ier v. Gallegos , 434 P.3d 156 ( 2019 )

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ADVANCE SHEET HEADNOTE
January 28, 2018
2019 CO 8
No. 17SC312, LeHouillier v. Gallegos—Attorney Malpractice—Burden of Proof—Tort.
In this attorney malpractice case founded on professional negligence, the supreme
court is asked to decide who—the client or the attorney—bears the burden to prove that
any judgment that could have been obtained against the underlying defendant would or
would not have been collectible. The court holds that because the collectibility of the
underlying judgment is essential to the causation and damages elements of a client’s
negligence claim against an attorney, the client-plaintiff bears the burden of proving that
the lost judgment in the underlying case was collectible.
The record shows that the client-plaintiff in this case failed to prove that the
underlying judgment would have been collectible. However, given the absence of a clear
statement from this court regarding the plaintiff’s burden to prove collectibility at the
time of trial, and given that the issue was not raised in this case until after client-plaintiff
had presented her case-in-chief, the court reverses the judgment of the court of appeals
and remands the case for a new trial.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 8
Supreme Court Case No. 17SC312
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 15CA724
Petitioners/Cross-Respondents:
Patric J. LeHouillier and LeHouillier & Associates, P.C.,
v.
Respondent/Cross-Petitioner:
Della Gallegos.
Judgment Reversed
en banc
January 28, 2019
Attorneys for Petitioners/Cross-Respondents:
Hall & Evans, L.L.C.
Malcolm S. Mead
John E. Bolmer, II
Andrew P. Reitman
Denver, Colorado
Attorneys for Respondent/Cross-Petitioner:
Anderson Hemmat, LLC
Chad P. Hemmat
Jason G. Alleman
Cameron O. Hunter
Greenwood Village, Colorado
Attorneys for Amicus Curiae Colorado Bar Association:
Montgomery, Little & Soran, P.C.
Christopher B. Little
Michael R. McCormick
Christopher T. Carry
Greenwood Village, Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
Ogborn Mihm, LLP
Michael T. Mihm
Thomas D. Neville
Denver, Colorado
Saliman Law, LLC
Mark E. Saliman
Denver, Colorado
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
2
¶1 In 2009, Della Gallegos had to undergo three cranial surgeries after her radiologist,
Dr. Steven Hughes, failed to detect an obvious brain tumor on an MRI scan three years
earlier. Had Dr. Hughes discovered the tumor in 2006, Gallegos could have treated it
with cheaper, and less invasive, radiosurgery. The highly invasive cranial surgeries
damaged Gallegos’s vision, hearing, and memory.
¶2 Gallegos retained an attorney, Patric LeHouillier, to sue Dr. Hughes for medical
malpractice. But LeHouillier later decided not to proceed with the suit, concluding it did
not make economic sense. He and Gallegos disagree over whether he actually informed
her of this decision. In any event, the statute of limitations lapsed on the claims Gallegos
could have brought against Dr. Hughes.
¶3 Gallegos then brought this attorney malpractice case against LeHouillier and his
firm, claiming that LeHouillier’s negligence prevented her from successfully suing Dr.
Hughes for medical malpractice. The question before us is who bears the burden to prove
that any judgment that could have been obtained against Dr. Hughes would have been
collectible? In other words, must a client who alleges her attorney was negligent prove
that any lost judgment was collectible? Or must the attorney raise collectability as an
affirmative defense and prove that the lost judgment was not collectible?
¶4 Because the collectibility of the underlying judgment is essential to the causation
and damages elements of a client’s negligence claim against an attorney, we hold that the
client-plaintiff bears the burden of proving that the lost judgment in the underlying case
was collectible. Here, the record reflects that Gallegos failed to present sufficient
evidence of collectibility. However, given the absence of a clear statement from this court
3
regarding the plaintiff’s burden to prove collectibility at the time of trial, and given that
the issue was not raised in this case until after Gallegos had presented her case-in-chief,
we reverse the judgment of the court of appeals and remand the case for a new trial.
I. Facts and Procedural History
¶5 In 2006, Dr. Steven Hughes performed a magnetic image resonance (MRI) on
Gallegos’s brain. Dr. Hughes failed to detect a clearly visible meningioma (a type of
tumor). Three years later, a different doctor noticed the tumor during another MRI. By
this time, the tumor had grown substantially and was exerting pressure on Gallegos’s
optic nerves, brain stem, and other vital structures.
¶6 Had Dr. Hughes diagnosed the tumor in 2006, Gallegos could have undergone
noninvasive radiosurgery to treat it. By 2009, however, noninvasive radiosurgery was
no longer a viable option. Instead, surgeons had to perform three craniotomies, or
surgical openings of the skull, to remove much of the tumor. Gallegos alleges that the
surgeries cost her over $661,000, and resulted in permanent damage to her vision,
hearing, and memory.
¶7 After her first craniotomy surgery in 2009, Gallegos retained an attorney,
LeHouillier, to sue Dr. Hughes for medical malpractice. In early 2010, LeHouillier wrote
a letter notifying Dr. Hughes that LeHouillier’s law firm was investigating a medical
malpractice case against him. The letter encouraged Dr. Hughes to “contact [his]
professional liability insurer.” Dr. Hughes never responded to the letter. Later that same
year, LeHouillier decided not to proceed with the case because it did not make “dollar
and cents sense.”
4
¶8 LeHouillier claims that he met with Gallegos and informed her of his decision to
end his representation of her, but he kept no written records memorializing the meeting
or his decision. Gallegos contends that the alleged conversation never took place and
that she was not aware that LeHouillier had dropped her case. The statute of limitations
then lapsed on the medical malpractice claims that Gallegos could have brought against
Dr. Hughes.
¶9 Gallegos then brought this legal malpractice action against LeHouillier and his
firm, LeHouillier & Associates, P.C. (collectively, “LeHouillier”). Gallegos alleged that
LeHouillier negligently failed to pursue her medical malpractice claim against Dr.
Hughes. At trial, after Gallegos rested her case-in-chief, LeHouillier moved for a directed
verdict, arguing that Gallegos bore the burden of proving the collectability of any
judgment she could have obtained against Dr. Hughes, and that she had not carried this
burden.
¶10 Gallegos’s counsel initially disputed that Gallegos had the burden of proving
collectibility, but nevertheless argued that she had met that burden. Counsel first pointed
to LeHouillier’s 2010 letter to Dr. Hughes urging him to contact his professional liability
insurance. Counsel argued that, because Dr. Hughes never responded that he lacked
insurance, it could be reasonably inferred from his silence that he did carry professional
liability insurance. Gallegos’s counsel also argued that Dr. Hughes must have carried
insurance because section 13-64-301(1)(a.5)(I), C.R.S. (2018), requires all practicing
doctors in Colorado to maintain professional liability insurance.
5
¶11 The trial court agreed with LeHouillier that Gallegos bore the burden of proving
collectibility. But it ruled that Gallegos had provided sufficient evidence to permit the
jury to decide whether the judgment against Dr. Hughes was collectible. The letter to Dr.
Hughes was admitted into evidence, but the jury was not instructed or otherwise
informed about the requirements of section 13-64-301(1)(a.5)(I).
¶12 The jury ultimately found that Dr. Hughes had committed medical malpractice by
failing to diagnose Gallegos’s brain tumor in 2006. It also found that LeHouillier and his
firm had breached their professional duty of care by not pursuing the case against Dr.
Hughes. Finally, the jury found that Gallegos suffered over $1.6 million in present and
future damages.
¶13 After trial, LeHouillier moved for judgment notwithstanding the verdict,
emphasizing that “without any evidence on [collectibility], the elements of causation and
damages were left to speculation.” The trial court denied the motion, again concluding
that Gallegos had provided sufficient evidence for the jury to decide whether the
judgment against Dr. Hughes was collectible.
¶14 In a 2-1 decision, the court of appeals reversed and remanded for a new trial.
Gallegos v. LeHouillier, 2017 COA 35, ___ P.3d ___. The division unanimously agreed that
there was no evidence at trial to show that the underlying judgment was collectible. Id.
at ¶¶ 3, 71 (Webb, J., concurring in part and dissenting in part). Correctly noting that this
court had never expressly addressed which party carries the burden of proving
collectibility in an attorney malpractice case, the division majority held that the burden
6
should not fall on the client-plaintiff. Instead, it concluded that collectibility should be
an affirmative defense for the attorney-defendant to raise and prove. Id. at ¶¶ 66, 68.
¶15 The division majority’s holding rested on several policy rationales. Id. at ¶¶ 58-64.
Chief among them was the majority’s view that requiring client-plaintiffs to prove the
collectibility of an underlying judgment allocates the burden of proof unfairly because
any need to prove collectibility arises only as “the result of an attorney’s established
malpractice.” Id. at ¶ 57 (quoting Schmidt v. Coogan, 335 P.3d 424, 428 (Wash. 2014)). The
majority also reasoned that the attorney-defendant is better positioned to prove
uncollectibility because the attorney should have investigated the solvency of the
defendant in the underlying case at the beginning of the client’s case.1 Id. at ¶ 58.
Accordingly, it remanded the case for a new trial, requiring LeHouillier to prove that the
judgment against Dr. Hughes was not collectible. Id. at ¶ 6.
¶16 In his dissent, Judge Webb disagreed with the division majority that collectibility
should be relegated to an affirmative defense. First, he reasoned that the issue of
1 The division majority also observed that to require a client-plaintiff to introduce
evidence of collectibility would be at odds with evidence rules and case law generally
excluding evidence of insurance coverage; that the common delay between the original
injury and a legal malpractice case could harm the client’s opportunity to gather evidence
about collectibility; that because the underlying defendant’s insolvency permits the
attorney to mitigate or to avoid the consequences of his negligent act, the attorney should
bear the burden to prove it; that placing the burden on the attorney does not eliminate
the effect of insolvency because if the attorney proves that a judgment is not collectible,
damages could be mitigated or eliminated; and that plaintiffs in the vast majority of
negligence cases do not have to prove that any judgment they might win will be
collectible. Gallegos v. LeHouillier, 2017 COA 35, ¶¶ 59–63, ___ P.3d ___.
7
collectibility is inextricably bound up with the causation and damages elements of a
negligence claim. Id. at ¶¶ 75–77. Thus, he concluded, requiring an attorney-defendant
to prove uncollectibility would “erase[] both damages and causation from the plaintiff’s
side of the ledger and . . . write[] them on the defendant’s side.” Id. at ¶ 78. Second, Judge
Webb reasoned that placing the burden on the attorney-defendant to prove
uncollectibility would effectively require the attorney to prove the insolvency of the
underlying defendant. Noting that “insolvency is more than the reciprocal of
collectibility[,]” Judge Webb reasoned that this burden would require the attorney to
recreate all of the underlying defendant’s assets and liabilities—a much more onerous
task than proving collectibility. Id. at ¶¶ 101–02.
¶17 We granted the parties’ cross-petitions for writs of certiorari2 to determine which
party should bear the burden to prove that the underlying judgment would or would not
have been collectible.
2 We granted certiorari to review the following issues:
1. Whether a plaintiff bringing a legal malpractice claim for damages
predicated on a lost judgment in an underlying matter must establish that
the judgment was collectible.
2. Whether respondent/cross-petitioner, Ms. Della Gallegos, failed to prove
that the underlying judgment was collectible.
3. Whether the trial court’s judgment should be affirmed because
petitioner, Mr. LeHouillier, did not attempt to prove that the underlying
judgment was not collectible.
8
II. Analysis
¶18 Determining which party bears the burden of proof is a question of law, which we
review de novo. Allen v. Steele, 252 P.3d 476, 481 (Colo. 2011).
¶19 A legal malpractice claim founded on professional negligence asserts that an
attorney breached his or her professional duty of care in a way that proximately injured
a client. See Hopp & Flesch, LLC v. Backstreet, 123 P.3d 1176, 1183 (Colo. 2005). In cases
such as this one, the client claims that her attorney’s malpractice prevented her from
prevailing in a lawsuit. For clarity, we refer to that separate lawsuit as the “underlying
case.” To prevail on this type of attorney malpractice claim, the client must prove that
but for the attorney’s negligence, she would have won a favorable judgment against the
underlying defendant. Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 83 (Colo.
1999). This requirement is often referred to as proving the “case within a case.” Id.
¶20 Over ninety years ago, in Lawson v. Sigfrid, 262 P. 1018 (Colo. 1927), we recognized
that if an attorney malpractice plaintiff could not have collected a judgment from the
defendant in the underlying case because that defendant was insolvent, then the plaintiff
was not entitled to damages in the attorney malpractice case. Id. at 1019. We reasoned
that if the plaintiff could not have collected on the underlying judgment, she could not
be said to have suffered any loss from the attorney’s breach of duty. Id. Thus, it has long
been clear that proving the case within a case in an attorney malpractice suit includes
resolving the question of whether the judgment in the underlying case would have been
collectible.
9
¶21 What our cases have not expressly clarified is which party—the client-plaintiff or
the attorney-defendant—bears the burden of establishing that the judgment in the
underlying suit would or would not have been collectible. That is, must the client prove
that any lost judgment was collectible? Or must the attorney prove uncollectibility as an
affirmative defense?
¶22 Because the collectibility of the underlying judgment is essential to the causation
and damages elements of a client’s professional negligence claim against her attorney, we
now expressly hold that the client-plaintiff bears the burden to prove that the underlying
judgment was collectible.
¶23 We first examine Lawson and conclude that it did not squarely address the issue
of who bears the burden of proving that the judgment in the underlying suit would have
been collectible. We then explain why placing the burden of proving collectibility on the
client-plaintiff aligns with tort law by requiring her to prove all prima facie elements—
duty, breach, causation, and damages—of her professional negligence malpractice claim,
and why this requirement is not unfair or unduly burdensome. Finally, we explain why
requiring the attorney-defendant to raise and prove uncollectibility as an affirmative
defense is not logically sound.
A. Lawson v. Sigfrid
¶24 Several cases and legal commentators have suggested that our 1927 decision in
Lawson established that in a legal malpractice suit, the client-plaintiff bears the burden of
establishing that any judgment in the underlying case would have been collectible.
Indeed, at least five state appellate courts have cited Lawson for the proposition that
10
Colorado allocates the burden of proving collectibility to the client-plaintiff. See Paterek
v. Petersen & Ibold, 890 N.E.2d 316, 321 (Ohio 2008); Kituskie v. Corbman, 714 A.2d 1027,
1031 n.6 (Pa. 1998); Beeck v. Aquaslide ‘N’ Dive Corp., 350 N.W.2d 149, 160 (Iowa 1984);
Taylor Oil Co. v. Weisensee, 334 N.W.2d 27, 29 n.2 (S.D. 1983); McDow v. Dixon, 226 S.E.2d
145, 147 (Ga. App. 1976).3 Numerous legal treatises and other authorities do the same.
3 It appears that in 1976, the Georgia Court of Appeals included Lawson in a string citation
for the proposition that “[the] requirement that solvency be shown is both longstanding
and widespread.” McDow v. Dixon, 226 S.E.2d 145, 147 (Ga. Ct. App. 1976). (McDow
explained that solvency in this context “is not intended to imply a bankruptcy-type
standard, but rather is intended to illustrate the original defendant’s ability to pay a
judgment, had one been rendered against him.” Id.) The preceding sentence in McDow,
at the end of the previous paragraph, stated: “A client suing his attorney for malpractice
not only must prove that his claim was valid and would have resulted in a judgment in
his favor, but also that said judgment would have been collectible in some amount . . . .”
Id. These consecutive sentences probably led courts and commentators who read them
to think that Lawson held that the client bears the burden of proving collectability. The
South Dakota Supreme Court included Lawson in a footnote after quoting McDow. See
Taylor Oil Co. v. Weisensee, 334 N.W.2d 27, 29 n.2 (S.D. 1983). The Iowa Supreme Court
offered it, along with McDow, as support for the proposition that assigning to the plaintiff
the burden of proving collectibility is “the rule which is applied generally.” Beeck v.
Aquaslide ‘N’ Dive Corp., 350 N.W.2d 149, 160 (Iowa 1984). Citing Lawson and McDow, a
superior court in Pennsylvania included Colorado and Georgia in a list of thirteen states
that “place the burden upon the plaintiff (in a malpractice action against an attorney) to
prove collectibility of the underlying judgment.” Kituskie v. Corbman, 682 A.2d 378, 381
(Pa. Super. Ct. 1996), aff’d and remanded, 714 A.2d 1027. The Pennsylvania Supreme Court
then cited Lawson and McDow for the same proposition in a footnote when addressing an
appeal from the superior court’s decision. Kituskie, 714 A.2d at 1031 n.6. And, although
Paterek v. Petersen & Ibold, 890 N.E.2d 316, 321 (Ohio 2008), did not cite McDow, it cited
Taylor Oil Co. After this, commentators included Lawson among those cases placing the
burden of proving collectibility on the plaintiff without any analysis of the case beyond
a simple citation. See, e.g., 4 Ronald E. Mallen, Legal Malpractice §§ 33.29 n.4, 33.32 n.5
(2018 ed.); Elisa Recht Marlin, Recent Decision, Kituskie v. Corbman, 714 A.2d 1027 (Pa.
1998), 37 Duq. L. Rev. 521, 530, 530 n.77 (1999).
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See, e.g., 4 Ronald E. Mallen, Legal Malpractice §§ 33.29 n.4, 33.32 n.5 (2018 ed.); Elisa
Recht Marlin, Recent Decision, Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998), 37 Duq. L.
Rev. 521, 530, 530 n.77 (1999).
¶25 As the court of appeals correctly recognized, these sources are misguided.
LeHouillier, ¶¶ 25–38. In Lawson, we merely recognized that if a plaintiff could not have
collected from the defendant in the underlying matter because the defendant was
insolvent, then the plaintiff was not entitled to damages in the attorney malpractice case.
Lawson, 262 P. at 1019. But we did not actually allocate the burden of proving collectibility
to the plaintiff. We agree with the court of appeals that a close reading of Lawson shows
that we never reached the issue of who bears the burden of proving the collectibility of
any judgment in the underlying suit. LeHouillier, ¶¶ 35–37.
¶26 In Lawson, the plaintiff hired a lawyer to sue his debtor, Bessie Kennedy, for an
unpaid debt. Lawson, 262 P. at 1018. Four years later, the plaintiff discovered that the
trial court had dismissed the case for failure to prosecute. Id. The plaintiff then sued the
lawyer for “neglect of professional duty.” Id.
¶27 The trial court granted the lawyer’s motion for a directed verdict. Id. The court
reasoned that the plaintiff had to prove that (1) the lawyer had been negligent, (2) the
plaintiff had “a good cause of action” against Kennedy, and (3) if the plaintiff had
obtained a judgment against Kennedy, the judgment “could have been executed.” Id.
However, the court found that the plaintiff’s proof that the judgment could have been
executed “had failed.” Id.
12
¶28 On appeal to this court, the plaintiff asserted that the attorney-defendant bore the
burden to prove that Kennedy had been insolvent, and that the plaintiff was therefore
entitled to recover his costs and expenses from the attorney. Id. We first noted that the
plaintiff’s evidence had shown that Kennedy had been insolvent and that Kennedy’s
insolvent status was “presumed to have continued until the contrary appear[ed].” Id.
Because Kennedy was insolvent, we concluded that the plaintiff could not have “lost”
any of his costs or expenses because of the attorney’s negligence. Id. at 1019. Having
determined that the plaintiff’s own evidence established that the underlying defendant
was insolvent, we did not have to reach the issue of whether the trial court had properly
allocated the burden of proof.
¶29 Lawson therefore established that the question of collectibility matters in a legal
malpractice case: Because Kennedy was insolvent, the attorney’s negligence did not cause
the plaintiff to lose his costs and expenses. Id. But Lawson did not expressly hold that a
plaintiff in a legal malpractice suit bears the burden of proving that any judgment in the
underlying case would have been collectible. In other words, Lawson did not allocate the
burden of proving collectibility at all.4
4 Two legal commentators agree with this analysis of Lawson. See Michael P. Cross &
Nicole M. Quintana, Your Place or Mine?: The Burden of Proving Collectibility of an
Underlying Judgment in a Legal Malpractice Action, 91 Denv. U. L. Rev. Online 53, 54
(2014) (explaining that Lawson “established the relevancy of the question of whether an
underlying judgment is collectible in a legal malpractice action,” but that it did not
allocate the burden of proof on this point).
13
¶30 This court has never cited Lawson in a subsequent decision, and our later cases
have not clearly answered who bears the burden of proving collectibility. For the reasons
below, we now expressly hold that the client-plaintiff must prove collectibility of the
underlying judgment as part of her prima facie case.
B. Requiring Plaintiff to Prove Collectibility Aligns with Tort Theory
¶31 Where, as here, a legal malpractice claim is founded on professional negligence,
the plaintiff must prove duty, breach, causation, and damages (as in every negligence
case). See, e.g., Hopp & Flesch, LLC, 123 P.3d at 1183; Lombard v. Colo. Outdoor Educ. Ctr.,
Inc., 266 P.3d 412, 416 (Colo. App. 2011).
¶32 As Judge Webb noted in his dissent, the collectibility of the underlying judgment
implicates both the causation and damages elements of a negligence claim. See Schmidt,
335 P.3d at 428. In order to prove that the attorney’s negligence caused the client harm,
the client-plaintiff must show that “the claim underlying the malpractice action would
have been successful ‘but for’ the attorney’s negligence.” Gibbons v. Ludlow, 2013 CO 49,
¶ 16, 304 P.3d 239, 245 (quoting Bebo Const. Co., 990 P.2d at 83); see also Restatement
(Second) of Torts § 431 cmt. a (Am. Law Inst. 1965) (stating that a necessary condition of
legal causation is that the “harm would not have occurred had the actor not been
negligent”).
¶33 But “[i]f the underlying judgment was uncollectible, for example, due to
insufficient assets or bankruptcy, the lost value of the judgment is not the proximate
result of an attorney’s negligence.” Schmidt, 335 P.3d at 428; see also Klump v. Duffus, 71
F.3d 1368, 1374 (7th Cir. 1995) (“To predicate an award of damages upon both the
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requirement that a judgment would have been recovered and that it would have been
collectible . . . requires a showing of causation . . . that is conceptually no different from
that required in negligence cases generally.” (quoting Joseph H. Koffler, Legal Malpractice
Damages in a Trial Within a Trial—A Critical Analysis of Unique Concepts: Areas of
Unconscionability, 73 Marq. L. Rev. 40, 52 (1989))). Proving collectibility, therefore,
necessarily follows from the rule that plaintiffs must prove causation.
¶34 Relatedly, in a legal malpractice claim alleging that an attorney mishandled an
underlying case, the measure of a client-plaintiff’s damages is the amount of the
underlying judgment that could have been collected. A plaintiff must prove “by a
preponderance of the evidence that [she] has in fact suffered damage.” W. Cities
Broadcasting, Inc., v. Schueller, 849 P.2d 44, 48 (Colo. 1993). Such damages must be actual,
not “mere speculation or conjecture.” Id. (quoting Tull v. Gundersons, Inc., 709 P.2d 940,
943 (Colo. 1985)). If the lost judgment was uncollectible, then the client-plaintiff has not
incurred any legally cognizable damages. The Ohio Supreme Court summed up the
reasoning for this approach in Paterek: “[C]ollectibility is logically and inextricably linked
to the legal-malpractice plaintiff’s damages, for which the plaintiff bears the burden of
proof.” Paterek, 890 N.E.2d at 321. For the plaintiff to show “what was lost, the plaintiff
must show what would have been gained.” Id.
¶35 Indeed, a majority of courts that have addressed this issue have recognized that
placing the burden to prove collectibility on the client-plaintiff better aligns with the tort
law paradigm by requiring a plaintiff to prove all elements of a negligence claim. See,
e.g., Schmidt, 335 P.3d at 428 (“The traditional approach rests primarily on the theory that
15
it is consistent with tort law: plaintiffs may recover only the amount that will make them
whole (and not a windfall), and the plaintiff must prove both proximate cause and
injury.”).
C. Requiring Plaintiff to Prove Collectibility Is Not Unfair or Unduly
Onerous
¶36 Requiring a client-plaintiff to establish the collectibility of any underlying
judgment is not unfair or unduly onerous.
¶37 We acknowledge that the need to prove uncollectibility arises only as “the result
of an attorney’s established malpractice.” Schmidt, 335 P.3d at 428. And as the court of
appeals majority noted, “a plaintiff in a legal malpractice case already has the burden of
proving negligence twice” by showing both the lawyer and the underlying defendant
were negligent. LeHouillier, ¶ 57 (citing Kituskie, 682 A.2d at 382). But a plaintiff is always
required to prove causation and damages to prevail in a negligence case. The plaintiff’s
burden in an attorney malpractice case founded on professional negligence is no
different.
¶38 Moreover, this burden is not especially onerous. Indeed, where, as here, the
underlying defendant is a professional, the best evidence of collectibility would be proof
of insurance coverage. And if the attorney had undertaken some inquiry into the
defendant’s insurance coverage, that information likely would be in the attorney’s files
and subject to the client-plaintiff’s discovery.
¶39 We disagree with the court of appeals that “requir[ing] the client to introduce
evidence of collectibility would often be at odds with evidence rules and case law
16
generally excluding evidence of insurance coverage.” Id. at ¶ 59. Evidence concerning a
defendant’s insurance or lack thereof is usually precluded because such evidence might
improperly influence the jury’s determination of liability. See CRE 411 (“Evidence that a
person was or was not insured against liability is not admissible upon the issue whether
he acted negligently or otherwise wrongfully. This rule does not require the exclusion of
evidence of insurance . . . when offered for another purpose, such as proof of agency,
ownership, or control, or bias or prejudice of a witness.”); Johns v. Shinall, 86 P.2d 605, 608
(Colo. 1939). The policy concerns underlying CRE 411 do not apply in a legal malpractice
case because the coverage question pertains not to the attorney, but to the defendant in
the underlying action. So, the risk that a jury would conflate coverage of the underlying
defendant and liability of the attorney is low. Moreover, to avoid jury confusion, courts
could bifurcate the trial on the collectibility issue. See Hoppe v. Ranzini, 385 A.2d 913, 919
(N.J. Super. Ct. App. Div. 1978).
¶40 Alternatively, a client-plaintiff could depose the underlying defendant to explore
his or her net worth. In fact, a plaintiff could also satisfactorily prove collectibility by
showing sufficient unencumbered assets—such as titled assets or real estate—
information available through public records.
D. Proving Uncollectibility as an Affirmative Defense Is Not Logically Sound
¶41 We disagree with the division majority below that an attorney-defendant must
raise the issue of collectibility as an affirmative defense, which would mean that he or she
also bears the burden of proving that the judgment was not collectible. LeHouillier, ¶ 3.
We recognize that a growing minority of states treat collectibility as an affirmative
17
defense that an attorney-defendant must raise and prove. See Cross & Quintana, 91 Denv.
U. L. Rev. Online at 57 n.27. But in our view, casting collectibility as an affirmative
defense is not logically sound.
¶42 Treating collectibility as an affirmative defense to be raised and proved by the
attorney disregards the tort paradigm by ignoring the link between the causation and
damages elements that a malpractice plaintiff must prove as part of her prima facie case.
Generally, an affirmative defense relies on legal rules or collateral facts to nullify what
would otherwise constitute liability. See Affirmative defense, Black's Law Dictionary (10th
ed. 2014) (“A defendant’s assertion of facts and arguments that, if true, will defeat the
plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are true.”).
For example, a statute of limitations defense bars recovery on an otherwise meritorious
negligence claim brought more than two years after an action accrues. See, e.g., § 13-80-
102(1), C.R.S. (2018). An affirmative defense, however, does not purport to negate an
essential element of a plaintiff’s case. But requiring an attorney-defendant to prove that
the client’s hoped-for damages in an underlying suit were uncollectible effectively forces
the attorney to disprove two essential elements of the client-plaintiff’s case: causation and
damages. Such an approach conflicts with the basic paradigm of tort law.
¶43 Indeed, the Colorado Rules of Civil Procedure buttress the argument that
affirmative defenses do not negate an essential element of a plaintiff’s claim. For
example, C.R.C.P. 8(c) (with limited exceptions) requires a defendant to plead an
affirmative defense in a responsive pleading, not in a pre-answer motion. See also
C.R.C.P. 12(b). If the trial court decides that the affirmative defense defeats the plaintiff’s
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action, the result is usually summary judgment under C.R.C.P. 56, not dismissal for
failure to state a claim under C.R.C.P. 12(b)(5). See Bristol Bar Prod., LLC v. Lampack, 2013
CO 60, ¶ 45, 312 P.3d 1155, 1164. Morevoer, C.R.C.P. 8(c) lists as an affirmative defense
“[a]ny mitigating circumstances to reduce the amount of damage.” (emphasis added). As
Judge Webb noted in his dissent, the very language of Rule 8(c) presumes that the
plaintiff has established “at least some damages” from the outset. LeHouillier, ¶ 79. In
fact, if the plaintiff fails to establish any damages, the ordinary recourse for a defendant
is a motion for a directed verdict. See C.R.C.P. 50.
¶44 The division majority’s approach also allows plaintiffs to reap a potential windfall.
A bedrock goal of tort law is to “make the plaintiff whole.” See Stamp v. Vail Corp., 172
P.3d 437, 448 (Colo. 2007) (explaining the function of compensatory damages). Tort law
thus disfavors “windfall” damage awards that make the plaintiff better off than she
would have been had her legal rights not been violated. See Dep’t of Health v. Donahue,
690 P.2d 243, 250 (Colo. 1984). Requiring a client-plaintiff to establish collectibility
ensures that the client will not reap a windfall by recovering more from the attorney-
defendant than the client could ever have recovered from the hypothetical defendant in
the underlying case. See, e.g., Klump 71 F.3d at 1374 (“Hypothetical damages above the
amount that [the plaintiff] could genuinely have collected from [the defendant] are not a
legitimate portion of her ‘actual injury;’ awarding her those damages would result in a
windfall.”); Fernandez v. Barrs, 641 So. 2d 1371, 1376 (Fla. Dist. Ct. App. 1994) (noting that
the traditional rule “prevents a windfall to the client by preventing him from recovering
more from the attorney than he could have actually obtained from the tortfeasor in the
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underlying action”), disapproved of on other grounds by Chandris, S.A. v. Yanakakis, 668 So.
2d 180, 185 (Fla. 1995). By contrast, treating collectibility as an affirmative defense risks
allowing the client-plaintiff to recover more than her “actual injury.”
¶45 Finally, placing the burden with the attorney-defendant to prove uncollectibility
forces the attorney to “prov[e] a negative,” which is a much more onerous burden than
requiring the client-plaintiff to prove collectibility. See, e.g., Rooks v. Robb, 871 N.W.2d
468, 471 (N.D. 2015). The attorney-defendant must first negate the underlying
defendant’s insurance coverage, a task arguably no more difficult than proving it. But
then, to prove insolvency, the attorney must reconstruct the underlying defendant’s
entire financial position, accounting for all of his or her assets and liabilities. This
presents a much more onerous burden.
¶46 For all of these reasons, we conclude that treating collectibility as an affirmative
defense that the attorney-defendant must raise and prove does not make logical sense.
III. Application
¶47 Here, our review of the record shows that Gallegos failed to prove that the
underlying judgment against Dr. Hughes would have been collectible.
¶48 Gallegos introduced the 2010 letter that LeHouillier wrote to Dr. Hughes
recommending that the doctor put “[his] professional liability carrier on notice.”
Gallegos argues that because Dr. Hughes never responded to the letter that he lacked
insurance, it can be reasonably inferred that he must have had insurance, thus evincing
the collectibility of the underlying judgment.
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¶49 We disagree. Although Dr. Hughes did not inform LeHouillier that he did not
have liability coverage, he also did not inform LeHouillier that he did have liability
coverage. Dr. Hughes simply did not respond at all.
¶50 Gallegos also argues that Dr. Hughes must have had insurance because section 13-
64-301(1)(a.5)(I) requires all practicing Colorado doctors to maintain professional liability
insurance. She therefore claims that the underlying judgment would have been
collectible. LeHouillier, ¶ 20. But despite the statute’s mandate, there is no evidence that
Dr. Hughes actually complied. Moreover, the jury was not instructed about the statute’s
requirements. Id. at ¶¶ 21–22. In sum, the jury had no evidentiary basis from which to
infer that Dr. Hughes carried professional liability insurance or that any judgment against
him would have been collectible.
¶51 However, given the absence of a clear statement from this court regarding the
plaintiff’s burden to prove collectibility at the time of trial, and given that the issue was
not raised in this case until after Gallegos had presented her case-in-chief, we reverse the
judgment of the court of appeals and remand the case for a new trial.
IV. Conclusion
¶52 We hold that the court of appeals erred in concluding that in an attorney
malpractice case, the attorney-defendant should bear the burden of proving that any
underlying judgment would have not been collectible. Instead, we hold that in an
attorney malpractice case founded on professional negligence, the client-plaintiff bears
the burden of proving that the lost judgment in the underlying case was collectible.
¶53 We reverse the judgment of the court of appeals and remand for a new trial.
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