Wartnick v. Moss & Barnett

Norman Wartnick (plaintiff) owned Midwest Florist Supply Company (Midwest). Robert Nachtsheim was a Midwest salesperson. Wartnick purchased a key-man-insurance policy on Nachtsheim’s life. Wartnick paid the premium even after Nachtsheim left Midwest and started a competing business. Two weeks later, Nachtsheim was murdered. Wartnick retained attorney Phillip Gainsley (defendant) to claim the insurance proceeds and represent Wartnick in the murder investigation. Nachtsheim’s widow, Betty, sued Wartnick for unjust enrichment. When deposed, Wartnick asserted the Fifth Amendment (the Fifth) to questions about Nachtsheim’s murder. Betty’s attorney successfully lobbied the legislature to amend the wrongful-death statute to remove any limitations period for actions alleging murder. Betty then sued Wartnick for wrongful death. Gainsley offered Wartnick for another deposition but only if Betty’s attorney agreed not to use Wartnick’s first deposition. In his trial opening, Gainsley revealed that Wartnick had declined the police’s request to take a polygraph examination. Wartnick’s deposition responses were admitted, and the jury was instructed it could draw an adverse inference from Wartnick’s Fifth assertions. The jury found that Wartnick had murdered Nachtsheim or caused his murder. Wartnick sued Gainsley for malpractice for instructing Wartnick to assert the Fifth without understanding the ramifications, not permitting Wartnick to make an informed decision about the Fifth, advising the jury that Wartnick had refused the polygraph, not adequately investigating Nachtsheim’s murder, and not unconditionally offering Wartnick for another deposition. To support his summary-judgment motion, Gainsley provided testimony from two experts. Wartnick provided opposing testimony of five experts. Gainsley was granted summary judgment. The court of appeals affirmed. Wartnick appealed.