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STATE OF MICHIGAN
COURT OF APPEALS


DALLAS FORYSTEK, Plaintiff-Appellant, v JOSEPH A. GOLDEN and SOMMERS, SCHWARTZ, SILVER & SCHWARTZ, P.C., Defendants-Appellees.

UNPUBLISHED March 20, 1998

No. 202816 Oakland Circuit Court LC No. 95-509847 NM

Before: McDonald, P.J., and O'Connell and Smolenski, JJ. PER CURIAM. In this legal malpractice case, plaintiff appeals as of right the order of the trial court granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). We reverse and remand. Plaintiff's claim stems from defendants' representation of plaintiff in an employment and fraud claim against plaintiff's former employer. In 1987, during plaintiff's employment with Chrysler Corporation, he was injured in an automobile accident. In 1991, plaintiff was placed on medical leave status because, after knee replacement surgery, he was no longer able to perform his work. In 1992, a Chrysler doctor contacted plaintiff's doctor to change plaintiff's prognosis so that plaintiff would be able to return to work under a special position; plaintiff's doctor consented. When plaintiff returned to work, however, the personnel department told him that his special position was no longer available, and that he would be placed on layoff status. Allegedly, Chrysler never had a position for plaintiff and merely desired to remove plaintiff from his long-term disability (LTD) status. Defendant Joseph Golden began representing plaintiff in July of 1992. Golden contacted Gregory Muzingo, an attorney for Chrysler, and began negotiations related to plaintiff's claim. On January 29, 1993, plaintiff entered into a retainer agreement with defendants concerning representation for his worker's compensation and employment/fraud claim against Chrysler. O n April 13, 1993, Golden filed suit against Chrysler on behalf of plaintiff. In November of 1993, another attorney at defendant law firm settled plaintiff's worker's compensation claim for $95,000, together with a waiver

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of any claim or lien on an action with regard to the automobile accident that was settled nine months earlier. Although the record is not entirely clear, it appears that in late 1993 Muzingo and Golden orally agreed to all of the conditions of settlement regarding plaintiff's employment c laim. According to plaintiff, the terms of the settlement included the following terms: plaintiff would be placed on total and permanent disability and would be entitled to back pay; Chrysler would allow plaintiff to participate in the Executive Automobile Leasing Program; and plaintiff would receive life insurance, disability benefits, and a written guarantee that he would not be subject to medical reviews by Chrysler's claims administrator, Aetna's employees or Chrysler's doctors. According to defendants, the settlement provided that plaintiff would receive $190,000 (split between the worker's compensation and employment cases), LTD benefits, medical insurance, life insurance and title to the automobile in plaintiff's possession at the time of settlement. On December 13, 1993, plaintiff was asked to sign a release from Chrysler at Golden's office. The release provided that Chrysler would pay plaintiff $95,000 in damages for his alleged injury and would reinstate him to his proper disability leave status effective January 1, 1994. Moreover, reinstatement to the "proper" leave status was a "prerequisite to his receipt of a disability retirement consistent with the terms and conditions of the applicable disability retirement plan." The release was silent as to many of the conditions of settlement. Plaintiff initially refused to sign the release, but was "strongly advised" to do so by Golden and was told that he would get what he was "entitled" to receive under the settlement. Thereafter, plaintiff encountered difficulties in obtaining timely and accurate LTD payments from Chrysler. Moreover, plaintiff did not receive any confirmation of medical insurance, life insurance benefits, or a vested pension. In December of 1995, plaintiff filed suit against defendants claiming professional negligence and misrepresentation. Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(10) arguing that the problems associated with plaintiff's receipt of LTD benefits were attributable to the administration of the benefits through an insurance company (disability administrator) unconnected with Chrysler, and thus that the problems were not attributable to defendants' failure to incorporate the terms of the settlement agreement into the release. The trial court held that there was no causal relationship between the alleged negligence of defendants and the difficulties that plaintiff encountered when he subsequently attempted to get benefits from the employer. The court also held that defendants were not liable because settlement is an exercise of judgment and not a basis for malpractice. Plaintiff argues on appeal that the trial court erred in granting summary disposition in favor of defendants. Plaintiff specifically argues that defendant Joseph Golden breached the applicable standard of care by failing to require that all terms and conditions of plaintiff's settlement be spelled out in the release/settlement agreement, and that since the adequacy of the agreement was in dispute, the questions of proximate cause and damages present questions of fact for the jury. Plaintiff also argues that since there was conflicting expert testimony concerning the reasonableness of Golden's conduct, it is for the jury to determine whether such conduct is protected by the "attorney's judgment rule." We agree with both of plaintiff's contentions.

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Pursuant to MCR 2.116(C)(10), a party can move for judgment on all of a claim on the grounds that "there is no genuine issue as to material fact, and the moving party is entitled to judgment . . . as a matter of law." The party opposing the motion has the burden of

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demonstrating a genuine and material issue of disputed fact. Skinner v Square D Co, 445 Mich 153, 160; 516 NW2d 475 (1994). All inferences are drawn in favor of the opposing party and courts should be liberal in finding a genuine issue of material fact. Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995). On appeal, we review a trial court's granting of summary disposition de novo. Royce v Duthler, 209 Mich App 682, 688; 531 NW2d 817 (1995). This Court considers the same documentary evidence that a trial court must consider, including pleadings, affidavits, depositions, and admissions. Boumelhem v Bic Corp, 211 Mich App 175, 178; 535 NW2d 574 (1995). A cause of action for legal malpractice requires proof of the following: (1) an attorney-client relationship; (2) negligence in the legal representation of the plaintiff; (3) the negligence proximately caused the plaintiff's injuries; and (4) the fact and extent of injury. Simko v Blake, 448 Mich 648, 655; 532 NW2d 842 (1995). The first issue for our resolution concerns the third prong

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