CHARLESTON - A Jackson County woman is alleging two Charleston attorneys were negligent in the way they handled a personal injury claim she filed against the federal government.
Mark A. Hunt and David A. Karr Jr. are two of the co-defendants in legal malpractice suit filed by Wendy England on Dec. 18 in Kanawha Circuit Court. Also named in the suit are Hunt and Serreno PLLC, the law firm Hunt previously operated with his former law partner Tony Serreno, and Ed Steen who works at Hunt's current firm, Mark A. Hunt and Associates, as a "personal injury specialist."
In her complaint and suit, filed with the assistance of M. Andrew Brison with the Charleston law firm of Francis, Nelson and Brison, England alleges each of the defendants in some way mishandled a claim and related lawsuit she filed under the Federal Tort Claims Act against a federal law enforcement officer following a 2004 automobile accident. Specifically, England alleges Steen, who is not a licensed attorney, and Karr failed to communicate with her about the status of her claim, and missed filing deadlines causing her case to be statutorily barred.
Making a claim
According to court records, England, 34, from Given, contacted Hunt and Serreno about representing her in a lawsuit against Richard B. Sellers, 39, a deputy U.S. Marshal from Cottageville. On Jan. 15, 2004, a 2001 Monte Carlo driven by England collided with a 1991 Honda Accord driven by Sellers, along the Interstate 77 and 79 interchange above Charleston.
The resulting collision, records show, caused Sellers' Accord to spin around and run off the left side of the road and England's Monte Carlo to cross both lanes of I-77, strike the embankment and roll-over on its top. Following the collision, Sellers declined medical treatment while England was transported to CAMC-General, where she was treated and released.
However, England claimed the collision left her with recurring problems of "lightheadedness, restlessness and sleepiness." On Feb. 10, 2004, records show, England signed a contingency fee agreement with Hunt and Serreno with Steen assigned to her case.
In her malpractice suit, England alleges the agreement called for Steen and Hunt and Serreno to "provide those legal services reasonably required to represent" England "including the institution of suit." Also, Steen and Hunt and Serreno were to "take responsible steps to keep" England "informed" of the suit's progress.
Pursuant to FTCA, any claim must first be filed with the agency employing the person whose act or omission resulted in the claim. The agency then has six months to accept to reject the claim.
Should the agency reject the claim or fail to act on it within the six-month deadline, the claimant can then file a lawsuit in federal district court.
According to her malpractice suit, Steen filed a claim with the U.S. Marshal's Service in Washington, D.C. on July 1, 2004, 138 days after the accident. On Dec. 21, John Patterson, an attorney with the U.S. Department of Justice's Office of General Counsel rejected England's claim.
In his rejection letter, Patterson reminded Steen of the six-month deadline he had to file in U.S. District Court asserting England's claim.
Concealing important details
However, England claims in her malpractice suit that she was not informed of the rejection letter or her ability to file suit until almost a year after the claim was denied. In a letter she received from Hunt and Serreno, England was informed that not were they not only terminating her as a client, but they "also incorrectly advised [her] of a statute of limitations date by which she would need to file suit."
Also, England claims that one of Sellers' supervisors, John James Perrine, had something to do with Hunt and Serreno dropping her case.
According to her suit, England alleges Perrine, who came to the scene the day of the accident and assisted in the investigation, consulted with Hunt and Serreno about an unrelated personal injury case of his own. Records are unclear as to when Perrine visited Hunt and Serreno's office except it came shortly after England's claim was denied.
Though Perrine did not speak with him initially, records show Hunt approached him about the England case. Despite declining to comment on the case because he was heading the investigation, Perrine "did offer a favorable opinion and comments about Robert B. Sellers."
Furthermore, England alleges "During this conversation…Hunt stated to Perrine that neither he nor his firm would pursue the England case any further."
Despite dropping her as a client, Hunt and Serreno arranged for Karr to represent England in a lawsuit against Sellers. Karr, England alleges, was selected because he "has associated with Hunt & Serreno and/or Mark Hunt on numerous other cases."
On Jan. 11, 2006, Karr filed suit against Sellers in Kanawha Circuit Court. Three days later he submitted another claim with USMS citing "additional newly discovered evidence ... support[ing] claimant's assertion that Robert B. Sellers improperly influenced the initial investigation of the incident." Following a motion made by Assistant U.S. Attorney Stephen M. Horn, England's civil suit was moved to U.S. District Court on Feb. 2, 2006.
After allowing for some discovery in the case, Judge Robert C. Chambers eventually dismissed the suit on Sept. 27. In his dismissal order, Chambers wrote that "in this case, the claim was timely filed with the administrative agency, however, Plaintiff did not timely appeal the decision."
Chambers' dismissal came with prejudice in the first count of England's suit alleging Sellers was responsible for her injuries and the damage to her car. However, Chambers did determine Sellers was acting within his scope of employment when the accident occurred.
On the two remaining counts alleging that Sellers and John Does 1-10 attempted to discourage her and witnesses to the accident from testifying in the case was dismissed without prejudice and remanded back to the circuit court. However, it would later be dismissed there, too.
England alleges it was not until well after the case had be moved to federal court that she "became aware for the first time that her claim ... was statutorily barred and that this fact was concealed from her by the defendants." Despite being aware of this, Karr refused to advise England her case had been forever barred "because of his personal and business relationship with the Hunt and Serreno defendants." The defendant's concealing important facts from England "was willful, malicious, fraudulent, oppressive [and] reflected a wanton disregard of [her] rights." Additional, England alleges had it not been for Hunt and Serreno's malpractice she "would have been compensated for her injuries by Richard Sellers."
Along with unspecified compensatory and punitive damages, England is asking she be awarded costs and attorney's fees.
Hunt mounts a defense
In response to England's claim of legal malpractice, Hunt has filed two replies.
The first was a notice of legislative immunity on Jan. 16. Pursuant to state law, Hunt asked the case be stayed until 30 days following conclusion of the 2009 on April 11.
After a two-year hiatus, Hunt was successful in getting re-elected as one of the seven members of the 30th Delegate District in November's general election.
The second was a motion to dismiss filed by Hunt's lawyer Kenneth P. Hicks on Jan. 29. In his motion, Hicks makes several arguments for dismissal including the deadline to file a legal malpractice claim against Hunt was Aug. 29, and that England's case all along had no merit.
In his motion, Hicks cites the traffic crash report filed by Kanawha County Deputy Sheriff K. L. Washburn listing England's "failure to maintain control of her vehicle, changing lanes improperly, and not having the right of way as contributing circumstances to this accident with Richard B. Sellers.
Though records show he has filed a notice of bona fide defense, Karr has not formally responded to England's allegations of malpractice. When contacted by The West Virginia Record, Karr declined to comment.
The case has been assigned to Judge Louis H. "Duke" Bloom
Kanawha Circuit Court, Case No. 08-C-3394 (England legal malpractice); Kanawha Circuit Court, Case No. 06-C-45 and U.S. District Court for the Southern District of West Virginia, Case No. 06-cv-73 (England personal injury)