The opinion
Cupp, J.,
concurring part and dissenting in part.
{¶ 47} I concur in the majority’s holding that in an attorney-malpractice case, proof of the collectibility of the judgment lost due to the malpractice is an element of the plaintiffs claim against the negligent attorney, and I join the majority’s discussion of reasons for adopting that rule. I also agree that Irene Paterek did not prove that she could have collected more than $100,000 from sources related to Richardson, the tortfeasor.
{¶ 48} However, I disagree with the majority’s decision that the value of the Patereks’ underinsured-motorist coverage with their own insurer should be included in the judgment against the attorneys in the malpractice case. The Patereks dismissed their claim against their underinsured-motorist coverage carrier without prejudice shortly before trial. The court of appeals did not resolve the issue of whether the value of that coverage could properly be included in the Patereks’ judgment against the attorneys in the malpractice case. In fact, the appellate court stated: “The issue of whether [Irene Paterek] could collect from the Patereks’ own carrier on their UM/UIM coverage was not submitted to the jury, and this court declines to weigh in as to whether such proceeds would ever be received. That issue is certainly not before us in this appeal.” (Emphasis added.) Paterek v. Petersen & Ibold, Geauga App. No. 2005-G-2624, 2006-Ohio-4179 , 2006 WL 2337483 , ¶ 42. Under these circumstances, I would not reach this issue.
{¶ 49} Accordingly, I would reverse the judgment below and remand the case to the trial court with directions to reinstate its judgment notwithstanding the *512 verdict in favor of Irene Paterek in the amount of $100,000. Because the majority does not so limit its decision, I respectfully dissent.
Plevin & Gallucci, Edward Fitzgerald, and Leon M. Plevin; and Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for appellee.
Weston Hurd, L.L.P., Timothy D. Johnson, and Gregory E. O’Brien, for appellants.
Zavarello & Davis Co., L.P.A., and Rhonda Gail Davis, urging affirmance for amicus curiae Ohio Academy of Trial Lawyers.
Reminger & Reminger Co., L.P.A., Nicholas D. Sattullo, and Joseph W. Borchelt, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
Gallagher Sharp, Alan M. Petrov, Timothy J. Fitzgerald, and Monica A. Sansalone, urging reversal for amicus curiae Minnesota Lawyers Mutual Insurance Company.
Janik, Dorman & Winter, L.L.P., Steven G. Janik, Jason Winter, and Daniel A. Scharf, urging reversal for amicus curiae American Guarantee and Liability Insurance Company.
O’Connor, J., concurs in the foregoing opinion.