and submitted January 5, 2018
Multnomah County Circuit Court 15CV26359 Henry C. Breithaupt,
Judge pro tempore.
L. Andersen argued the cause for appellants. Also on the
briefs was Kelly L. Andersen, P. C.
R. Mersereau argued the cause for respondents. On the brief
were Thomas W. McPherson and Mersereau Shannon LLP.
Armstrong, Presiding Judge, and Tookey, Judge, and Sercombe,
legal malpractice case, plaintiffs alleged that defendants
were negligent in failing to pursue claims against certain
entities in connection with personal injury litigation that
defendants had previously commenced on plaintiffs'
behalf. Defendants moved for summary judgment contending that
plaintiffs could not establish the "causation" and
"harm" elements of their legal malpractice claim.
The trial court granted defendants' motion and entered
judgment in favor of defendants. Plaintiffs appeal the
judgment, arguing that the trial court erred because the
evidence they adduced should have defeated defendants'
trial court erred. The evidence adduced by plaintiffs created
a genuine issue of material fact on the elements of causation
Or.App. 844] TOOKEY, J.
legal malpractice case has its beginnings in a Tri-Met bus
striking five pedestrians in a Portland crosswalk.
Plaintiffs, Ryan and Jamie Hammel, allege, among other
points, that defendants, attorney Mark McCulloch and the law
firm of Powers McCulloch & Bennett, LLP, were negligent
in failing to pursue claims against certain entities in
connection with the personal injury litigation that
defendants commenced on plaintiffs' behalf as a result of
being struck by the Tri-Met bus. The trial court granted
summary judgment to defendants on the grounds that plaintiffs
could not establish the "causation" and
"damages" elements of their legal malpractice
claim. Plaintiffs appeal the trial court's judgment in
favor of defendants. For the reasons that follow, we reverse
the grant of summary judgment to defendants and remand for
review a trial court's grant of summary judgment to
determine whether there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law. ORCP 47 C. "That standard is satisfied if,
viewing the relevant facts and all reasonable inferences in
the light most favorable to the nonmoving party-here,
plaintiff [s]-no objectively reasonable juror could return a
verdict for [plaintiffs] on the matter that is the subject of
the motion for summary judgment." Hinchman v. UC
Market, LLC, 270 Or.App. 561, 566, 348 P.3d 328 (2015)
(internal quotation marks omitted); see also Mason v. BCK
Corp., 292 Or.App. 580, 587, 426 P.3d 206, rev
den, 363 Or. 817 (2018) (in analyzing a motion for
summary judgment, "the court determines whether there is
'some evidence' or 'any evidence' that
presents a genuine issue of material fact for the jury to
resolve"). We state the facts consistently with that
History of the Underlying Litigation
April 2010, a Tri-Met bus struck five pedestrians in a
crosswalk in Northwest Portland. Plaintiffs, as well as [296
Or.App. 845] Robert Gittings, were injured in the bus
accident, but survived their injuries. The two other
individuals who were struck by the bus, Danielle Sale and
Jenee Hammel, died as a result of their injuries.
the personal representative of the Estate of Jenee Hammel,
the personal representative of the Estate of Danielle Sale,
and Gittings (the products-liability claimants), filed
wrongful death and personal injury claims against Tri-Met.
Additionally, the products-liability claimants filed claims
against the manufacturer of the bus, New Flyer, and against
the manufacturers, Hadley and Rosco, of a side-view mirror
that was installed on the bus.
October 2010, plaintiffs retained defendants to represent
them in connection with the injuries that they had sustained
as a result of the bus striking them. After consultation with
defendants, plaintiffs asserted claims against Tri-Met, but
not against New Flyer, Hadley, or Rosco. Less than a month
after asserting their claims against Tri-Met, plaintiffs
contacted a different attorney, Michelle Burrows, who
eventually replaced defendants as attorney of record in the
litigation. By the time that Burrows replaced defendants, the
statute of limitation had run on plaintiffs' unasserted
claims against New Flyer, Hadley, and Rosco. Subsequently,
plaintiffs' and the products-liability claimants'
lawsuits were consolidated.
result of the lawsuits filed against it, Rosco entered a
global settlement with the products-liability claimants in
the amount of $225, 000. The $225, 000 was equally divided
among the three products-liability claimants, with each
claimant receiving $75, 000. Additionally, Hadley settled
with each of the products-liability claimants for $100, 000.
and New Flyer entered a settlement with plaintiffs and the
products-liability claimants. Specifically, Tri-Met and New
Flyer each agreed to pay $2 million in exchange for
plaintiffs and the products-liability claimants releasing
their claims. The question of how the total settlement fund
of $4 million would be distributed among plaintiffs and the
products-liability claimants was left to plaintiffs and the
products-liability claimants, and their [296 Or.App. 846]
respective attorneys, to determine, which they subsequently
million global settlement proceeds received from Tri-Met were
distributed as follows:
• $603, 911 to the Estate of Jenee Hammel;
• $546, 939 to Gittings;
• $524, 150 to the Estate of Danielle Sale; and
• $325, 000 to plaintiffs.
million global settlement proceeds received from New Flyer
were distributed as follows:
• $721, 089 to the Estate of Jenee Hammel;
• $653, 061 to Gittings; and
• $625, 850 to the Estate of Danielle Sale.
plaintiffs received 16.25 percent of the $2 million paid by
Tri-Met, but none of the $2 million that was paid by New
Flyer to the products-liability claimants. Instead, according
to plaintiffs, the $2 million that was paid by New Flyer was
"simply redistributed to the [products-liability
claimants] in exact mathematically increased proportion to
what they had received from Tri-Met." That is, "the
distribution of New Flyer's $2 million was not a
renegotiation by the attorneys and clients involved,"
but rather "a simple duplication of the Tri-Met
negotiations, without [plaintiffs]."
did not participate in the distribution of the $2 million
global settlement received from New Flyer, the $225, 000
global settlement received from Rosco, or the $100, 000
settlements received from Hadley, because defendants did not
file claims against New Flyer, Rosco, or Hadley.
Procedural History of the Legal Malpractice Case
resolution of their claims against Tri-Met, plaintiffs
brought an action for legal malpractice against defendants.
In the operative complaint, plaintiffs allege that (1)
defendants were negligent in failing to file claims against
New Flyer, Rosco, and Hadley, and (2) had defendants done
[296 Or.App. 847] so, plaintiffs would have received
settlement funds from New Flyer, Rosco, and Hadley.
trial court, defendants moved for summary judgment on
plaintiffs' legal malpractice claim. Defendants argued
that plaintiffs could not prove the essential elements of
"harm" and "causation" because there was
no evidence that plaintiffs would have recovered "more
in the global settlement if they had *** alleg[ed] products
opposition to defendants' motion for summary judgment,
plaintiffs argued, among other points, that if they had filed
a claim against New Flyer it was "highly probable"
that plaintiffs "would have received the same
distribution of the $325, 000 of the New Flyer funds that
they had received of the Tri-Met funds." They also
argued that because 16.25 percent was their "agreed-upon
share" of the Tri-Met settlement funds, it was probable
that plaintiffs would have received the same share of the
settlement funds paid by Rosco and Hadley if defendants had
filed claims against Rosco and Hadley. In opposing
defendants' motion for summary judgment, plaintiffs
relied on, among other evidence, (1) an October 12, 2016,
declaration from Burrows (the Burrows declaration), who, as
noted above, replaced defendants as plaintiffs' attorney
of record in the underlying litigation, and (2) an October
13, 2016, declaration from Hala Gores (the Gores
declaration), who represented the personal representative of
the Estate of Jenee Hammel in the underlying litigation.
trial court granted defendants' summary judgment motion.
In a November 9, 2016, letter opinion, the trial court
concluded, in pertinent part, that
"[t]he question in this case is how, if at all, would
both pay-ors of settlement funds and persons dividing those
funds behaved differently if Defendants had pursued a claim
against certain products liability defendants. None of the
declarations proffered by Plaintiffs serve as a valid basis
for a conclusion in that regard. * * * The problem is that
the question of motive and behavior of either insurance
companies or the other plaintiffs can be resolved only by
evidence from those parties and not by third-party
commentators on what might have happened differently. The
motives and [296 Or.App. 848] behaviors about which the
declarants here would testify are either hearsay (that is,
based on statements made by the other plaintiffs or insurance
company representatives to the declarants), incompetent, or
appeal, plaintiffs contend, among other points, that the
record permits an inference that, if defendants had sued New
Flyer, Rosco, and Hadley, "at the very least plaintiffs
would have received the same $325, 000 from New Flyer as they
had received from Tri-Met, and they almost ...