Court hears whether failure to pursue CR 60 relief can sever causation in malpractice suits

A panel of judges heard argument in Minor v. Kimball over whether a plaintiff’s failure to pursue a CR 60 motion can sever proximate causation and preclude recovery in a subsequent legal malpractice action.

Gregory Albert, attorney for Minor Enterprises (Jeff Minor), told the court: "Your honors, the trial court erred by granting summary judgment against my client due to the ruling in Paradise Orchards." Albert argued Paradise Orchards arose in facts without negligence and thus does not stand for the proposition that the absence of a CR 60 filing is a complete defense to malpractice claims.

Drew Gustafson, counsel for the respondents, urged the court to affirm the trial court’s rulings. "We respectfully request this court affirm the trial court's rulings granting summary judgment on causation and denying [the defendant's] motion for partial summary judgment on fee disgorgement and liability," Gustafson said, pointing to precedent he described as treating proximate cause as a legal question in malpractice suits.

The bench pressed both sides on framing. One panel member suggested Paradise Orchards’ opinion could be read narrowly as finding no breach, which in turn undercut causation; counsel debated whether that passage should be confined to breach or read as severing proximate cause when an available judicial remedy (such as a CR 60 motion) was not pursued. Counsel also disagreed about whether the issue is one for the jury (allocation or mitigation) or suitable for summary adjudication as a matter of law.

Albert told the court that practical realities informed his position: filing a CR 60 motion, he said, can disqualify counsel from later pursuing malpractice claims, impose higher standards (clear and convincing evidence under CR 60), and force plaintiffs to hire separate counsel, sometimes at significant cost. Those burdens, he argued, make automatic exhaustion rules problematic and can turn what he described as a question of fact into a strategic bar to relief.

Gustafson countered that where a plaintiff had an available remedy and failed to pursue it, courts have reasoned that the failure can sever proximate causation. He conceded much of the authority he cited is persuasive rather than binding, and the parties and bench discussed unpublished decisions, concurrences, and whether comparative allocation of fault (assigning percentages) could address combined causation theories.

The argument also touched on remedies: Gustafson suggested that if the court reversed for further consideration of causation, damages might be limited to the costs connected to pursuing CR 60 relief rather than broader malpractice damages, because of an underlying sanction award. The panel asked about comparative-fault-style allocations and whether a jury could apportion responsibility between attorney error and the client’s decision not to pursue available relief.

No decision was announced at argument; the court recessed after counsel completed their remarks. The outcome will determine whether, in this court’s view, the availability and nonuse of a CR 60 remedy ordinarily prevents a legal malpractice plaintiff from proving proximate cause or whether that remains a fact question for the trier of fact.