JANET A PAULOWEIT V VICTOR J MARTINAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
JANET A. PAULOWEIT,
May 22, 1998
VICTOR J. MARTIN, and VICTOR J. MARTIN,
Wayne Circuit Court
LC No. 95-520495 NM
Before: Whitbeck, P.J., and MacKenzie and Murphy, JJ.
Plaintiff appeals as of right an order granting defendants’ motion for summary disposition and
denying plaintiff’s motion for leave to amend the complaint in this legal malpractice case. We affirm.
I. Duty by a Lawyer
Plaintiff alleges that her husband, Walter Pauloweit, consulted with defendants to prepare a will
naming plaintiff as the sole residuary beneficiary and that he expressed his intention that plaintiff should
receive all proceeds from Pauloweit’s “basic” life insurance policy plus $130,000 from his “optional”
life insurance policy. After Pauloweit’s death, plaintiff received nothing under the “optional” policy
because the policy did not designate her as a beneficiary. Plaintiff alleges that this was due to
defendants’ failure to either implement an estate plan consistent with Pauloweit’s wishes, or to instruct
Pauloweit on how to implement his own estate plan through beneficiary designations. Plaintiff filed a
claim against defendants for malpractice claiming that she was a reasonably foreseeable beneficiary of
Pauloweit’s relationship with defendants.
Plaintiff argues that the trial court erred in granting defendants’ motion for summary disposition
because defendants clearly owed plaintiff a duty of care. We disagree. This Court reviews the trial
court's decision on an MCR 2.116(C)(8) motion de novo to determine if the claim is so clearly
unenforceable as a matter of law that no factual development could establish the claim and justify
recovery. Smith v Kowalski, 223 Mich App 610, 612-613; 567 NW2d 463 (1997).
Generally, a client may only bring a legal malpractice action if that client has been damaged by
counsel’s negligence. Absent special circumstances, the attorney cannot be held liable to anyone else.
Beaty v Hertzberg & Golden, PC, 456 Mich 247, 253-255; 571 NW2d 716 (1997). In Michigan,
beneficiaries named in a will may in certain circumstances properly bring a malpractice action against the
attorney who drafted the will. Mieras v DeBona, 452 Mich 278, 308; 550 NW2d 202 (1996).
Plaintiff claims that, under Mieras, any reasonably foreseeable third-party beneficiary of the
attorney-client relationship can sue for malpractice. We disagree. Throughout its opinion, the Mieras
Court carefully confined its analysis to the duty owed to beneficiaries named in a will. The Mieras
Court reasoned that the relationship did not present a conflict of interest because the beneficiaries
named in the will were also third-party beneficiaries of the contract between the attorney and the
testator. Id. at 298-299. Therefore, the attorney owed the beneficiaries a tort-based duty to draft the
documents with the requisite standard of care. Id. at 299.
In the present case, plaintiff was named in the will, but does not allege that Pauloweit’s intent, as
expressed in that will, was frustrated. Rather, plaintiff alleges that she was an unnamed but intended
beneficiary of Pauloweit’s optional life insurance policy and thus defendants owed her a duty. We again
disagree. In Ginther v Zimmerman, 195 Mich App 647, 655; 491 NW2d 282 (1992), this Court
affirmed the dismissal of an action for legal malpractice because the plaintiffs were not named in the will.
Similarly, because plaintiff was not named as a beneficiary of Pauloweit’s “optional” life insurance
policy, and because she cannot show that the intent expressed in his will was frustrated, defendants did
not owe her a duty that would give rise to a legal malpractice claim. The trial court, in its well-reasoned
opinion, therefore did not err in granting defendants’ motion for summary disposition.
II. Denial of the Motion to Amend
Plaintiff argues that the trial court erred in denying her motion to amend the complaint to add
Pauloweit’s estate as a party plaintiff. We decline to consider this argument because plaintiff relies on
grounds which she specifically waived below. People v Shuler, 188 Mich App 548, 551-552; 470
NW2d 492 (1991) (a party may not harbor error as an appellate parachute).
/s/ William C. Whitbeck
/s/ Barbara B. MacKenzie
/s/ William B. Murphy