Copp v. Atwood CV-04-337-JD 01/24/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kevin C. Copp

v. Civil No. 03-288-JD Opinion No.

Bradford T. Atwood and Clauson & Atwood

O R D E R

Kevin C. Copp was involved in a two-car accident in 1999 on

Route 89 in Lebanon, New Hampshire. After his former attorney,

Bradford T. Atwood, and Atwood's law firm, Clauson & Atwood,

failed to bring suit against the driver of the other car within

the time allowed by the statute of limitations, Copp retained new

counsel and filed suit against Atwood and Clauson & Atwood,

alleging professional negligence and violation of the New

Hampshire Consumer Protection Act, New Hampshire Revised Statutes

Annotated ("RSA") § 358-A:10. The parties have filed motions for

partial summary judgment.1

1Copp included a cross motion for partial summary judgment on his Consumer Protection Act claim as part of his objection to the defendants' motion. Under the local rules of this court, "[m]otions, other than those submitted during trial, shall be considered only if submitted separately from other filings and only if the word 'motion' appears in the title." LR 7.1(a) (1). Therefore, the court will not consider Copp's cross motion on his Consumer Protection Act claim. Standard of Review

Summary judgment is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the 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." Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v. Catrett,

(1986). All

reasonable inferences and all credibility issues are resolved in

favor of the nonmoving party. See Anderson v. Liberty Lobby,

Inc.,

(1986).

Background

The accident occurred on May 4, 1999, when the driver of the

other car involved in the accident, Pamela Kvam, attempted to

turn across both lanes of Route 89 to a crossover on the median

strip in order to get to the northbound side of the highway.

Kvam slowed to nearly a stop pulling toward the shoulder in the

right lane and then abruptly turned across both lanes, heading

for the median. Copp hit Kvam's car, which caused his car to

leave the road and roll over several times in the median area.

2 In August of 2001, Copp contacted Atwood to represent him in

connection with the accident. Copp and Atwood signed a

contingent fee agreement in January of 2002. The time to file

suit passed on May 4, 2002. The defendants do not dispute that

suit was not filed within the time allowed by the statute of

limitations. They also do not dispute that they violated the

standard of care for purposes of liability as to the professional

negligence claim.

Copp made several telephone calls to Atwood during November

and December of 2002 to inguire about the status of his case.

Atwood did not take his calls or return them. Copp then sent

letters in January and February of 2003, reguesting an update.

Copp represents that when he was unable to reach Atwood after

calls on five consecutive days, he finally got through by

pretending to be someone else. Atwood gave him excuses for not

responding to his inguiries. In a later conversation, Atwood

admitted that he missed the filing deadline. Copp filed this

action in July of 2003.

Discussion

Copp moves for partial summary judgment as to liability on

his professional negligence claim. The defendants object,

asserting that material factual issues must be decided by a jury

3 as to the underlying case against Kvam. The defendants move for

partial summary judgment as to Copp's Consumer Protection Act

claim.

A. Professional Negligence

"In a legal malpractice case, a plaintiff must prove: (1)

that an attorney-client relationship existed, which placed a duty

upon the attorney to exercise reasonable professional care, skill

and knowledge in providing legal services to that client; (2) a

breach of that duty; and (3) resultant harm legally caused by

that breach." Mclntire v. Lee,

(2003). If the

plaintiff contends that the harm caused by his attorney's

negligence was the loss of a legal action, he must prove that he

would have been successful but for his attorney's negligence.

To prove damages, the plaintiff must show the amount of the

judgment that he would have received in the underlying case and

that the judgment would have been collectible. Carbone v.

Tierney,

, at *8 (N.H. Dec. 10, 2004) .

The defendants concede that an attorney client relationship

existed and that they breached the duty owed to Copp as their

client. Because Copp seeks summary judgment on only the issue of

liability, not damages, the amount of the judgment in the

underlying case and whether that judgment would have been

4 collectible from Kvam are not issues that need to be resolved for

purposes of the present motion. Therefore, the only question in

dispute for purposes of summary judgment is whether, based on the

undisputed facts presented here, Copp would have been able to

establish Kvam's liability for negligence in a suit against her.

To succeed on a negligence claim against Kvam, Copp would

have to prove that she owed him a duty, that she breached the

duty, and that the breach proximately caused his injury.

Carignan v. N.H. Int'l Speedway, Inc.,

(N.H.

2004). A duty exists, under common law, to use reasonable care

to avoid foreseeable risks of harm. Goodwin v. James,

(1991); Patterson v. Corliss,

(1972).

In addition, statutes, such as traffic laws, impose duties on

drivers, and violation of such statutes constitutes legal fault.

See Mullin v. Joy,

(2000); Marguay v. Eno,

(1995) .

As presented for purposes of summary judgment, the factual

background about the accident is undisputed. Kvam was driving

southbound on Route 89 looking for exit 20. When she realized

she had missed the exit, she decided to make a u-turn across the

median to reverse direction. She saw a crossover in the median,

slowed down, almost coming to a stop, and pulled over to the

right side of the highway toward the shoulder. When Copp saw her

5 do that, he moved into the passing lane to go around her. The

speed limit was sixty-five miles per hour, and Copp states that

he was traveling at sixty-five.

As Copp moved into the passing lane, Kvam abruptly turned

across both lanes toward the median, directly in front of Copp.

He hit her car in the driver's door. The impact spun Kvam's car

and sent Copp's car beyond the shoulder where it rolled over

three times in the median coming to rest on the driver's door.

Copp was pinned in the car and had to be extricated by emergency

personnel who responded to the accident. Copp was injured in the

accident, although the extent of his injuries is disputed.

Witnesses to the accident said that Copp had nowhere to go

to avoid the accident. The crossover was marked, and Kvam said

after the accident that she knew she was not supposed to drive

over the median on the crossover. She was convicted of

attempting to make an illegal u-turn through the median in

violation of RSA 265:26.2

It is undisputed that the defendants' failure to bring suit

within the time allowed caused Copp to lose the opportunity to

sue Kvam to recover for the injuries he sustained in the

accident. Ordinarily, a jury decides the factual issues of the

2RSA 265:26 prohibits driving across a median area on a divided highway.

6 underlying suit, as a substitute for the jury trial the plaintiff

would have had but for his attorney's negligence. Witte v.

Desmarais,

(1992). In this case, however, the

undisputed facts, as presented for summary judgment, do not

reguire a jury's decision as to Copp's success on the merits of

his claim against Kvam.

No reasonable jury could find that Kvam used reasonable care

to avoid a foreseeable risk of harm when she turned across Route

89 to make an illegal turn through the median. Similarly, no

reasonable jury could find that she did not violate her statutory

duty not to make an illegal turn through the median. See, e.g.,

Mullin,

-98. Further, Kvam's violation of those

duties caused the accident which injured Copp.

The defendants argue, nevertheless, that Copp was

comparatively negligent.3 Under New Hampshire's comparative

fault statute, the plaintiff's fault does not bar recovery "if

such fault was not greater than the fault of the defendant, or

the defendants in the aggregate if recovery is allowed against

more than one defendant, but the damages awarded shall be

diminished in proportion to the amount of fault attributed to the

plaintiff by general verdict." RSA 507:7. The party asserting

3The defendants describe Copp's fault as "comparable."

7 comparative fault bears the burden of proving it.

To

present the issue of comparative fault to a jury, the defendant

must present "some tangible evidence" of such fault. Townsend v.

Legere,

(1997). If reasonable jurors could

only reach a decision on the issue "by conjecture, chance, or

doubtful and unsatisfactory speculation, it is the duty of the

trial court to withdraw the issue from the consideration of the

jury."

Relying on a statement in Copp's medical record that he was

in a "high speed (65-70) rollover" accident, the defendants argue

that Copp was speeding at the time of the accident and was

therefore at fault. Assuming that Copp was going seventy, where

the speed limit was sixty-five, there is no evidence in the

record that his speed was the cause or a contributing cause of

the accident. No reasonable person would have anticipated that

Kvam, after slowing to almost a stop on the far right side of the

highway, would abruptly turn across both lanes of traffic to

illegally cross the median. To avoid summary judgment on

liability, the defendants must show that a factual dispute exists

as to whether Copp was at fault because of his speed and whether

his fault was greater than Kvam's fault in causing the accident.

Given the undisputed circumstances of the accident, the

defendants have not carried their burden. Copp has shown that no factual issue remains to be decided

by a jury as to Kvam's negligence and the defendants' liability

on his professional negligence claim. Therefore, Copp is

entitled to partial summary judgment as to the issue of liability

on his professional negligence claim, leaving the issue of

damages to be resolved either by the parties in settlement or, if

necessary, by a jury.4

B. Consumer Protection Act

Under the Consumer Protection Act, "[a]ny person injured by

another's use of any method, act or practice declared unlawful

under this chapter may bring an action for damages . . . ." RSA

358-A:10. A plaintiff may recover the statutory minimum award

and attorney's fees by showing a violation of the Act without any

showing of actual damages. Preferred Nat'l Ins. Co. v.

Docusearch,

(2003); Carter v. Lachance,

(2001). Effective on July 17, 2002, the legislature

amended RSA 358-A:3 so that it no longer excluded the practice of

law from the scope of the Act. See RSA 358-A:3 (West 2004);

Averill v. Cox,

(2000) (construing prior

version of RSA 358-A:3).

4Ihis decision does not address whether a comparative fault defense would be available on the damages issue. The defendants move for partial summary judgment on the

ground that by July 17, 2002, when the Act first applied to the

practice of law, the statute of limitations deadline had passed

and their actions or failure to act caused no further injury to

Copp. They contend, and Copp does not dispute, that the

amendment to RSA 358-A:3 does not apply retroactively to cover

the defendants' failure to bring suit before May 4, 2002. They

also contend that their actions do not constitute violations of

the Act. Copp argues that because he does not have to show

actual damages to be entitled to the minimum damages award of

$1000 and attorney's fees under the statute, he can maintain his

claim by showing only a violation of the statute.

1. Inj ury.

The Act reguires that the plaintiff be "injured by another's

use of any method, act or practice declared unlawful under this

chapter" to bring an action. RSA 358-A:10 (emphasis added) . In

Carter, the New Hampshire Supreme Court explained that an award

of the statutory minimum provided in RSA 358-A:10 is not based on

the "actual damages suffered," but is instead a penalty imposed

on the violator. Id. at 14. As such, it appears that although

the court used the term "damages" rather than injury, the court

intended that a violation of the Act would constitute an injury

10 entitling the injured party to recover the statutory minimum as a

penalty against the violator. In Preferred Nat'l Ins., the court

followed Carter and reiterated that RSA 358-A does not reguire a

showing of "actual damages" for an award of statutory damages and

attorney's fees, again without explaining the relationship

between "damages" and "injury." 149 N.H. at 767. The context of

the decision demonstrates that the court used "damages" to mean

"injuries." Id. Therefore, the cases hold that a plaintiff need

only prove that he was subjected to a violation of RSA 358-A:2 to

be entitled to statutory damages and attorney's fees.

That interpretation of New Hampshire law is strengthened by

the Massachusetts Supreme Judicial Court's decision that a

violation of the Massachusetts Consumer Protection Act alone is

an injury that entitles the party subjected to the violation to

recover statutory damages. See Aspinall v. Philip Morris Cos.,

Inc.,

, 490-91 (Mass. 2004) (citing Leardi v.

Brown,

(Mass. 1985)). The New Hampshire

Supreme Court has previously found the Supreme Judicial Court's

interpretation of the Massachusetts Act persuasive for purposes

of deciding a standing issue under 358-A. See Remsburg v.

Docusearch,

(2003). Therefore, if the

defendants violated RSA 358-A:2 in their relationship with Copp,

he will be entitled to statutory damages and attorney's fees.

11 2. Violation of RSA 358-A:2.

The defendants argue that they did not violate RSA 358-A:2

because their conduct after July 17, 2002, did not involve any

unfair or deceptive act or practice in trade or commerce, as

defined in the Act. They contend that their actions after July

17, 2002, were not "trade or commerce" because those actions did

not involve "advertising, offering for sale, sale, or distribu­

tion of any services." RSA 358-A:1, II. The distinction they

make is that the Act covers the commercial aspects of legal

practice but not the competence of the professional services

provided.

Before the last amendment, RSA 358-A:3, I (1995) excluded

trade or commerce that was "otherwise permitted under laws as

administered by any regulatory board or officer acting under

statutory authority of this state or of the United States."

"Trade or commerce" was defined, in pertinent part, as it is now

to "include the advertising, offering for sale, sale, or

distribution of any services." The New Hampshire Supreme Court

interpreted RSA 358-A:3, I to exempt the practice of law from the

scope of the Consumer Protection Act. Averill, 145 N.H. at 332.

Although the defendants in Ave rill argued that the exemption

provided by RSA 358-A:3, I should be limited to the "non­

commercial" aspects of legal practice, id. at 330, the supreme

12 court did not make that distinction. This court is not inclined

to do so now in the absence of any guidance that the supreme

court would likely change its interpretation of the Act.5

Copp does not cite any of the examples of prohibited conduct

provided in RSA 358-A:2. To determine what other acts are

unlawful under RSA 358-A:2, the court "look[s] to the federal

courts' interpretation of the Federal Trade Commission Act for

guidance." Milford Lumber Co., Inc. v. RCB Realty, Inc.,

(2001); accord State v. Moran,

(N.H. 2004). The Federal Trade Commission test, adopted by the

New Hampshire Supreme Court, asks:

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise - whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other business men.)

Milford Lumber,

. At the same time, however, the

challenged conduct must be of the type as described in RSA 358-

A:2, that is, "'the objectionable conduct must attain a level of

5Ihe concurring opinion by Justice Thayer in Rousseau v. Eshleman,

(1987), and the dissent by Justice Johnson in Rousseau v. Eshleman,

(1986), are not persuasive because their opinions have not been adopted by the majority of the court.

13 rascality that would raise an eyebrow of someone inured to the

rough and tumble of the world of commerce.'" Moran, 8 61 A.2d at

765 (quoting Milford Lumber,

). The New Hampshire

Supreme Court has held that its regulation of the practice of law

through the Rules of Professional Conduct "protects consumers

from the same fraud and unfair practices as RSA chapter 358-A."

Aver11, 145 N.H. at 333. The "Scope" section of the Rules of

Professional Conduct, however, cautions that violation of a rule

should not provide a cause of action and that the rules are not

designed to be a basis for civil liability. See Wong v. Ekberg,

(2002). Therefore, in some circumstances,

violation of the rules may provide evidence of unfair or

deceptive practices under the Act, see, e.g.. Sears Roebuck & Co.

v. Goldstone & Sudalter, P.C.,

(1st Cir. 1997),

but a violation of the rules, standing alone, would not be

sufficient to prove a claim under RSA 358-A:2.

In support of his claim, Copp contends that the defendants

engaged in unfair and deceptive practices, after July 17, 2002,

by failing to keep him informed of the progress of his case. He

points to New Hampshire Rule of Professional Conduct 1.4(a) that

states: "A lawyer shall keep a client reasonably informed

regarding the status of a matter and promptly comply with

reasonable requests for information." Copp asserts that the

14 defendants violated Rule 1.4(a) and violated RSA 358-A:2 by

intentionally not telling him that they failed to file his suit

against Kvam in a timely manner and by not keeping him informed

despite his inguiries.

The defendants do not deny that they failed to notify Copp

when they missed the limitations deadline or that they avoided

his inguiries. They argue based on cases from Washington and New

Jersey that, as a matter of law, their conduct is not

sufficiently deceptive to support a claim under the Consumer

Protection Act. Those cases are not persuasive as to the

interpretation of New Hampshire law. Therefore, a jury guestion

remains as to whether the defendants' conduct violated the Act.

The defendants are not entitled to summary judgment on Copp's

Consumer Protection Act claim. Copp is limited, however, to the

statutory minimum award and attorney's fees, as he has

represented in his objection to the defendants' motion.

Conclusion

For the foregoing reasons, the plaintiff's motion for

partial summary judgment (document no. 12) on the issue of the

defendants' liability on his professional negligence claim is

granted. The defendant's motion for summary judgment (document

15 no. 9) on the plaintiff's Consumer Protection Act claim is

denied.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

January 24, 2005

cc: John C. Kissinger, Esguire Francis X. Quinn Jr., Esguire

16