Selby v. O'Dea
156 N.E.3d 1212
Ill. App. Ct.2020Background
- State Farm retained attorney James O’Dea to prosecute large volumes of automobile subrogation suits in Cook County.
- Plaintiffs allege O’Dea obtained fraudulent default judgments by (a) avoiding sheriff service, (b) using an unlicensed process server (a former relative), (c) filing ‘‘verified’’ complaints signed by State Farm employees lacking personal knowledge, and (d) charging sheriff fees not actually incurred.
- Plaintiffs sued State Farm and O’Dea for fraud, abuse of process, civil conspiracy, and (for Scheiwe) malicious prosecution; the trial court dismissed abuse-of-process claims against State Farm and granted State Farm summary judgment on conspiracy and malicious prosecution.
- On the first appeal the court recognized a common-interest (joint-defense) exception to waiver and remanded for in camera, communication-by-communication review of joint communications; the appellate court vacated the dispositive rulings pending that review.
- On remand the new trial judge conducted the in camera review, found the communications protected, reinstated the prior dismissal and summary-judgment orders, and this appeal followed; the appellate court now affirms malicious prosecution, reverses dismissal of abuse-of-process (finding plausible vicarious liability), and vacates summary judgment on conspiracy (procedural and evidentiary defects, including privilege waiver issues).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope/method of in camera review of alleged joint communications | Appellants argued the court should have disclosed broader joint communications and that an affidavit prepared for in camera review was an improper ex parte submission | State Farm/O’Dea argued the remand was limited to the interrogatory and an affidavit or in-chambers testimony was an acceptable means for in camera review | Court held the remand was limited to communications responsive to Interrogatory No. 12; in camera affidavit review was permissible and no procedural error occurred |
| Sufficiency of abuse-of-process pleadings as to State Farm (vicarious liability) | Plaintiffs alleged State Farm authorized, knew of, or ratified O’Dea’s systemic improper service practices and receipt of improperly claimed costs | State Farm argued attorneys are independent contractors and plaintiffs failed to plead facts showing direction, control, authorization, or ratification | Court reversed dismissal: allegations plausibly show State Farm could have directed or ratified O’Dea’s methods at pleading stage under Horwitz standard |
| Malicious prosecution (Schiwe) — favorable termination and probable cause | Scheiwe argued underlying suit was time-barred, so filing it was malicious prosecution | State Farm argued it had a substantive basis (police report) and dismissal on statute of limitations is procedural, not indicative of innocence | Court affirmed summary judgment for State Farm: dismissal on statute-of-limitations grounds is not a favorable termination for malicious prosecution and probable cause existed |
| Civil conspiracy and use of privileged communications in summary-judgment affidavits | Plaintiffs sought further discovery and argued State Farm’s supporting affidavits were defective and relied on undisclosed privileged documents | State Farm relied on affidavits (McCann, O’Dea) and claimed privilege over underlying communications/documents | Court vacated summary judgment: State Farm failed Rule 191(a) attachment/personal-knowledge requirements, and by relying on privileged communications in affidavit it waived privilege as to the claim-file materials for the four named plaintiffs (subject-matter limited waiver); additional discovery may be required |
Key Cases Cited
- Horwitz v. Holabird & Root, 212 Ill.2d 1 (Ill. 2004) (client vicarious liability for attorney’s intentional torts requires proof of direction/control or subsequent ratification)
- Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107 (Ill. 2012) (principles governing express and implied waiver/at-issue waiver of attorney-client privilege)
- Robidoux v. Oliphant, 201 Ill.2d 324 (Ill. 2002) (strict compliance with Ill. S. Ct. R. 191(a) including attaching documents to affidavits)
- Cult Awareness Network v. Church of Scientology Int’l, 177 Ill.2d 267 (Ill. 1997) (definition and analysis of "favorable termination" for malicious-prosecution claims)
- Mashal v. City of Chicago, 2012 IL 112341 (Ill. 2012) (summary-judgment standard; movant’s right must be clear and free from doubt)
- Turner v. Black, 19 Ill.2d 296 (Ill. 1960) (express waiver where a client voluntarily testifies about privileged communications)