GATLINBURG, Tenn. (WATE) — A man suing the United States after his wife and children were killed in the 2016 Gatlinburg wildfires is now suing the lawyers who represent him in that case, alleging their “legal malpractice” led a federal judge to dismiss his claim.

Michael Reed, with new attorneys from the firm David Randolph Smith and Associates, filed a lawsuit earlier this month in the 12th Judicial District in Nashville. Reed is seeking a jury trial and compensatory damages from former attorney Sidney Gilreath; Gilreath and Associates; W. Gordon Ball; Gordon Ball LLC; Cohen Milstein Sellers & Toll.

Reed brings accusations of malpractice, breach of fiduciary duties, breach of contract, recklessness and joint venture. He has requested a jury trial, and that an order be issued staying this case “until the underlying proceedings are concluded.”

The wildfires

Reed’s wife Constance, daughter Chloe, 12; and daughter Lily, 9, died in the wildfires while fleeing their home in Gatlinburg. In all, 14 people died and more than 2,000 homes and businesses were damaged or destroyed as the fire spread from inside the Great Smoky Mountains National Park.

Michael Reed’s story became a narrative that encapsulated the tragedy as he spoke with the media while searching emergency shelters for his wife and children over several days. Their deaths were announced on Dec. 3, 2016.

In February 2017, Reed hired attorneys Gilreath and Ball to pursue a Federal Tort Claims Act against the United States for damages arising from the “negligence of employees of the National Park Service” in connection with the Chimney Tops 2 fire.

The Federal Tort Claims Act of 1946 is federal legislation that permits private parties to sue the United States in a federal court over actions taken by people acting on behalf of the United States. Before that time, the government had sovereign immunity from lawsuits filed by citizens.

Form 95′

In May 2018, Gilbreath, Ball and Knoxville attorney Lance Baker filed the Federal Tort Claims Act on behalf of Michael Reed. The process begins “Form 95,” which is filled out with the reason for the lawsuit and a list of specific damages, including loss of life.

Reed’s malpractice lawsuit explains that the Form 95 filed on his behalf is “a one sentence Form 95 with no facts (or exhibits)” listing only damages arising from “failing to monitor and extinguish a fire in the Great Smoky Mountains National Park.”

This means his claim falls under “failure to monitor” or “failure to extinguish.” This lawsuit did not encompass “failure to warn.”

Before the Federal Tort Claims Act claim can be made, a notice must be given to the appropriate agency to allow that agency to investigate the claim and allow for a chance to settle the issue before it becomes a federal lawsuit.

Reed alleges in the malpractice lawsuit that Gilreath and Ball filed the lawsuit “without having submitted the claim for failing to warn/failing to evacuate” and that the “failure to properly investigate” the requirements “constitutes legal malpractice.”

Reed also alleges that Gilbreath and Ball breached their contracts and acted with recklessness in filing the lawsuit before the government completed its review of his claims, thereby they “frustrated the administrative review process.”

In early 2020, Gilreath and Ball brought in Cohen Milstein as co-counsel, taking on the task of responding to the government’s motion to dismiss the cases. Among other arguments, Reed accuses that company of “failing to make arguments concerning Form 95s filed by insurance companies…”

Failure to Warn

In February 2022, District Judge J. Ronnie Greer ruled that only lawsuits with that “failure to warn” wording would proceed, noting the difference between this claim and the “failure to monitor” or “failure to extinguish” claims.

“It is based on a different theory of negligence, involves a different set of operative facts, is based on the acts of a different group of employees, and it relies on different policies and regulations applicable to NPS-firefighting tasks,” said Greer in his Reed v United States ruling.

Reed claims in the malpractice lawsuit that insurance companies, whose lawsuits were allowed to proceed, included “detailed Form 95 claims that specified a failure to warn claim” that accuses the government of “negligently failing to provide timely and accurate notice and warning to Park neighbors, local government officials, local fire departments, local residents and visitors about the status of and imminent danger presented by The Chimney Tops 2 Fire.”

Reed is suing Gilbreath and Ball for negligence in not including this “fail to warn/failing to evacuate” wording in the claim filed on his behalf. The lawsuit also states that Gilbreath and Ball also failed to amend his form to include the wording, and screenshots of text messages are included in the lawsuit as evidence.

Reed’s wrongful death lawsuit and individual claims for personal injury and property damage were dismissed, along with dozens of other lawsuits by individuals whose Form 95 did not include the “failure to warn” claim. Around 527 victims were affected by the ruling, according to court records. Reed has appealed this ruling.

A hearing date has not been set.