Brobeck

is the fourth decision in as many years in which this court has addressed the question of what constitutes “actual injury” from professional malpractice for purposes of applying a statute of limitations. In the first two decisions, a majority of the court made a misguided attempt to formulate “bright line” rules to govern the actual injury determination. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606 [ 38 Cal.Rptr.2d 150 , 888 P.2d 1279 ] (Feddersen); ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245 [ 36 Cal.Rptr.2d 552 , 885 P.2d 965 ] (ITT).) In each, I disagreed with the majority and authored a separate opinion pointing out that the majority’s proposed “bright lines” were ultimately impractical and that the question of when a plaintiff has suffered actual injury is necessarily a question of fact to be decided on a case-by-case basis. (Feddersen, supra, at p. 623 (cone, and dis. opn. of Kennard, J.); ITT, supra, at p. 258 (dis. opn. of Kennard, J.).)

In the third decision, in which- I concurred, a majority of the court recognized that the actual injury determination is a question of fact and that “[t]he number of potential variables,…

In this case, we again address the meaning of “actual injury” under the legal malpractice statute of limitations, Code of Civil Procedure section 340.6. 1 That statute commences the limitations period with the *743 attorney’s wrongful act or omission, or with the plaintiff’s actual or constructive discovery of the attorney’s error. However, several specified circumstances toll the prescriptive period, including that “The plaintiff has not sustained actual injury . . . .” (§ 340.6, subd. (a)(1).)

This court most recently considered the actual injury provision in Adams v. Paul (1995) 11 Cal.4th 583 [ 46 Cal.Rptr.2d 594 , 904 P.2d 1205 ] (Adams). Adams reconfirmed the following: (1) determining actual injury is predominantly a factual inquiry; (2) actual injury may occur without any prior adjudication, judgment, or settlement; (3) nominal damages, speculative harm, and the mere threat of future harm are not actual injury; and (4) the relevant consideration is the fact of damage, not the amount. (Id. at pp. 585-586, 589, 591-592 (lead opn. of Arabian, J.); id. at pp. 595-596 (cone, opn. of Kennard, J.).) These propositions follow from Budd v. Nixen (1971) 6 Cal.3d 195 [ 98…

I respectfully dissent. I do so consistent with the position I took in Adams v. Paul (1995) 11 Cal.4th 583 [ 46 Cal.Rptr.2d 594 , *766 904 P.2d 1205 ] (hereafter Adams), this court’s most recent discussion of the statutes of limitation applicable to actions alleging professional malpractice. In doing so, I recognize that the views expressed by a plurality in the lead opinion in Adams have now been adopted by a majority of the court in the present case, and shall govern future cases.

In Adams , the attorney allegedly failed to apprise the client that she should file a wrongful death action against an estate prior to expiration of the period of limitations relevant to the wrongful death action, and the client’s late filing of the wrongful death action against the estate was opposed by the estate as barred by the statute of limitations. The lead opinion in Adams remanded the case to the trial court to determine whether actionable injury occurred (1) at the time the statute of limitations for the wrongful death action expired, (2) at the time the client opposed the estate’s assertion of the defense that the statute of limitations had expired, or (3) at some other time, such as when…

dissent.

In ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245 [ 36 Cal.Rptr.2d 552 , 885 P.2d 965 ], this court adopted a pragmatic approach to the question when “actual injury” occurs for purposes of the attorney *768 malpractice statute of limitations (Code Civ. Proc., § 340.6), holding that such actual injury does not occur until an underlying third party dispute is terminated by a judicial determination or adverse settlement. Until that time, the statute of limitations for attorney malpractice is tolled. The majority now reject that “bright line” rule in favor of an uncertain case-by-case approach that will require plaintiffs to sue their lawyers for harm that may be causally unrelated to the lawyers’ act or omission. I disagree both for analytical and practical reasons.

The illogic of the majority’s approach is patent. Here, defendant lawyers, representing plaintiff in an action involving manufacture and marketing of clothing “knock offs,” did not offer advice concerning the availability of insurance coverage for defense costs. Plaintiff contacted its insurance broker and was told that it did not have such coverage. After paying its own defense costs for…