USF Holland, Inc. v. Radogno, Cameli, and Hoag, P.C.
2014 IL App (1st) 131727
Ill. App. Ct.2015Background
- USF Holland, Inc. hired Radogno (and Hoag) to defend Keppen v. USF in Cook County; Keppen filed Dec 4, 2003, arising from a June 19, 2002 Indiana collision that left Keppen paraplegic.
- Radogno advocated forum non conveniens to move Keppen to Indiana; moved to dismiss Gilchrist (Indiana resident) for lack of jurisdiction; motions were filed in Feb 2004 and decided Jun 29, 2005.
- Keppen court struck USF’s Indiana nonparty defense in Sept 2006; settlement of Keppen for $5.65 million occurred Sept 2007; insurer paid $3.65 million and YRC Worldwide paid $2 million toward settlement.
- USF filed a legal malpractice complaint against Radogno/Hoag on Jun 20, 2008, alleging breach of duty and contract for failing to preserve/ timely raise the Indiana nonparty defense; the case proceeded to cross-motions on breach, damages, and related issues.
- Trial court denied summary judgment on breach, held the Indiana nonparty defense potentially viable, and later granted summary judgment for Radogno on damages; on appeal the court affirmed, holding the nonparty defense remained viable and that Sterling and Owens Corning guided the collateral source rule and causation analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Indiana nonparty defense under 34-51-2-16 | USF: nonparty defense remained viable; 150/45-day rule is not hard deadline | Radogno: defense viability ended; discretionary departures govern | Nonparty defense remained viable; ordinance allowed discretion; no proximate-cause finding against Radogno |
| Whether Radogno’s failure to preserve the nonparty defense caused damages | USF would have used Indiana defense to reduce exposure | Defense viability could not be proven to affect damages | No proximate causation; liability defeated on merits; damages not recoverable on this theory |
| Collateral source rule in legal malpractice damages | Damages include insurer-paid amount | Sterling rule excludes collateral-source recovery in legal malpractice | Collateral source rule not apply; insurer-paid amounts not recoverable; court would affirm on damages if needed |
Key Cases Cited
- Sterling Radio Stations, Inc. v. Weinstine, 328 Ill. App. 3d 58 (2002) (collateral source rule not applicable in legal malpractice damages)
- Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905 (Ind. 2001) (nonparty defenses may be asserted post-dismissal if not prejudicial to plaintiff's notice)
- Templin v. Fobes, 617 N.E.2d 541 (Ind. 1993) (deadline to name nonparties; amendment timing considerations)
- McClain v. Chem-Lube Corp., 759 N.E.2d 1096 (Ind. Ct. App. 2001) (threshold requirement to assert nonparty defense in first answer; timing rules)
- Kelly v. Bennett, 792 N.E.2d 584 (Ind. Ct. App. 2003) (notice and promptness in asserting nonparty defenses under 34-51-2-16)