This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1998).




Jack Furrow,



Greg M. Corwin, Esquire, et al.,


Filed June 15, 1999


Anderson, Judge

Hennepin County District Court

File No. 968378

Richard E. Bosse, Law Offices of Richard E. Bosse, Chartered, 303 Douglas Avenue, P.O. Box 315, Henning, MN 56551 (for appellant)

Lewis A. Remele, Jr., Shalandra D. Ballard, Bassford, Lockhart, Truesdell, and Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.



Appellant challenges the trial court's grant of summary judgment dismissing his malpractice claim against respondent. Because respondent could not have been the proximate cause of appellant's damages, we affirm.


Appellant Jack Furrow had been on leave from his position at the Metropolitan Transit Commission (MTC). On February 23, 1990, Furrow returned to work because he was no longer receiving worker's compensation benefits and had been placed on the light duty program. When he arrived at work, however, he became very emotional stating that he could not do anything because his leg hurt but that he did not want to go home because he was afraid he would kill himself. His foreman told him that he would obtain help for him and, as they were preparing to leave, appellant handed his lunch box to a supervisor and stated, "Be careful with that; it's full of explosives." Appellant was then taken to a mental health clinic for an examination. A doctor examined appellant and issued a 72-hour hold on him, concluding that appellant was a danger to himself and others. The police, however, refused to hold appellant, so he left the clinic.

Appellant returned to work that day and was arrested for making a terroristic bomb threat. The charges were later dismissed on the condition that appellant undergo a psychological evaluation and, if necessary, treatment. MTC, however, terminated appellant's employment due to this misconduct. Because appellant was a union member and a veteran, he was entitled to both a discharge hearing and a veteran's preference hearing, which were combined into one hearing with appellant's consent.

Respondent Gregg Corwin represented appellant at the hearing. The arbitrator denied appellant's grievance and request for reinstatement after finding that MTC's discharge of appellant on the basis of misconduct was "just and merited."

On April 16, 1991,[1] after the arbitrator issued his opinion, appellant filed an application for social security disability insurance benefits. On the application, appellant stated that he "became disabled and unable to work because of my disabling condition on February 23, 1990," and that "I can't work as a result of leg, foot, arm, hand, heart, liver, diabetes, hernia and psychological problems." He also asserted, "Nobody in their right mind would even think of hiring me."

After reviewing appellant's medical records, the administrative law judge (ALJ) concluded that appellant had been under a disability as defined in the Social Security Act since February 23, 1990. In the decision, the ALJ recognized that

[a]lthough the medical record indicates that [appellant's] physical impairments are severe, the evidence strongly suggests that he has mental impairments which are equal, if not greater, in severity to the physical impairments.

* * * *

[A]ppellant cannot return to his past work as an automobile mechanic because the demands of that job (medium to heavy) exceed his current residual functional capacity.

In June 1996, appellant filed a complaint against respondent Corwin alleging that respondent was negligent in his representation of appellant at the discharge hearings.

Respondent filed three separate motions for summary judgment. This appeal is from the district's court's order granting the third motion for summary judgment, which dismissed appellant's claims against respondent with prejudice. Based on appellant's admissions and the social security determination, the district court found that appellant was unable to work as a mechanic for MTC independent of respondent's conduct.

Appellant contends that the district court erred in granting the motion for summary judgment.


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 Minn. R. Civ. P. 56.03. This court must view 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). The nonmoving party must establish a genuine issue of material fact through 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, the following elements must exist: (1) "an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts proximately caused plaintiff's damages; and (4) that, but for the alleged legal malpractice, plaintiff would have been successful in the underlying action." Rohricht v. O'Hare, 586 N.W.2d 587, 588 (Minn. App. 1998) (citing Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn.1983)). Failure to prove any one of the elements defeats the malpractice claim. Blue Water Corp., 336 N.W.2d at 282.

The district court granted respondent's summary judgment motion after concluding that, even if respondent had been negligent, he could not have been the proximate cause of appellant's failure to achieve reinstatement to his position at MTC. The district court first recognized that appellant asserted, under oath and under penalty of perjury, to the Social Security Administration, that he had to stop working because of his condition(s) on February 23, 1990. Appellant also asserted that he could not work from that day forward due to his disabling condition. Second, the district court emphasized the Social Security Administration's determination that: (a) appellant had been disabled and unable to work since February 23, 1990, and (b) appellant was impaired and therefore precluded from doing his past work. Based on this determination, the district court concluded that, because prior conditions precluded appellant from reinstatement, it cannot be respondent's fault or the result of respondent's conduct that appellant was not reinstated.

The United States Supreme Court recently held that an individual who pursues and receives Social Security Disability Insurance (SSDI) benefits is not automatically estopped from also pursing an action under the Americans with Disabilities Act of 1990 (ADA). Cleveland v. Policy Management Systems Corp., 67 U.S.L.W. 4375, 4376 (May 24, 1999). Appellant raises a similar argument, contending that (1) his statements in his social security application should not preclude him from now arguing that he was not actually disabled until a later date; and (2) this disability was due in part to the actions of respondent. We disagree with appellant's arguments and distinguish the holding in Cleveland.

In Cleveland, the plaintiff applied for and received social security disability benefits, claiming that her employer terminated her employment because she "`could no longer do the job' in light of her `condition.'" Id. She later brought an ADA claim against her employer contending that the employer terminated her employment without reasonably accommodating her disability. Id. at 4377. In holding that the plaintiff was not automatically precluded from bringing this claim, the Supreme Court explained that, despite the appearance of conflict, there are "many situations in which an SSDI claim and ADA claim can comfortably exist side by side," in part, because the SSDI claim "does not take the possibility of `reasonable accommodation' into account." Id. at 4378. But, the Supreme Court also emphasized that, in order to survive summary judgment, the plaintiff must provide a sufficient explanation for why these claims are not inconsistent. Id.

Appellant's inconsistent claims, however, cannot "exist side by side." In his application for social security benefits, appellant stated under oath, that (1) he had been disabled and unable to work since February 23, 1990, the day he was discharged from his employment at MTC; and (2) "[n]obody in their right mind would even think of hiring me." In his malpractice action against respondent, appellant now contradicts that sworn statement. Instead, he contends that he was able to work at the time of his discharge, but that the discharge and the hearing aggravated his pre-existing condition and that new conditions developed which caused his disability. Based on this record, we agree with the district court that appellant is unable to refute his previous sworn testimony to now show that he did not become disabled and unable to perform his work at MTC until a date later than February 23, 1990.

Furthermore, the evidence appellant presented, attempting to demonstrate that he was not disabled until a later date, completely fails to support that argument, and therefore, does not "create a genuine issue of fact sufficient to survive summary judgment." Id. at 4379 (explaining that when plaintiff attempts to contradict previous sworn statement asserting "`total disability,'" the court should require that plaintiff provide sufficient explanation of any inconsistency in order to defeat summary judgment).

Based on appellant's own admissions, he was disabled from performing his job at MTC on February 23, 1990, and therefore, respondent was not the proximate cause of appellant's damages. Accordingly, there was no error in granting the motion for summary judgment.


[1] Although appellant's application was initially denied, he later filed a request for reconsideration. Because April 16, 1991, was the date of the initial application, it became the protective filing date.