The Third District holds that a Plaintiff’s burden to demonstrate that an underlying judgment was collectible includes a showing that the underlying defendants could satisfy all or a portion of an underlying judgment.
Monica Garretson was injured in the course of her employment for Dr. Ronald Ask. She received an electrical shock one morning as she turned on the lights in a building he owned and operated.
She retained Harold I. Miller, APC to pursue her rights. His office filed a worker’s compensation claim on her behalf. After the statute of limitations ran, Miller informed her that she did not have any rights against third parties. She was informed otherwise after she retained new counsel.
In the legal malpractice trial the jury found that Dr. Ask, the building contractor, and the electrical subcontractor were responsible for Garretson’s injuries and awarded economic and non-economic damages of over two million dollars.
The trial court granted Miller’s motion for a judgment notwithstanding the verdict finding that Garretson’s failure to present any evidence that the underlying judgment would have been collectible was fatal to her claim. She presented no evidence of the underlying defendant’s insurance, ownership of property with equity or value, or other assets.
The Court of Appeal affirmed. A showing of collectibility is an element of plaintiff’s prima facie case; it is not defendant’s burden to raise the issue defensively. It is not satisfied, as other cases have suggested, by a showing that the underlying defendant is merely solvent. The plaintiff must prove what portion of the judgment could be collected. This is simply an application of the requirement that the plaintiff show the amount of damages.
The fact that Ask owned a business with 25 employees and developed property was not sufficient to show his ability to satisfy the judgment, as there was no evidence of his income, expenses, assets, or debts. Garretson was not entitled to a new trial to present the evidence she neglected to present at trial.
Comment: This case underscores the importance of the issue of collectibility as a defense strategy. Counsel should be aware that a dispositive motion is an option when faced with a plaintiff who fails to appreciate the need to conduct discovery and present evidence of the underlying defendant’s insurance coverage or net worth.