Johnson v. Donald W. Osborne, White Schuerman and Direct General

Bankruptcy Trustee Johnson sued Donald W. Osborne, White Schuerman and Direct General Insurance Company on legal malpractice and other theories on behalf of the creditors of Donald G. Turner including Timothy Woody, the widower of Kimberly Woody. Mrs. Woody was killed in an automobile vs. motorcycle collision in August 2002. In heavy rain, with standing water in the road, Turner hydroplaned, lost control of his vehicle and hit Woody's motorcycle, killing her. Timothy Woody sued Turner, who was insured by Direct General Insurance Company. Direct General hired White Schuerman, a Tennessee law firm, to defend Turner. Osborne was the firm's Georgia counsel and was assigned to represent Turner. Without ever speaking to Turner, Osborne admitted liability. A jury returned a verdict against his client for $1.7 million. Turner went bankrupt, and the Bankruptcy Court appointed trustee hired Jones, Jensen & Harris of Atlanta, Georgia on a contingency fee basis to sue Osborne, et al. for legal malpractice. The trustee Plaintiff claimed that Osborne did not defend the case property because he admitted liability and did not call Turner to testify in the case. Turner testified that he was not traveling too fast for conditions and had just put new front tires on his vehicle. The investigating police officer admitted that Turner was traveling approximately 34 miles an hour at the moment of impact. No criminal charges were ever filed against Turner, and in fact a grand jury returned a "no bill" on several charges, finding no probable cause to indict him.

Defendants denied that they were negligent in the representation of Turner, and contended that he was liable for the death of Woody.

Direct General settled for $25,000 after jury selection. The case was tried against Osborne and the law firm, and the jury returned a Plaintiff's verdict for $991,950.00.

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Editor's Note: Legal malpractice cases like this one are interesting in that the plaintiff must prove that but for the alleged negligent acts, errors and omissions of the defendant lawyer, the defendant would not have lost the underlying case. The plaintiff, Turner, or in this case the Bankruptcy Trustee, must prove that he would have won the first case if he had been competently represented. This can be a difficult burden of proof to satisfy and many of these cases are resolved by summary judgment. The defendants, a lawyer, his firm and an insurance company, are not exactly sympathetic defendants if the case reaches a jury. That is why the trustee had to agree to a 50% contingency fee contact with the Jones firm. Assuming the verdict in the second case is reduced to judgment and upheld, Kimberly Woody may ultimately get something from the process to compensate her for the death of her husband but it will be a fraction of the $1.7 million awarded to her by the first jury.