PATRICIA L. COHEN, Presiding Judge.
Carol S. Roedder (Plaintiff), the personal representative of the estate of Eugene D. Roedder, appeals from the judgment of the Circuit Court of St. Louis County granting Cheryl Callis and Kortenhof & Ely, P.C.'s (Defendants) motion to dismiss for lack of legal capacity to bring suit. Plaintiff contends that the trial court erred in dismissing Mr. Roedder's claims of legal malpractice, breach of fiduciary duty, and punitive damages because these claims survived Mr. Roedder's death. We reverse.
On December 3, 2004, Mr. Roedder was involved in an automobile collision with Gregory V. Monroe. As a result of the collision, Mr. Monroe was rendered quadriplegic. On August 26, 2005, Mr. Monroe and his wife, E'Wana Monroe, filed suit against Mr. Roedder for injuries
On May 10, 2010, Mr. Roedder filed a lawsuit in the Circuit Court of the City of St. Louis against Defendants for legal malpractice, breach of fiduciary duty, and punitive damages.
Thereafter, Defendants filed a motion to dismiss on the grounds that Plaintiff lacked legal capacity to sue because Mr. Roedder's claims abated upon his death.
The question of whether a party has standing is a question of law that we review de novo. In Their Representative Capacity as Trustees for the Indian Springs Owners Ass'n v. Greeves, 277 S.W.3d 793, 797 (Mo.App. E.D.2009).
In her sole point on appeal, Plaintiff contends that Mr. Roedder's "claims for legal malpractice, breach of fiduciary duty and punitive damages" survived his death and thus Plaintiff, as personal representative of Mr. Roedder's estate, was properly substituted as a plaintiff and has standing to pursue Mr. Roedder's claims on behalf of his estate. Defendants argue that Mr.
In arguing that Mr. Roedder's claims survive his death, Plaintiff relies on Missouri's survival statutes: Sections 537.010, 537.020 and 537.030.
Section 537.020 provides, in pertinent part, that:
Section 537.030 excepts four causes of action from survival: slander, libel, assault and battery, and false imprisonment.
Plaintiff contends that whether Mr. Roedder's legal malpractice claim is construed as an action for damage to property (based upon a failure to protect Mr. Roedder's financial interest) and thereby covered by Section 537.010, or as an action for personal injury and thereby covered by Section 537.020, Missouri's survival statutes prevent the abatement of Mr. Roedder's legal malpractice claim. Defendants, by contrast, argue that because legal malpractice cannot be defined solely as either a personal injury or an injury to property, Missouri's survival statutes do not operate to prevent abatement of Mr. Roedder's legal malpractice claim.
In support of her contention that Mr. Roedder's legal malpractice claim survives his death, Plaintiff relies heavily on Gray v. Wallace, 319 S.W.2d 582 (Mo.1959). In Gray, the Supreme Court addressed the interplay of Section 537.020 and Section 537.030 in the context of the survival of a claim for malicious prosecution. Id. at 583. Although not entirely clear, it appears that in Gray, the defendant argued that malicious prosecution, like false imprisonment, which is excepted in Section 537.030, did not survive by virtue of Section 537.020 because it is an injury to "one's personal rights as distinguished from an injury to his person." Id. at 585. The Supreme Court rejected such a narrow reading of Section 537.020, holding that "it is clear that the legislature used the expression `personal injuries' in Section 537.020 in its broadest and most comprehensive sense...." Id. at 584. Thus, the Court held, "[i]t must follow that the legislature intended that the term `personal injuries' was to include all actions for injuries to the person whether to the person's
Gray is instructive in several respects. First, Gray sets out a two-step framework for determining whether a claim survives: (1) is the claim a cause of action for "personal injuries" within the meaning of Section 537.020; and (2) if so, is the claim excepted by Section 537.030. Second, Gray compels us to construe the term "personal injuries" in the context of survival in "its broadest and most comprehensive sense." Id. at 584. Third, Gray expressly directs that in determining whether a cause of action is excepted by Section 537.030, "only those actions specifically named were to be excepted from those which do not abate." IcL at 584.
Guided by Gray, we first determine whether Missouri's survival statutes include actions for legal malpractice.
We next consider whether legal malpractice claims are excepted by Section 537.030. Because legal malpractice is not "specifically named," it is not excepted from survival pursuant to Section 537.030. Gray, 319 S.W.2d at 584.
Despite the Gray court's clear direction to broadly construe the survival statutes and narrowly construe the exceptions, Defendants argue that the "unique" nature of legal malpractice claims requires abatement, citing State ex rel. Nat'l Ref. Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418 (1939). We disagree. The claim at issue in Seehorn was a husband's loss of consortium. Id. at 420. Contrary to Defendants' suggestion in their brief, the plaintiff in Seehorn did not invoke the predecessor statute to 537.020 (Section 3280 RSMo 1929) because "[i]t [did] not apply to one who has sustained indirect or consequential damages." Id. at 421 (quoting Toomey v. Wells, 218 Mo.App. 534, 280 S.W. 441, 443 (1926) (internal quotation marks omitted)). Rather, the plaintiff relied on the predecessor statute to 537.010 (Section 98 RSMo 1929). Seehorn, 127 S.W.2d at 421. The Court concluded that the husband's loss of consortium claim did not survive under Section 98 because deprivation of a wife's comfort, society, and services is not a "wrong done to a husband's property right or interest." Id. at 422. Thus, Seehorn does not stand for the proposition that a cause of action that contains elements of both a wrong to a property
It is worthwhile considering that Illinois courts, the source in White of the characterization of the nature of a legal malpractice claim, have held that legal malpractice claims survive under the Illinois survival statute, which permits the survival of, among other things, "actions to recover damages for an injury to the person (except slander and libel)" and "actions to recover damages for an injury to real or personal property." Jones v. Siesennop, 55 Ill.App.3d 1037, 13 Ill.Dec. 800, 371 N.E.2d 892, 894 n. 1, 894-896 (1977) (quoting Ill.Ann.Stat. ch. 3, par. 27-6 (Smith-Hurd 1977 Supp.) (internal quotation marks omitted)) (construing a claim of professional negligence against an attorney as "personal property"). In reaching its conclusion, the Jones court held that "[t]he survival statute is remedial in nature and is to be liberally construed." 13 Ill.Dec. 800, 371 N.E.2d at 895. The Jones court also cited with approval the following excerpt from Prosser:
Id. at 896 (quoting William L. Prosser, Handbook of the Law of Torts 901 (4th ed.1971) (quotation marks omitted)). A more recent commentary on the "trend," concludes as follows: "The growing trend is that the legal malpractice claim survives the client's death and may be pursued by the client's personal representative or heirs." Spence Chadwick Lee, Comment, Survival of a Legal Malpractice Claim After the Client's Death, 20 J. Legal Prof. 259, 259 (1995). Likewise, in the definitive treatise on legal malpractice, the authors state: "The modern statutes and decisions assure, however, that a legal malpractice action survives the client's death and exists in favor of the client's estate." 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, § 7:10, at 813 (2012).
Defendants additionally assert that in analyzing the survivability of legal malpractice claims, the court should "observe the rules regarding assignment of these cases," namely "whether a cause of action is assignable is whether or not it would survive to the personal representative." More specifically, Defendants contend that because the court determined in
Indeed, in White, the court did not rely on a survivability test when it determined that legal malpractice claims were not assignable. Rather, the White court concluded that legal malpractice claims were not assignable for reasons of public policy. 984 S.W.2d at 160. The court determined that:
Id. at 160 (quoting Goodley v. Wank & Wank, Inc., 62 Cal.App.3d 389, 133 Cal.Rptr. 83, 87 (1976)) These clearly legitimate public policy concerns are absent here. Permitting survival of legal malpractice claims is unlikely to overburden the judicial system, because "[t]he estate's suit is identical to one the client could have brought during his lifetime." Smith v. O'Donnell, 288 S.W.3d 417, 421 (Tex.2009). Nor will the survival of legal malpractice actions either restrict the availability of legal services or undermine the fiduciary nature of the attorney-client relationship, because the estate's interests "mirror those of the decedent." Id. See also Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 626-629 (Mo. banc 1995) (permitting non-client causes of action for legal malpractice). Finally, we are not concerned that allowing survival of legal malpractice claims will erode attorney-client confidentiality. Traver, 930 S.W.2d at 871 ("Allowing a legal malpractice claim to survive the death of either the client or the attorney does not violate the sanctity of the attorney-client relationship...."). See also Estate of Hebbeler, 875 S.W.2d 163, 168 (Mo.App.E.D.1994) ("[A]fter the death of a client, the attorney-client privilege can be waived by a representative of the client.").
A primary function of tort law is to provide compensation to injured persons. See 1 Dan B. Dobbs et al., The Law of Torts § 10, at 18 (2d ed.2011). Allowing the personal representative of an estate to seek recovery for the damage caused by legal malpractice enhances the public policy of providing compensation to injured parties. As the court in Jones stated when it determined that legal malpractice survives the death of the injured party under Illinois law:
13 Ill.Dec. 800, 371 N.E.2d at 895 (citation and internal quotation marks omitted). In light of our Supreme Court's determination in Gray that the legislature intended a broad and comprehensive construction of Missouri's survival statutes, we agree with the Jones court and the majority of courts that have concluded that legal malpractice actions survive the death of the injured party.
Neither Plaintiff nor Defendants address in the substantive portions of their briefs whether a claim for breach of fiduciary duty, as a cause of action distinct from legal malpractice, survives. However, rather than conflate the arguments as the parties have done, we separately consider the breach of fiduciary duty claim. In so doing, we are not deciding whether the allegations of the petition in fact support a separate claim for breach of fiduciary duty.
In Klemme v. Best, 941 S.W.2d 493 (Mo. banc 1997), the Supreme Court described legal malpractice claims as negligence claims and breach of fiduciary duty claims as fraud claims. Id. at 495-96. In Breeden v. Hueser, 273 S.W.3d 1 (Mo.App. W.D.2008), the Western District held that pursuant to Section 537.010 fraud claims survive the death of the plaintiff. Id. at 11-13. We agree with the Western District's analysis in Breeden. Therefore, we conclude that Mr. Roedder's breach of fiduciary duty claim survives his death.
Plaintiff contends that because Mr. Roedder's claims for legal malpractice and breach of fiduciary duty survive, his claim for punitive damages also survives. To determine whether punitive damages are recoverable in the context of Missouri's survival statutes, "we look, absent legislative intent to the contrary, to damages normally allowed in a particular cause of action." State ex rel. Smith v. Greene, 494 S.W.2d 55, 59 (Mo. banc 1973). More specifically, "where a cause of action for which punitive damages may be recovered survives, the claim for punitive damages also survives." E. Atl. Transp. & Mech. Eng'g, Inc. v. Dingman, 727 S.W.2d 418, 423 (Mo.App.W.D.1987). Missouri law permits recovery of punitive damages in both legal malpractice and breach of fiduciary claims. See, e.g., Arana v. Koerner, 735 S.W.2d 729, 736-37 (Mo.App.W.D. 1987) (legal malpractice); Grewell v. State Farm Mut. Auto. Ins. Co., 162 S.W.3d 503, 508 (Mo.App.W.D.2005) (breach of fiduciary duty). Accordingly, because Mr. Roedder's causes of action for legal malpractice and breach of fiduciary duty survive, his request for punitive damages also survives.
The judgment of the circuit court is reversed and this matter is remanded for proceedings consistent with this opinion.
ROY L. RICHTER, J., and ROBERT M. CLAYTON III, J., concur.