WILLIAM L. HADDEN, JUDGE TRIAL REFEREE.
In this two-count legal malpractice action the two plaintiffs, Clyde L. Turner (Turner) and Ronnie Thomas (Thomas), are seeking money damages from their former attorney, the defendant Philip M. Hart (defendant). Their amended complaint alleges, in the first count with respect to Turner, and in the second count with respect to Thomas, that they received personal injuries in an automobile accident on June 24, 1997, that they retained the defendant in 2002 to represent them in a then pending suit for damages for personal injuries arising out of said accident which had been brought by other attorneys, that the defendant filed an appearance on their respective behalfs in the pending lawsuit, that the defendant assured the plaintiffs that the matter would be handled properly, that as a result of the defendant's negligence a judgment of dismissal was entered in the pending case, and that as a result of the defendant's negligence the plaintiffs have been deprived of a monetary recovery in the suit which was dismissed. The defendant admits that he did represent the plaintiffs in the suit arising out of the June 24, 1997 accident, but he denies that the accident caused the plaintiffs to suffer the injuries and losses claimed. He also denies any negligence on his part. The court notes that the last paragraph of each count alleges that as a result of the defendant's negligence the plaintiffs have received no monetary recovery for injuries sustained in the plaintiffs' "personal injury claims of November 3, 2000." This case was tried and briefed by all parties as being related to the accident of June 24, 1997. The court assumes that the reference to November 3, 2000 is a typographical error. The case was tried before this court on May 19 and 25, 2005. The witnesses were the two CT Page 11952-n plaintiffs, the defendant, Attorney Daniel Adelman, and Attorney Joseph Mirrione.
The court finds the following facts and reaches the following conclusions. On June 24, 1997 Turner was the operator and Thomas was the passenger in an automobile that was in the process of making a left turn from a public highway in Rocky Hill, Connecticut into a convenience store parking lot when the automobile was struck on the left side by an automobile that was exiting the parking lot. As a result of the collision Turner and Thomas were injured. The collision was caused by the negligence of the operator of the other automobile. The plaintiffs retained the firm of Trantolo and Trantolo to represent them in a suit for personal injuries, and suit was instituted in the Judicial District of New Haven at Meriden bearing the caption Ronnie Thomas et al., v. Cecile Ouellette, docket number CV 99-0267509-S. Thereafter the Trantolo and Trantolo firm was succeeded as counsel by Attorney Gary Strickland. The plaintiffs then retained the defendant to represent them in the pending action. The defendant filed an appearance in lieu of Attorney Strickland, for Turner on January 8, 2002, and for Thomas on January 24, 2002. The pleadings had not been closed. On May 3, 2002 the case was printed on a docket management calendar pursuant to Practice Book § 14-3. The defendant took no action in an effort to close the pleadings or to otherwise prosecute the action with reasonable diligence, and a judgment of dismissal was entered by the court on May 3, 2002. On July 18, 2002, presumably pursuant to Practice Book § 17-4, the defendant filed a timely motion to open the judgment of dismissal that had been entered in the Thomas case. The defendant then failed to take any action so as to obtain a court ruling on the motion to open that judgment. There is no evidence concerning whether the defendant ever filed a § 17-4 motion to open the judgment in the Turner case.
In any event, the defendant failed to take appropriate action in an effort to have the judgment of dismissal opened with respect to either plaintiff. The defendant failed to bring another action pursuant to the accidental failure of suit statute, Connecticut General Statutes § 52-592, which could have been done at any CT Page 11952-o time within one year of the judgment of dismissal. In February 2003, the plaintiffs became dissatisfied with the handling of their cases by the defendant and contacted Attorney Daniel Adelman about representing them. Mr. Adelman was able to determine, by accessing the Judicial Branch website, that the cases had been dismissed on May 3, 2002. He then attempted to contact the defendant in connection with obtaining the case file. It took several months to obtain the file. Mr. Adelman's representation of the plaintiffs commenced on May 5, 2003 when he finally obtained the file from the defendant. On June 6, 2003 he filed a motion to reclaim the motion which had been filed by the defendant on July 18, 2002, and his appearance on behalf of the plaintiffs. The appearance did not indicate whether it was in lieu of or in addition to the appearance of the defendant. The motion and appearance was stamped as received by the clerk on June 6, 2003, and then returned to Mr. Adelman on that day by the clerk with the notation "File destroyed pursuant to Practice Book § 7-10." Section 7-10 provides that the files in all civil matters which, before a final judgment has been rendered, have been terminated by a judgment of dismissal, may be destroyed upon the expiration of one year after such judgment. In November 2003, Mr. Adelman filed the instant malpractice action.
The defendant was negligent in not prosecuting the plaintiffs' case with reasonable diligence so as to avoid the court entering judgments of dismissal on May 3, 2002 when the case appeared on a docket management calendar pursuant to Practice Book § 14-3(b). Once the judgments of dismissal were entered by the court, the defendant was negligent in not obtaining a ruling on his motion to open filed on July 18, 2002 and, if the motion was denied, then filing suit pursuant to the accidental failure of suit statute, § 52-592, within one year of the date of dismissal.
The plaintiffs have proven that the suit in connection with the accident of June 24, 1997 which had been brought on their behalf, and which was dismissed due to the negligence of the defendant, was a case which, if tried, would have probably resulted in judgments in favor of the plaintiffs. The defendant operator had CT Page 11952-p admitted at the scene that she was at fault in causing the accident.
As a result of the accident in Rocky Hill, Connecticut on June 24, 1997, Turner claims that he received some injuries to his chin, neck, and back. He saw a dentist, Dr. Montano, on two occasions incurring a bill for $108.00. He also received chiropractic treatment at the Carpenos Chiropractic Center from June 27 to November 6, 1997, when he was discharged. During the course of his treatment he was referred to Dr. Bernard Seigel for neurological follow-up. He saw Dr. Seigel on one occasion for which he was charged $795.00. Dr. Seigel also charged him $120.00 for a "missed appointment" on December 18, 1997, which the court notes is six weeks after he was discharged by the chiropractor. At the time of his discharge he was having no significant symptoms concerning his neck or upper back. Dr. Caldarone of the chiropractic center found that he had a 5 percent permanent partial impairment of the cervicodorsal spine. The total bill for chiropractic services was $4,280.00. He testified that his back still hurts. He was also involved in motor vehicle accidents in 1994, 1996, and March 14, 1999. He was treated by Dr. Ranieri in connection with the 1999 accident, and when discharged on April 9, 1999 had no neurological impairment. Turner had only a vague recollection of the other accidents, and the court notes that Dr. Caldarone does not mention other accidents. The court finds that the plaintiff has failed to prove that he has a permanent partial disability of his back as a result of the accident on June 24, 1997, or that the chiropractic treatment was medically reasonably necessary to the extent it was given.
As a result of the accident on June 24, 1997, Thomas claims that he injured his neck and lower back. He received treatment and a diagnosis which was remarkedly similar to that of Turner. He was treated by the same chiropractor, was referred to Dr. Seigel at a cost of $795.00 plus $120.00 for the same appointment missed by Turner, was discharged on November 6, 1997, and was given a 5 percent permanent partial impairment of the cervicodorsal spine. The total bill for the chiropractor was $4,170.00. He was vague and inconsistent with CT Page 11952-q respect to other accidents, both prior and subsequent to June 24, 1997, in which he sustained injuries. He testified first that he had no accidents before or after 1997, then that he had one accident before 1997 in which his neck was snapped but no accident after 1997, and finally, that he had an accident in 2000 in which he injured his neck, that the case was settled for $10,000.00, from which he received $6,000.00, and that he was represented by Mr. Hart, the defendant in this case. He testified that he gets a little stiff sometimes for which he takes a Tylenol. The court finds that the plaintiff has failed to prove that he has a 5% permanent partial disability of his back as a result of the accident of June 24, 1997, or that the chiropractic treatment was medically reasonably necessary to the extent it was given.
The court finds that the plaintiff Clyde L. Turner has proven economic damages of $3,403.00 and non-economic damages of $5,000.00. A judgment may enter in favor of said plaintiff in the amount of $8,403.00.
The court finds that the plaintiff Ronnie Thomas has proven economic damages of $3,295.00 and non-economic damages of $4,000.00. A judgment may enter in favor of said plaintiff in the amount of $7,295.00.
William L. Hadden, Jr., J.T.R. CT Page 11952-r
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