Sometimes, it is hard for lawyers to keep track of what claims have to be brought within an individual case before they lose their rights to assert those claims in subsequent litigation. Is this a permissive counterclaim? A compulsory counterclaim? Does this claim really arise out of the same operative facts? While there are not as many gray areas as some lawyers suggest when defending their legal malpractice claims, it can be a bit complex.
So lawyers have two choices: (1) learn the law, or (2) bring every claim that you can bring in the instant action. The lawyers in Webb v. Zurich learned this lesson the hard way. A Michigan U.S. District Court judge in this case stopped a lawsuit in its tracks, finding that the new 2012 lawsuit – which sought coverage from Zurich for environmental contamination remedial costs – is precluded by a 2010 lawsuit because Plaintiff had a duty to amend the 2010 complaint to add the new claims, but failed to do so.
When in doubt, add the claim. There are very few instances where there is a downside to this and just too many where failing to do so has the downside of those claims being lost forever.