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Robert J. Mccormack v. Christopher E. Caldwell and Whitehead

July 1, 2011


Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Carl B. Kerrick, District Judge.

The opinion of the court was delivered by: Lansing, Judge

2011 Opinion No. 39

Stephen W. Kenyon, Clerk

Robert J. McCormack appeals from the district court's summary judgment in favor of defendants, Christopher E. Caldwell and the law firm of Whitehead, Amberson & Caldwell, P.L.L.C. The court dismissed McCormack's claims upon concluding that they are barred by the statute of limitation. We affirm.


This action arises from the defendants' legal representation of McCormack on a worker's compensation claim. McCormack was injured at work in April of 2001 and began receiving monthly total temporary disability (TTD) benefits from his employer's worker's compensation insurer. McCormack contends that after he received the August 22, 2001, payment, he was informed by the insurance company that his benefits would be discontinued. Believing that he had a claim against the insurance company, McCormack engaged Caldwell, a member of the law firm of Whitehead, Amberson & Caldwell, P.L.L.C. to represent him. McCormack's TTD benefits checks resumed during the period from September 2001 through February 2002 (apparently as a result of Caldwell's efforts). However, at the defendants' direction, they were sent by the insurance company to the law firm instead of directly to McCormack. McCormack alleges that he was unaware that these benefits had been reinstated and were being sent to the law firm. Stamps and writing on the checks indicate they were endorsed with McCormack's name and cashed at MoneyTree, a check-cashing business. McCormack contends, however, that the defendants, or someone in the defendants' employment, must have forged his signature and cashed the checks and that he never received them.

McCormack's worker's compensation case ultimately went to hearing before the Idaho Industrial Commission. Caldwell retained multiple expert witnesses, including a vocational rehabilitation counselor, to testify in McCormack's case at the hearing. In July 2006, the Industrial Commission entered an order awarding benefits to McCormack--TTD benefits through May 30, 2002, and permanent partial disability benefits. Caldwell forwarded a copy of the order to McCormack along with a letter dated August 2, 2006, which estimated the total dollar value of the award as well as the amount of attorney fees McCormack owed Caldwell. Because McCormack would not allow Caldwell to deduct attorney fees from McCormack's award, Caldwell petitioned the Industrial Commission for an order allowing attorney fees. This issue was eventually resolved in February of 2007. It appears that McCormack did not receive payment of the award from this process until March of 2008.

On June 8, 2009, McCormack filed the complaint in this case in which he alleged that the defendants "mishandled" the TTD checks sent to them from September 2001 through February 2002. McCormack argued that this conduct violated various Idaho Rules of Professional Conduct, specifically those involving fraud, misrepresentation, and failure to promptly notify a client of, and deliver, funds received on the client's behalf. Other than citing Idaho Rules of Professional Conduct, McCormack's complaint did not characterize this claim as professional malpractice or fraud. It simply alleged that the insurance company, unbeknownst to him, had issued checks that were sent to the law firm, that he never received those checks, that the checks were cashed by someone at the law firm, and that he suffered harm as a result of these facts. McCormack also alleged that Caldwell was liable to him for deficiencies in his employment of the vocational rehabilitation counselor who testified at McCormack's worker's compensation hearing. The complaint alleged that Caldwell failed to retain the counselor in a timely manner with the consequence that the counselor did not have enough time to prepare for the hearing and for that reason, the counselor's opinion was not given sufficient weight by the Industrial Commission. McCormack's complaint also asserted that the statute of limitation for his claims was two years and alleged that he had not discovered his injuries or the alleged misconduct until March of 2008, presumably the date upon which he received his final payment of the award from the Industrial Commission.

The defendants moved to dismiss McCormack's complaint as time-barred, characterizing McCormack's claims as allegations of professional malpractice subject to the two-year statute of limitation of Idaho Code § 5-219(4). McCormack did not dispute that this was the correct statute of limitation, but argued for application of the I.C. § 5-219(4) provision that in the event that the wrongdoer fraudulently concealed the damage from the injured party, a claim will be deemed to accrue when the injured party knows or has been put on inquiry notice of the basis for the claim complained of. The district court granted the defendants' summary judgment motion. The court applied I.C. § 5-219(4) and held that McCormack should have been aware of the defendants' alleged misconduct no later than the date of the Industrial Commission's decision in late July 2006. The court therefore determined that the statute of limitation expired in July 2008, nearly a year before McCormack filed his complaint.

On appeal, McCormack does not challenge the dismissal of his cause of action for Caldwell's alleged malpractice in failing to retain the vocational rehabilitation counselor within a sufficient time for the counselor to prepare for the Industrial Commission hearing. He claims error only in the dismissal of his cause of action for the defendants' alleged "mishandling" of the TTD checks.


A. Standard of Review

Summary judgment may be entered only if "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Idaho Rule of CivilProcedure 56(c). See also Avila v. Wahlquist, 126 Idaho 745, 747, 890 P.2d 331, 333 (1995); Idaho Bldg. Contractors Ass'n v. City of Coeur d'Alene, 126 Idaho 740, 742, 890 P.2d 326, 328 (1995). On review, this Court liberally construes the evidence in favor of the party opposing the motion and draws all reasonable inferences and conclusions in that party's favor. Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 272, 869 P.2d 1365, 1367 (1994). If reasonable persons could reach different findings or draw conflicting inferences from the evidence, the motion should be denied. Id. ...

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