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  1. #1

    Default Can You Bring an Attorney to Small Claims Court for Malpractice

    My question involves malpractice by a lawyer in the state of: Florida
    My attorney was hired on a contingency. This is an auto accident case. we had to go after our own car insurance because the party at fault didn't have coverage. Our insurance company only paid benefits under the uninsured motorist portion of the policy but we had full coverage. Is the attorney supposed to get the insurance company to provide benefits under the Bodily Injury portion too? The other question is the attorney never contacted the insurance company for loss of wages which is in our policy as well until several months after the whole thing began. By this time the one doctor that the attorney referred or sent us to had already exhausted the benefits under our insurance which was several thousand dollars. The attorney says its just too bad that we can't get loss of wages now because the "doctor" ate up the benefits allowed. Is the attorney at fault for not doing what he was asked to from the very beginning to get our loss of wages? That is the first thing I asked him to do and the first thing he said he would do and he never did it until several months later and after we asked over and over and over again. Can we bring him to small claims court to attempt to recover benefits exhausted by the doctor he sent us to? If we were to bring him to small claims is there even a small chance that the judge would possibly rule in our favor? Any help or advice you can provide is greatly appreciated!!

  2. #2
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: Can You Bring an Attorney to Small Claims Court for Malpractice

    First, you can NOT bring an attorney malpractice case in small claims court. Unfortunately there is also no way you could really prove the legal standard and the amount is so small that no malpractice attorney is going to touch this.

    If you have uninsured motorist coverage I don't understand why you needed an attorney. The insurance company only has to do what the policy says. If the insurance company won't provide the policy coverage, then the attorney would file suit against the insurance company and get his money that way. Not sure what the doctor has to do with lost wages, but if you need to see the doctor and get some sort of a statement, typically doctors in general and certainly doctors working for a lawyer will do the work, and bill it, willing to wait until the insurance company pays. Accident lawyers send doctors letters of protection all the time.

  3. #3
    Join Date
    Sep 2005
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    Behind a Desk
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    98,846

    Default Re: Can You Bring an Attorney to Small Claims Court for Malpractice

    Either you received all of the benefits to which you were entitled under the governing provision of your insurance policy, or you did not. If your attorney is correct that you maxed out this particular benefit, complaining that your actual losses were greater than your coverage or asking your insurance company to voluntarily give you money in excess of their contractual obligations will get you nowhere. As a matter of policy, insurance companies do not pay you more than they are required to pay.

    If you are entitled to additional benefits from your own insurance company for bodily injury and you retained your lawyer to pursue those benefits, then your lawyer should pursue those benefits. If you have received all the benefits to which you are entitled, pursuing additional benefits would be futile. If you chose to retain your lawyer only in relation to the uninsured motorist portion of the policy, then you made the choice to pursue the additional benefits on your own - although if your additional claim has merit and you want to retain your lawyer to do the additional work, I expect he'll be happy to earn the fee.

    From the dissent in this case and a brief review of the statutes, it looks like you can bring a legal malpractice case in a Florida small claims court - I suggest verifying that with the clerk before filing because many states prohibit small claims suits in professional negligence actions. We don't have enough information to assess your odds, beyond pointing out the obvious - he's a lawyer so he's apt to be a lot more comfortable in court than you are.

  4. #4
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,273

    Default Re: Can You Bring an Attorney to Small Claims Court for Malpractice

    Yes but not for punitive damages .... which is where the $$$ are in such a case

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