DEMAND FOR SETTLEMENT - PROFESSIONAL MALPRACTICE

STATE OF WEST VIRGINIA

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, West Virginia ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of West Virginia

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Professional / Firm Name]
[Professional Liability Insurance Carrier]
[Street Address]
[City, State ZIP]

RE: PROFESSIONAL MALPRACTICE CLAIM - SETTLEMENT DEMAND
Claimant: [Client Full Name]
Date(s) of Negligent Service: [Date or Date Range]
Professional(s): [Professional Name(s) and License Type]
Matter/Project: [Description]
Claim Number: [If assigned]

Dear [Recipient Name]:

This firm represents [Client Name] in connection with the professional malpractice committed by [Professional/Firm Name] in [his/her/their] provision of [type of professional services] services. This letter constitutes formal notice of our client's claim and our demand for settlement.

I. WEST VIRGINIA-SPECIFIC LEGAL FRAMEWORK

A. Governing Law

Professional malpractice claims in West Virginia are governed by common law negligence principles. Key precedents include Keister v. Talbott, 182 W. Va. 745 (1990) and Calvert v. Scharf, 217 W. Va. 684 (2005).

B. Statute of Limitations

Professional Malpractice: Under W. Va. Code Section 55-2-6, actions for professional malpractice must be commenced within two (2) years from the date the cause of action accrues.

Discovery Rule: West Virginia applies the discovery rule. The cause of action accrues when the plaintiff knows or by reasonable diligence should know of the injury. Dunn v. Rockwell, 225 W. Va. 43 (2009).

Legal Malpractice: The statute runs from the date the client discovers or should have discovered the negligence and resulting harm. Keister v. Talbott, 182 W. Va. 745 (1990).

Relevant Dates in This Matter:
- Date(s) of negligent services: [Date(s)]
- Date of discovery: [Date]
- Two-year limitations period expires: [Date]

C. Comparative Negligence

West Virginia follows a modified comparative negligence system under W. Va. Code Section 55-7-13a. A plaintiff may recover damages only if their fault is not equal to or greater than the combined fault of all defendants. If the plaintiff is 50% or more at fault, recovery is completely barred.

D. Standard of Care Under West Virginia Law

Under West Virginia law, a professional must exercise the degree of care, skill, and diligence ordinarily exercised by members of the profession in similar circumstances. Keister v. Talbott, 182 W. Va. 745 (1990).

Key Case Law:

• Attorneys: Must possess the knowledge, skill, and ability ordinarily possessed by attorneys and exercise reasonable care. Keister v. Talbott, 182 W. Va. 745 (1990).
• Accountants: Must perform services in accordance with GAAP and GAAS standards. Hechler v. Casey, 175 W. Va. 434 (1985).
• Engineers/Architects: Must exercise the skill and care customarily used by practitioners in the profession.

E. Expert Witness Requirements

Expert testimony is generally required in professional malpractice cases to establish:
1. The applicable standard of care;
2. That the defendant breached that standard; and
3. That the breach proximately caused the plaintiff's damages.

Keister v. Talbott, 182 W. Va. 745 (1990).

Exception: Expert testimony is not required when the professional's negligence is within the common knowledge of laypersons.

Certification: We have retained a qualified expert who has reviewed the relevant documents and has concluded that the applicable standard of care was breached and that such breach proximately caused our client's damages.

F. Damage Caps

West Virginia does not impose statutory caps on damages in professional malpractice cases. Punitive damages may be subject to limitations.

G. Privity and Third-Party Claims

Legal Malpractice: Generally requires an attorney-client relationship. West Virginia may recognize claims by intended third-party beneficiaries in limited circumstances.

Accountant Malpractice: Third parties may recover under certain circumstances involving known reliance. First Nat'l Bank of Bluefield v. Crawford, 182 W. Va. 107 (1989).

H. Breach of Fiduciary Duty

West Virginia recognizes breach of fiduciary duty as a separate cause of action. Calvert v. Scharf, 217 W. Va. 684 (2005). Professionals who occupy positions of trust owe fiduciary duties to their clients.

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD

YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to services provided to [Client Name], including but not limited to:

• Complete client file (paper and electronic)
• All correspondence and communications
• Work product, drafts, and notes
• Billing records and time entries
• Engagement letters and contracts
• Emails and electronic communications
• Calendar entries and scheduling records
• Internal memoranda and analysis
• Research materials
• Any recorded statements
• Professional liability insurance policies
• Quality control and review documentation

Modification, destruction, or concealment of any records will result in claims for spoliation, sanctions, and adverse inference instructions under West Virginia law. Tracy v. Cottrell, 206 W. Va. 363 (1999).

III. FACTUAL BACKGROUND

A. Engagement and Relationship

[Client Name] engaged [Professional/Firm Name] on or about [Date] to provide [type of professional services]:

Nature of Engagement:
- [Description of services to be provided]
- [Scope of representation/engagement]
- [Key objectives]

Fee Arrangement:
- [Description of fee arrangement]
- [Total fees paid: $Amount]

B. Chronology of Negligent Services

[Date]: [Describe what occurred]

[Date]: [Describe what occurred]

[Date]: [Describe what occurred]

C. The Professional Error(s)

[Describe specifically what the professional(s) did wrong]

D. Discovery of Malpractice

Our client [did not discover / could not have reasonably discovered] the malpractice until [Date], when [describe discovery circumstances].

IV. STANDARD OF CARE VIOLATIONS

A. Applicable Standard of Care

Under West Virginia law, [Defendant Professional] was required to exercise the degree of care, skill, and diligence ordinarily exercised by members of the [profession type] profession in similar circumstances.

Based on our expert's analysis, the applicable standard of care required [Defendant] to:

1. [Standard 1]
2. [Standard 2]
3. [Standard 3]

B. Breaches of the Standard of Care

Breach 1: [Detailed description of breach]

Breach 2: [Detailed description of breach]

Breach 3: [Detailed description of breach]

C. Expert Opinion

We have retained [Expert Name], a [licensed/certified] [profession] with [number] years of experience in [relevant area]. [Expert Name] has concluded that:

1. [Defendant Professional] breached the applicable standard of care;
2. These breaches were a direct and proximate cause of [Client Name]'s damages; and
3. Had appropriate professional services been rendered, [describe avoided outcome].

V. CAUSATION

A. "But For" Causation

But for the defendant's breach of the standard of care, our client would not have suffered the damages described herein. This claim satisfies the "but for" test for actual causation.

B. Proximate Causation

The defendant's professional negligence was a proximate cause of our client's damages. The harm suffered was a foreseeable consequence of the defendant's breach of duty.

C. Case-Within-A-Case (If Applicable to Legal Malpractice)

[If legal malpractice:] We are prepared to prove that but for counsel's negligence, the underlying matter would have resulted in a more favorable outcome for our client. Keister v. Talbott, 182 W. Va. 745 (1990).

VI. DAMAGES

A. Direct Financial Losses

As a direct and proximate result of the defendant's professional negligence, our client has suffered:

Primary Damages:
- [Loss 1]: $[Amount]
- [Loss 2]: $[Amount]
- [Loss 3]: $[Amount]

B. Consequential Damages

C. Professional Fees Paid

D. Interest and Incidental Costs

• Prejudgment interest at 10% per annum per W. Va. Code Section 56-6-31
• Court costs and filing fees
• Expert witness fees

E. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the clear breach of professional standards, the extent of our client's damages, and the strength of liability evidence, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for thirty (30) days from the date of this letter, expiring at 5:00 p.m. Eastern Time on [Expiration Date].

VIII. RESPONSE AND ADDITIONAL INFORMATION REQUESTED

Please provide:

1. All professional liability insurance policies applicable to this claim
2. Policy limits for each applicable policy
3. Any self-insured retention amounts
4. Excess/umbrella coverage information
5. Consent to extend statute of limitations during settlement discussions

IX. DOCUMENTATION ENCLOSED

• Engagement agreement/retainer
• Correspondence between client and professional
• Work product demonstrating errors
• Documentation of damages
• Expert curriculum vitae
• Chronology of events

X. CONCLUSION

This case presents clear professional negligence that caused significant financial harm to our client. The defendant's conduct fell below the standard of care required of [profession type] in West Virginia.

We are prepared to litigate this matter in the Circuit Court of [County] County, West Virginia if necessary. However, we believe early resolution serves all parties' interests.

Please respond by the deadline stated above.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
West Virginia State Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

WEST VIRGINIA PROFESSIONAL MALPRACTICE PRACTICE NOTES

• Two-Year Limitations Period: Actions must be brought within 2 years from discovery.

• Discovery Rule: Limitations period runs from when plaintiff knew or should have known of injury.

• Modified Comparative Fault: Recovery barred if plaintiff is 50% or more at fault.

• Expert Testimony Required: Expert witness is generally necessary except for obvious negligence.

• No Damage Caps: No statutory limits on compensatory damages in professional malpractice.

• Prejudgment Interest: 10% per annum per W. Va. Code Section 56-6-31.

• Venue: Circuit Court in county where defendant resides or where cause of action arose.

• Business Court: West Virginia has a Business Court Division for complex commercial cases.

• Punitive Damages: Available for willful, wanton, or malicious conduct.

• Mediation: Courts may require mediation or other ADR.

This template is specific to West Virginia law. Professional malpractice claims require careful attention to limitations periods and expert requirements. Always verify current law and consult with qualified West Virginia counsel.