Regular readers of Minnesota Litigator know that we are rooting for the overruling of Antone v. Mirviss, now under review by the Minnesota Supreme Court. The holding in Antone was that the statute of limitations for a defective prenuptial agreement started to run on the client’s wedding day so, when the prenup later turned out to be useless, Antone’s claim against the negligent lawyer was time-barred.

In our view, simply stating the Antone holding should suffice to reveal its fundamental unsoundness.

U.S. Chief Judge John R. Tunheim (D. Minn.) recently held that an accounting malpractice lawsuit was not time-barred. His reasoning is consistent with a more sensible approach to the statute of limitation for professional negligence.

In our view, Judge Tunheim properly interpreted the issue. The statute of limitation starts when the plaintiff has suffered “some damage.” The damage suffered by Plaintiff Miksic was not in 2006 when he got the allegedly bad accounting advice. It was not when he paid for the 2006 bad accounting advice. It was not in 2007 when the faulty returns were filed with the IRS. It was in 2011 when the IRS first hammered Miksic (that is, “assessed penalties”) for his allegedly erroneous tax filings. Under the Antone rule, plaintiffs like Mr. Miksic, see their claims for professional negligence extinguished before any of them would have a realistic chance of holding the wrongdoers responsible. The status quo is undoubtedly desirable for negligent professionals and their insurers. For the rest of us Minnesotans, not so much.

 

 

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