COA reverses finding attorney entitled to malpractice coverage

A trial court improperly concluded that an Auburn, Indiana, attorney did not make a material representation in his application for renewal of malpractice insurance, the Indiana Court of Appeals held Thursday in reversing summary judgment in favor of the attorney.

Kevin Likes represented Rickey and Cheryl Whitaker in a personal injury lawsuit against Travis Becker. But Likes didn’t respond to repeated requests from Becker’s counsel for documents and interrogatories. The day before trial, Likes served his clients’ sworn responses. The trial court dismissed the Whitakers’ lawsuit and awarded sanctions on March 16, 2010. The Court of Appeals reversed on March 29, 2011, and the Indiana Supreme Court granted transfer and affirmed the trial court on Jan. 18, 2012.

The Whitakers filed a complaint for legal damages against Likes based on the dismissal of the negligence cause on Nov. 2, 2012. Likes notified Bar Plan, his insurer, on Dec. 7, 2012. Bar Plan denied coverage, saying he had knowledge in 2010 that there were circumstances that could give rise to a claim, but indicated there were no possible claims when he renewed his claims-based policy on Nov. 14, 2011.

The trial court ruled in favor of Likes on the parties’ motions for summary judgment, which the COA reversed in The Bar Plan Mutual Insurance Company v. Likes Law Office, LLC; Kevin L. Likes; Rickey D. Whitaker; and Cheryl L. Whitaker, 02A03-1502-CT-65.

Likes argued that when he filled out the renewal, the Court of Appeals had ruled in his favor, so he had no reason to believe there would be a claim. But Likes was put on notice in April 2011 when Becker filed his petition to transfer to the Supreme Court.

“Therefore, because of the severity of the trial court’s remedy – dismissal of the cause – any reasonable attorney in Likes’ position would realize that his client might pursue a potential legal malpractice claim against him should the supreme court affirm the trial court. Accordingly, when Likes signed his renewal application on November 14, 2011, Likes knew or reasonably should have known that the only thing standing between him and a probable malpractice claim was the supreme court ruling. Therefore, he should have disclosed these facts on his application for renewal,” Judge Patricia Riley wrote.