Schmidt v. Coogan , 181 Wash. 2d 661 ( 2014 )

¶1 This legal malpractice case presents two questions that we have never before addressed. The first is whether the elements of legal malpractice include the collectibility of an underlying judgment. Jurisdictions are split. We adopt the growing trend to make the uncollectibility of an underlying judgment an affirmative defense that negligent attorneys must plead and prove. The second is whether emotional distress damages are available in legal malpractice cases. We hold that the facts of this case do not support an award of emotional distress damages.

Wiggins, J.

FACTS AND PROCEDURE

¶2 In December 1995, Teresa Schmidt slipped and fell while visiting a Tacoma Grocery Outlet. She retained Timothy Coogan to represent her in a claim against the store. On December 21, 1998, just days before the statute of limitations ran, Coogan filed a complaint naming the wrong defendant. He subsequently filed two amended complaints, but the trial court dismissed the case as barred by the statute of limitations.

¶3 Schmidt then filed a complaint against Coogan, asserting claims for negligence and breach of contract. The case went to trial in November 2003, and the jury returned a verdict in favor of Schmidt in the amount of $32,000 for past economic damage and $180,000 for noneconomic damages. The trial court granted a new trial on the issue of damages only, finding that Coogan was denied a fair trial. Schmidt’s counsel gave an improper closing argument, and the damages were so excessive as to unmistakably indicate that the verdict was the result of passion and prejudice. The Court of Appeals affirmed the trial court’s order granting a new trial on damages.¹

¶4 In March 2010, Schmidt moved for leave to amend the complaint to add a claim for outrage/reckless infliction of emotional distress. She alleged that Coogan harassed, intimidated, and belittled her when she raised the problem of the statute of limitations before it expired.² During the 2003 trial, the jury was instructed to determine general damages arising out of Coogan’s conduct and malpractice. In the second trial, however, Coogan challenged the availability of general damages in legal malpractice cases. Because her counsel could not find settled authority either affirming or denying the availability of emotional distress damages in Washington, Schmidt sought to add a claim that encompassed the damages. The trial court denied Schmidt’s motion to amend. Schmidt also filed a motion for summary judgment on the availability of general damages and a motion in limine. The court denied both motions.

¶5 After Schmidt rested her case in the damages-only trial, Coogan moved for judgment as a matter of law. He argued that collectibility was an essential element of legal malpractice and that Schmidt presented no evidence that a judgment against Grocery Outlet would have been collectible. The court denied the motion, and the jury returned a verdict in favor of Schmidt for $83,733.16 plus interest.

¶6 Coogan appealed the jury verdict, arguing that the trial court should have granted his motion for judgment as a matter of law. Schmidt cross appealed on the ground that general damages are available in attorney malpractice claims and that the trial court erred in denying her motion to amend the complaint. The Court of Appeals concluded that collectibility was an essential component of damages that Schmidt failed to prove, and it reversed the trial court’s denial of Coogan’s motion for judgment as a matter of law. Schmidt v. Coogan, 171 Wn. App. 602, 604, 287 P.3d 681 (2012) , review granted, 177 Wn.2d 1019, 304 P.3d 115 (2013) .

ANALYSIS

¶7 The primary questions before us are (1) whether collectibility is an element of malpractice and (2) whether a plaintiff may recover emotional distress damages for legal malpractice. These are questions of law, which we review de novo. Cost Mgmt. Servs., Inc. v. City of Lakewood, 178 Wn.2d 635, 641, 310 P.3d 804 (2013).

I. Collectibility

¶8 Our court has never addressed how the collectibility of an underlying judgment intersects with the elements of legal malpractice. We hold that the burden of establishing collectibility is not on the plaintiff-client. Rather, uncollectibility is an affirmative defense that a defendant-attorney must plead and prove.

f 9 Uncollectibility may be a relevant inquiry because it relates to proximate cause and damages elements of legal malpractice. The essential elements are:

“(1) The existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney’s breach of the duty and the damage incurred.”

Ang v. Martin, 154 Wn.2d 477, 482, 114 P.3d 637 (2005) (quoting Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992)). The measure of damages is the “amount of loss actually sustained as a proximate result of the attorney’s conduct.” Matson v. Weidenkopf, 101 Wn. App. 472, 484, 3 P.3d 805 (2000). If 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. The client could not have collected the judgment even if the attorney used reasonable care.

¶10 While the collectibility of an underlying judgment may be relevant, the great weight of public policy considerations support our holding that uncollectibility is an affirmative defense. Traditionally, a majority of jurisdictions placed the burden of proving collectibility on the plaintiff. See McDow v. Dixon, 138 Ga. App. 338, 339, 226 S.E.2d 145 (1976); Whiteaker v. State, 382 N.W.2d 112, 114-15 (Iowa 1986); Jernigan v. Giard, 398 Mass. 721, 723, 500 N.E.2d 806 (1986); Eno v. Watkins, 229 Neb. 855, 857, 429 N.W.2d 371 (1988). However, in more recent years, states have begun departing from this rule and have placed the burden on the defendant-attorney. See Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 31 (Alaska 1998); Clary v. Lite Machines Corp., 850 N.E.2d 423, 440 (Ind. Ct. App. 2006); Jourdain v. Dineen, 527 A.2d 1304, 1306 (Me. 1987); Teodorescu v. Bushnell, Gage, Reizen & Byington, 201 Mich. App. 260, 268, 506 N.W.2d 275 (1993); Hoppe v. Ranzini, 158 N.J. Super. 158, 171, 385 A.2d 913 (1978); Carbone v. Tierney, 151 N.H. 521, 533, 864 A.2d 308 (2004); Kituskie v. Corbman, 552 Pa. 275, 285, 714 A.2d 1027 (1998).

¶11 The traditional approach rests primarily on the theory that 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. See Klump v. Duffus, 71 F.3d 1368, 1374 (7th Cir. 1995); McKenna v. Forsyth & Forsyth, 280 A.D.2d 79, 84, 720 N.Y.S.2d 654 (2001). This approach overlooks major policy concerns.

112 First, the traditional approach unfairly presumes that an underlying judgment is uncollectible when the record is silent. See Power Constructors, Inc., 960 P.2d at 31-32. The presumption is unnecessary and requires a client to always prove the opposite, even when there is no real question regarding solvency. Generally, collectibility is an issue only after the client has established the existence of a fiduciary relationship, the failure of the attorney to exercise due care, the attorney’s negligence resulted in losing a valid claim (i.e., proving the “case within a case”), and the amount of the lost judgment. The need to establish collectibility is the result of an attorney’s established malpractice at this point in the trial. It is a burden created by the negligent attorney. The presumption that a judgment would have been uncollectible places an unfair burden on the wronged client.

¶13 Second, the negligent attorney is in as good a position, if not better, than the client to discover and prove uncollectibility. If the underlying judgment would have been uncollectible, the original attorney should have advised his client of this fact. Failing to do so is negligent and, potentially, a breach of the attorney-client fiduciary relationship. Here, Coogan undertook an investigation of whether the slip-and-fall case was a good faith lawsuit when he represented Schmidt. Coogan testified by deposition (in a statement not placed into evidence before the jury) that an insurance company representative for Tacoma Grocery Outlet confirmed insurance coverage on more than one occasion. This suggests that the attorney is in a better position than the client to establish uncollectibility because the attorney has investigated the underlying claim closer to the time of the accident.

¶14 Third, the traditional approach has the unfortunate effect of introducing evidence of liability insurance into every legal malpractice case. The rules of evidence and the case law generally prohibit introducing evidence of liability insurance in negligence cases. See ER 411; Todd v. Harr, Inc., 69 Wn.2d 166, 168, 417 P.2d 945 (1966) (“[T]he fact that a personal injury defendant carries liability insurance is entirely immaterial, and the deliberate or wanton injection of this matter into the case by plaintiff is ground for reversal.”); Kappelman v. Lutz, 141 Wn. App. 580, 590, 170 P.3d 1189 (2007) (“[T]he fact that a defendant in a personal injury case carries liability insurance is not material to the questions of negligence and damages.”). Our holding is more consistent with this rule by limiting introduction of evidence of liability insurance to a subset of the cases, i.e., when an attorney raises uncollectibility as an affirmative defense.

¶15 Fourth, a delay usually, if not always, ensues between the original injury and the legal malpractice action. The delay may hinder the client’s ability to gather evidence of collectibility. Here, Schmidt fell in 1995 and nearly two decades later this case is still unresolved. In that amount of time, companies may have failed, ownerships may have changed, and other circumstances may have made evidence of collectibility unavailable. It is unfair to place this burden on plaintiffs when the attorney’s negligence created the delay in the first place. See Kituskie, 552 Pa. at 283, 285.

¶16 Fifth, clients are further burdened because requiring them to prove collectibility ignores the fact that judgments are valid for 10 years after entry in Washington and may be renewed thereafter. See RCW 4.56.190; 28 Marjorie Dick Rombauer, Washington Practice: Creditors’ Remedies— Debtors’ Relief § 7.8 (1998 & Supp. 2014); see also Hoppe, 158 N.J. Super, at 169-71. This is significant because people and entities have financial positions that change over time. If a judgment would not have been immediately collectible against the original defendant, it may have become collectible over time. Ignoring this reality unfairly harms clients. It also seems to go against the guiding principle in tort law, which “ ‘is to make the injured party as whole as possible through pecuniary compensation.’ ” 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 6:1, at 259 (4th ed. 2013) (quoting Shoemake v. Ferrer, 168 Wn.2d 193, 198, 225 P.3d 990 (2010)).

¶17 Sixth, placing the burden of disproving collectibility on the negligent attorney acknowledges the important fiduciary relationship between client and attorney. See Hoppe, 158 N.J. Super, at 171. The traditional approach places every burden on the client. Our holding is more balanced. It requires the client to prove the existence of a fiduciary relationship, that the attorney did not exercise proper care, that this negligence caused the loss of a judgment, and the amount of that loss. If the wrongdoer believes the lost judgment amount could not have been collected from original defendant, the burden is on him or her to establish the fact as an affirmative defense.

¶18 After weighing these policy concerns, we conclude that the plaintiff-client does not bear the burden of establishing collectibility. Rather, a negligent attorney may raise uncollectibility as an affirmative defense to mitigate or eliminate damages.

¶19 Coogan did not argue in either of the two trials that a judgment against Grocery Outlet would be uncollectible. Nor did he argue that collectibility was an affirmative defense. He argued in an oral motion for judgment as a matter of law only that Schmidt presented no evidence of collectibility, and the judge did not err in denying his motion because Schmidt presented sufficient evidence of damages. Therefore, we reverse the Court of Appeals. Coogan is not entitled to a third trial concerning whether he may prove the affirmative defense.

¶20 The concurrence argues that we should not address the merits of Coogan’s collectibility argument for two reasons: it was not raised in the first trial, and Coogan invited the error when he successfully moved at the second trial to exclude evidence of Coogan’s malpractice insurance policy. While we are sympathetic with the unfairness of allowing Coogan to raise this issue for the first time after the case had been pending for several decades and after multiple appellate reviews, we address the issue because it is important and in order to provide guidance on legal malpractice cases in the future.

¶21 Our appellate rules allow us to decline to address on appeal issues inadequately raised at the trial court, but they do not require us to decline consideration of such issues. RAP 2.5(a) (“The appellate court may refuse to review any claim of error which was not raised in the trial court.” (emphasis added)). Our rules also encourage us to decide cases on the merits, not on procedural flaws. RAP 1.2(a) (“These rules will be liberally interpreted to promote justice and facilitate the decision of cases on the merits. Cases and issues will not be determined on the basis of compliance or noncompliance with these rules except in compelling circumstances where justice demands! subject to timeliness exceptions not relevant here].”).

¶22 The concurrence would also decline to address collectibility on the ground of invited error, reasoning that Coogan succeeded in excluding evidence that the grocery store was insured — thus providing an asset making any judgment collectible — and then arguing that Schmidt failed to present any evidence of collectibility. Coogan’s argument to exclude evidence of insurance was inconsistent with his argument that Schmidt was required to prove collectibility, but it did not lead to invited error because the trial court did not decide whether collectibility was an element of legal malpractice. Instead, the trial court held that collectibility was outside the scope of the remanded trial on damages.

f 23 The issue of collectibility was extensively briefed by the parties in almost every brief filed here and in the Court of Appeals. The issue is of first impression in Washington State, and we granted review in order to address it. Making collectibility an element of a legal malpractice claim would be a major change in litigating these cases in Washington. While we respect the differing opinion of the concurrence, this was an appropriate case in which to exercise our discretion to resolve the issue.

II. Damages

¶24 Schmidt also argues that the trial court and the appellate court denied her right to recover emotional distress damages and attorney fees. The measure of damages is the “amount of loss actually sustained as a proximate result of the attorney’s conduct.” Matson, 101 Wn. App. at 484. We hold that the plaintiff in a legal malpractice case may recover emotional distress damages when significant emotional distress is foreseeable from the sensitive or personal nature of representation or when the attorney’s conduct is particularly egregious. However, simple malpractice resulting in pecuniary loss that causes emotional upset does not support emotional distress damages. Here, the nature of representation was not sensitive nor was Coogan’s conduct particularly egregious. We hold that Schmidt is not entitled to attorney fees.

¶[25 Because no Washington case has settled whether emotional distress damages are available in a legal malpractice action, we look to the availability of emotional distress damages under other Washington claims and consider the rules developed in other jurisdictions.

f 26 We begin by analyzing the availability of emotional distress damages in Washington. When emotional distress is the sole damage resulting from negligent acts, our court is cautious in awarding damages. See Bylsma v. Burger King Corp., 176 Wn.2d 555, 560-61, 293 P.3d 1168 (2013). Originally, we adopted a general rule of “no liability for mental distress” when a “defendant’s actions were negligent and there was no impact to the plaintiff....” Hunsley v. Giard, 87 Wn.2d 424, 432, 553 P.2d 1096 (1976). However, we departed from this rule and now allow recovery when a plaintiff’s emotional distress is “within the scope of foreseeable harm . . . , a reasonable reaction given the circumstances, and . . . manifest by objective symptomatology.” Bylsma, 176 Wn.2d at 560.

¶27 Our reluctance to award emotional distress damages absent an impact in negligence cases contrasts starkly to emotional distress damages for intentional torts. “From early in its history, this court has allowed recovery for damages for mental distress . . . when the defendant’s act was willful or intentional.” Hunsley, 87 Wn.2d at 431; see Kloepfel v. Bokor, 149 Wn.2d 192, 201, 66 P.3d 630 (2003) (intentional infliction of emotional distress); Birchler v. Castello Land Co., 133 Wn.2d 106, 116, 942 P.2d 968 (1997) (violation of the timber trespass statute); Cagle v. Burns & Roe, Inc., 106 Wn.2d 911, 914-18, 726 P.2d 434 (1986) (wrongful discharge in violation of public policy). We have also allowed emotional distress damages in a variety of other statutory and common law tort claims. See Chuong Van Pham v. Seattle City Light, 159 Wn.2d 527, 533-38, 151 P.3d 976 (2007) (Washington Law Against Discrimination, ch. 49.60 RCW); Berger v. Sonneland, 144 Wn.2d 91, 112-13, 26 P.3d 257 (2001) (medical malpractice under chapter 7.70 RCW based on unauthorized disclosure by a physician of confidential information); Whaley v. State, 90 Wn. App. 658, 674, 956 P.2d 1100 (1998) (breach of professional duty by a day care provider); Price v. State, 114 Wn. App. 65, 71-74, 57 P.3d 639 (2002) (wrongful adoption). With the increasing availability of emotional distress damages, we see no reason to categorically preclude the damages in attorney malpractice actions.

¶28 We now turn to the issue of when emotional distress damages are available for attorney negligence. To determine whether emotional distress damages are compensable, we should consider the foreseeability of emotional distress. See Hunsley, 87 Wn.2d at 435 (“The element of foreseeability plays a large part in determining the scope of defendant’s duty.”). In Bylsma, we noted that the court has allowed emotional distress damages in cases concerning “emotionally laden personal interests, and [when] emotional distress was an expected result of the objectionable conduct . ...” 176 Wn.2d at 561 (emphasis added). The nature of the parties’ relationship is also relevant to foreseeability of emotional distress damages. See Price v. State, 114 Wn. App. 65, 71-74, 57 P.3d 639 (2002). In Price, the Court of Appeals stated:

The availability of emotional distress damages depends on whether the parties had a relationship that preexisted the defendant’s breach of duty. If the parties lacked a preexisting relationship, and the defendant’s breach was negligent rather than intentional, emotional distress damages are available only if the plaintiff proves “objective symptomatology.” If the parties had a preexisting relationship, the availability of emotional distress damages turns generally on the characteristics of the particular relationship. If the relationship was primarily economic, emotional distress damages may not be available. If the relationship was not primarily economic, emotional distress damages may be available.

Id. at 71 (footnotes omitted). The relationship in Price was between an adoption agency and prospective adoptive parents. Id. at 73. The Court of Appeals held that the relationship was “not merely economic, and a reasonable person standing in the defendant’s shoes would easily foresee that its breach is likely to cause significant emotional distress.” Id.

¶29 Other jurisdictions consider the foreseeability of emotional distress when deciding whether to award emotional distress damages. See Restatement (Third) of the Law Governing Lawyers § 53 cmt. g at 393 (Am. Law Inst. 2000) (“General principles applicable to the recovery of damages for emotional distress apply to legal-malpractice actions. In general, such damages are inappropriate in types of cases in which emotional distress is unforeseeable. Thus, emotional-distress damages are ordinarily not recoverable when a lawyer’s misconduct causes the client to lose profits from a commercial transaction, but are ordinarily recoverable when misconduct causes a client’s imprisonment.”).

130 Many jurisdictions do not allow emotional distress damages for legal malpractice unless there has been an intentional act, egregious conduct, or physical injury. See Vincent v. DeVries, 2013 VT 34, 193 Vt. 574, 72 A.3d 886, 894-95. Other courts allow recovery when a “ ‘lawyer is contracted to perform services involving deeply emotional responses in the event of a breach.’ ” Id. (quoting Miranda v. Said, noted at 820 N.W.2d 159, 2012 WL 2410945, at *4, 2012 Iowa App. LEXIS 484, at *12 (unpublished)). This has included cases in which “legal malpractice [led] to a loss of liberty or of one’s child, as contrasted with purely pecuniary loss.” Id. at 895.

¶31 For example, a Florida court created a narrow exception to its impact rule for certain legal malpractice claims. Rowell v. Holt, 850 So. 2d 474 (Fla. 2003). The exception applies when a harm is grievous and foreseeable. See id. at 478-81. The court held that a plaintiff could recover emotional distress damages when he “had been wrongfully arrested and confined” and had given his attorney the documents necessary to “secure his immediate release . . . .” Id. at 479. The attorney did not give the documents to the “judge as the judge had specifically instructed,” and a lengthy period of wrongful confinement resulted. Id. at 479-80. The rule was narrow:

The instant case does not simply involve negligence arising from insufficient preparation, incomplete investigation, legal ineptitude, or any other subjective indicia of a lawyer’s performance. To obtain his client’s release, [petitioner’s] attorney . .. needed only to deliver, transmit, or hand over to the judge the document which he had been provided and which he held in his hands.

Id. at 481. The exception created by the Florida court follows the national trend of allowing emotional distress damages when the attorney’s actions are particularly egregious and the harm is both great and foreseeable.

¶32 Having examined Washington law and explored the rule in other jurisdictions, we hold that emotional distress damages are available for attorney negligence when emotional distress is foreseeable due to the particularly egregious (or intentional) conduct of an attorney or the sensitive or personal nature of the representation. Here, the facts do not warrant damages for emotional distress. Schmidt experienced a pecuniary loss when Coogan negligently failed to perfect her personal injury lawsuit, and this lawsuit compensates her for that loss. Additionally, the subject matter of the litigation was not particularly sensitive: she did not lose her freedom and Coogan’s actions were not egregious. Therefore, we affirm the trial court’s rulings concerning the availability of general and emotional distress damages.

¶33 The dissent misreads our opinion and accordingly expends considerable energy defeating an imaginary straw man. The dissent accuses us of “[insisting that emotional distress damages require a showing that the attorney’s actions were ‘particularly egregious,’ ” dissent at 685-86.³ We have quite clearly said that egregious action is one way of establishing a claim for emotional distress damages: “emotional distress damages are available for attorney negligence when emotional distress is foreseeable due to the particularly egregious (or intentional) conduct of an attorney or the sensitive or personal nature of the representation.” Supra p. 674; accord supra p. 671. In other words, egregious action is sufficient, but not necessary.

¶34 The dissent urges that the attorney-client relationship should lead us to conclude that emotional distress damages are available without proof of physical impact or objective symptomatology. Dissent at 687. Nothing in this opinion requires either impact or symptomatology.

¶35 The dissent criticizes our characterization of Schmidt’s harm as primarily pecuniary, citing testimony from the underlying trial. Id. This is another misreading of our opinion. Two types of emotional distress damages are involved here: Schmidt’s emotional distress caused by her underlying injury and Schmidt’s emotional distress caused by defendant-attorney Coogan. The emotional distress damages at issue in this appeal are the emotional distress damages caused by Coogan, not the damages caused by her fall in the grocery store. The dissent cites only to emotional distress caused by the grocery store fall, which does not support a conclusion that it is foreseeable that Coogan’s malpractice might cause emotional distress damages to Schmidt. Id.

¶[36 The dissent argues that we should analogize legal malpractice claims against attorneys to insurance bad faith cases in order to determine the recoverability of emotional distress damages. Id. This argument places the cart before the horse in that we have never before addressed the availability of emotional distress damages for insurance bad faith, and the dissent cites only one case asserting without analysis that emotional distress damages are recoverable for insurance bad faith. See id. at 689 (citing Miller v. Kenny, 180 Wn. App. 772, 802, 325 P.3d 278 (2014) (citing Anderson v. State Farm Mut. Ins. Co., 101 Wn. App. 323, 333, 2 P.3d 1029 (2000))). Anderson simply cites to Coventry Assocs. v. American States Insurance Co., 136 Wn.2d 269, 961 P.2d 933 (1998). Neither Miller nor Anderson actually analyzes emotional distress damages. They simply say that insurance bad faith is a tort and that therefore emotional distress damages are available. Miller, 180 Wn. App. at 802; Anderson, 101 Wn. App. at 333. Coventry simply says that general tort damages are available for insurer bad faith. 136 Wn.2d at 285. In other words, the dissent relies on three bad faith cases that fail to analyze the availability of emotional distress damages in the context of insurance bad faith and that say nothing about legal malpractice.

¶37 Moreover, attorney malpractice differs considerably from insurer bad faith.⁴ We have not articulated a sufficiently narrow definition of insurance bad faith to use it as a model to determine attorney malpractice. See, e.g., Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 386, 715 P.2d 1133 (1986) (“an insurer must deal fairly with an insured, giving equal consideration in all matters to the insured’s interests”); Smith v. Safeco Ins. Co., 150 Wn.2d 478, 484, 78 P.3d 1274 (2003) (“To succeed on a bad faith claim, the policyholder must show the insurer’s breach of the insurance contract was ‘unreasonable, frivolous, or unfounded’ ” (quoting Overton v. Consol. Ins. Co., 145 Wn.2d 417, 433, 38 P.3d 322 (2002))); Besel v. Viking Ins. Co. of Wis., 146 Wn.2d 730, 737, 49 P.2d 887 (2002) (“The[se] principles ... do not depend on how an insurer acted in bad faith. Rather, the principles apply whenever an insurer acts in bad faith, whether by poorly defending a claim under a reservation of rights, refusing to defend a claim, or failing to properly investigate a claim.” (citations omitted)). Additionally, insurance bad faith does not constitute a single body of law; it “derives from statutory and regulatory provisions, and the common law.” St. Paul Fire & Marine Ins. Co. v. Onvia, Inc., 165 Wn.2d 122, 128, 196 P.3d 664 (2008). Insurance bad faith claims are often brought under common law, the Insurance Fair Conduct Act (ch. 48.30 RCW), and the Consumer Protection Act (ch. 19.86 RCW). Each of these causes of action offers unique remedies. See RCW 19.86.090 (attorney’s fees available for Consumer Protection Act claims); RCW 48.30.015(2) (treble damages available for Insurance Fair Conduct Act claims); Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 318, 858 P.2d 1054 (1993) (emotional distress damages unavailable for Consumer Protection Act claims). Importing insurance bad faith standards into the arena of attorney malpractice will only cause confusion. The analogy between insurance bad faith and attorney malpractice must await a fuller exploration than either the dissent or the parties have offered.

¶38 Schmidt also argues that plaintiffs in legal malpractice claims should recover the cost of obtaining the malpractice award. She argues that it is within the scope of foreseeability that a client will incur additional attorney fees, expert fees, and other costs when an attorney commits malpractice. Schmidt offers no case law to support her position. In fact, our case law does not support an award of attorney fees in attorney malpractice cases. Perez v. Pappas, 98 Wn.2d 835, 845, 659 P.2d 475 (1983) (Our court rejected the client’s argument that “a defendant is always liable for attorney fees when a lawsuit results from the defendant’s breach of fiduciary duties.” We held that the trial court properly refused to award attorney fees.); Shoemake v. Ferrer, 143 Wn. App. 819, 830-31, 182 P.3d 992 (trial court abused its discretion by awarding attorney fees to the injured client), aff’d on different grounds, 168 Wn.2d 193, 225 P.3d 990 (2010); Kelly v. Foster, 62 Wn. App. 150, 153-55, 813 P.2d 598 (1991) (trial court did not abuse its discretion when it denied attorney fees). Attorney fees are not awarded to plaintiffs in other tort cases, including other forms of malpractice. See Cosmo. Eng’g Grp., Inc. v. Ondeo Degremont, Inc., 159 Wn.2d 292, 296-97, 149 P.3d 666 (2006) (“The general rule in Washington, commonly referred to as the American rule,’ is that each party in a civil action will pay its own attorney fees and costs. This general rule can be modified by contract, statute, or a recognized ground in equity.” (citations omitted)); Jaramillo v. Morris, 50 Wn. App. 822, 826-27, 750 P.2d 1301 (1988) (court reversed attorney fee award because the claims concerned professional negligence/malpractice and were not a violation of the Consumer Protection Act). It would be anomalous to award attorney fees in this context but not in other tort cases.

¶39 The facts in Shoemake are similar to the facts of our case. The Shoemakes were seriously injured in a car accident, they hired an attorney to represent them, and the attorney failed to perfect the lawsuit before the statute of limitations ran. 143 Wn. App. at 821. The case was initially dismissed, but the attorney convinced the court to reinstate the claim. Id. at 821-22. He failed to appear for the scheduled trial, and the court dismissed the Shoemakes’ complaint. Id. at 822. The attorney never told the Shoemakes about the events; instead, he lied to them for years. Id. The trial court awarded the Shoemakes attorney fees, but the Court of Appeals reversed the award. Id. at 823, 832. It rejected the argument that an injured client was entitled to attorney fees in a “malpractice action based on their breach of fiduciary duty claims.” Id. at 830. “Attorney fees may be awarded only if authorized by contract, statute, or a recognized ground in equity.” Id. The court concluded that “breach of fiduciary duty by a lawyer is not a recognized equitable ground upon which to award attorney fees under Washington law, the trial court erred in [awarding attorney fees].” Id. The Court of Appeals also noted, “ Washington courts have not recognized the ordinary legal malpractice action as one in which attorney’s fees can be recovered as part of the cost of litigation.’ ” Id. at 832 (quoting Kelly, 62 Wn. App. at 155). We denied review of the attorney fee award issue while accepting review of other issues. Shoemake, 168 Wn.2d at 197.

¶40 The approach taken by the court in Shoemake follows the rule as set out in the Restatement:

Like other civil litigants, the winning party in a malpractice action ordinarily cannot recover its attorney fees and other expenses in the malpractice action itself, except to the limited extent that the jurisdiction allows the recovery of court costs. The rule barring fee recovery has exceptions, which may be applicable in a malpractice action in appropriate circumstances. For example, many jurisdictions allow recovery of attorney fees against a plaintiff or defendant that litigates in bad faith.

Restatement (Third) of the Law Governing Lawyers § 53 cmt. f at 392-93. We hold that plaintiffs in legal malpractice cases are not automatically entitled to attorney fees.

¶[41 None of the remaining issues presented by Schmidt are errors or merit discussion.⁵

CONCLUSION

¶42 We reverse the Court of Appeals and affirm the trial court’s judgment. We hold that the uncollectibility of an underlying judgment is an affirmative defense to legal malpractice that defendant-attorneys must plead and prove. We also hold that the trial court properly denied emotional distress damages because Coogan’s actions were not particularly egregious, nor was the subject matter personal.

C. Johnson and Owens, JJ., concur.

1 The Court of Appeals opinion followed our decision in Schmidt v. Coogan, 162 Wn.2d 488, 173 P.3d 273 (2007). In Schmidt, we held that Schmidt produced enough evidence of Grocery Outlet’s constructive notice of the dangerous condition to withstand a motion for judgment as a matter of law. Id. at 492-93. Therefore, we reversed the Court of Appeal’s holding that Coogan should have been granted judgment as a matter of law and directed the court to consider the remaining issues on appeal. Id.

2 Schmidt worked at Coogan’s law office for a portion of the time he was representing her. Their relationship extended beyond a simple attorney-client relationship.

3 We do not understand the dissent’s accusation that our opinion “discounts the special nature of the attorney-client relationship and relies on a faulty analogy between attorney malpractice claims and negligent infliction of emotional distress ... claims involving strangers.” Dissent at 686. Unlike the dissent, we have considered out-of-state authorities and a leading treatise on lawyers, all analyzing this very issue in the context of lawyering. It is the dissent that ranges far afield of the attorney-client relationship.

4 The negligence basis for attorney malpractice and the bad faith standard are distinct theories of liability. Coventry, 136 Wn.2d at 280 (noting that “an insured is not entitled to base a bad faith or [Consumer Protection Act, chapter 19.86 RCW] claim against its insurer on the basis of a good faith mistake”); First State Ins. Co. v. Kemper Nat’l Ins. Co., 94 Wn. App. 602, 612, 971 P.2d 953 (1999) (“the plaintiff is entitled to a jury verdict on theories of either negligence or bad faith, independent of each other because a party may fail to use ordinary care yet still not act in bad faith” (footnote omitted)).

5 The trial court did not err when it denied Schmidt’s motion to amend to add a claim for outrage/reckless infliction of emotional distress. The Court of Appeals held, “[T]he trial court did not abuse its discretion in denying Schmidt’s motion to amend her complaint because she sought to amend the complaint only after an undue delay and an amended complaint would have worked an undue hardship on Coogaris defense.” Schmidt, 171 Wn. App. at 611-12. The court noted that the amendment was proposed “well over a decade after the alleged infliction of emotional distress occurred, and well after the first trial established Coogaris liability for negligence in failing to comply with the statute of limitations____” Id. at 612. Allowing the amendment “would have broadened the trial’s scope and forced Coogan to reformulate his defense strategies.” Id. We agree. It was not an error to deny the motion to amend.