Depugh v. Sladoje

Frederick N. Young, Judge,

dissenting.

While I have no disagreement with the majority in their resolution of DePugh’s two assignments of error, I must respectfully dissent from their rejection of the

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argument that the settlement of the estate’s claim with the Miami County Commissioners does not operate as a complete bar to DePugh’s pursuit of additional monies based upon that claim. In my opinion, the settlement does indeed resolve this appeal and renders moot all other issues raised.

Sawchyn v. Westerhaus,

(1991), 72 Ohio App.3d 25 , 593 N.E.2d 420 ;

Estate of Callahan v. Allen

(1994), 97 Ohio App.3d 749 , 647 N.E.2d 543 .

The majority attempts to distinguish the

Sawchyn

and

Callahan

holdings on the grounds that the courts in both those cases did not consider that the malpractice arguments had much merit. However, it ,was not the arguable weakness of the merits of the claims that barred their continued pursuit; it was the simple, undeniable fact that the claims were settled,

with finality,

and, therefore, further pursuit on the merits of the settlement, even though against attorneys and not the alleged tortfeasors, was forever waived.

As pointed out by counsel for appellee Landis, David C. Greer, in his brief:

“If the Plaintiffs position were correct, every beneficiary of every wrongful death action would be entitled to three bites at the apple. The first bite would come in the personal representative’s judgment against or settlement with whatever parties are alleged actually to have caused the wrongful death. The second bite would come against the attorney for the personal representative for malpractice in failing to generate enough money from the wrongful death claim. The third bite would come against the beneficiary’s private attorney for failure to make an unauthorized jump into the personal representative’s case to stir up even more money. The legislature in its wisdom headed off such litigation chaos by taking claims for relief away from individual beneficiaries and consolidating them in the decedent’s personal representative and by placing final authority to approve or disapprove settlements of wrongful death claims in the Probate Court.”

I suggest that the majority’s rejection of the finality of the settlement here will open Pandora’s Box to even more nefarious and unfortunate consequences than postulated by attorney Greer. What lawyer in the future will ever settle a case before trial or appeal if the lawyer’s judgment can be called into question by some ultimate possible beneficiary of the settled claim? An attorney in such a ease might feel the need of protection by calling in another attorney to opine on the merits of the settlement. But what would bar a claim against

both

attorneys for failing to obtain more monies on the claim?

Moreover, would not every attorney ultimately involved in the pursuit of a single claim (and it doesn’t have to be a claim by an estate) be at risk every time the claim is settled? Or the malpractice suit is settled? Or the settlement of the claim on the malpractice suit is itself questioned? This parade of horrors may seem far-fetched, but given the litigious nature of our society today, and the

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incessant pressure to push the limits of liability even farther, I believe the risks are real.

I fear the precedent from the opinion of the majority will open the door to an almost endless succession of bites at the same apple, not just the three envisaged by counsel for appellee Landis.