Legal Malpractice / Limitations
Reliance on Attorney's Misrepresentation that Delays Filing of Legal Malpractice Action May Extend Statute of Repose Based Upon Equitable Estoppel.
Koczor v. Melnyk, No. 1-10-1859 (1 st Dist. January 28, 2011) Cook Co. (McBRIDE) Affirmed.
- Plaintiffs sued Defendant for legal malpractice arising out of real estate transaction. Court properly granted summary judgment for Defendant, as time-barred by six-year statute of repose (735 ILCS 5/13-214.3). The repose period begins to run with the last act of representation upon which the malpractice is founded. Defendant erred in failing to properly record a deed for a parcel of land Plaintiffs had purchased, but had no further contact with Plaintiffs for ten years until they notified Defendant of the mistake, and he later admitted his error. Because Plaintiffs failed to establish that Defendant made misrepresentation that they relied on in forbearing suit, equitable estoppel is inapplicable to toll the statute of repose. Defendant did nothing to cause Plaintiffs' delay and did nothing to preclude Plaintiffs from discovering their cause of action.
Duty / Negligence
In Cases of Professional Negligence Involving Contractual Duties, a Defendant's Duty to a Plaintiff Does Not Extend Beyond the Terms of the Contract.
Thompson v. Gordon, No. 110066 (Ill. Sup. Ct., January 21, 2011).
- Plaintiff was injured, and her husband and daughter were killed, in a motor vehicle collision when an oncoming vehicle crossed over a raised median, became airborne, and landed on Plaintiff's vehicle. Plaintiff filed suit against, among others, an engineering firm who had a contract with a development company to "replace" the bridge deck in the area where the collision occurred. It was plaintiff's position that the express terms of the contract required defendant not only to "replace" the deck bridge, but also to design "improvements" for the area, and had it done so, it would have designed a barrier that would have prevented oncoming traffic from crossing the median. Alternatively, plaintiff maintained that, through her 213(f)(3) witness affidavit, regardless of what the contract stated, the standard of care for engineers required the defendant to design improvements, which would have lead to the design of a barrier that would have prevented oncoming traffic from crossing the median. The trial court granted summary judgment in favor of the defendant on the basis that the defendant's duty to the plaintiff was circumscribed in its contract with the development company, and the scope of the defendant's work was determined by their contractual undertaking. The Appellate Court reversed. While it agreed that the contract did not expressly call for improvements, it opined that the engineer's duty was to employ the degree and skill and diligence normally employed by professional engineers performing the same or similar services, and based on Plaintiff's 213(f)(3) engineer's affidavit, the defendant had a duty to design "improvements" for the area, and had it done so, it would have designed a barrier that would have prevented oncoming traffic from crossing the median. The Illinois Supreme Court reversed the appellate court and affirmed the trial court. It reasoned that the contact was clear in that the defendant only had a duty to "replace" the deck bridge - i.e. rebuild a new one identical to the one that existed. There was no mention of "improving" the deck bridge in the applicable provisions of the contact. It further reasoned that the Appellate Court erred in relying on the expert witness affidavit because defendant's duty does not extend past the terms of the contact. In this case, since the contract did not call for "improvements," but, rather, merely "replacement," the defendant did not have a duty to design a barrier that would have prevented oncoming traffic from crossing the median.
Medical Malpractice / Statute of Limitations / Statute of Repose
In Third-Party Claims for Indemnity Arising Out of Medical Malpractice Actions, the Four-Year Medical Malpractice Statute of Repose Applies, Rather Than the General Five-Year Limitations Period For Implied Contracts.
Uldrych v. VHS of Illinois, No. 110170 (Ill. Sup. Ct, January 21, 2011)
- Plaintiff underwent a surgical procedure in 2003 that resulted in a medical malpractice case filed in 2005 against the hospital, the surgeons, and the surgeons' employer. The Plaintiff and the hospital settled, and in 2008, the hospital filed an implied indemnity counterclaim against the surgeons and their employer. The trial court dismissed the counterclaim as time-barred via the four-year medical malpractice statute of repose set forth in 735 ILCS 5/13-212(a). The Appellate Court and Supreme Court affirmed. It held that the four-year medical malpractice statute of repose applied, and not the general five-year limitations period for implied contracts. To hold otherwise would go against the intent of the legislature.
Arbitration / Insurance
A Binding Arbitration Award May Only Be Vacated for One of the Five Reasons Listed in the Uniform Arbitration Act Set Forth in 735 ILCS 5/12.
United Automobile Insurance Company v. Wilson, No. 1-09-3061 (Ill. App., 1st Dist., January 18, 2011)
- Insurance company filed declaratory judgment action asking the trial court to determine whether coverage existed in a hit-and-run auto collision. Prior to the trial court's ruling, the injured persons received an award via binding arbitration for the damages they sustained in the collision. Sometime after the arbitration award, the trial court ruled that there was coverage. The insurance company then filed the underlying declaratory judgment action involved in this case asking the trial court to vacate the arbitration award because it occurred before the trial court determined whether there was coverage or not. The trial court dismissed the instant action and the insurance company appealed. The Appellate Court affirmed. It reasoned that there was no evidence that the arbitrator exceeded his authority and it could not find any reason in the Uniform Arbitration Act to vacate the arbitration award.
Legal Malpractice / Statute of Limitations / Statute of Repose
Legal Malpractice Actions Must Be Commenced Within Two Years From the Time the Person Bringing the Action Knew or Reasonably Should Have Known the Injury For Which the Damages Are Sought, But In No Event May Such Action Be Commenced More Than Six Years After the Date On Which the Action or Omission Occurred.
Kheirkhahvash v. Baniassadi, No. 1-10-0151 (Ill. App., 1st Dist., January 13, 2011).
- Plaintiff filed a legal malpractice and fraud action against her former immigration attorney. Plaintiff alleged that malpractice was committed in her immigration proceedings, which caused her to be deported. Specifically, in late August of 2000, the defendant advised plaintiff to sign a false asylum application and falsely testify to the facts therein. The defendant told the plaintiff that if she did not do so, she would be deported. Plaintiff did as she was advised, but was nonetheless ordered to be deported on April 24, 2002. After a series of unsuccessful reconsiderations and appeals, the Plaintiff fired the defendant attorney on November 24, 2003. On November 25, 2003, the Plaintiff filed an ARDC complaint against the defendant attorney. On August 21, 2009, the Plaintiff filed the instant action, which the trial court dismissed based upon the two-year statute of limitations in legal malpractice actions and the five-year statute of limitations in fraud actions. Plaintiff appealed. The Appellate Court affirmed. It reasoned that the earliest date that the Plaintiff knew or should have known that defendant's negligence caused her to be injured was on April 24, 2002 when she was ordered to be deported. The latest date that the Plaintiff knew or should have known that defendant's negligence caused her to be injured was on November 24, 2003 when she retained a new attorney as evidenced by the fact that she filed an ARDC complaint the next day. Given these dates, the applicable statutes of limitations, and the statues of repose, under no circumstances was Plaintiff's case timely filed. At the latest, the statute of limitations ran on November 25, 2005 for the malpractice action and November 24, 2008 for the fraud action. Even if there was some reason that the statute of limitations could be tolled or extended, which there's not, the six year statute of repose operated to bar plaintiff's claim on April 24, 2008.
Insurance 3d Dist.
No Duty to Defend Where Occurrence Complained of Is Within Plain Language of Policy Exclusion
Maxum Indemnity Company v. Gillette, No. 3-10-0006. (Court opinion corrected 1/5/11.) - In this case, a passenger on a parade float was injured when she was thrown from the float, which had hit a bump in the road. Float was being pulled by a driver from the parade float transport company. The plaintiff alleged a defective condition existed while the "auto"/float was being used in manner consistent with its customary use; alleged defective condition created risk to her only while float was in motion. The defendant's insurance policy contained an exclusion from liability for injuries resulting from the use of an automobile, and therefore, the auto exclusion in the company's commercial liability policy applied, so that insurer has no duty to defend company in underlying suit.
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