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Balinski v. Baker

Superior Court of Delaware, New Castle

August 22, 2013

DARRELL J. BAKER, ESQUIRE, DARRELL J. BAKER, ESQUIRE, P.A., a Delaware Professional Association, and ABER, GOLDLUST, BAKER & OVER, a Delaware association of law practices, Defendants.

Submitted: August 5, 20130

Upon Defendants' Motion to Dismiss Claim on the Pleadings

Richard M. Welsh, Esquire, Kevin W. Gibson, Esquire, Gibson & Perkins P.C., Wilmington, Delaware, Attorneys for Plaintiff.

Chase T. Brockstedt, Esquire, Baird, Mandalas, Brockstedt, LLC, Lewes, Delaware, Gregory S. Hyman, Esquire, Amy B. Goldstein, Esquire, (pro hac vice), Kaufman, Dolowich & Voluck, LLP, Hackensack, New Jersey, Attorneys for Defendants.



I. Introduction

Defendants Darrell J. Baker, Esquire, Darrell J. Baker, Esquire, P.A., and Aber, Goldlust, Baker & Over (collectively, the "Defendants") filed a motion for judgment on the pleadings in this legal malpractice action. In the Complaint, Plaintiff Jeanette Balinski claims Mr. Baker, in his capacity as a Delaware lawyer and while employed by Defendant law firms, breached his professional duty of care and committed professional negligence. He did so, she claims, in the course of representing Mrs. Balinski in a personal injury action arising from an automobile accident in which Mrs. Balinski was a passenger in a vehicle driven by her husband. Mr. Baker advised her to sign a settlement agreement and release (the "Release") which Mrs. Balinski complains, by its terms, now prevents her from pursuing a negligence action against Dr. Morris Peterzell, one of the physicians who treated her for injuries resulting from the traffic accident, and Plaza Medical Associates ("Plaza Medical"), Dr. Peterzell's employer.

Defendants say that the Release does not cover Dr. Peterzell or Plaza Medical. Because neither Dr. Peterzell nor Plaza Medical were named in the Release, named in the underlying suit, nor received any consideration in exchange for the Release, Defendants argue Mrs. Balinski is not barred from filing her medical negligence claim against them. At oral argument, Plaintiff's counsel suggested that the instant claim in this suit is warranted because Mrs. Balinski has received advice from several medical malpractice attorneys who each purportedly believe the Release bars a negligence suit against Dr. Peterzell and Plaza Medical. Notably, Mrs. Balinski has never filed suit against Dr. Peterzell or Plaza Medical, therefore neither party's representation of the viability of the medical negligence claim has been tested.

Defendants conceded at oral argument that even if their motion were granted, this case would continue on Mrs. Balinski's additional claims not related to her allegedly forfeited right to sue Dr. Peterzell and Plaza Medical.[1] Because the Court finds the Release does not cover Dr. Peterzell or Plaza Medical, Defendants' motion is GRANTED as to that claim of negligence.

II. Factual Background

On June 25, 2010, Jeanette Balinski was a passenger in her own vehicle driven by her husband, Joseph Balinski, when they were involved in a two-car collision in the southbound lane of DuPont Highway in Wilmington, Delaware.[2] In the collision, Mrs. Balinski injured her chest and right shoulder. She filed a personal injury claim with Nationwide Mutual Insurance ("Nationwide") and hired Mr. Baker to represent her in connection with that benefits application.[3] MRI tests revealed that Mrs. Balinski had torn her right rotator cuff.[4] Although her treating physician recommended surgery to correct the tear, Mrs. Balinski couldn't have the operation until August 2011, more than a year later.[5] Following the surgery, Mrs. Balinski's treating physician recommended physical therapy to rehabilitate her shoulder.[6]

In September 2011, Mrs. Balinski scheduled an appointment with MX Physical Therapy, but Mr. Baker's paralegal contacted Mrs. Balinski while she was attempting to check in at MX and directed her to instead see Dr. Peterzell at Plaza Medical, located in the same building on a different floor.[7] Mrs. Balinski claims she did not receive adequate physical therapy over the course of approximately two months of treatment with Dr. Peterzell.[8] She also claims that in November 2011, Dr. Peterzell negligently instructed her to perform an unsupervised "cable lat pulldown" exercise which caused a recurrent rotator cuff tear and required additional surgery.[9]Following that incident, Mrs. Balinski discontinued treatment with Dr. Peterzell.[10]

On June 25, 2012, Mr. Baker, as counsel for Mrs. Balinski, advised Mrs. Balinski to enter into a settlement agreement that released Nationwide and Mr. Balinski from all further liability related to the automobile accident.[11] In signing the agreement, Mrs. Balinski also released:

[A]ll other persons, firms, entities, and corporations, whether named or unnamed and whether known or unknown, against whom Releasor now has or may in the future have for each and all claims, suits, actions, causes of actions, administrative claims, statutory claims, damages, and claims for damages and injuries arising out of or in any way related to the Accident, including but not limited to, all debts, dues, sums of money, covenants, contracts, ...

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