James Allmendinger, A sole practitioner in Durham, NH

At-a-Glance Contributor: James Allmendinger, A sole practitioner in Durham, NH

Merrimack No. 2017-0035

August 8, 2018

Reversed and Remanded


  • Whether settlement of an underlying action bars suit, as a matter of law, against an attorney for malpractice arising from that underlying action.


The plaintiff, a pathologist, was a member of a practice group that was terminated by Wentworth Douglas Hospital. As an out- growth of that, the plaintiff’s attorney sought another attorney to represent the plaintiff in a wrongful discharge action. Attorney Grau undertook that representation.

Plaintiff’s attorney asked Attorney Grau to suggest what information or documents the plaintiff and her group might need for the anticipated wrongful discharge lawsuit. Grau responded with a list of documents and records he wanted the plaintiff to “take.” The plaintiff then apparently asked her husband, also a doctor, to access her practice group’s computers connected to the hospital’s net- work. The plaintiff’s husband and another doctor in the plaintiff’s practice then down- loaded confi              documents and destroyed certain electronic data.

When the hospital learned of the data breach, the hospital sued the plaintiff, her husband, and her practice group in federal district court for violations of the Computer Fraud and Abuse Act. That lawsuit prompted numerous counterclaims. Those parties set- tled that lawsuit and signed general releases. One paragraph of that release states that no future lawsuits will be fi against any third parties arising from the prior relationship between the hospital, the plaintiff and her practice group.

The question on appeal is whether that release is broad enough to protect Attorney Grau and his law fi  Upton and Hatfi from further legal action relating to their representation in regard to the wrongful discharge claim. The answer is “no.”

The Court concluded that the language at issue here is “simply insuffi     to cover the instant malpractice claim. “To the extent that [the hospital] may have desired also to protect itself from becoming ‘embroil[ed]’in litigation between the plaintiff and the instant defendants, that ‘unmanifested state[] of mind,’has no bearing upon our interpretation of the contract’s [i.e., the settlement agree- ment’s] unambiguous language.”

Therefore, plaintiff’s claims against her


former law fi in the wrongful discharge claim are not barred by the settlement agree- ment in the underlying lawsuit.


Daniel E. Will and Joshua M. Wyatt on the brief, and Mr. Will orally, of Devine, Mil- limet & Branch of Manchester, and John F. Skinner, III of Associated Attorneys of New England, of Manchester on the brief, for the plaintiff.  Andru H. Volinsky and Christina

  1. Ferrari of Bernstein, Shur, Sawyer & Nelson of Manchester on the brief, and Mr. Volinsky orally, for the defendants. William
  2. Christie of Shaheen & Gordon of Concord on the memorandum of law for the intervenor, Wentworth-Douglas Hospital.