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Bancroft Life & Casualty Icc, Ltd v. Intercontinental Management

November 26, 2012

BANCROFT LIFE & CASUALTY ICC, LTD,
PLAINTIFF,
v.
INTERCONTINENTAL MANAGEMENT, LTD., D/B/A INTERCONTINENTAL CAPTIVE MANAGEMENT COMPANY, LTD, ET AL,
DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM ORDER

Before the Court are Plaintiff's Motion to Exclude Defendants' Witnesses and Exhibits (doc. no. 393) and Defendants' Motions in Limine. Doc. No. 394. Defendants filed a Response to Plaintiff's Motion to Exclude Defendants' Witnesses and Exhibits (doc. no. 397), and Plaintiff filed an Opposition to Defendants' Motions in Limine. Doc. No. 396. All of these Motions are now ripe for adjudication.

I. Introduction

The Court begins by noting that four of the Defendants -- Intercontinental Management,

Ltd., d/b/a Intercontinental Captive Management Company, Ltd., The Roberts and Patton Law Firm, John R. Patton, and George Thomas Roberts -- have filed for bankruptcy, and thus, will not be available to participate in the upcoming trial of this matter due to the automatic stay.*fn1

In addition to four of the Defendants filing for bankruptcy, a recent mediation among Plaintiff and four other Defendants -- Cunningham Hughan & Company, Inc., Thomas Hughan, Dernar & Associates, LLC, and David K. Dernar -- led Plaintiff to resolve its claims against those four Defendants.

Accordingly, the Court finds (prior to ruling on the numerous Motions in Limine) that only the following claims can be litigated at this time:

(1) Count I -- Breach of Fiduciary Duty -- against Defendant Patton;

(2) Count III -- Fraud -- against Defendant Bailey;

(3) Count VII -- Legal Malpractice -- against Defendant Patton;

(4) Count XI -- Tortious Interference with Existing Contracts -- against Defendants Patton and Bailey; and

(5) Count XII -- Tortious Interference with Prospective Contracts -- against Defendants Patton and Bailey.

See Second Amended Complaint, Doc. No. 258.

II. Defendants' Motions in Limine

A. Motion to Exclude All Evidence at to Count VII and to Dismiss Count VII (Legal Malpractice Claim against Defendant Patton)

Plaintiff brought at legal malpractice claim against Defendant Patton and others. Defendant Patton has moved to dismiss the legal malpractice claim. Doc. No. 395, pp.1-2. Plaintiff indicated it will not pursue its claim for legal malpractice against Patton during the trial of this case. Doc. no. 396, p. 1. Defendants' Motion to Exclude All Evidence as to Count VII and to Dismiss Count VII (as to Defendant Patton) will be GRANTED.

B. Motion to Exclude all Evidence as to Count I and to Dismiss Count I with Prejudice (Breach of Fiduciary Duty against Defendant Patton)

The law of fiduciary duty as it relates to the attorney-client relationship is not well-differentiated from legal malpractice in Pennsylvania. In Pennsylvania, in order to prove a breach of fiduciary duty, the plaintiff must show: (1) the existence of the relationship, (2) the nature and scope of the relationship, (4) breach of the duty, and (5) resulting damages. See Rizzo v. Haines, 555 A.2d 58, 65 (Pa. 1989). Further, expert testimony is needed where it would help the finder of fact to understand an issue that is beyond the knowledge of the average person. Id.

Turning to the instant case, Plaintiff's Second Amended Complaint alleges that Defendant Patton breached his fiduciary duties to Plaintiff by, inter alia, "failing to inform [Plaintiff] that [Defendant] Patton was never licensed to practice law in Pennsylvania; failing to ensure that [Plaintiff] was in compliance with all laws and regulations governing insurance companies in St. Lucia[.]" Doc. No. 258, ¶ 157(b)-(c). Given these allegations, there appears to be no appreciable difference between the analysis for a breach of fiduciary duty and the analysis for a legal-malpractice claim.

In Pennsylvania, an individual may file a legal malpractice under either a trespass (negligence) or assumpsit (contract) theory. See Guy v. Liederbach, 459 A.2d 744, 748 (1983) ("Under present Pennsylvania law, an individual who has an attorney-client relationship may sue his attorney for malpractice under either a trespass or assumpsit theory.").

In a trespass (tort) action, "a plaintiff must establish three elements in order to recover:

(1) the employment of the attorney or other basis for duty; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff." Bailey v. Tucker, 621 A.2d 108, 112 (Pa. 1993). See also Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985); Stacey v. City of Hermitage, 2008 WL 941642, *4 ...


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