FAUTHEREE v. McCAFFREY

FAUTHEREE v. McCAFFREY
2006 OK CIV APP 94
141 P.3d 570
Case Number: 101 051
Decided: 08/04/2005
Mandate Issued: 08/24/2006
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

PATSY FAUTHEREE, individually and as Personal Representative of the ESTATE OF CALVIN FAUTHEREE, Deceased, Plaintiff/Appellant,
v.
GEORGE J. McCAFFREY, individually, ANGELA THOMPSON, individually, and McCAFFREY & GIBSON, P.L.L.C., an Oklahoma Professional Limited Liability Corporation, Defendants/Appellees,
and
LOREN F. GIBSON, individually, and K. DAVID ROBERTS, individually, Defendants.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE DANIEL L. OWENS, JUDGE

AFFIRMED

Michael E. Smith, HOLLOWAY, DOBSON & BACHMAN, Oklahoma City, Oklahoma, for Plaintiff/Appellant,
Jeffrey R. Schoborg, James E. Green, Jr., CONNER & WINTERS, P.C., Tulsa, Oklahoma, for Defendants/Appellee George J. McCaffrey and McCaffrey & Gibson, P.L.L.C.,
Charles F. Alden, III, Alvin R. Leonard, HUDSON, ALDEN & LEONARD, Oklahoma City, Oklahoma, for Defendant/Appellee Angela Thompson.

Kenneth L. Buettner, Chief Judge:

¶1 Calvin Fautheree was last exposed to asbestos in the workplace in 1986. He was diagnosed with cancer in January 1998 and died December 7, 1998 from abdominal mesothelioma. His widow, Patsy Fautheree, signed a retainer contract with Defendant McCaffrey and Gibson, P.L.L.C. (Law Firm) the same day, which filed a workers' compensation claim March 29, 1999. That claim was dismissed August 27, 2002 on the ground that Fautheree had failed to request a hearing within three years as required by the Workers' Compensation Act.

¶2 McCaffrey contracted with an attorney, K. David Roberts, to handle the Fautheree workers' compensation file, who then contracted with Angela Thompson to represent Fautheree in the workers' compensation death claim.

¶3 With respect to appellate review of a grant or denial of summary judgment, "...[a]lthough a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate decision turns on purely legal determinations, i.e. whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions. Therefore, as the decision involves purely legal determinations, the appellate standard of review of a trial court's grant of summary judgment is de novo. Carmichael v. Beller,

¶4 The record reveals that Fautheree would not have been able, as a matter of law, to carry her burden of proving legal malpractice, despite the inaction of her lawyers. The elements of her cause of action are: (1) existence of an attorney-client relationship; (2) breach of a lawyer's duty to the client; (3) facts constituting the alleged negligence; (4) a causal nexus between the lawyer's negligence and the resulting injury (or damage); and (5) but for the lawyer's conduct, the client would have succeeded in the action. Manley v. Brown, 1999 OK ¶ 8,

¶5 Title

¶6 Mesothelioma is a cancer of the mesothelium (protective sac around the body's internal organs), usually caused by asbestos exposure, and not symptomatic until years after exposure. Even had the workers' compensation case gone to hearing, the court would have been compelled to find against Fautheree because the claim was not brought within two years of last exposure (1986), and the legislature has not specified an exception for mesothelioma. "It is well-established that the Workers' Compensation Court is a creature of legislative origin with jurisdiction strictly limited to those powers conferred by the Workers' Compensation Act." Graves Dairy Farm v. Evans,

¶7 For the reason stated, we AFFIRM summary judgment in favor of Defendants/Appellees.

HANSEN, J., specially concurs with separate opinion; and JOPLIN, P.J., concurs.

Carol M. Hansen, J., specially concurring:

¶1 "Mesothelioma is a rare tumor arising from the mesothelial cells lining the pleura pericardial and peritoneal cavities. The latency period of mesothelioma ranges from twenty to forty years. The disease may be compared to asbestosis, which is a pneumoconiosis produced by inhaling asbestos fibers. It is characterized by bilateral diffuse interstitial fibrosis of the lung parenchyma." Ganske v. Spahn and Rose Lumber Co. 580 N.W.2d 812 (Iowa 1998).

¶2 In Urie v. Thompson,

¶10 Although in my view, Appellees dropped the ball in representing this Claimant, Oklahoma law is clear. Claimant would not have prevailed in her workers' compensation action. The Legislature, in its wisdom, did not include "asbestos related" diseases such as mesothelioma, in providing an exception to the §43(A) statute of limitations. However ill-advised, the Legislature has spoken. Accordingly, I must concur.

FOOTNOTES

1 85 O.S. 2001 § 43 (B): When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within three (3) years from the date of filing thereof or within three (3) years from date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for final adjudication of the right to claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.

2 Defendant K. David Roberts was dismissed by Plaintiff November 20, 2003. Defendant Loren Gibson was dismissed March 23, 2004.

3 85 O.S. 2001 § 43 (A) has not been amended with respect to the issue at hand.