United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
This matter is before the Court upon Defendant Mario Palermo's Motion for Summary Judgment [Docket No. 12]. The motion has been fully briefed by the parties [Docket Nos. 15 and 17]. For the reasons set forth below, the Court finds that Defendant Mario Palermo is entitled to judgment as a matter of law.
This legal malpractice action arises from a personal injury lawsuit in which the Plaintiff in this case, Eugene Adkins, was represented by Defendant Mario Palermo. Plaintiff sued A.K. Steel for injuries he received while working at A.K.'s plant in Ashland, Kentucky during the course of his employment with Relco Locomotives ("Relco). The following facts are of record in that lawsuit: Relco was under contract to A.K. to supply quench locomotives to its Ashland plant. Pursuant to the contract, A.K. was responsible for keeping coal dust off the locomotives, which was both a safety hazard for those working on or around the locomotives and presented additional maintenance challenges to the electronics of the locomotives. Relco was in turn responsible for direct maintenance of the locomotive equipment. The agreement also provided that RELCO was responsible for any lost production time if its locomotives became inoperable during the leased period. The conditions of the plant were such that locomotives would run only three or four days before they became inoperable, if not properly maintained. Thus, the economic loss for inoperable equipment and lost production time fell squarely on Relco.
Plaintiff was one of the Relco employees responsible for keeping its locomotives running. While working on maintenance, he slipped on coal dust and fell, sustaining significant injuries and some permanent disability.
He hired Defendant Palermo to pursue a worker's compensation claim under Illinois law, the situs of the employment relationship between Relco and the Plaintiff.
Subsequently, Plaintiff filed a lawsuit against A.K. Steel in this district, seeking damages for the injuries sustained on its premises. The lawsuit was filed by the Plaintiff pro se, who then moved to have Palermo, an Illinois attorney, admitted pro hac vice. The case was assigned to United States District Court Judge David L. Bunning.
After almost two years of litigation, A.K. moved for summary judgment, relying upon up-the-ladder doctrine, which shields contractors from liability. In a detailed opinion, Judge Bunning found that the work being performed by Relco could have been performed by A.K., was therefore part of A.K.'s "regular and recurrent" business, and thus, following the up-the-ladder doctrine, A.K. was entitled to worker's compensation immunity and entitled to judgment as a matter of law.
After Judge Bunning's opinion was entered, Palermo notified the Plaintiff that he did not believe that there were sufficient grounds in which to appeal the trial court's decision. He informed Plaintiff in writing that he would not be prosecuting the appeal and further informed him that he should seek a second legal opinion if he so desired. [Docket No. 12-1, Affidavit of Mario Palermo at ¶ 3]. Palermo also advised him of the date that the appeal must be filed before the order on summary judgment became effective. Id.
Adkins did in fact obtain new counsel, his current attorney, Joseph Conley, who sought an appeal of Judge Bunning's decision. However, before the matter was briefed, the parties to the underlying claim entered into a settlement agreement and both the appeal and the underlying trial court claims were dismissed.
Thereafter, Adkins initiated this lawsuit against his former counsel, Palermo, asserting professional negligence. In his single count Complaint, Plaintiff contends that Palermo's negligence led to the dismissal of his Complaint against A.K. Steel. [Docket No. 1, ¶ 13]. Specifically, he alleges Defendant did or failed to do the following acts all of which were the proximate cause of Plaintiff's damages:
[F]ailing to become conversant with the Kentucky workers' compensation regime and its related doctrine of "up the line" immunity; failing to engage Kentucky counsel conversant with the Kentucky version of workers' compensation immunity, including the associated doctrine of "up the line" immunity; failing to prosecute the Kentucky action in a manner that would have established the inapplicability of the "up the line" immunity defense to a non-employer; failing to adequately prepare a record by testimony, expert opinion, and documentary evidence that would have established the inapplicability of the "up the line" immunity: and failing to file potentially relevant depositions that would have defeated the "up the line" immunity defense.
[Docket No. 1, ¶ 13].
Plaintiff has not retained an expert in anticipation of litigation or preparation for trial in accordance with this Court's Scheduling Order, nor has he ...