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Somerset Pacific, LLC v. Tudor Insurance Co.

United States District Court, E.D. Louisiana

February 6, 2019

SOMERSET PACIFIC LLC
v.
TUDOR INSURANCE CO.

         SECTION: “H” (1)

          ORDER AND REASONS

          JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants Musgrave, McLachlan & Penn, LLC (“MMP”) and Westport Insurance Co.'s (“Westport”) Motion for Summary Judgment (Doc. 64). For the following reasons, the Motion is GRANTED.

         BACKGROUND

         This litigation arises out of a 2014 lawsuit in the 19th Judicial District of Louisiana, Mahoney v. Somerset, in which the plaintiffs alleged that a 2-year-old child was severely burned by hot water at an apartment complex owned by Plaintiff Somerset Pacific, LLC (“Somerset”). Both Somerset and its insurer, Tudor, were defendants in the Mahoney litigation. Somerset was insured by a $1 million primary liability policy with Defendant Tudor, as well as a $10 million excess policy with Defendant National Union Fire Insurance Company of Pittsburgh, Pa. (“National Union”). Tudor accepted Somerset's defense and hired the law firm of Musgrave, McLachlan & Penn, LLC (“MMP”) to represent Somerset and Tudor in Mahoney.

         The Mahoneys initially demanded $24 million to settle their claims. This demand raised concerns about Somerset's potential uninsured exposure, and Somerset hired the law firm of Sher Garner to represent it with respect to those concerns.

         Tudor ultimately settled the Mahoneys' claims for its policy limits about four months before trial. Thereafter, National Union took over Somerset's defense, and Gieger, Laborde & Laperouse enrolled to represent it. MMP withdrew from its representation about two months prior to trial.

         In this matter, Somerset brings a claim for legal malpractice against MMP and its insurer Westport for various instances of negligence in MMP's representation in the Mahoney litigation. MMP now moves for summary judgment on Somerset's claims.

         LEGAL STANDARD

         Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”[1] A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[2]

         In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.[3] “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”[4] Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.”[5] “In response to a properly supported motion for summary judgment, the non-movant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the non-movant on all issues as to which the non-movant would bear the burden of proof at trial.”[6] “We do not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”[7] Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”[8]

         LAW AND ANALYSIS

         MMP moves for dismissal of the legal malpractice claim against it. To establish a valid legal malpractice claim under Louisiana law, a plaintiff must prove: “(1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence.”[9] The claim cannot succeed if any one of these elements is not met.[10]

         The parties do not dispute the existence of an attorney-client relationship between Somerset and MMP. As to the second prong, Somerset alleges several instances of negligence in MMP's representation in the Mahoney litigation. Specifically, it alleges MMP was negligent in (1) failing to remove the case to federal court, (2) filing an answer on behalf of the incorrect entity, (3) failing to adequately advise Somerset regarding its corporate deposition, and (4) failing to produce documents, resulting in allegations of dishonest conduct by the Mahoneys. Even assuming Somerset could ...


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