Until Ewing v Westport Insurance Company, Louisiana’s Supreme Court had not determined whether damages in a legal malpractice suit should be limited to the collectable or recoverable amount from the underlying lawsuit. The Court ruled that collectibility of damages is not an affirmative defense in a legal malpractice action. In doing so, the ruling made Louisiana the first state not to allow collectibility as an affirmative defense or make it an additional essential element in a malpractice case.
Other states have ruled that collectibility be implemented as a defense or element to limit the plaintiff from having any greater rights in a malpractice than she would in the underlying lawsuit. However, this Article demonstrates why the Court in Ewing was right in finding against collectibility, which is directly against the laws and public policy of the State of Louisiana. Louisiana law allows several avenues to collect a monetary judgment after it is issue, such as granting a ten-year period to collect. This prohibits the Court from viewing a defendant’s pecuniary value as a snapshot in time. Additionally, Louisiana has long held that injured parties have the right to be made whole again, and if collectibility was allowed in would take that right away by limiting the injured party from recovering the full amount of her damages. The Court correctly applied the laws and public policy in Ewing to preserve the rights of an injured party.
Fourcade, John, Ewing v Westport Insurance Company: Damages Recoverable or Damages Collectable? (April 15, 2021).