American Reliable Insurance v. Navratil

                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                     March 29, 2006

                                                              Charles R. Fulbruge III
                                                                      Clerk
                             No. 05-30583


AMERICAN RELIABLE INSURANCE CO.,

                                                     Plaintiff-Appellant,

versus

BORIS NAVRATIL; NAVRATIL, HARDY,
BOURGEOIS LLP; CONTINENTAL CASUALTY CO.,

                                                 Defendants-Appellees.

                         --------------------
            Appeal from the United States District Court
                for the Western District of Louisiana

                         --------------------

Before JONES, Chief Judge, WIENER and PRADO, Circuit Judges.

WIENER, Circuit Judge:

     Plaintiff-Appellant    American      Reliable    Insurance     Company

(“ARIC”) appeals the district court’s summary judgment dismissing

ARIC’s    malpractice   claim   against     Defendant-Appellee,        Boris

Navratil, a lawyer whom ARIC had retained to defend it and its

insured against a third-party’s lawsuit in state court.              As the

state law question on which the instant case turns is neither

covered by statute nor yet addressed by the highest court of

Louisiana, the district court had to make an “Erie guess,”1 as must


     1
         See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
we, de novo, on appeal.2    We disagree with the district court’s

determination that Louisiana case law mandates dismissal of ARIC’s

claim on grounds of equitable estoppel.   We therefore reverse the

district court’s summary judgment and remand for further consistent

proceedings.

                     I. FACTS AND PROCEEDINGS

     ARIC retained Navratil to defend it and its insured, Eli

Prudhomme, in a state court lawsuit.   The action proceeded through

a full merits trial that resulted in a jury verdict for the

plaintiff, with damages assessed against Prudhomme and ARIC in

solido for the policy limits of $25,000, and additional damages

against Prudhomme only for $420,198.30.     Following the verdict,

Navratil wrote to ARIC, expressing his professional opinion that

there were several legal arguments to be made on appeal that might

reduce the quantum of the judgment or change the allocation of

damages, and recommending an appeal.   Navratil acknowledged in his

letter that, given ARIC’s $25,000 policy limit and the unlikelihood

of a complete reversal, an appeal probably would not directly

benefit ARIC.   Navratil went on to advise ARIC that it had a duty

under state law to appeal the adverse judgment against its insured,

even if ARIC would not directly benefit from an appeal.       Even


     2
       See Salve Regina College v. Russell, 499 U.S. 225, 239-40
(1991).

                                 2
before    the    verdict    became   a       final   judgment,   however,    ARIC

terminated Navratil’s representation.

     Shortly thereafter, ARIC settled the state court case with the

plaintiff for $550,000, an amount that was greater than the jury

award but apparently less than the total anticipated judgment

against Prudhomme.3        ARIC then filed this diversity action against

Navratil    in   the   district   court,       alleging   malpractice   in   his

handling of the Prudhomme case.                Both sides filed motions for

summary judgment.

     The district court granted Navratil’s motion and dismissed

ARIC’s malpractice claim with prejudice.                  In the absence of a

Louisiana Supreme Court case on point or any state statutory

authority, the district court expressly relied on Gross v. Pieno,4

a decision of one among Louisiana’s five intermediate courts of

appeal, to hold as a matter of state law that ARIC’s failure to

appeal the jury verdict before voluntarily settling the state court

case barred ARIC’s suit against Navratil for malpractice in his

handling of that case.        ARIC appeals the district court’s summary

judgment.


     3
       Prudhomme’s interest in the matter was severed by an
assignment, release, and consent agreement with ARIC, which he
signed in exchange for ARIC’s assumption of liability for the
full amount of the jury award.
     4
         04-820 (La. App. 5 Cir. 12/28/04); 892 So.2d 662.

                                         3
                          II. STANDARD OF REVIEW

     We    review   de   novo   a   district   court’s   grant   of   summary

judgment.5   We also review de novo a district court’s determination

of state law, granting no deference to its interpretation.6

                                III. ANALYSIS

     The district court, sitting in diversity, made an “Erie guess”

in its effort to determine the applicable state law.                  In the

absence of any controlling state statute or relevant decision of

the Supreme Court of Louisiana, the district court appropriately

turned to rulings of state appeal courts, here relying almost

exclusively on the decision of one in Pieno.7            We view as overly

broad, however, the district court’s reading of the Pieno decision

as establishing an unconditional per se rule in Louisiana to the

effect that a client’s failure to pursue an appeal from an adverse


     5
         Armstrong v. City of Dallas, 997 F.2d 62, 65 (5th Cir.
1993).
     6
         Salve Regina College, 499 U.S. at 239-40.
     7
       See Terrebonne Parish Sch. Bd. v. Columbia Gulf
Transmission Co., 290 F.3d 303, 317 (5th Cir. 2002) (decisions of
the intermediate state courts are “not to be disregarded by a
federal court unless it is convinced by other persuasive data
that the highest court of the state would decide otherwise”). We
note that the Louisiana Supreme Court declined review in Pieno,
as well as in the Murphy case on which Pieno relied. Gross v.
Pieno, 2005-0218 (La. 04/22/05); 899 So.2d 582 (unpublished)
(denying writ); Murphy v. Gilsbar, Inc., 2002-0205 (La. App. 1
Cir. 12/31/02); 834 So.2d 669, writ denied, 2003-0676 (La.
05/30/03); 845 So.2d 1057.

                                       4
judgment absolutely bars such a client from bringing a malpractice

suit against the attorney.      We are instead convinced that were the

Supreme Court of Louisiana to decide this as a case of first

impression today, it would distinguish Pieno and hold that ARIC’s

settlement of the underlying case did not have the preclusive

effect of barring the client from bringing an independent action

for legal malpractice.       Stated differently, we do not believe that

the highest court of the State would establish a per se bar that

would ipso facto block the bringing of such a suit in every claim

of legal malpractice.

A. Pieno Does Not Require Dismissal In This Case

       In Pieno, the attorney for the plaintiffs in the underlying

lawsuit failed to take any steps in the prosecution of that action

for three years, after which the defendants successfully filed a

motion for summary judgment resulting in dismissal of the case on

grounds   of    abandonment.     Shortly   thereafter,   the   plaintiffs’

attorney filed a motion to set aside the dismissal and requested a

hearing, which request was granted. While the hearing was pending,

the plaintiffs’ attorney engaged in settlement negotiations with

the defendants, but before he could proceed further he was fired by

the plaintiffs.      They proceeded to settle their lawsuit directly

with    the    defendants,   then   sued   their   former   attorney   for

malpractice. In defending the malpractice claim, the lawyer argued

                                     5
that, because his former clients had settled the matter without

allowing the hearing to take place on the issue of abandonment,

they were equitably estopped from pursuing a malpractice claim

against him.         The state appeal court agreed, stating that “the

plaintiffs,     by    failing   to    participate   in   the   hearing    on   the

abandonment motion, precluded the opportunity to litigate the

abandonment issue.”8        The appeal court reasoned that the trial

court had     been     denied   the   opportunity   to   consider   the    fired

attorney’s legal explanation for not taking action on the case, or

to consider whether the defendants, who were willing to settle

while reconsideration was pending, might have waived the issue of

abandonment.9

     This case is readily distinguished from Pieno.                 Unlike the

attorney in Pieno, who was deprived of any opportunity to absolve

himself of fault on the liminal issue of abandonment, Navratil

proceeded all the way through a merits jury trial to a resounding

defeat and a large jury award against his clients.             The proceedings

in Pieno were cut short by the clients’ settlement before the pre-

trial hearing on abandonment could even be held, thus making it

impossible for any court to determine whether the attorney had in



     8
         892 So.2d at 665.
     9
         Id. at 665-66.

                                         6
fact caused any harm to his clients.                         In stark contrast, any

professional malpractice Navratil might have committed in his

handling    of     Prudhomme’s          case   all    the    way    to   verdict    can   be

determined with certainty from the record of the extensive state

court proceedings.          Undoubtedly, that record is much more fully

developed and extensive than was the record in Pieno, which could

have contained nothing substantially more than the three-year-old

original petition and some preliminary pleadings filed shortly

before summary judgment.

      Navratil argues that this case is indistinguishable from Pieno

because     there    is     no     substantive         difference        between    summary

judgments and judgments rendered after trial; both have the effect

of adjudicating the rights of the parties, and if not appealed,

become final, definitive, and binding judgments. The logic of this

argument is flawed and misses the point.                     The appeal court in Pieno

recognized that the proceedings in the clients’ case had not

definitively ended, whether by summary judgment or trial verdict,

when the clients settled.                At the heart of the decision in Pieno

was   the   state    appeal       court’s      view     that    it   was    the    clients’

settlement that terminated the litigation; it was not the adverse

summary judgment, which might have been set aside following the

hearing     that    would        have    taken       place    but    for    the    clients’



                                               7
settlement.10    The issue of abandonment was still before the state

trial court and the proceedings were still open.          Notably, there

was as yet no merits judgment.             Contrary to the suggestion of

Navratil’s argument, there is no indication that the Pieno court

would have applied equitable estoppel to bar a malpractice action

against the attorney if the judgment in that case had been final.

     The state appellate court in Pieno was most concerned with the

fact that there had been no hearing at all on the issue of

abandonment; that because of the client’s independent settlement,

the attorney was denied the opportunity to remedy any deficiency in

his representation of the client, which in fact might not have been

deficient at all.       As the Pieno trial court remarked, “we’ll never

know because the Grosses decided to take a check rather than attend

the [h]earing.”11       Not so here:   Navratil’s entire performance as

defense counsel for ARIC and Prudhomme can be evaluated from the

record of the state trial court proceedings, which were not cut

short by a premature settlement with the opposing party but went

all the way to a final judgment on a jury verdict.            There is a

palpable difference between what was important in Pieno and what


     10
       See id. at 664-65 (“the original judgment of abandonment
was set for a hearing. ... [P]laintiffs chose not to move forward
with that hearing. ... [I]t was this settlement that terminated
the litigation in the underlying suit.”).
     11
          Id. at 665.

                                       8
happened in this case.      We conclude that the district court read

Pieno too broadly in extending its holding to this case.12

B. Equitable Estoppel

     A    federal   court   sitting       in   diversity   must   distinguish

intermediate state appellate court precedent, especially when (as

here) it is sparse, before predicting how the state’s highest court

would rule if presented with the same facts for the first time.13

As our review of the district court’s interpretation of state law

is de novo, our contrary Erie-guess will supplant that of the

district court.14     We do not believe that the Supreme Court of

Louisiana, or even the intermediate appellate court that decided

Pieno, would apply equitable estoppel under the instant facts.            As

we are not convinced that the Supreme Court of Louisiana would


     12
       We note that Soderquist v. Kramer, 595 So.2d 825 (La.
App. 2 Cir. 1992), on which ARIC relies, is equally
distinguishable: That case involved a settlement agreement signed
at the attorney’s urging which purported to release the attorney
from any claim of malpractice; and the appeal court’s decision
was grounded in the Louisiana Rules of Professional Conduct.
Soderquist has no bearing on this case.
     13
       See Hall v. White, Getgey, Meyer & Co., LPA, 347 F.3d
576, 586-87 (5th Cir. 2003) (rejecting party’s reliance on state
court decision that was distinguishable from the facts at issue,
predicting that the state Supreme Court would not apply it to the
facts presented).
     14
        See Salve Regina College, 499 U.S. at 239-40 (emphasizing
that appellate review of a district court’s determination of
state law is de novo and is without any deference to the district
court).

                                      9
require a client in ARIC’s shoes to appeal an adverse judgment in

a   fully    litigated       case   as   a   suspensive       condition   (condition

precedent) to suing the attorney who handled and tried that very

case, all the way to verdict, we reverse the summary judgment

dismissal of ARIC’s malpractice suit against Navratil.

      Although as a general principle, a client has a duty to

mitigate damages caused by its attorney’s malpractice, such a duty

cannot      require    the     client    to       undertake    measures   that   are

unreasonable,         impractical,       or       disproportionately       expensive

considering all of the circumstances.15                 ARIC rightly notes that

interpreting Pieno to require a client to take and pursue an appeal

as a prerequisite to suing its attorney for malpractice would be

tantamount to forcing the client to file and pursue such an appeal

all the way to the United States Supreme Court, at great expense to

both the client and the courts, regardless of the merits of the

appeal. Moreover, such an immutable rule could cause the client to

miss a favorable but fleeting opportunity to make a financially

favorable settlement; and settlement may often be a better method

of damage mitigation than is appeal.                     We cannot imagine that

Louisiana’s highest court would impose such a rigid, blanket

requirement; neither do we read that state’s sparse appellate


      15
       See 3 Ronald E. Mallen & Jeffrey M. Smith, Legal
Malpractice § 20.21 (2006).

                                             10
jurisprudence as authority, much less a mandate, for federal courts

sitting in diversity to do so.

                               IV. CONCLUSION

     In summary, ARIC was forced to decide between appealing the

adverse judgment in the hope of reducing or eliminating the award

—— a seemingly risky and speculative course —— and effectuating a

reasonable settlement with the plaintiff while the proverbial iron

was hot.   We are aware of no Louisiana law that elevates the former

course of pursuing mitigation over the latter.            In the absence of

any direct guidance on this issue from the Supreme Court of

Louisiana (and little if any from the State’s intermediate courts

of appeal), we hold that ARIC’s decision not to pursue an appeal

under   these    circumstances    does     not   equitably     estop   it   from

prosecuting its malpractice action against Navratil.             We therefore

reverse the district court’s summary judgment of dismissal of

ARIC’s action and remand this case to that court for further

proceedings consistent with this opinion.           In so doing, we neither

express    nor   imply   any   view   on   the   merits   of    ARIC’s      legal

malpractice claim against Navratil.

REVERSED and REMANDED.




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