A Successful Litigation in Which Everyone Loses Money
It's not legal malpractice, says Justice Madden. Her recitation of the litigation events after an airplane crash in Australia chronicles how victory turned into a financial drain for every party.
Marshall v Fleming 2014 NY Slip Op 31222(U) May 7, 2014 Supreme Court, New York County
Docket Number: 651067/13 Judge: Joan A. Madden is the story of a successful airplane crash litigation followed by procedural events that drained the settlement funds completely.
"Kreindler & Kreindler LLP, a New York law firm, devotes much of its practice to representing plaintiffs in aviation death and injury litigation. In 2002, Australian lawyers David Greenwell ("Greenwell") and Michael Prescott ("Prescott") contacted the Kreindler firm about potential U.S. lawsuits arising from the deaths of various passengers killed in a Whyalla Airlines crash
off the coast of Australia on May 31, 2000. Kreindler emailed a draft retainer form to Greenwell and Prescott setting forth the terms. Greenwell and Prescott shared the draft retainer with
other Australian attorneys, including Terrence Goldberg ("Goldberg") of the Turner Freeman firm in Australia.
Plaintiffs Margaret and Kim, were the wife and son, respectively, of Neil Marshall ("Neil"), who was killed in the plane crash. On May 16, 2002, Margaret, as the executor and personal representative of the estate of Neil, retained the Kreindler firm to bring a wrongful death action against the
airline, in federal court in Pennsylvania. The retainer provided for a contingent fee of 22.2%, and that Kreindler would advance costs, to be reimbursed at the conclusion of the case.
Neil and Margaret were married, but legally separated in June 1995, at which time Neil commenced a de facto spousal relationship with Linda Carruthers ("Linda") in Australia. Under
Australian law, at the time of his death, Neil and Linda were deemed de facto husband and wife. Margaret remained in Neil's will as the named estate executor. Linda, however, as a financially dependent de facto spouse, was a proper wrongful death beneficiary under Australian law, as was Kim. "
"On behalf of the Marshalls, Kreindler commenced a wrongful death action against the aircraft manufacturers, in U.S. District Court Middle District of Pennsylvania. In February 2003, the
Marshalls reached a settlement for a total sum of $481,250.00. "
"In February 2009, the Marshalls filed an action for legal malpractice in Australia against eleven current and former members of the Kreindler firm. They alleged that Kreindler committed legal malpractice by requiring Margaret to obtain a court order on the distribution of the settlement funds, and that Kreindler thereby breached its fiduciary duty to Margaret and Kim, and was guilty of conspiracy to deprive them of the settlement proceeds. As damages, the Marshalls sought
reimbursement for the legal fees charged by Turner Freeman to obtain the distribution order·in Australia (AU $343,835.88), and the legal fees charged by Turner Freeman in the separate litigation against Linda's Australian counsel (AU $254,838.72). "
"Here, the Marshalls have chosen the streamlined procedure of a motion for summary judgment in lieu of complaint pursuant to CPLR 3213. Based on the undisputed record, plaintiffs have
sustained their burden on the motion. "