## Facts

- Kristopher Richardson negligently injured Edward Paterek in an automobile accident and carried $100,000 in liability insurance, with no other assets or earning capacity.
- Edward and Irene Paterek retained attorney Jonathon Evans of Petersen & Ibold to pursue a personal-injury claim against Richardson.
- Evans filed suit but dismissed it without prejudice and failed to refile within the one-year period, causing the underlying claim to be lost.
- In the legal-malpractice action, Petersen & Ibold admitted negligence and liability for damages proximately caused by the breach of the standard of care.
- The parties stipulated Richardson’s fault, Evans’s failure to timely refile, and Richardson’s limited insurance and lack of other collectible resources.
- A jury awarded $382,000 total damages, but the trial court granted judgment notwithstanding the verdict limiting recovery to $100,000; the court of appeals reversed.

## Issues

1. Whether a legal-malpractice plaintiff must prove that the lost underlying judgment would have been collectible as part of the malpractice claim.
2. If collectibility must be proven, whether it is part of the plaintiff’s burden on damages or an affirmative defense for the attorney.

## Decision

- The Supreme Court of Ohio reversed the court of appeals and remanded.
- The court held that collectibility of the lost underlying judgment is an element of the plaintiff’s legal-malpractice claim.
- The court held the plaintiff bears the burden to prove collectibility as part of establishing compensatory damages.
- The court rejected treating non-collectibility as an affirmative defense and directed further proceedings consistent with the collectibility requirement.

## Legal Principles

- In legal malpractice for loss of a civil claim, the plaintiff must prove the “case within the case,” including that the client would have obtained a judgment in the underlying action.
- Damages are compensatory and aim to place the plaintiff in the position that would have existed absent the attorney’s negligence; recovery cannot exceed the economic value of what was actually lost.
- Collectibility of the underlying judgment is part of causation and damages; if the judgment would not have been collectible, the attorney’s negligence did not cause a compensable loss beyond what could have been collected.
- The plaintiff must prove collectibility through evidence such as insurance coverage, assets, income, or other sources from which the underlying judgment could have been satisfied.
- Where the underlying tortfeasor is judgment-proof except for a limited insurance policy, damages attributable to losing the underlying claim are capped at the amount that could have been collected from that source, absent proof of additional collectible recovery lost due to the malpractice.

## Conclusion

The court required malpractice plaintiffs to prove that the underlying judgment they lost had collectible value and placed that burden on the plaintiff as part of damages, reversing the reinstatement of an uncapped jury verdict and remanding for proceedings applying the collectibility element.


Paterek v. Petersen & Ibold, 890 N.E.2d 316 (Ohio 2008)