Facts: Respondent Andrea Shoemake filed suit against her former attorney, petitioner Douglas Ferrer, in the Superior Court for King County after Ferrer’s negligence resulted in Shoemake failing to collect a settlement she was owed as a result of injuries she sustained in an automobile accident caused by a drunk driver. As Shoemake had in the interim received the settlement she was entitled to after employing another attorney, the trial court awarded damages in the amount of the interest that would have accrued on Shoemake’s settlement during the period in which she was deprived of the settlement as a result of Ferrer’s malpractice (with the principal calculated as the total amount of the settlement minus the contingency fee Ferrer would have deducted had he obtained the settlement on Shoemake’s behalf) plus attorney’s fees. Both Shoemake and Ferrer appealed the trial court’s decision to the Washington Court of Appeals. Ferrer appealed the awarding of attorney’s fees while Shoemake appealed the deduction of the contingency fee Ferrer would have been entitled to had he performed from the amount used to calculate the interest she was owed. The Washington Court of Appeals reversed the awarding of attorney’s fees to Shoemake, holding that there was no statute, contract, or ground in equity authorizing such an award, and reversed the subtraction of Ferrer’s contingency fee from the amount used to calculate Shoemake’s award. Ferrer appealed this decision to the Supreme Court of Washington.

Question(s): May an award for legal malpractice be calculated on the amount of a lost settlement without subtracting the contingency fee the negligent attorney would have earned had they fully performed?

Conclusion: Justice Stephens’ opinion for a unanimous Court held that calculating Shoemake’s damages without deducting Ferrer’s hypothetical contingency fee is the appropriate measure of damages in such a case. Although Shoemake would not have received the full amount of the settlement had Ferrer not acted negligently, the Court concluded that basing the amount of interest she was awarded upon the full amount was compensatory as Shoemake had incurred costs in hiring a second attorney to collect the settlement on her behalf and seek to recover damages from Ferrer. Moreover, the Court held that basing damages upon the full amount of the settlement was proper as it would also have the effect of deterring similar misconduct.

Docket No. 81812-6 (from Court of Appeals Division I Case No. 60158-0)

Petitioner: Douglas Ferrer

(Counsel: John Woodruff Rankin, Jr.)

Respondent: Andrea Shoemake

(Counsel: Robert B. Gould)

Briefs:

Argument: Thursday, October 22, 2009 9:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, February 4th, 2010

Prevailing Party: Andrea Shoemake (Respondent)

Vote: 9-0

Citation: Pending

Court: Madsen1 Court (2010-)

Alexander

Johnson

Madsen

Sanders

Chambers

Owens

Fairhurst

Johnson

Stephens
(Majority)