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awarded him $675,000 in damages. When the magistrate judge who
presided over the trial entered judgment on the verdict, she found
that White/Getgey was entitled to a settlement credit equal to 40%
of the damages award on account of Hall’s release of his first
attorney in the underlying suit from malpractice liability in
exchange for the attorney’s release of Hall from any claim for
compensation under a 40% contingent-fee agreement. The judge
reduced Hall’s award accordingly. Both parties appeal. Hall
challenges the reduction of his damages award; White/Getgey
contends that an offset provision of the Hartford policy required
the magistrate judge to reduce the award even further. We modify
the damages award and affirm the magistrate judge’s final judgment
as modified.
I. BACKGROUND
From July 5, 1989, to May 18, 1990, B.J. Hall was the
executive vice president and chief operating officer of Incarnate
Word Health Services (“Incarnate Word”), a company that operated
hospitals in Texas and Missouri. As an employee of Incarnate Word,
Hall was covered by a group disability policy issued by Hartford.
Under that policy, Hall was eligible for benefits if he became
“totally disabled” while employed at Incarnate Word.
On May 7, 1990, Hall was injured in an automobile accident; in
particular, he suffered a whiplash injury and later complained of
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weakness in his extremities, loss of balance, and fatigue.1 In the
days following the accident, Hall attended one staff meeting but
did not otherwise return to work. On May 11, 1990, Incarnate Word
notified Hall that his employment would be terminated effective May
18, 1990. The termination was apparently unrelated to Hall’s
physical condition after the accident.
During l990 and 1991, Hall consulted two physicians, and both
indicated that he had become totally disabled on May 7, 1990, as a
result of the automobile accident. In April 1991, Hall submitted
a claim for disability benefits under the Hartford policy, but
Hartford denied the claim.
In response to this denial, Hall retained Houston attorney
Harvill E. Weller, Jr., on a 40% contingent-fee basis. Weller
filed suit against Hartford on Hall’s behalf in Bexar County,
Texas. When Hall disagreed with certain recommendations that
Weller made concerning the case, their attorney-client relationship
began to suffer. In February 1995, just a few months before the
trial date, Hall and Weller decided to terminate their
relationship. Hall replaced Weller with White/Getgey, a firm based
in Cleveland, Ohio. Hall chose White/Getgey because the firm had
1
Hall had a preexisting condition—“post-polio syndrome.” As
its name implies, post-polio syndrome affects polio survivors,
usually many years after their initial bout with the disease. The
condition involves slow but progressive weakening of the muscles.
Although some of the impairments that Hall experienced after the
accident are symptoms of post-polio syndrome, Hall asserts that a
sudden trauma such as whiplash can trigger or exacerbate those
symptoms.
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previously represented him in Ohio in a similar lawsuit against New
England Mutual Life Insurance Company. On April 27, 1995, Hall and
Weller executed a “Mutual Release and Agreement to Terminate Legal
Relationship.” Under the terms of that agreement, Hall reimbursed
Weller for his out-of-pocket expenses and released him from
malpractice liability; Weller, in turn, released Hall from any
claim for attorney’s fees.
The suit against Hartford went to trial on June 5, 1995.
During a hearing on unresolved pretrial matters, the state district
judge granted Hartford’s motion to exclude Hall’s medical expert
witnesses because his attorneys had not supplemented his responses
to interrogatories relating to those witnesses. Without medical
experts, Hall had no possibility of winning his case, so he settled
with Hartford for $20,000.2
Hall later filed this action against White/Getgey in Texas
state court, alleging that the firm’s failure to supplement
discovery responses constituted legal malpractice. White/Getgey
removed the case to federal court on the basis of diversity
jurisdiction and then filed a third-party complaint for
contribution against Weller. Weller filed a motion for summary
judgment, contending that (1) he was released from all liability
for potential malpractice claims in his April 27, 1995 agreement
with Hall; (2) Texas law provides that no defendant has a right of
2
Hall had originally sought over $1 million in disability
benefits under the Hartford policy.
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contribution against a “settling person”; and (3) by virtue of the
release, he was a “settling person” as a matter of law. The
district court agreed that Weller was a “settling person” under the
relevant Texas statute because he gave up his attorney’s fees in
exchange for Hall’s releasing him from malpractice liability. The
court therefore granted Weller’s motion for summary judgment and
dismissed him from the case.
After dismissing Weller from the case, and upon the parties’
consent, the district court assigned this case to a magistrate
judge, who granted White/Getgey’s motion for summary judgment and
dismissed Hall’s complaint.3 The magistrate judge concluded that
the underlying suit was without merit because Hall could not show
that he was “totally disabled” as that term was defined in the
Hartford policy. Hall appealed to this court, and we reversed and
remanded, finding that he had presented sufficient evidence of his
total disability to withstand summary judgment.4
On remand, the parties filed cross-motions for summary
judgment on an affirmative defense of offset that White/Getgey had
pleaded in its first amended answer. That defense was based on a
provision of the Hartford policy that permitted Hartford to reduce
3
See 28 U.S.C. § 636(c)(1) (“Upon the consent of the parties,
a full-time United States magistrate . . . may conduct any or all
proceedings in a jury or nonjury civil matter and order the entry
of judgment in the case, when specifically designated to exercise
such jurisdiction by the district court or court he serves.”).
4
Hall v. White, Getgey, Meyer & Co., LPA, No. 99-51002 (5th
Cir. Feb. 20, 2001) (unpublished).
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the benefits it owed to Hall by the amount of income benefits he
had received from other sources as a result of his disability.5
Reasoning that a favorable damages award against Hartford in the
underlying suit would have been offset by Hall’s “other income
benefits,” White/Getgey argued that Hall’s recovery in this action
was likewise limited.6 But Hartford never pleaded its offset right
as an affirmative defense in the underlying suit. Hall therefore
contended that Hartford waived the defense and that, as a
consequence, White/Getgey could not raise it in a malpractice
action. The magistrate judge agreed that Hartford’s failure to
plead offset amounted to a waiver of that defense under Texas law
and further found that “[i]n this case, Hall’s measure of damages
is the amount he would have received from the jury if his White,
Getgey lawyers had properly prosecuted his claim, considering all
the applicable affirmative defenses Hartford pleaded in the
underlying lawsuit and nothing more.” In accordance with this
finding, the magistrate judge entered an order granting Hall’s
cross-motion for partial summary judgment and striking
White/Getgey’s affirmative defense of offset.
5
Hartford specified those other sources in the policy’s lengthy
definition of the term “other income benefits.”
6
According to White/Getgey, those “other income benefits”
include Hall’s social security disability benefits, disability
benefits he recovered on a policy issued through the American
Institute of Certified Public Accountants, benefits he received
from New England Mutual Life Insurance Company, and his settlement
with Hartford in the underlying action. Those benefits exceed $1
million.
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This case went to trial in August 2001. The jury returned a
verdict in Hall’s favor in the amount of $675,000 and determined
that White/Getgey was responsible for 51% of the negligence that
resulted in Hall’s injuries and that Weller was responsible for the
remaining 49%.7 Soon after the trial, the magistrate judge
requested briefings from the parties to assist her in entering
judgment on the verdict. White/Getgey contended in its brief, as
it had throughout this action, that it was entitled to a settlement
credit under § 33.012(b) of the Texas Civil Practice and Remedies
Code equal to 40% of the damages award. Its theory was that Hall
had settled his malpractice claim against Weller for that amount
when they executed the mutual release. In her “Order on Entry of
Judgment,” the magistrate judge agreed that the mutual release was
a “settlement” for purposes of § 33.012(b) and that White/Getgey
was entitled to a credit equal to the dollar amount of the
settlement. The judge also agreed with White/Getgey that the
“dollar amount” of the settlement was 40% of Hall’s damages award
($270,000) and reduced the award accordingly.
Both parties filed timely notices of appeal.
II. ANALYSIS
We face two issues. First, Hall contends that the mutual
7
Under Texas law, a defendant is jointly and severally liable
for all recoverable damages if the percentage of responsibility
attributed to him is greater than 50%. See Tex. Civ. Prac. & Rem.
Code § 33.013(b).
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release was not a “settlement” and that, even if it was, the
magistrate judge misapplied § 33.012(b) of the Texas Civil Practice
and Remedies Code. Second, White/Getgey challenges the magistrate
judge’s order striking its affirmative defense of offset. The firm
contends that Texas law does not limit a malpractice defendant to
the defenses actually raised in the underlying suit.8 Because both
of these issues concern the magistrate judge’s application of Texas
law, our review is de novo.9
A. Settlement Credit
Section 33.012(b) of the Texas Civil Practice and Remedies
Code provides that if a claimant in a tort action has settled with
a person who bears some responsibility for his injuries, the trial
court must reduce the claimant’s damages award to account for the
settlement:
If the claimant has settled with one or more persons, the
8
Hall argues in his brief that White/Getgey waived its right to
appeal on this issue because it did not mention the magistrate
judge’s order striking the defense in its notice of appeal. This
argument is meritless, for an appeal from the final judgment draws
into question all prior nonfinal orders and all rulings that
produced the judgment. See 20 James Wm. Moore et al., Moore’s
Federal Practice § 303.21[3][c][iii] (3d ed.). “Thus, a failure of
the notice of appeal to specifically refer to a preliminary or
interlocutory order does not prevent the review of that order on
appeal.” Id. (citing New York Life Ins. Co. v. Deshotel, 142 F.3d
873, 884 (5th Cir. 1998)). In this case, the magistrate judge
expressly reaffirmed her pretrial ruling on White/Getgey’s
affirmative defense when she entered judgment on the jury’s
verdict. Because White/Getgey filed a timely notice of appeal from
that final judgment, it is now free to challenge the magistrate
judge’s ruling on its defense.
9
Salve Regina College v. Russell, 499 U.S. 225, 231 (1991).
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court shall further reduce the amount of damages to be
recovered by the claimant with respect to a cause of
action by a credit equal to one of the following, as
elected in accordance with Section 33.014:
(1) the sum of the dollar amounts of all
settlements; or
(2) a dollar amount equal to the sum of the
following percentages of damages found by the
trier of fact:
(A) 5 percent of those damages up to
$200,000;
(B) 10 percent of those damages from $200,001
to $400,000;
(C) 15 percent of those damages from $400,001
to $500,000; and
(D) 20 percent of those damages greater than
$500,000.10
Although Chapter 33 of Civil Practice and Remedies Code contains no
definition of the term “settlement,” § 33.011(5) provides that a
“settling person” is “a person who at the time of submission has
paid or promised to pay money or anything of monetary value to a
claimant at any time in consideration of potential liability . . .
.”11 Tracking this language in part, the Texas Supreme Court has
held that “‘settlement,’ as used in the Comparative Responsibility
Law, means money or anything of value paid or promised to a
claimant in consideration of potential liability.”12
A defendant seeking a settlement credit has the right to
choose between the two methods of calculation provided for in §
33.012(b)—dollar-for-dollar or sliding scale. To obtain a dollar-
10
Tex. Civ. Prac. & Rem. Code § 33.012(b).
11
Id. § 33.011(5).
12
C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 320 (Tex.
1994).
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for-dollar credit, the defendant must file a written election of
that option before the case is submitted to the trier of fact.13
If he has made such an election, the defendant must then prove the
settlement credit amount.14 He can meet this burden by placing the
settlement agreement or some evidence of the settlement amount in
the record.15 If the defendant fails to prove the settlement credit
amount, he is not entitled to a dollar-for-dollar credit, and the
trial court is limited to using the sliding scale method to reduce
the damages award.16
Here, we must first determine whether the mutual release
executed by Hall and Weller on April 27, 1995, was a settlement.
The answer is yes if Weller gave anything of value to Hall in
consideration of potential liability.17 As we discuss more fully
below, Weller had a claim against Hall for attorney’s fees upon the
termination of their contingent-fee agreement, and the record
indicates that Hall pursued the release to avoid having to
compensate both Weller and White/Getgey for their services.18 When
13
See Tex. Civ. Prac. & Rem. Code § 33.014. If the defendant
does not file a written election, he is considered to have elected
the sliding scale method. Id.
14
Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex. 1998).
15
Id.
16
Id.
17
C & H Nationwide, 903 S.W.2d at 320.
18
Indeed, Hall and White/Getgey had entered into a contingent-
fee agreement in March 1995, but at Hall’s request, that agreement
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Weller executed the release, he gave up his claim for attorney’s
fees in exchange for Hall’s reimbursing him $21,027 in expenses and
releasing him from all liability arising out of the representation.
Because Weller’s relinquishment of his claim was valuable to Hall
and was done, at least in part, in consideration of potential
malpractice liability, the magistrate judge correctly held that the
mutual release was a settlement.
Because there was a settlement, Texas law required the
magistrate judge to reduce Hall’s judgment.19 The only question
remaining concerns the proper amount of the reduction. In
accordance with § 33.014 of the Civil Practice and Remedies Code,
White/Getgey filed a written election seeking a dollar-for-dollar
settlement credit before this case was submitted to the jury.
Although White/Getgey acknowledged that, in the typical case, the
settlement to be credited against the judgment is expressed in a
fixed dollar amount, it sought a credit equal to 40% of Hall’s
recovery. It explained that Weller was entitled to that same 40%
under his contingent-fee contract with Hall, but that Weller gave
up that interest when he signed the release. White/Getgey further
explained that “[a]lthough the Weller contract was expressed in a
did not become effective until Hall and Weller executed the mutual
release.
19
See Ellender, 968 S.W.2d at 926 (“When there is a settlement
covering some or all of the damages awarded in the judgment,
section 33.012 requires the trial court to reduce the judgment
accordingly.”).
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percentage, there is a dollar figure that can be placed on the
value of the Weller settlement once the jury reaches its verdict.”
The magistrate judge agreed that the dollar-for-dollar value of
Hall’s settlement with Weller was 40% of the damages awarded by the
jury and reduced Hall’s recovery by that measure.
We find that the 40% reduction was improper. “Under Texas
law, whether and how to compensate an attorney when a contingent
fee contract is prematurely terminated depends on whether the
attorney was discharged, withdrew with the consent of the client,
or withdrew voluntarily without consent.”20 The attorney discharged
without cause can recover on the contingent-fee contract or in
quantum meruit, but if the client proves good cause for the
discharge, the attorney is limited to recovery in quantum meruit
for services rendered up to the time of the discharge.21 “When both
parties assent to the contract’s abandonment, the attorney can
recover for the reasonable value of the services rendered.”22 And
when the attorney abandons the contract before completion without
20
Augustson v. Linea Aerea Nacional-Chile S.A., 76 F.3d 658, 662
(5th Cir. 1996).
21
Id. (citing Mandell & Wright v. Thomas, 441 S.W.2d 841, 847
(Tex. 1969) (attorney discharged without cause can recover on the
contract); Howell v. Kelly, 534 S.W.2d 737, 739–40 (Tex. Civ.
App.—Houston [1st Dist.] 1976, no writ) (attorney discharged
without cause has a choice of remedies); Rocha v. Ahmad, 676 S.W.2d
149, 156 (Tex. App.—San Antonio 1984, writ dism’d) (attorney
discharged for good cause can recover only the reasonable value of
his services)).
22
Id. (citing Diaz v. Attorney General of Texas, 827 S.W.2d 19,
22–23 (Tex. App.—Corpus Christi 1992, no writ)).
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good cause, he forfeits his right to compensation under the
contract;23 if, however, he has good cause for withdrawing without
the client’s consent, the attorney is probably entitled to
compensation, but the proper measure of that compensation is
unclear.24
In this case, the record supports neither a finding that
Weller was discharged nor a finding that he withdrew without Hall’s
consent. Every indication, instead, is that Hall and Weller agreed
to terminate their attorney-client relationship in February 1995
and then began negotiating the terms of the mutual release.
Because both parties assented to the termination of the
representation contract, Weller was entitled, under Texas law, to
recover only the reasonable value of his services from Hall.25 And
it was his claim for that reasonable value that Weller released in
exchange for Hall’s reimbursing his expenses and releasing him from
malpractice liability. Therefore, the magistrate judge erred in
finding that the value of the settlement was 40% of Hall’s
recovery.
Although White/Getgey placed Hall and Weller’s contingent-fee
agreement and their mutual release in the record, it never
introduced evidence concerning the reasonable value of Weller’s
23
Diaz, 827 S.W.2d at 22.
24
See Augustson, 76 F.3d at 662 & n.6.
25
See Diaz, 827 S.W.2d at 22–23.
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services. Because it failed to introduce such evidence, the firm
did not satisfy its burden of proving the settlement credit amount.
It follows that White/Getgey was not entitled to a dollar-for-
dollar credit and that the magistrate judge should have used the
sliding scale method of § 33.012(b)(2) to reduce the damages
award.26 Applying that method of calculation in the light of the
damages found by the jury in this case yields a settlement credit
of $80,000.27 We modify Hall’s damages award so that it reflects
a reduction by this proper amount.
B. Offset
We now consider whether the magistrate judge’s ruling on the
offset issue was inconsistent with Texas legal malpractice law. In
Texas, a legal malpractice action sounds in tort and is governed by
negligence principles.28 To recover on a claim for legal
malpractice, the plaintiff must establish that (1) the attorney
owed him a duty, (2) the attorney breached that duty, (3) the
breach proximately caused injury to the plaintiff, and (4) damages
resulted.29 If the claim concerns the attorney’s handling of a
litigated matter, proving causation is particularly challenging for
26
Ellender, 968 S.W.2d at 927.
27
The calculation under § 33.012(b)(2) proceeds as follows:
(.05*$200,000)+(.10*$200,000)+(.15*$100,000)+(.20*($675,000-
$500,000))=$80,000.
28
Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989).
29
Id. at 665.
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the plaintiff, who must show that he would have prevailed in the
underlying suit but for the attorney’s negligence and that he would
have been able to collect some or all of a favorable judgment.30
This causation burden is commonly referred to as the “suit within
a suit” requirement.31
In an effort to negate the causation element of Hall’s
malpractice claim, White/Getgey argued that Hartford’s right to
offset the benefits it owed Hall against the “other income
benefits” he had received as a result of his disability would have
severely limited his recovery in the underlying suit. The
magistrate judge found, however, that Texas law requires an insurer
to specifically plead offset as an affirmative defense and that
Hartford waived the defense by failing to plead it in the
underlying suit.32 White/Getgey does not challenge these findings
30
Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex. App.—San
Antonio 1998, pet. denied); Mackie v. McKenzie, 900 S.W.2d 445,
448–49 (Tex. App.—Texarkana 1995, writ denied); Jackson v. Urban,
Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex. Civ.
App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.).
31
Ballesteros, 985 S.W.2d at 489. See generally Robert P.
Schuwerk & Lillian B. Hardwick, Handbook of Texas Lawyer and
Judicial Ethics: Attorney Tort Standards, Attorney Ethics
Standards, Judicial Ethics Standards § 2.08, in 48 Texas Practice
Series (2002) (discussing the “suit within a suit” requirement).
32
The magistrate judge based these findings on Article 21.58(b)
of the Texas Insurance Code and Rule 94 of the Texas Rules of Civil
Procedure. See Hall v. White, Getgey & Meyer Co., LPA, No. 97-320,
2001 WL 1910546, at *4—*6 (W.D. Tex. Aug. 16, 2001) (discussing
Tex. Ins. Code art. 21.58(b), Tex. R. Civ. P. 94, and cases
interpreting those provisions). The magistrate judge also found
that the state trial court would not have allowed Hartford to amend
its answer to add the defense during the trial. See id. at *5.
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in this appeal. It has therefore abandoned any contention that
Hartford could have raised the defense of offset in the underlying
suit.33 The firm argues instead that Hartford’s waiver of the
defense has no bearing on whether it can raise it in this action.
In support of this argument, White/Getgey relies exclusively
on the opinion of the Texas Fourteenth Court of Appeals in
Swinehart v. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., a
malpractice case in which the court held that the defendant
attorneys could raise an affirmative defense that had not been
pleaded in the underlying suit.34 In that case, however, the
plaintiff never raised a claim in the underlying action against
which the defendant would have been required to plead the
affirmative defense at issue.35 Thus, as the magistrate judge
correctly recognized, this case is distinguishable from Swinehart
because Hall asserted a claim in the underlying action against
which Hartford was required to plead offset as an affirmative
defense. Despite this distinction, White/Getgey seizes on the
Swinehart court’s statement that “[a]n attorney’s defense to a
legal malpractice claim should not rest on the underlying
33
Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir.
1991).
34
48 S.W.3d 865 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied).
35
See id. at 876.
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defendant’s handling of its own defense.”36 Although this broad
statement will hold true in some cases, White/Getgey contends that
we must apply it as an absolute rule of Texas law and reverse the
magistrate judge’s ruling that the firm could not raise the defense
of offset because Hartford waived it in the underlying action. We
disagree.
“Our goal, sitting as an Erie court, is to rule the way the
Texas Supreme Court would rule on the issue presented.”37 According
to that court’s seminal opinion in Cosgrove v. Grimes, to prove a
“suit within a suit,” a malpractice plaintiff must establish the
amount of damages he would have recovered and collected if his
attorney had properly prosecuted the underlying suit.38 In our
view, this description of the plaintiff’s burden admits of no hard
and fast rule prohibiting him from showing that his adversary’s
waiver of an affirmative defense in the underlying suit would have
allowed him to recover and collect a larger amount of damages than
he could have absent the waiver. That parties sometimes reap
benefits as a matter of law even though they are not entitled to
those benefits as a matter of equity is a reality of the adversary
system and the procedural rules that govern it. If a malpractice
36
Id. Although the court noted that it had found no authority
to the contrary, it cited no authority in support of this
statement. See id.
37
Hanson Prod. Co. v. Americas Ins. Co., 108 F.3d 627, 629 (5th
Cir. 1997).
38
774 S.W.2d at 666.
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plaintiff proves that he would have benefitted from his adversary’s
failure to comply with a procedural rule, we are aware of no
principle of Texas law that would prevent the trier of fact from
considering that benefit in determining whether the attorney’s
breach of the applicable standard of care caused harm to the
plaintiff. We therefore predict that the Texas Supreme Court would
hold that when a malpractice plaintiff proves both the underlying
defendant’s waiver of an affirmative defense and the effect of that
waiver on the amount of damages he could have recovered and
collected if the underlying suit had been properly prosecuted, the
malpractice defendant cannot rely on that defense to negate the
causation element of the plaintiff’s claim.
In this case, it is undisputed that Hartford waived its
affirmative defense of offset in the underlying suit and that Hall
was in a position to benefit from the waiver. Through its
negligence, White/Getgey deprived Hall of that benefit. If the
firm had supplemented Hall’s discovery responses, his doctors would
have testified to his total disability, and he would have been
entitled to judgment against Hartford. The jury’s verdict in this
case establishes as much. And Hartford’s waiver meant that a
favorable damages award in the underlying suit would not have been
offset by the amount of Hall’s other disability benefits. Because
Hall proved both the waiver and the effect of that waiver on the
amount of damages he could have recovered and collected if
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White/Getgey had properly prosecuted the underlying suit, we
conclude, in accordance with our Erie guess, that White/Getgey
could not rely on the offset provision of the Hartford policy to
negate the causation element of Hall’s malpractice claim. Thus, we
find no error in the magistrate judge’s ruling on this issue.
III. CONCLUSION
For the foregoing reasons, we affirm the magistrate judge’s
pretrial ruling on the offset issue, modify the damages award so
that it reflects the proper settlement credit of $80,000, and
affirm the final judgment as modified. This case is remanded for
entry of an amended judgment in Hall’s favor in the amount of
$595,000.
AFFIRMED AS MODIFIED; REMANDED WITH INSTRUCTIONS.
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