Estate of Powell v. Wunsch, P.C.
989 N.E.2d 627
Ill. App. Ct.2013Background
- Powell, a legally disabled adult, is represented by public guardian in a wrongful death action arising from Perry Smith, Jr.'s death.
- Leona Smith, Perry's wife, was appointed special administratrix of Perry's estate and engaged defendants to pursue the wrongful death action.
- First settlement (2001-2005) awarded Powell $5,000; second settlement (2005) awarded Powell $118,091.34, with Emma Smith waiving any share.
- Distributions were not immediately routed through probate supervision unless required by 2.1 of the Wrongful Death Act; later probate actions raised concerns Powell’s funds were not properly supervised or guarded.
- Powell’s public guardian brought a legal malpractice action against Wunsch, P.C., Phillips Law Offices, Ltd., Dershow, and Webb, asserting duty and proximate cause claims.
- Circuit court dismissed the legal malpractice counts under section 2-615 for failure to plead duty and proximate cause; on appeal, the appellate court affirms in part and reverses in part, remanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Powell owe a duty to next of kin in a wrongful death action despite no direct client relationship? | Powell, as next of kin, is an intended beneficiary and thus owed a duty. | No direct attorney-client relationship with Powell; duty should not extend to nonclients. | Yes; duty owed to Powell as next of kin throughout wrongful death action. |
| Can Powell plead proximate cause where second settlement exceeded $5,000 and required probate supervision? | Defendants' omissions prevented guardian appointment and proper distribution, causing harm to Powell. | Powell failed to plead that but-for defendants' conduct he would have received more; sub-issues apply only to first settlement. | Count II survives; proximate cause pled sufficiently; Count I dismissed due to first settlement not exceeding $5,000 and no probate supervision required. |
Key Cases Cited
- DeLuna v. Burciaga, 223 Ill. 2d 49 (Ill. 2006) (discusses fiduciary duty to next of kin in wrongful death context)
- Carter v. SSC Odin Operating Co., LLC, 2012 IL 113204 (Ill. 2012) (analyze who may bring a claim under the Act and that recoveries are not true assets of the decedent's estate)
- Pasquale v. Speed Products Engineering, 166 Ill. 2d 337 (Ill. 1995) ( wrongful death damages and purpose of the Act; beneficiary focus)
- Baez v. Rosenberg, 409 Ill. App. 3d 525 (Ill. App. 2011) (attorney fiduciary duties to beneficiaries in wrongful death)
- Wilbon v. D.F. Bast Co., 73 Ill. 2d 58 (Ill. 1978) (nonclient duty concepts relevant to beneficiary actions)
- Fox v. Seiden, 382 Ill. App. 3d 288 (Ill. App. 2008) (pleading standard for legal malpractice claims)
- Metrick v. Chatz, 266 Ill. App. 3d 649 (Ill. App. 1994) (proximate cause pleading in legal malpractice)