MARIA BRUMMEL, Executor of the Estate of Bruce Brummel, Deceased, Plaintiff-Appellant, v. RICHARD D. GROSSMAN; AGNES E. GROSSMAN; LAW OFFICES OF RICHARD D. GROSSMAN; RICHARD C. DANIELS; DANIELS, LONG & PINSEL, LLC; JASON S. MARKS; and NOONAN, PERILLO, POLENZANI & MARKS, LTD., Defendants (Richard C. Daniels; Daniels, Long & Pinsel, LLC; Jason S. Marks; and Noonan, Perillo, Polenzani & Marks, Ltd., Defendants-Appellees).
No. 1-16-2540
Appellate Court of Illinois, First District, Fourth Division
March 29, 2018
Rehearing denied May 2, 2018
2018 IL App (1st) 162540
Hon. John P. Callahan Jr., Judge, presiding.
Judgment Affirmed.
Julie A. Boynton and Donald L. Johnson, of Yorkville, for appellant.
Joseph R. Marconi, David M. Macksey, and Brian C. Langs, of Johnson & Bell, Ltd., of Chicago, for appellees Richard C. Daniels and Daniels, Long & Pinsel, LLC.
Daniel F. Konicek and Michael J. Corsi, of Konicek & Dillon, P.C., of Geneva, for other appellees.
Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.
OPINION
¶ 1 The instant appeal arises from the dismissal of plaintiff Maria Brummel’s amended complaint for legal malpractice filed against defendants, attorney Richard C. Daniels and the law firm of Daniels, Long & Pinsel, LLC (collectively, Daniels defendants), and attorney Jason S. Marks and the law firm of Noonan, Perillo, Polenzani & Marks, Ltd. (collectively, Marks defendants).1 The lawsuit, originally filed by Bruce Brummel2 (decedent) on December 30, 2014, alleged legal malpractice against defendants for negligently representing him during a workers’ compensation or occupational diseases case against his employer, Nicor Gas, which settled on
BACKGROUND
¶ 3 The decedent’s employer Nicor Gas (Nicor) is a natural gas distribution company. The decedent began working for Nicor in December 1980 when he was 18 years old, and he remained with the company in various positions4 for over 22 years. In 2001, the decedent and some of his coworkers at Nicor began to feel ill with symptoms of vomiting, diarrhea, abdominal pain, weakness, and fatigue. The decedent consulted a physician who opined that the decedent’s symptoms were caused by ingestion from chemicals. From 2001 to 2003, the decedent, as well as other employees, informed Nicor about his concerns that its drinking water was contaminated, but Nicor did not take any action to investigate or remedy the problem. The decedent also reported his concerns to the Occupational Safety and Health Administration in 2001 after Nicor did not take action. The decedent conducted his own investigation designed to discover the source of the chemicals at the Nicor facility where he worked, and he found that the drinking water in the break room connected to the flush line of the boiler, which allowed toxins to be emitted from the boiler into the drinking water consumed by Nicor employees. The decedent informed his union about the contaminated drinking water, but the union also ignored his requests for help. In late 2002, the decedent reported his findings concerning the connection between the boiler and the drinking water to the Occupational Safety and Health Administration for the second time, and he reported his findings to the City of Aurora, the Kane County Health Department, and the Illinois Department of Public Health. The decedent’s health continued to deteriorate, and he was forced to take a medical leave of absence on October 6, 2003.
¶ 4 On October 14, 2003, the City of Aurora’s emergency response team and head plumbing inspector, Robert Thompson, inspected the plumbing in the boiler room and closed the facility. The inspection revealed that the drinking water was contaminated with methylene chloride and/or dichloro methane. Nicor later resolved the problem by installing backflow
¶ 5 During his career at Nicor, the decedent received regular raises and was entitled to various employment benefits, and at the time he began his leave of absence, he was earning over $100,000 per year in wages, with an average weekly wage of $1800. From October 2003 to January 2004, the decedent applied for and received 11 weeks of extended benefit account payments from an insurance benefit program he had purchased at Nicor to cover sick leave absences. Although the decedent was eligible for extended benefit account payments for 39 weeks, Nicor terminated the decedent’s benefits after only 11 weeks of payments. As a result of the loss of income, the decedent did not have enough money to pay for his medical treatment and family expenses. Nicor officially terminated the decedent’s employment on April 15, 2004. During this period of absence, the decedent received no temporary total disability payments from Nicor under the
¶ 6 In late 2005 or early 2006, the decedent discussed his health and work issues with defendant attorney Richard C. Daniels, a friend that the decedent had met through the Shriner’s, and defendant Daniels agreed to represent decedent in a workers’ compensation and occupational diseases case and an action against Nicor for retaliatory discharge and violating the
¶ 7 In 2006, defendant Marks filed a workers’ compensation and/or occupational diseases claim against Nicor on the decedent’s behalf. As noted, during the pendency of this case, the decedent never received any temporary total disability benefits, and no petition under
¶ 8 Five years later, while the workers’ compensation claim was still pending, Nicor offered the decedent a lump sum settlement of $125,000, and decedent accepted it on October 20, 2011. Defendant attorney had made a demand for only $150,000 to settle the matter. An arbitrator approved the settlement five days later on October 25, 2011.
¶ 9 On December 30, 2014, the decedent filed the instant lawsuit against the Daniels and Marks defendants for legal malpractice, claiming that they failed to file a
¶ 10 In the complaint, the decedent claimed that he spoke to defendants Daniels and Marks multiple times and asked them about the status of his
¶ 11 Concerning the settlement of the underlying workers’ compensation case, the decedent alleged in the complaint that he initially thought Nicor’s $125,000 settlement offer was “unreasonably low” prior to accepting, but defendant Daniels reassured him that the amount was the best offer that he could receive and that it was a good settlement amount. The decedent further claimed that, “[d]ue to continued assurances” made by defendants Daniels and Marks, he did not know that the settlement amount “was far below what he should have received in compensation” until he consulted with a new attorney in 2014.
¶ 12 The decedent passed away on June 3, 2015, while his lawsuit was still pending. The trial court substituted Maria Brummel, the executor of his estate, as plaintiff on October 6, 2015.
¶ 13 On December 4, 2015, the Marks defendants filed a
¶ 15 On April 22, 2016, plaintiff filed an amended complaint in the instant lawsuit. In the amended complaint, plaintiff claimed that, although the
¶ 16 Plaintiff also argued that the settlement was insufficient since the amount of money the decedent settled for was less than what he should have received. Plaintiff claimed that the decedent knew that, based on his own experience and what some his coworkers had told him, Nicor had a practice of prolonging workers’ compensation or occupational diseases cases for extended periods of time to pressure employees to settle for less money than
¶ 17 At a hearing on defendants’ motion to dismiss on August 25, 2016, the trial court determined that, “whether you’re an attorney or not an attorney, [the settlement agreement]’s pretty clear in terms of what it includes and what it doesn’t include.” The trial court found that, considering the amount of money that the decedent had been making per year at Nicor and the eight years he was out of work, “[the decedent] knew or should have known at the time of the entry of original [settlement] order *** that something was a miss [sic].” As a result, the trial court granted defendants’ motion to dismiss, and plaintiff now appeals.
ANALYSIS
¶ 19 On appeal, plaintiff claims that the trial court erred when it dismissed decedent’s complaint, arguing (1) that the complaint was not untimely because the statute of limitations was tolled since the decedent filed his original complaint within two years of discovering his injury, and (2) that defendants should be estopped from asserting the statute of limitations because the decedent reasonably relied on defendants’ misrepresentations, which delayed his discovery of his injury. For the following reasons, we affirm the judgment of the trial court.
I. Statute of Limitations
¶ 21 Plaintiff first argues that, although the original complaint was not filed within two years of the decedent’s injury, the complaint was timely filed since the decedent did not discover his injury until he consulted a new attorney in 2014, approximately three years after the settlement. Defendants argue that the facts indicate that the decedent knew, or should have known, that his settlement was insufficient at the time of the settlement agreement, and that the statute of limitations was not tolled as a result. For the following reasons, we affirm the trial court’s dismissal of plaintiff’s first amended complaint.
¶ 22
¶ 23 When ruling on a
¶ 24 An appeal from a
¶ 25 In the instant case, plaintiff sued defendants for legal practice, claiming that the decedent’s settlement of his workers’ compensation or occupational diseases case against Nicor was insufficient.
” ‘[a]n action for damages based on tort, contract, or otherwise (i) against an attorney arising out of an act or omission in the performance of professional services *** must be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.’ ” Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 14 (quoting 735 ILCS 5/13-214.3(b) (West 2008) ).
¶ 26 The statute of limitations incorporates the ” ‘discovery rule,’ ” which delays the commencement of the two-year statutory period until the injured party “knows or should know facts that would cause him to believe that his injury was wrongfully caused.” Romano v. Morrisroe, 326 Ill. App. 3d 26, 28 (2001). “The limitations period in a legal malpractice case begins to run from the time the injured party knows or reasonably should know that he has suffered an injury which was wrongfully caused.” Trogi v. Diabri & Vicari, P.C., 362 Ill. App. 3d 93, 98 (2005). “Although that time is normally a question of fact, a court may decide the issue as a matter of law where the facts are undisputed and only one conclusion may be drawn from them.” Trogi, 362 Ill. App. 3d at 98. The statute of limitations does not require that the injured party acquire actual knowledge of negligent conduct before; rather, the statutory period will begin once an injured party has a reasonable belief that the injury was caused by wrongful conduct thereby creating an obligation to inquire further on that issue. Dancor International, Ltd. v. Friedman, Goldberg & Mintz, 288 Ill. App. 3d 666, 673 (1997). It is not required that plaintiff knew or should have known of both the injury and negligent conduct since such a standard is beyond the comprehension of the ordinary lay person to recognize and assume a conclusion that must await legal determination. Dancor International, 288 Ill. App. 3d at 673 (citing Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 170-71 (1981)). “A person knows or reasonably should know an injury is ‘wrongfully caused’ when he or she possesses sufficient information concerning an injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” Carlson v. Fish, 2015 IL App (1st) 140526, ¶ 23. Once a party knows, or reasonably should know, both of his injury and that the injury was wrongfully caused, the injured person has the burden to inquire further as to the existence of a cause of action. Castello v. Kalis, 352 Ill. App. 3d 736, 745 (2004). “For purposes of a legal malpractice action, a client is not considered to be injured unless and until he [or she] has suffered a loss for which he [or she] may seek monetary damages.” Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 306 (2005).
¶ 27 In the instant case, the decedent sued the Daniels and Marks defendants for their handling of his workers’ compensation or occupational diseases case, which resulted in a settlement that was approved by an arbitrator on October 25, 2011. The settlement’s final approval marked the end of the decedent’s case against Nicor, including all claims for temporary total disability benefits and unpaid medical expenses. At that point, the decedent’s alleged injury accrued, and we cannot say that the decedent did not know, or should not have known, that the settlement
¶ 28 The decedent claimed in his complaint that, due to his loss of income, he did not have enough money to pay for his medical treatment and family expenses. Before he took a leave of absence, the decedent earned a salary of more than $100,000 per year with an average weekly wage of $1800. The settlement, however, paid only one lump sum of $125,000, of which the decedent received $98,291.55. The settlement order stated that the payout to the decedent, when factoring in his remaining life expectancy of 28 years, would result in the equivalent of $67.51 per week for the rest of his life. It was clear in the settlement order that the decedent was receiving an amount of money that was less than 1 year of his previous Nicor salary to compensate him for nearly 8 years of back pay and 28 years of future income and disability that he was claiming he was entitled to, including unpaid medical expenses.
¶ 29 Moreover, plaintiff claimed that the decedent knew that Nicor had a practice of prolonging workers’ compensation and occupational diseases cases in order to force its employees to settle for less money than they should have received. Also, despite defendants’ assurances that he did not need to worry about temporary total disability benefits and that he would be compensated at the conclusion of his case, the decedent knew at the time of the settlement that he would not receive any temporary total disability benefits since the settlement order stated that the settlement covered all claims for recovery by the decedent against Nicor, including any unpaid temporary total disability benefits. The order also stated that it was “disputed” whether the decedent was ever temporarily totally disabled, which would have indicated to the decedent that his claim for temporary total disability benefits was unresolved before the settlement. Plaintiff also claimed the decedent had discussions with defendant Daniels after the settlement, to which defendant Daniels had to “reassure” the decedent that he would receive additional compensation in the whistleblower lawsuit to compensate for his injuries. As a result, the decedent knew, or should have known, of his injury at the time the settlement order was entered since he was agreeing to accept a sum of money that was substantially less than what he should have received as reasonable compensation after considering his previous salary of over $100,000 and that nearly eight years that had lapsed since he was working, during which he received only 11 weeks of extended benefit account payments. As a result, the decedent had until October 25, 2013, to file his legal malpractice complaint, which he did not actually file until 13 months later on December 30, 2014. As a result, the trial court did not err when it granted the defendants’ motion to dismiss.
¶ 30 Plaintiff argues that the decedent did not know of his injury because he relied on defendant Daniels’s assurances on multiple occasions after the settlement that he would receive additional compensation for his injuries from the whistleblower
¶ 31 Further, the assurances by defendant Daniels concerning further compensation related to the whistleblower case only. At that point in time, the workers’ compensation or occupational diseases case was over and the decedent was aware of the outcome; the fact that he expected more money in a different lawsuit had little bearing on the professional negligence that may have occurred in the prior action. Also, “[t]he discovery rule may be employed where ‘uncertainty exists as to the fact of damage’ but not where uncertainty exists only as to the amount of damage.” Belden v. Emmerman, 203 Ill. App. 3d 265, 270 (1990) (quoting Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 199 Ill. App. 3d 728, 734 (1990), rev’d, 158 Ill. 2d 240 (1994)). At the time of the settlement, the decedent was depending on receiving additional compensation in the whistleblower lawsuit, but whether he would ultimately receive that extra money would only mitigate the damage that occurred from the insufficient settlement. The fact that the decedent was damaged by the insufficient settlement was known as soon as the settlement was approved, but the uncertainty of additional funds from another lawsuit would have only lessened the amount of damage caused by the insufficient settlement.
¶ 32 Plaintiff heavily relies on Trogi, 362 Ill. App. 3d 93, to support his claim that the complaint was timely. In Trogi, the plaintiff client hired the defendant attorney to represent him in the purchase of real estate from his daughter. Trogi, 362 Ill. App. 3d at 94. The attorney told the plaintiff that the deed was recorded in Lake County and mailed him a copy; however, the deed should have been recorded in Cook County. Trogi, 362 Ill. App. 3d at 94. Five years later, the daughter sold her interest in the property to a third party, and that deed was recorded in Cook County. Trogi, 362 Ill. App. 3d at 94. Since the attorney did not properly record the initial deed, the plaintiff’s interest did not appear in the title search, which resulted in the loss of the plaintiff’s interest in the property. Trogi, 362 Ill. App. 3d at 94-95. The plaintiff sued the defendant attorney for legal malpractice, but the trial court dismissed the case, finding that the complaint was not filed within the two-year statute of limitations. Trogi, 362 Ill. App. 3d at 94-95. On appeal, the appellate court reversed, finding that plaintiff did not become aware of the recording error until the deed was conveyed to the third party. Trogi, 362 Ill. App. 3d at 98-99. The appellate court found that, even if the plaintiff had noticed where the deed was recorded, that fact did “not lead to the conclusion that a layperson who hired an attorney to represent him in a real estate
¶ 33 In the instant case, plaintiff argues that the decedent likewise relied on the advice of his attorneys and that, since he was a lay person, he could not have been expected to know what the requirements for receiving temporary total disability payments were, what a reasonable settlement amount would be, or whether he could have received more money by taking the case to a hearing. However, Trogi is distinguishable because, in that case, the plaintiff was not expected to understand the complex deed recording process. Here, the deficiency of the settlement amount was obvious to even a lay person at the time of the settlement just considering the bottom line—that the decedent was receiving less than one years’ worth of his previous salary to compensate him for nearly eight years of back pay, medical expenses, and permanent disability. Therefore, the decedent, even if he lacked legal expertise, was aware that his settlement amount was insufficient, which would have at least put him on notice to investigate whether his attorneys were negligent. As a result, the statute of limitations was not tolled since the decedent was aware of his injury at the time the settlement order was entered, and the trial court did not err when it dismissed the legal malpractice complaint as untimely.
II. Equitable Estoppel
¶ 35 Plaintiff argues in the alternative that defendants should be estopped from asserting the statute of limitations under a theory of equitable estoppel or fraudulent concealment because the decedent reasonably relied on defendants’ misrepresentations, which delayed his discovery of his injury. For the following reasons, we affirm the judgment of the trial court.
¶ 36 A defendant is estopped from asserting the limitations bar if the plaintiff’s failure to act within the statutory period results from reasonable reliance on the defendant’s conduct or representations. Witherell v. Weimer, 118 Ill. 2d 321, 330 (1987). “To establish equitable estoppel, the party claiming estoppel must demonstrate that: (1) the other party misrepresented or concealed material facts; (2) the other party knew at the time the representations were made that the representations were untrue; (3) the party claiming estoppel did not know that the representations were untrue when they were made and when they were acted upon; (4) the other party intended or reasonably expected the representations to be acted upon by the party claiming estoppel or by the public generally; (5) the party claiming estoppel reasonably relied upon the representations in good faith to his or her detriment; and (6) the party claiming estoppel has been prejudiced by his or her reliance on the representations.” In re Parentage of Scarlett Z.-D., 2015 IL 117904, ¶ 25 (citing Parks v. Kownacki, 193 Ill. 2d 164, 180 (2000)). ” ‘ “[I]t is not necessary that the defendant intentionally mislead or deceive the plaintiff, or even intend by its conduct to induce delay. [Citations.] Rather, all that is necessary for invocation of the doctrine of equitable estoppel is that the plaintiff reasonably rely on the defendant’s conduct or representations in forbearing suit.” ’ ” Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 252 (1994) (quoting Witherell v. Weimer, 85 Ill. 2d 146, 159 (1981), quoting Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067, 1071 (7th Cir. 1978)).
¶ 37 Under the fraudulent concealment doctrine, the statute of limitations will be tolled if a plaintiff pleads and proves that fraud prevented discovery of a cause of action, and if so, a plaintiff can commence his or her suit at any time within five years after he or she discovers a cause of action. Carlson, 2015 IL App (1st) 140526, ¶ 44 (citing Clay v. Kuhl, 189 Ill. 2d 603, 613 (2000), and
¶ 38 However, it is well-established that the basis of a legal malpractice action also cannot constitute the grounds for equitable estoppel; there must be some misrepresentation by the defendant that the plaintiff relied on to his or her detriment to prevent the filing of a legal malpractice action. Koczor v. Melnyk, 407 Ill. App. 3d 994, 1000 (2011) (citing Barratt, 296 Ill. App. 3d at 257-58 (“the allegedly fraudulent statements or omissions that form the basis of the cause of action may not constitute the fraudulent concealment in the absence of a showing that they tend to conceal the cause of action“)). In the instant case, none of defendants’ assurances or representations to the decedent that plaintiff claims constituted legal practice may be used as grounds to estop defendants from asserting the statute of limitations bar in the instant case. Here, plaintiff claims that defendants Daniels and Marks committed malpractice when they told the decedent that his workers’ compensation or occupational diseases case was progressing and then urged him to accept Nicor’s settlement offer, arguing that it was a good offer and that he would receive additional money through the separate whistleblower case. Since plaintiff argues that those assurances are a part of a course of defendants’ conduct that amounted to legal malpractice, plaintiff cannot point to those same assurances as grounds for estoppel. See Koczor, 407 Ill. App. 3d at 1000.
¶ 39 Moreover, plaintiff also points to one type of assurance after the settlement in which decedent claims that defendant Daniels continued to reassure the decedent on multiple occasions that he would receive money in the whistleblower case in addition to the money he received in the workers’ compensation and occupational diseases settlement. First, those assurances are nearly identical to the presettlement assurances of additional compensation in the whistleblower case that plaintiff argues were a part of defendants’ mishandling of the decedent’s workers’ compensation or occupational diseases case, and plaintiff cannot assert those assurances to estop defendants from asserting the statute of limitations. Second, as stated, those assurances are related to a separate lawsuit and have no bearing on the outcome of the workers’ compensation or occupational diseases case. At the time defendant Daniels
¶ 40 Plaintiff relies on DeLuna, 223 Ill. 2d 49, where the plaintiffs, who did not speak English and relied in good faith on their attorney’s reassurances, claimed that their attorney failed to reveal material facts; misled them by twice telling them their case was going well when it had, in fact, been dismissed; and failed to disclose facts bearing on the procedural status of the case. DeLuna, 223 Ill. 2d at 79-80. The Illinois Supreme Court found that the plaintiff’s allegations that their attorney twice misrepresented the status of their case after it had been dismissed were sufficient to meet the pleading requirements for fraudulent concealment. DeLuna, 223 Ill. 2d at 81. However, this case is factually distinguishable from the instant case since plaintiff does not allege any assurances that defendants made to the decedent after the settlement that explicitly misrepresented or concealed material facts concerning the workers’ compensation or occupational diseases case.
¶ 41 Plaintiff also relies on Jackson Jordan, 158 Ill. 2d 240, where the defendant law firm did not advise the plaintiff client of a patent held by a third party in 1973. Jackson Jordan, 158 Ill. 2d at 244. In 1975, the third party sued to enforce its preexisting patent, and the law firm unsuccessfully attempted to invalidate the third party’s patent over the next 12 years (Jackson Jordan, 158 Ill. 2d at 244-47), during which time the law firm repeatedly and incorrectly reassured the client that it would prevail (Jackson Jordan, 158 Ill. 2d at 252-53). The Illinois Supreme Court found that the law firm was equitably estopped from asserting the statute of limitations when the client sued in 1988 for the negligent advice it provided in 1973. Jackson Jordan, 158 Ill. 2d at 253. Again, this case is distinguishable from the instant case since plaintiff has not pointed to any assurances that defendants made to the decedent after the settlement that explicitly misrepresented or concealed material facts concerning the workers’ compensation or occupational diseases case. Whereas defendant Daniels may have assured the decedent that he would receive additional compensation in the whistleblower lawsuit, that did not conceal or misrepresent the plainly obvious fact that the amount of money the decedent received in the settlement was far below what he should have received.
¶ 42 As a result, defendants were not estopped from asserting the statute of limitations, and the trial court did not err when it dismissed plaintiff’s legal malpractice lawsuit as untimely.
CONCLUSION
¶ 44 For the foregoing reasons, we affirm the judgment of the trial court. The trial court did not err when it granted defendants’
¶ 45 Affirmed.