Sirott

plaintiff, Stanley Sirott, M.D., appeals from judgment dismissing his action for legal malpractice as to defendants Leatrice Latts and Latts & Herstead after their general demurrer to the first amended complaint was sustained without leave to amend on the ground the action is barred by limitations.

Facts

The action was commenced January 31, 1990.

Limited to material facts, and without its contentions, deductions and conclusions of fact or law (see Serrano v. Priest (1971) 5 Cal.3d 584, 591 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 , 41 A.L.R.3d 1187 ]), the first amended complaint alleged: In July 1986 plaintiff, a physician and surgeon, decided to retire from the practice of medicine. In October 1986 plaintiff sought advice from defendants regarding the purchase of “tail” insurance coverage for medical malpractice through his medical malpractice insurance carrier, Cooperative of American Physicians Mutual Protection Trust (the insurer). Defendants advised plaintiff that the $50,000 premium for tail coverage demanded by the insurer was an unconstitutional and unenforceable form of age discrimination and that plaintiff need not pay the premium. Thereafter, *927 plaintiff was…

I respectfully dissent.

This is an unusual case factually. Here a lawyer’s advice first saved her client some $50,000 in insurance premiums, then later cost the client roughly five times that amount in settlement costs and legal fees. The majority *931 and I differ over whether the client’s cause of action accrued when he first had to employ a lawyer to defend against the lawsuit the insurance policy would have covered—at the cost of the $50,000 premium—or only when the expense of resolving the lawsuit exceeded the premium amount.

After oral argument in this case the California Supreme Court filed its opinion in Laird v. Blacker (1992) 2 Cal.4th 606 [ 7 Cal.Rptr.2d 550 , 828 P.2d 691 ]. This case held the limitations period for legal malpractice cases does not commence until “a client suffers an adverse judgment or order of dismissal [at the trial court level] in the underlying action on which the malpractice action is based.” (Id., at p. 609.) If that principle were followed in this case the majority would hold Dr. Sirott had filed his legal malpractice action within the statutory period. For, in the instant case, there was no “adverse judgment” in the underlying medical…

(1) (See fn. 1.) Plaintiff, Stanley Sirott, M.D., appeals from judgment dismissing his action for legal malpractice as to defendants Leatrice Latts and Latts & Herstead after their general demurrer to the first amended complaint was sustained without leave to amend on the ground the action is barred by limitations. [1]

The action was commenced January 31, 1990.

Limited to material facts, and without its contentions, deductions and conclusions of fact or law (see Serrano v. Priest (1971) 5 Cal.3d 584, 591 [ 96 Cal. Rptr. 601 , 487 P.2d 1241 , 41 A.L.R.3d 1187 ]), the first amended complaint alleged: In July 1986 plaintiff, a physician and surgeon, decided to retire from the practice of medicine. In October 1986 plaintiff sought advice from defendants regarding the purchase of "tail" insurance coverage for medical malpractice through his medical malpractice insurance carrier, Cooperative of American Physicians Mutual Protection Trust (the insurer). Defendants advised plaintiff that the $50,000 premium for tail coverage demanded by the insurer was an unconstitutional and unenforceable form of age discrimination and that plaintiff need not pay the premium.…