Professional Negligence Law Reporter

The South Dakota Supreme Court held that attorneys were not liable to former clients for their alleged failure to notify the state of a purported claim against it.

Stuart Hughes, a law clerk and employee of the South Dakota Unified Judicial System (UJS), traveled after work to his parents’ home in Sioux Falls, S.D. He was involved in a motor vehicle collision with Doug Barr and required medical treatment. Barr and his wife retained attorneys Jeffrey Cole, William Sims, and Gregory Brewers to represent them in a negligence suit against Hughes, which later settled for $500,000—an amount less than the plaintiffs’ $1 million demand. The Barrs then filed suit against Cole, Sims, and Brewers for legal negligence, arguing that the defendants failed to pursue a damages claim against the state for Hughes’s negligence and failed to inform them of this claim before they had agreed to settle their lawsuit. The plaintiffs asserted that a claim against the state would have been covered by the Public Entity Pool for Liability (PEPL) fund and that an additional $500,000 in coverage would have been available to them had the attorneys provided timely notice of these claims to the state.

The plaintiffs moved for summary judgment, and the defendants cross-moved for summary judgment. The trial court entered an order granting the attorneys’ motions. The court determined that Hughes was not acting within the scope of his employment when he was driving to Sioux Falls for a family gathering and that this constituted a substantial deviation from the course of his employment.

Affirming, the state high court agreed with the trial court that Hughes had substantially deviated from his employment by traveling to a family dinner after leaving the courthouse on the day of the incident. Hughes’s travel was a purpose unrelated to his work as a law clerk, the court found, adding that he had not been directed by any judicial employee to travel to Sioux Falls and that the family gathering did not benefit the UJS. Thus, the court held that because PEPL fund coverage is trigged by an occurrence arising within the scope of employment, the plaintiffs could not have asserted a claim against the state in the underlying negligence action. The attorneys therefore were not negligent in failing to pursue such a claim, the court said, holding that summary judgment for the defense had therefore been proper.

Citation: Barr v. Cole, 2023 WL 8268230 (S.D. Nov. 29, 2023).