Ela Ine Ewing Vs.

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #045
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 19th day of November, 2020 are as follows:
BY Johnson, C.J.:
2020-C-00339 ELAINE EWING VS. WESTPORT INSURANCE CORPORATION,
ET AL. (Parish of St. Landry)
We granted this writ application to determine whether “collectibility” is a
relevant consideration in a legal malpractice action. Specifically, we must
decide whether plaintiff’s damages in this legal malpractice action are
limited to the amount she could have actually collected on a judgment
against the tortfeasor in the underlying lawsuit. For the following reasons,
we answer these questions in the negative, holding proof of collectibility of
an underlying judgment is not an element necessary for a plaintiff to
establish a claim for legal malpractice, nor can collectibility be asserted by
an attorney as an affirmative defense in a legal malpractice action.
AFFIRMED.
Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore,
sitting in the vacant seat for District 4 of the Supreme Court. He is now
appearing as an ad hoc for Justice Jay B. McCallum.
Weimer, J., concurs in the result and assigns reasons.
Genovese, J., dissents for the reasons assigned by Justice Crain.
Crain, J., dissents and assigns reasons.

1
11/19/20
S
UPREME COURT OF LOUISIANA
No
. 2020-C-00339
ELA
INE EWING
VS.
WESTPORT INSURANCE CORPORATION, ET AL.
ON
WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF ST. LANDRY
J
OHNSON, CHIEF JUSTICE1
We granted this writ application to determine whether “ c ollectibility” is a
relevant consideration in a legal malpractice action. Specifically, we must decide
whether plaintiff’s damages in this legal malpractice action are limited to the amount
she could have actually collected on a judgment against the tortfeasor in the
underlying lawsuit. For the following reasons, we answer these questions in the
negative, holding proof of collectibility of an underlying judgment is not an element
necessary for a plaintiff to establish a claim for legal malpractice, nor can
collectibility be asserted by an attorney as an affirmative defense in a legal
malpractice action.
FACTS AND PROCEDURAL HISTORY
Elaine Ewing was injured in an automo bile accident on April 9, 2015, when
her vehicle was hit by a vehicle driven by Marc Melancon. Ms. Ewing retained
attorney Chuck Granger to represent her relative to damages she sustained in the
accident. On April 4, 2016, Mr. Granger fax-filed a petition for damages with the
18
th Judicial District Court. However, Mr. Granger failed to forward the original
1 Retired Judge James H. Boddie, Jr., heard this case as Justice pro tempore, sitting in the vacant
seat for District 4 of the Supreme Court. He is now appearing as an ad hoc for Justice Jay B.
McCallum.

2

petition for damages within seven days as required by La. R.S. 13:850.2 The original
petition was filed on April 22, 2016, after the one -year prescriptive period had
passed. Ms. Ewing’s suit was dismissed on an exception of prescription.
Ms. Ewing subsequently filed a legal malpractice action against Mr. Granger
and Westport Insurance Corporation, Mr. Granger’s malpractice insurer. Defendants
filed a motion for partial summary judgment asserting the court should apply the
“collectibility rule.” Defendants alleged Ms. Ewing’s recovery could be no greater
than her potential recovery in the underlying personal injury lawsuit, and recovery
in this case should be capped at Mr. Melancon’s insurance policy limits.
The district court initially denied the motion for summary judgment because
there was no evidence indicating Mr. Melancon would be unable to pay a judgment
in excess of the policy limits. However, defendants reurged the motion immediately
prior to trial, introducing the deposition of Mr. Melancon in support of the motion.
The parties stipulated insurance coverage totaled $30,000. It was also stipulated that
there was an attorney/client relationship between Mr. Granger and Ms. Ewing, and
Mr. Granger breached the standard of care. In granting the partial motion for
summary judgment and capping Ms. Ewing’s damages at $30,000, the district court
stated:
The Court after considering the deposition of the defendant driver,
Marc Melancon, it’s very clear that Mr. Melancon’s testimony is that
he would have filed bankruptcy for any judgment in excess of, and that
his ability to pay would not support his paying any judgment above the
underlying $30,000 of coverage. In addition, the deposition from a
factual standpoint seems to leave no genuine issue of material fact as to
whether or not he had an ability to pay anything.... I find that, in this

2 La. R.S. 13:850 provides in relevant part: “ B. Within seven days, exclusive of legal holidays,
after the clerk of court receives the facsimile filing, all of the following shall be delivered to the
clerk of court:

(1) The original document identical to the facsimile filing in number of pages and in content
of each page including any attachments, exhibits, and orders. A document not identical to
the facsimile filing or which includes pages not included in the facsimile filing shall not be
considered the original document.

C. If the filing party fails to comply with any of the requirements of Subsection B of this Section,
the facsimile filing shall have no force or effect. *** ”

3

case, the plaintiff cannot pursue damages in excess of the $30,000 of
insurance, and my rationale is this, in every case where insurance is
involved and limited insurance is involved, say in personal injury
actions, where you have a $15,000 auto policy or you have, in this case
a $30,000 of underlying auto coverage, a plaintiff would —for me to
rule otherwise, would mean that a plaintiff, where there is limited
insurance coverage, would be better off if their attorney committed
malpractice, because the attorney would have more coverage than that
underlying coverage.

After trial, the court awarded Ms. Ewing $30,000 concluding the evidence proved
she incurred damages of at least that amount. However, the court did not make a
determination of the amount of actual damages, finding that issue moot due to the
grant of summary judgment in favor of the defendants on the issue of collectibility.
The court of appeal reversed, citing to this court ’s decisions in Rodriguez v.
Traylor, 468 So. 2d 1186, 1188 (La.1985) (holding “the wealth or poverty of a party
to a lawsuit is not a proper consideration in the determination of compensatory
damages.”) and Costello v. Hardy , 03 -1146 (La. 1/21/04), 864 So. 2d 129, 138
(stating “[a] plaintiff can have no greater rights against attorneys for the negligent
handling of a claim than are available in the underlying claim.”). Ewing v. Westport
Ins. Corp., 19 -551 (La. App. 3 Cir. 2/5/20), 290 So. 3d 707. The court of appeal
explained:
We find that the Defendants cannot rely on a hypothetical situation of
bankruptcy to limit Ms. Ewing’s recovery. It is just as possible that Mr.
Melancon may not file bankruptcy and the judgment may become
collectible in the future should Mr. Melancon receive some money from
other sources. It is admitted that Ms. Ewing would have been successful
in her claim against Mr. Melancon. Ms. Ewing had a right to a judgment
for the recovery of the full amount of her damages against Mr.
Melancon, without the consideration of his ability to pay the judgment.
An inability to pay Ms. Ewing does not relieve Mr. Melancon of the
obligation to pay her. Because of Mr. Granger ’s negligence, we will
never know what Ms. Ewing would have collected from Mr. Melancon.
Mr. Granger can have no greater rights in his defense of legal
malpractice than Mr. Melancon would have had in the underlying suit.
Ms. Ewing is entitled to the same rights against the Defendants as she
had against Mr. Melancon, due to the negligence of Mr. Granger in
depriving of her the ability to sue Mr. Melancon. Collectibility could
not be raised in the underlying lawsuit and should not be considered in
Ms. Ewing’s malpractice claim against the Defendants either.

4

Id. at 711. The court of appeal remanded the case to the district court for
consideration of the amount of damages suffered by Ms. Ewing as a result of the
accident. Id.
Defendants filed a writ application in this court, which we granted. Ewing v.
Westport Ins. Corp., 20-0339 (La. 6/22/20), 297 So. 3d 759.
DISCUSSION
The general issue presented is w hether the collectibility of damages is a
relevant consideration in a legal malpractice action. In particular, we must determine
whether the loss caused by Mr. Granger’s admitted negligence is limited to the
amount Ms. Ewing could have actually collected on a judgment against the
underlying tortfeasor, Mr. Melancon. The concept of “collectibility” concerns the
measure of damages. Application of the “collectibility rule” limits the measure of a
legal malpractice plaintiff ’s damages to what the plaintiff could have actually
collected from the tortfeasor in the underlying litigation absent the attorney ’s
negligence, regardless of the face value of the lost claim. The justification for
applying the collectibility rule is that the attorney’s negligence did not cause the
client any damage if the client would have been unable to collect upon a judgment,
even it if had been obtained in the underlying action. The primary rationale is the
perceived inequity if the plaintiff is able to obtain a judgment against the attorney
that is greater than the judgment the plaintiff could have collected from the
underlying tortfeasor. See Ronald E. Mallen, The plaintiff’s attorney—The cause of
action—Collectibility and offsets, 4 Legal Malpractice § 33:32 (2020 ed.); 3 Modern
Tort Law: Liability and Litigation, Damages: In general--Collectibilty §25:42 (June
2020).
A majority of courts that have considered this issue view collectiblity as an
essential element of the plaintiff ’s legal malpractice case demonstrating the
attorney’s negligence proximately caused the resulting damages, thus placing the

5

burden of proof on the malpractice plaintiff. See Daniel D. Tostrud, “Payability as
the Logical Corollary to Collectibility” in Legal Malpractice, 4 St. Mary’s J. Legal
Malpractice & Ethics 408 (2014) . As recently explained by the Colorado Supreme
Court:
Where, as here, a legal malpractice claim is founded on professional
negligence, the plaintiff must prove duty, breach, causation, and
damages (as in every negligence case). …[T] he collectibility of the
underlying judgment implicates both the causation and damages
elements of a negligence claim. In order to prove that the attorney ’s
negligence caused the client harm, the client -plaintiff must sh ow that
the claim underlying the malpractice action would have been successful
“but for” the attorney’s negligence. But if the underlying judgment was
uncollectible, for example, due to insufficient assets or bankruptcy, the
lost value of the judgment is n ot the proximate result of an attorney ’s
negligence. Proving collectibility, therefore, necessarily follows from
the rule that plaintiffs must prove causation.

LeHouillier v. Gallegos , 434 P.3d 156, 162, reh ’g denied (Colo. 2019).
“Collectibility is logically and inextricably linked to the legal-malpractice plaintiff’s
damages, for which the plaintiff bears the burden of proof. In proving what was lost,
the plaintiff must show what would have been gained.” Paterek v. Petersen & Ibold,
890 N.E.2d 316, 321 (Ohio 2008). See also, Akin, Gump, Strauss, Hauer & Feld,
L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009) (when the
claim is that the lawyer improperly represented the plaintiff in another case, the
plaintiff must prove and obtain findings as to the amount of damages that would
have been recoverable and collectible if the other case had been properly
prosecuted); Paterek, supra (in attorney malpractice case, proof of collectibility of
judgment lost due to malpractice is an element of plaintiff’s claim against negligent
attorney); Hartford Cas. Ins. Co. v. Farrish -LeDuc, 882 A.2d 44 (Conn. 2005)
(when the underlying action was never tried, client must establish that the underlying
claim was recoverable and collectible); Huber v. Watson , 568 N.W.2d 787 (Iowa
1997) (in a legal malpractice case involving alleged negligent handling of litigation,
plaintiffs must prove that any recovery against defendant in the underlying action

6

could have been collected); Poly v. Moylan, 667 N.E.2d 250 (Mass. 1996) (plaintiff
in a legal malpractice action bears the burden of showing that the client would have
been able to collect on a judgment obtained in the underlying case; client may only
collect from the lawyer what the client could have collected from defendant in
underlying action); Klump v. Duffus, 71 F.3d 1368 (7th Cir. 1995) (applying Illinois
state law, held the burden is on the plaintiff to prove the amount she would have
actually collected from the original tortfeasor as an element of her malpractice
claim); Haberer v. Rice, 511 N.W.2d 279 (S.D. 1994) (showing of proximate cause
requires proof that the client would not only have prevailed in underlying claim but
that judgment in the client’s favor would have been collectible); DiPalma v.
Seldman, 27 Cal. App. 4 th 1499, 33 Cal. Rptr. 2d 219, 223 (Cal. 1994) (where the
alleged malpractice consists of mishandling a client’s claim, the plaintiff must show
proper prosecution of the matter would have resulted in a favorable judgment and
collection thereof); Eno v. Watkins, 429 N.W.2d 371, 372 (Neb. 1988) (plaintiff has
the burden of proving that she would have been successful in obtaining and
collecting a judgment a gainst the attorney); Rorrer v. Cooke, 329 S.E.2d 355, 369
(N.C. 1985) (plaintiff bringing suit for legal malpractice must prove that the original
claim was valid; it would have resulted in a judgment in his favor; and the judgment
would have been collectible); McDow v. Dixon, 226 S.E.2d 145, 147 (Ga. Ct. App.
1976) (a client suing his attorney for malpractice not only must prove that his claim
was valid and would have resulted in a judgment in his favor, but also that the
judgment would have been collectible in some amount).
However, there is a significant growing trend of courts that have allocated the
burden differently, making the issue of collec tibility an affirmative defense to be
pled and proven by the legal malpractice defendant. See Tostrud, supra at 417-18.
These courts have generally reasoned that requiring the legal malpractice plaintiff to
also prove collectibility of damages places an unfair burden on the plaintiff , thus

7

finding i t more logical and fair to treat collecti bility as a matter constituting an
avoidance or mitigation of the consequences of the attorney’s negligent act. See, e.g,
Smith v. McLaughlin, 769 S.E.2d 7, 18 (Va. 2015) (the burden of pleading and
disproving collectibility is on the negligent attorney as an affirmative defense);
Clary v. Lite Machines Corp., 850 N.E.2d 423, 440 (Ind. Ct. App. 2006) (it makes
more sense to place the burden of proof upon the malpractice defendant to show the
judgment would not have been collectible from the defendant in the underlying
case); Lindenman v. Kreitzer, 7 A.D.3d 30, 35 (N.Y. App. Div. 2004) (the issue of
noncollectibility should be treated as a matter constituting an avoidance or
mitigation of the consequences of the attorney’s malpractice and the erring attorney
should bear the inherent risks a nd uncertainties of proving it); Carbone v. Tierney,
864 A.2d 308, 319 (N.H. 2004) (in a legal malpractice action, noncollectibility of
the underlying judgment is an affirmative defense that must be proved by the
defendant); Kituskie v. Corbman , 714 A.2d 1027, 1032 (Pa. 1998) (a
defendant/lawyer in a legal malpractice action should plead and prove the
affirmative defense that the underlying case was not collectible); Power
Constructors, Inc. v. Taylor & Hintze , 960 P.2d 20, 31- 32 (Alaska 1998) (policy
militates in favor of requiring the malpracticing attorney to bear the inherent risks
and uncertainties of proving uncollectibility); Smith v. Haden , 868 F.Supp. 1, 3
(D.D.C. 1994) (it is more rational and fair to put the burden on defendant to prove
non-collectibility than on the plaintiff to prove collectibility in her case in chief);
Teodorescu v. Bushnell, Gage, Reizen & Byington, 506 N.W.2d 275 (Mich. Ct. App.
1993) (we choose to follow the minority view and hold that collectibility is an
affirmative defense to an action for legal malpractice that must be pleaded and
proved by the defendant); Jourdain v. Dineen, 527 A.2d 1304 (Me. 1987) (because
uncollectibility of a judgment should be treated as a matter constituting an avoidance
or mitigation of the conseq uences of one’s negligent act, it must be pleaded and

8

proved by the defendant); Hoppe v. Ranzini, 385 A.2d 913, 920 (N.J. Super. Ct. App.
Div. 1978) (fairness requires that the burden of proof with respect to the issue of
collectibility should be upon the attorney defendant, notwithstanding the rule
elsewhere that places that burden on plaintiff).
Whether collectibility is a relevant consideration in legal malpractice cases is
res nova in Louisiana. After review of the law and consideration of the parties’
arguments, we decline to follow the jurisprudence outlined above. Rather, based on
Louisiana jurisprudence and public policy, and considering the lack of relevant
statutory authority, we hold the collectibility rule is not applicable in legal
malpractice cases.
To establish a claim for legal malpractice, a plaintiff must prove: 1) the
existence of an attorney -client relationship; 2) negligent representation by the
attorney; and 3) loss caused by that negligence. Costello, 864 So. 2d at 138. Notably,
the “case within a case” requirement in legal malpractice cases has been eliminated.
In Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So. 2d 1109, 1110 (La. 1982), this
court expressed concern over the “case within a case” approach which had been used
by courts ruling on legal malpractice cases. Under that approach , a plaintiff was
required to prove not only that the attorney was negligent in handling the client’ s
claim or litigation, but also that the claim or litigation would have been successful
but for the attorney’s negligence. Id. at 1109 -10. A plurality of this court rejected
the “case within a case” approach, explaining:
Causation, of course, is an essential element of any tort claim. However,
once the client has proved that h is former attorney accepted
employment and failed to assert the claim timely, then the client has
established a prima facie case that the attorney’s negligence caused him
some loss, since it is unlikely the attorney would have agreed to handle
a claim comp letely devoid of merit. In such a situation, a rule which
requires the client to prove the amount of damages by trying the “case
within a case” simply imposes too great a standard of certainty of proof.
Rather, the more logical approach is to impose on the negligent
attorney, at this point in the trial, the burden of going forward with
evidence to overcome the client’s prima facie case by proving that the

9

client could not have succeeded on the original claim, and the causation
and damage questions are then up to the jury to decide. Otherwise, there
is an undue burden on an aggrieved client, who can prove negligence
and causation of some damages, when he has been relegated to seeking
relief by the only remedy available after his attorney ’s negligence
precluded relief by means of the original claim.

Id. In MB Indus., LLC v. CNA Ins. Co ., 11-0303 (La. 10/25/11), 74 So. 3d 1173,
1187, we confirmed the holding in Jenkins, explaining it is not sufficient for the
plaintiff to simply show the attorney acted negligently, and making clear the plaintiff
continues to bear the initial burden of establishing some causal connection between
the negligence and the alleged loss:
Although this Court disavowed the “ case within a case ” doctrine in
Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So. 2d 1109, 1110
(La.1982), we reiterated that causation “is an essential element of any
tort claim. ” At the very least, [plaintiff] must establish some causal
connection between the alleged negligence and the eventual
unfavorable outcome of the litigation.

Id. Thus, under our jurisprudence, Ms. Ewing was only required to prove she had an
attorney-client relationship with Mr. Granger; that Mr. Granger’s representation was
negligent; and that Mr. Granger ’s negligence cause d her some loss. The parties
stipulated the first two elements were satisfied. Furthermore, Ms. Ewing satisfied
her burden regarding the third element. W here the plaintiff proves that the
negligence on the part of her former attorney caused the loss of the opportunity to
assert a claim, she has established the inference of causation of damages resulting
from the lost opportunity for recovery. Jenkins , 422 So. 2d at 1110 . Because the
“case within a case” requirement no longer exists, there is no basis to burden a legal
malpractice plaintiff with also proving she would have successfully been able to
execute on the judgment in the underlying case or that the judgment was collectible.
Collectibility is not an element of the plaintiff’s legal malpractice claim in Louisiana.
Although d efendants do not assert Ms. Ewing was required to prove
collectibility as part of her claim, they do argue collectibility is a valid defense in a
legal malpractice lawsuit. We disagree. A legal malpractice claim in Louisiana is a

10

negligence claim, albeit a professional negligence claim, and thus derives from La.
C.C. arts. 23153 and 2316.4 See Frank L. Maraist, 21 La. Civ. L. Treatise, Louisiana
Lawyering § 18.1 (2020). These articles do not limit the damages available in legal
malpractice actions based on the collectibility of the judgment against a particular
tortfeasor. Defendants argue “it is maxim in Louisiana legal malpractice cases that
a plaintiff shall have no greater rights against her attorney than she had against the
tortfeasor-defendant in the underlying case ,” and allowing Ms. Ewing to recover
more from Mr. Granger than she could have collected against Mr. Melancon would
violate this rule. Defendants’ argument is drawn from a sentence in this court’s
opinion in Costello, supra (“A plaintiff can have no greater rights against attorneys
for the negligent handling of a claim than are available in the underlying claim.” 864
So. 2d at 138). However, Costello did not involve the issue of collectibility. Rather,
Costello concerned the lack of any factual support for the third prong of plaintiff ’s
malpractice claim (proof of loss or damages) primarily because the plaintiff ha d
settled her lawsuit in the underlying claim providing her with the relief she originally
sought. This principle stated in Costello was adopted from Couture v. Guillory, 97-
2796 (La. App. 4 Cir. 4/15/98), 713 So. 2d 528, 532, writ denied, 98 -1323 (La.
6/26/98), 719 So. 2d 1287 and Spellman v. Bizal, 99-0723 (La. App. 4 Cir. 3/1/00),
755 So. 2d 1013, 1019, wherein the court of appeal stated that to the extent a plaintiff
asserts claims for damages against her former attorneys which were clearly
discharged in the underlying lawsuit against the underlying negligent party ,

3 La. C.C. art. 2315: “A. Every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it. B. Damages may include loss of consortium, service, and
society, and shall be recoverable by the same respective categories of persons who would have
had a cause of action for wrongful death of a n injured person. Damages do not include costs for
future medical treatment, services, surveillance, or procedures of any kind unless such treatment,
services, surveillance, or procedures are directly related to a manifest physical or mental injury or
disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of
the property damaged.”

4 La. C.C. art 2316: “Every person is responsible for the damage he occasions not merely by his
act, but by his negligence, his imprudence, or his want of skill.”

11
defendants are entitled to judgment as a matter of law dismissing the malpractice
claims. The same principle would apply in a case where the defendant attorney
successfully demonstrates the plaintiff could not have prevailed on the merits
regarding liability in the underlying tort claim. See, e.g., Fortenberry v. Continental
Cas. Co., 15-418 (La. App. 3 Cir. 11/4/15), 179 So. 3d 729. Thus, nothing in Costello
requires this court to adopt the collectibility rule.
Moreover, applying the collectibility rule assumes that the underlying
tortfeasor will remain insolvent or unable to pay for the life of the judgment. But
impecunity is a snapshot in time. Under Louisiana law, a money judgment is valid
for ten years and may be revived for successive ten-year periods if appropriate steps
are taken. La. C.C. art. 3501. 5 It would be inherently unfair to deprive the
malpractice plaintiff of recovery against the negligent attorney if the underlying
judgment would be collectible at a later point in time, within the statutory
prescriptive period for satisfaction of a judgment.
A money judgment rendered against a tortfeasor has intrinsic value, regardless
of collectibility of that judgment. We hold collectibility is not relevant to the correct
measure of a legal malpractice plaintiff’s damages. This is consistent with the policy
set forth by this court in Rodriguez v. Traylor, 468 So. 2d 1186, 1188 (La. 1985) that
the financial condition of the defendant is not a proper consideration in the
determination of compensatory damages. We will not allow a malpractice defendant
to assert a defense based on the wealth or poverty of the underlying tortfeasor when
a defendant in any other type of tort action could not assert a similarly based defense.
CONCLUSION
5 La. C.C. art. 3501 provides in relevant part: “A money judgment rendered by a trial court of this
state is prescribed by the lapse of ten years from its signing if no appeal has been taken, or, if an
appeal has been taken, it is prescribed by the lapse of ten years from the time the judgment becomes
final. *** Any party having an interest in a money judgment may have it revived before it
prescribes, as provided in Article 2031 of the Code of Civil Procedure. A judgment so revived is
subject to the prescription provided by the first paragraph of this Article. An interested party may
have a money judgment rendered by a court of this state revived as often as he may desire.”

12
F or the above reasons we hold the collectibility rule cannot be applied in legal
malpractice actions to limit the amount of damages otherwise due to a legal
malpractice plaintiff.
DECREE
AFFIRMED.

11/19/20
SUPREME COURT OF LOUISIANA
No. 2020-C-00339
ELAINE EWING
VS.
WESTPORT INSURANCE CORPORATION, ET AL.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT,
PARISH OF ST. LANDRY
WEIMER, J., concurring in the result.
I agree with and commend the majority’s decision which declines to import
into our law the “collectibility rule” adopted by a number of common law states. The
jurisprudential rule embodied therein is neither appropriate nor necessary to our
civilian tradition in which tort liability (including liability for legal malpractice) is
founded in and stems from our codal provisions. See La. C.C. art. 2315(A) (“Every
act whatever of man that causes damage to another obliges him by whose fault it
happened to repair it.); La. C.C. art. 2316 (“Every person is responsible for the
damage he occasions not merely by his act, but by his negligence, his imprudence, or
his want of skill.”). It is also inconsistent with our jurisprudence, which eschews the
“case within a case” doctrine in the legal malpractice arena. See, e.g., MB Indus.,
LLC v. CNA Ins. Co., 11-0303, 11-0304, p. 20 (La. 10/25/11), 74 So.3d 1173, 1187;
Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109 (La. 1982).
As the majority notes, to establish a claim for legal malpractice in Louisiana,
a complainant must prove: (1) the existence of an attorney-client relationship; (2)
negligent representation by the attorney; and (3) loss caused by that negligence.
Costello v. Hardy, 03-1146, p. 9 (La. 1/21/04), 864 So.2d 129, 138. It is in

connection with this third element of the malpractice claim that the issue of the
wholly impecunious tortfeasor (in the underlying action) arises. As the majority
correctly recognizes, causation is an essential element of any tort claim, and a
plaintiff must always prove that the defendant’s negligence caused him or her some
loss. Jenkins, 442 So.2d at 1110. However, in the legal malpractice arena, this
initial burden is satisfied once the plaintiff has proved that his former attorney
accepted employment and failed to assert the claim timely. Id. At this point, the
plaintiff has established an inference of causation of damages resulting from the loss
of opportunity for recovery, and it is incumbent upon the negligent attorney to
produce evidence sufficient to overcome the plaintiff’s prima facie case. Id.
It is at this juncture that the issue of the collectibility of the underlying
judgment becomes relevant, because a plaintiff who would have recovered no
damages in the underlying claim has arguably suffered no loss from the lost
opportunity to pursue his underlying claim.1 In this connection, however, it is
important to note that there is a difference between a tortfeasor in the underlying
proceeding who is wholly impecunious, and the value of a lost judgment. As the
majority astutely points out, “impecunity is a snapshot in time;” and “[a] money
judgment rendered against a tortfeasor has intrinsic value, regardless of the
collectibility of that judgment.” Ewing v. Westport Ins. Co., 20-00339, slip op. at
11 (La. 11/19/20). Thus, while it may be the case that in certain (and rare)
1 Such a proposition does not conflict with this court’s decision in Rodriguez v. Traylor, 468 So.2d
1186, 1188 (La. 1985), in which the court held that the wealth or poverty of a party to a lawsuit is
not a proper consideration in the determination of compensatory damages. Rodriguez is not a legal
malpractice case. See Id. In a legal malpractice case, the impecuniosity of the tortfeasor in the
underlying action is a factor in the causation inquiry, and not a consideration in the assessment of
the amount of compensatory damages owed by the defendant attorney, whose wealth or poverty is
not a consideration in the assessment of compensatory damages against him or her.
2

circumstances the underlying tortfeasor may be truly judgment proof,2 and summary
judgment in favor of the defendant attorney appropriate, that is not the case here. On
the record before this court, the district court manifestly erred in capping the
plaintiff’s damages at $30,000 based on the tortfeasor’s deposition testimony that
“hypothetically” if a judgment were rendered against him in the amount of $30,000,
$20,000 or even $10,000, he would “consider” bankruptcy. A “hypothetical”
bankruptcy does not establish that more probably than not, the defendant attorney’s
negligence did not cause the plaintiff in this case to suffer damages in excess of the
$30,000 insurance policy limits.
For the foregoing reasons, I respectfully concur in the result in this case, which
affirms the judgment of the court of appeal reversing the summary judgment capping
plaintiff’s damages at $30,000 and remands the case to the district court for
consideration of the amount of damages sustained by plaintiff as a result of her
attorney’s negligence.
2 For example, the tortfeasor filed for bankruptcy and the debt was discharged; thus, the debt is
uncollectible.
3

S
UPREME COURT OF LOUISIANA
No
. 2020-C-00339
ELA
INE EWING
VS.
WESTPORT INSURANCE CORPORATION, ET AL.
O
n Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of St. Landry
GEN
OVESE, J., dissents for the reasons assigned by Justice Crain.

11/19/20
S
UPREME COURT OF LOUISIANA
No
. 2020-C-00339
ELA
INE EWING
VS.
WESTPORT INSURANCE CORPORATION, ET AL.
O
n Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of St. Landry
C
RAIN, J., dissents and assigns reasons.
T
hirty states have determined collectibility is relevant in a legal malpractice
action.1 No state has reached a contrary conclusion, until now. In reaching this
conclusion, the majority correctly observes there is no codal, statutory, or
jurisprudential authority that requires it. Close scrutiny of the distinct causes of
action and damages unique to such claims confirms that in this instance, our civilian
traditions align with those of our common law neighbors.
Louisiana Code of Evidence article 401 defines “ relevant evidence ” as
“evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” “All relevant evidence is admissible,” except as
otherwise provided by positive law. La. C.E. art. 402. The majority errs by
conflating relevant evidence for the underlying negligence claim with that of the
legal malpractice action. In doing so, it effectively puts the malpractice attorney in
1 In addition to the twenty-two jurisdictions cited by the majority, another eight jurisdictions have
ruled the issue of collectability is a relevant consideration in a legal malpractice action. See also,
D.C. Circuit (Smith v. Haden, 868 F. Supp. 1, 3 (D.D.C. 1994)); Oregon (Ridenour v. Lewis, 854
P.2d 1005, 1006 (Or. Ct. App. 1993)); Florida ( Fernandes v. Barrs, 641 So. 2d 1371, 1376 (Fla.
Dist. Ct. App. 1994)); Minnesota (Christy v. Saliterman, 179 N.W. 2d 288, 306 (Min. 1970)); New
Mexico ( Carrillo v. Coors , 901 P. 2d 214, 217 (N.M. Ct. App. 1995)); Tennessee ( Sitton v.
Clements, 257 F. Supp. 63, 67 (E.D. Tenn. 1966)); Washington ( Lavigne v. Chase, 50 P. 3d 306,
311 (Wash. Ct. App. 2002)); and North Carolina ( Rorrer v. Cooke, 329 S.E. 2d 355, 361 (N. C.
1985)).

2

the shoes of the defendant in the underlying negligence claim. However, the harm
caused by these defendants is distinctly different.
Under Louisiana Civil Code articles 2315 and 2316, plaintiffs are entitled to
actual damages caused by the defendant. Compensatory damages are intended to
make the victim whole and are designed to place the plaintiff in the position in which
he would have been if the tort had not been committed. Wainwright v. Fontenot, 00-
0492, p. 5 (La. 10/17/00), 774 So.2d 70, 74.) The object, then, of the underlying
negligence claim is to obtain a judgment that reflects the actual monetary value for
the injuries suffered by the plaintiff. The object of the legal malpractice suit is to
obtain a judgment that reflects the actual monetary value for the lost opportunity to
recover in that underlying negligence claim, i.e., the value of the “lost judgment.”
These two concepts are not interchangeable.
With this distinction in mind, it is necessary to determine what evidence is
relevant to determine those damages. In the underlying negligence claim , the
defendant’s inability to pay is clearly irrelevant, as it does not help the trier of fact
determine the extent of the plaintiff’s injuries. In the legal malpractice action, the
underlying defendant’s inability to pay is just as clearly relevant, as it is
determinative of the actual harm c aused by the negligent attorney. If the “lost
judgment,” which was intended to fully compensate for the plaintiff’s injuries in the
underlying negligence claim, is uncollectible, then the negligent attorney who fails
to preserve that claim only causes the plaintiff nominal, if any, harm.
2 Therefore,
collectibility should be a fact considered by the factfinder in determining the loss
caused by the negligent attorney.

2 In some instances, the plaintiff may prove he would have been able to collect from the underlying
defendant some of the judgment, but not all. There, the negligent attorney would be exposed to
liability for that portion of the judgment. Other times, like in the case of an insolvent underlying
defendant, the plaintiff would not be able to collect at all. The negligent attorney would be exposed
to liability only for the value a trial court, in its discretion, assigns to that uncollectible judgment.
Regardless, it is the value of the lost judgment that is quantified by a trial court, subject to an abuse
of discretion standard of review, like every other damage award.

3

For example, assume an insolvent, uninsured driver rear -ends a world -class
professional athlete rendering him a paraplegic, resulting in damages of $50 million.
The plaintiff hires a lawyer to sue the insolvent, uninsured driver. Then, the lawyer
misses the prescription date. The plaintiff sues the lawyer for legal malpractice. The
lawyer has $50 million legal malpractice insurance coverage. What did the plaintiff
lose, or what harm did the lawyer cause the plaintiff, when the lawyer failed to
preserve the claim against the insolvent, uninsured driver? The lawyer did not cause
the paraplegia, nor did he cause the loss of $50 million, as that money was clearly
uncollectible. Instead, the plaintiff lost the right to obtain a judgment against the
insolvent, uninsured driver in the amount of $50 million. The determinative
question, then, by a trial court is: “What is the value of the ‘lost judgment’?” That
value depends largely, if not totally, on the collectibility of the “lost judgment.” This
quantum determination should be left to the trial court after considering the relevant
collectibility evidence, which should not be barred by the bright-line rule adopted
by the majority.
This approach is in line with the well-established maxim that a plaintiff shall
have no greater rights against his attorney than he had against the original defendant.
Costello v. Hardy , 2003-1146 (La. 1/21/04), 864 So.2d 129, 138. T he majority
allows the plaintiff to recover a greater amount from the negligent attorney, when
the attorney did not cause the plaintiff to lose that amount. This result incentivizes
malpractice. Encouraging such claims detrimentally alters insurance rates, increases
the cost for attorneys to practice law, and creates a windfall for plaintiffs.
The majority finds its holding conforms to our court’s prior jurisprudence.
Specifically, it notes the “case within a case” requirement in legal malpractice cases
has been eliminated. However, Jenkins v. St. Paul Fire & Marine Ins. Co., 422
So.2d 1109, 1110 (La. 1982), did not remove the relevancy of such proof. It merely
shifted the burden of proving success in the underlying case from the plaintiff to the

4

negligent attorney. The admissibility of relevant evidence is a wholly separate
concept from the det ermination of which party has the burden of proof using that
evidence. Thus, allowing collectibility as an affirmative defense is a natural
extension of Jenkins, not a departure from it.
Moreover, the majority finds its conclusion consistent with Rodriguez v.
Traylor, 468 So.2d 1186, 1188 (La. 1985). For nearly 100 years (from 1898 to 1985)
the jurisprudentially-created “inability to pay” rule prevailed in this state, allowing
evidence of a defendant’s inability to pay as a defense to a plaintiff’s personal injury
claims. In Rodriguez, our court held that the wealth or poverty of a party to a lawsuit
is not a proper consideration in the determination of compensatory damages, and
each litigant should stand equal in the eyes of the law regardless of his financial
standing. Rodriguez was correctly decided, as it recognized the legal reality that a
defendant’s ability to pay a judgment is completely irrelevant to determining the
extent of the injuries caused by that defendant. However, Rodriguez involved an
ordinary negligence claim file d by the victim of a rear -end automobile accident
against the defendant driver. Nothing in Rodriguez requires its holding to be
extended to a legal malpractice claim, which is a distinct cause of action with its own
damages.
An additional argument the majority relies on is the notion that “impecunity
is a snapshot in time.” Other courts have considered this argument and rejected it as
non-determinative.
3 Indeed, all damage awards involve snapshots in time. Each day
courts make future damage awards without knowing what economic climate those
damages will mature in. Those present day dollars may appreciate or depreciate in
a manner not even economists can predict. This imprecise measuring system,

3 See, e.g., Lindeman v. Kreitzer, 7 A.D. 3d 30, 35-36 (N.Y. App. Div. 2004) and Hoppe v. Ranzini,
385 A2d 913, 919 N.J. Super.Ct. App. Div. 1978 (both courts limiting the negligent attorney’ s
burden of proving non-collectibility to the period between the date of the malpractice and the end
of a reasonable period of time after the malpractice trial, short of the full twenty -year life span of
the underlying judgment.)

5

though, does not prevent the awarding of those damage s; nor should the valuation
of an u ncollectible judgment be barred because the underlying defendant’s
patrimony may increase.
While collectibility of a judgment is not relevant in other suits, a legal
malpractice action is distinctly different from an ordinary negligence claim . The
attorney being sued for malpractice did not cause the original harm or damage to the
plaintiff; a third party caused that harm. It is patently inequitable to allow the
plaintiff to obtain a greater recovery against his attorney than he could have
recovered against the third party defendant who caused the plaintiff’s injuries. I
dissent.