WV: Action in Tort Independent from Action in Contract
Harrison v. Casto, 165 W.Va. 787, 271 S.E.2d 774 (W.Va. 1980)
WV: Underlying personal injury and legal malpractice actions
Facts: Plaintiff, Paul H. Harrison hired attorney Don Kingery (#1) to file a personal injury action against Piedmont Airlines for injuries allegedly suffered while a passenger on a Piedmont plane. King failed to file the action within the statutory period. As a result, Harrison hired Carroll W. Casto (#2) to file an action against Kingery (#1) for malpractice. Casto (#2) failed to do so, but instead brought a personal injury suit against Piedmont Airlines and was unsuccessful.
Plaintiff then retained another attorney (#3) to sue Casto (#2) for legal malpractice, claiming (a) that Casto (#2) failed to file the instant action within the applicable statute of limitations and (b) breach of contract between Harrison and Casto.
Casto filed an Answer in which she set forth that Harrison’s Complaint lacks a cause of action since the claims against Kingery (#1) can still be brought in contract, since the applicable statute of limitations for breach of contract was ten years if the contract was in writing.
Issue: Was the trial court’s dismissal of the complaint correct?
Ruling: Yes. A malpractice action “could have been brought in contract” if the plaintiff alleged that defendant breached her contractual employment obligations. Harrison’s action on a breach of contract then survived against Kingery, (#1) although the tort action was barred by the statute of limitations. Therefore, Harrison was not deprived of anything and the Complaint was correctly dismissed.
Lesson: When a malpractice action sounds in tort and contract, statute of limitations barring the filing of the action in tort does not necessarily preclude the filing the action on the contract.
