This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Rick L. Norton, et al.,


Kim C. Justesen, et al.,


Filed April 18, 2000

Anderson, Judge



Hennepin County District Court

File No. 9813997



Paul A. Sortland, Sortland Law Office, P.C., 33 South Sixth Street, Suite 4100, Minneapolis, MN  55402-3601 (for appellants)


David A. Donna, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondents)



Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N



            Appellant Rick Norton challenges the district court’s grant of summary judgment in favor of respondents in a legal-malpractice action.   Because there is no genuine issue of material fact that respondents’ actions were either the proximate cause of appellant’s alleged injury or negligent, we affirm.                     


            In 1990, appellant Rick Norton was severely injured while employed by the Burlington Northern Railroad (Burlington).  Appellant brought a personal injury action against Burlington and also sought retirement benefits under the Railroad Retirement Act (RRA). 45 U.S.C. § 231 (1988). The RRA offers disabled employees an occupational-disability annuity (annuity) if they have accumulated twenty years (240 months) of creditable service before suffering the disability.  45 U.S.C. § 231 a(a)(1)(iv)(A)(1988).  Appellant had only 169 months of creditable service prior to the accident. 

Appellant contacted the Railroad Retirement Board (RRB) to determine if he could allocate injury settlement proceeds to cover “time lost” for certain months that he was not working in the 1970’s and 1980’s.  In a letter to appellant, the RRB stated that under certain circumstances a railroad employee may allocate proceeds from an injury settlement to cover specific periods of “time lost” and thereby accumulate additional months of creditable service.  The letter also stated that settlement proceeds could only be allocated for time following an injury, not time preceding an injury.  See 45 U.S.C. 231 (h)(2) (1988); 20 C.F.R. 211.3 (1989); RRB Reporting Instructions to Employers, chp. 16, part IV (1990).

Appellant brought his personal-injury action against his employer under the Federal Employers’ Liability Act (FELA).  45 U.S.C. § 51 (1988).  Appellant retained respondents Kim Justesen and the law firm of Eckman, Strandness & Egan, P.A. to represent him in his FELA action.  Respondents negotiated an agreement and the parties settled the FELA claim for $200,000.   In addition to the $200,000, appellant insisted that the settlement agreement include an allocation for “time lost.”

After the settlement was finalized, the RRB denied appellant’s request for an annuity.  The RRB explained that appellant did not qualify to use his settlement allocation for “time lost” because RRB guidelines only allow the allocation of settlement proceeds for periods of time that follow an accident; therefore, appellant could not use his settlement proceeds to cover time lost in the 1970’s and 1980’s.  Appellant hired a new attorney and appealed the RRB’s decision; ultimately, the U.S. Court of Appeals for the Eighth Circuit denied appellant’s petition for review, concluding that the RRB had properly denied appellant’s request for an annuity.   Norton v. Railroad Retirement Bd., 69 F.3d 282 (8th Cir. 1995). 

Appellant also attempted to void the settlement agreement with Burlington, arguing that he would not have accepted the settlement agreement but for his mistaken belief that RRB would accept part of the settlement towards an annuity.  The district court granted summary judgment for Burlington, and stated that appellant entered into the settlement agreement with knowledge of the risks involved.

            Appellant then filed this legal-malpractice action against respondents.  Appellant asserts that respondents assured him that the RRB would accept his annuity allocation and that, but for their assurances, he would not have agreed to the $200,000 settlement of his FELA action against Burlington.  The district court granted respondents’ motion for summary judgement and ruled that the settlement with Burlington had nothing to do with appellant’s qualification for an annuity, and that respondents’ acts or omissions were not the proximate cause of appellant’s failure to qualify for the annuity. 



On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); see also Minn. R. Civ. P. 56.03.  This court reviews the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  In order to establish a genuine issue of material fact the nonmoving party must present affirmative evidence tending to support each element of his or her claim.  Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989). 

To prevail in a legal malpractice action, appellant must show: 


(a)   the existence of an attorney-client relationship;

(b)  acts amounting to negligence or breach of contract;

(c)  that such acts were the proximate cause of the plaintiff’s damages; and

(d)  that but for defendant’s conduct, the plaintiff would have been successful in the action.


Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 408 (Minn. 1994) (citation omitted).  Failure to present evidence tending to support any one of the elements defeats the malpractice claim.  Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 282 (Minn. 1983). 


The first element is clearly met, as the parties agree that there is an attorney-client relationship between Rick Norton and respondents.[1]  The second element, however, negligence, is the subject of significant dispute.  But more important than the question of negligence is the dispositive issue of causation.  

In order for respondents’ conduct to be the proximate cause of appellant’s injury

[i]t must appear that *** the act is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others.


Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992).  In this case, there is no evidence that respondents could have done anything to secure an annuity for appellant. The RRB’s annuity policy requires 240 months of creditable service.  Appellant did not have 240 months of creditable service.  Nor was appellant eligible to receive credit for “time lost.”  The RRB guidelines provide that settlement allocations can only be used to cover “time lost” for periods following an injury.  45 U.S.C. 231 (h)(2) (1988); 20 C.F.R. 211.3 (1989); RRB Reporting Instructions to Employers, chp. 16, part IV (1990).  Respondents could not have structured the settlement any differently to ensure that appellant received credit for his missing time.  

Appellant also claims that he would not have settled for $200,000 had he known that the RRB might not accept his claim for the annuity.  But appellant does not offer any evidence that his settlement amount would have been any different had he known that the RRB would deny his claim for an annuity.  John Boylon, appellant’s expert witness, testified that he believed the trial value of appellant’s case to be between $250,000 and $500,000.  Boylon further testified that appellant thought he was bargaining with Burlington for the annuity and that his agreement to settle for $200,000 was in consideration for receiving that annuity.  Despite this testimony, appellant has failed to make the necessary link between the value of his settlement and his annuity eligibility.  Nothing in the written FELA agreement reflects an agreement, express or implied, to settle appellant’s FELA claim for less in consideration for the annuity.  Further, the evidence shows that appellant himself was aware of the doubtful nature of his annuity claim.

The RRB has sole authority for determining annuity eligibility.  Railroad Retirement Act, 45 U.S.C. § 231f (b)(1988).  Although the RRB allows an injured party to allocate FELA settlement proceeds to “time lost,” the FELA allocation is not a binding determination on the RRB nor is it a guarantee that the RRB will approve an individual’s application for an annuity.  Appellant seeks to hold his lawyers responsible for failing to achieve that which the U.S. Court of Appeals for the Eighth Circuit has concluded is legally impossible.  Norton v. Railroad Retirement Bd., 69 F.3d 282, 283 (8th Cir. 1995).

Respondents were not the proximate cause of appellant’s alleged damages.  Because appellant has failed to make a prima facie case for malpractice, the district court did not err in granting respondents’ motion for summary judgment.


The lack of causation here is dispositive, but we also question whether respondents’ actions were negligent.  In order to establish negligence, expert testimony is generally required to show the applicable standard of care and that the standard of care was breached.  Wartnick, 490 N.W.2d at 116.  Appellant’s expert testified that, in his opinion, respondents should have (1) made certain that the RRB would award an annuity before settling with Burlington, or (2) made the settlement contingent on approval of the annuity by the RRB.  Appellant asserts that respondents negligently represented him by failing to do these two things.

As to the contingency possibility, appellant’s expert admits that he has never negotiated such an arrangement and there is no evidence in the record indicating that anyone else has experience in negotiating such an outcome.  As to the possibility of resolving the annuity issue before settling with Burlington, appellant’s expert admitted that resolving the annuity issue could take anywhere from months to years.

Further, appellant’s expert also testified that respondents’ duties would have been discharged if they had clearly explained the consequences of signing the FELA settlement and the uncertainty of the RRB annuity to appellant.  Although there are no written warnings, there is evidence that respondents discussed the consequences of the FELA settlement and the uncertainty of the RRB annuity with appellant.  John Stillwell, the settlement negotiator for Burlington, stated that both he and Mr. Justesen warned appellant that the RRB might not accept the annuity allocation set out in the settlement.  The extent and the content of the oral discussions are in dispute, but appellant nevertheless should have known that the RRB might not approve his annuity request. Through his own correspondence with the RRB, appellant learned, prior to the settlement, that he could not get credit for “time lost” to cover absences predating his injury.

On this record, particularly given appellant’s knowledge that acceptance of the annuity arrangement by the RRB was an uncertain possibility at best, appellant is unable to establish that respondents were negligent, and he clearly understood that his annuity was by no means “guaranteed” as he alleges his attorney led him to believe.   


[1]Appellant, Rick Norton, claims that an attorney-client relationship exists between respondents and his wife, Georgina Norton.  This court does not find such an attorney-client relationship because Georgina Norton was not part of the contingency-fee agreement, part of the FELA negotiations or settlement, nor was she an intended third‑party beneficiary.