Robert R. McCormick Foundation v. Arthur J. Gallagher Risk Management Services, Inc. , 2019 IL 123936 ( 2019 )

2019 IL 123936IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 123936)
ROBERT R. McCORMICK FOUNDATION et al., Appellants, v. ARTHUR J. GALLAGHER
RISK MANAGEMENT SERVICES, INC., Appellee.
Opinion filed November 21, 2019.
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Burke and Justices Kilbride, Garman, Karmeier, Theis, and
Neville concurred in the judgment and opinion.
OPINION
¶1 The issue presented is whether the common-interest exception to the attorney-
client privilege as set forth in Waste Management, Inc. v. International Surplus
Lines Insurance Co., 144 Ill. 2d 178, 190 (1991), extends to the circumstances of
this case, where there is no insured-insurer relationship between the parties and the
party claiming the privilege is bringing suit based on the defendant’s negligence in
failing to procure appropriate insurance as a broker. We find that the common-
interest exception does not extend to the facts of this case.
¶2 BACKGROUND
¶3 Plaintiffs, the Robert R. McCormick Foundation and the Cantigny Foundation
(Foundations), brought the instant suit against their former insurance broker, Arthur
J. Gallagher Risk Management Services, Inc. (Gallagher), in Du Page County
circuit court. The Foundations’ complaint included four counts: breach of contract
to procure insurance, contractual indemnity, professional negligence, and negligent
misrepresentation.
¶4 The complaint alleged the following facts. The Foundations are among the
largest charitable organizations in the United States and engage in numerous
philanthropic activities. As large charitable enterprises whose livelihoods flow
from extensive securities holdings, the Foundations have need of robust insurance
coverage, including directors and officers (D&O) coverage. Gallagher is a for-
profit insurance brokerage firm. In 2008, the Foundations hired Gallagher as their
insurance broker, and thereafter, the parties entered into a series of annual
compensation agreements. An agreement signed by the parties in 2009 was in effect
when the key events underlying the Foundations’ claims against Gallagher took
place.
¶5 In February 2010, the parties began discussions as to whether the Foundations
should renew their primary D&O insurance coverage (the Chubb policy) through
(what was essentially) a single policy with Federal Insurance Company, a member
of the Chubb group of insurance companies, which gave the Foundations a total of
$25 million in D&O coverage for 2008-10. The Foundations repeatedly advised
Gallagher during the course of these discussions that their goal was to obtain the
same breadth of coverage provided by the Chubb policy, while also seeking a
reduced premium if possible.
¶6 In June 2010, Gallagher offered the Foundations two choices—either renew the
existing Chubb policy, or purchase a two-year $25 million policy from Chartis
Insurance Company (the Chartis policy). Gallagher assured the Foundations that
the Chartis policy provided the same coverage as the Chubb policy and that the
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coverage would be “apples to apples.” The proposed Chartis policy, however, had
the added benefit that it carried a premium that was $3400 less than the Chubb
policy. Given the difference in premiums, Gallagher recommended that the
Foundations bind coverage with Chartis.
¶7 Unbeknownst to the Foundations, the Chartis policy actually contained a broad
exclusion of claims that in any way related to the purchase or sale of securities. By
contrast, the expiring Chubb policy contained a narrower securities exclusion that
barred coverage only with respect to claims involving alleged violations of
securities laws.
¶8 In 2007, the Foundations were the second largest shareholder group in the
Tribune Company (the Tribune), a large multimedia corporation. At that time, the
Foundations sold their preferred stock in the Tribune for some $2 billion during a
leveraged buyout (LBO) of the company. About a year after that transaction, the
Tribune filed for bankruptcy protection.
¶9 After the Tribune exited bankruptcy in 2011, aggrieved shareholders filed a
number of federal suits across the country against more than 5000 defendants; the
suits were eventually consolidated in the Southern District of New York. See In re
Tribune Co. Fraudulent Conveyance Litigation, 831 F. Supp. 2d 1371 (J.P.M.L.
2011). The Foundations were named as defendants in three of the suits. These suits
generally allege that the Foundations—through their directors and officers and
acting in concert with other controlling shareholders—orchestrated the LBO
through actual and constructive fraud. Accordingly, the suits seek to unwind the
LBO and to claw back creditors’ funds.
¶ 10 The Foundations tendered the suits (the LBO Litigation) to their new insurer
Chartis under their D&O policy, but Chartis denied coverage under the policy
exclusion for claims “in any way relating to any purchase of securities.” The
Foundations allege that this exclusion was not found in their prior policy with
Chubb. As a result, the Foundations have been forced to fund the extremely costly
defense of the sprawling and complex LBO Litigation. That defense has been
largely successful to date, but it has been expensive, and the litigation will likely
continue for years.
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¶ 11 The Foundations assert that Chubb would have defended and indemnified them
under their former policy. On that basis, the Foundations sued Gallagher for breach
of contract and professional negligence resulting in loss of coverage.
¶ 12 On Gallagher’s motion for summary judgment, the circuit court determined that
an exclusion in the Chubb policy, too, would have barred coverage for the LBO
Litigation. On appeal (the first of two appeals in this case), the appellate court
disagreed with the circuit court’s ruling, holding instead that the Chubb exclusion
in question did not necessarily bar coverage. See 2016 IL App (2d) 150303, ¶¶ 14-
16. The appellate court therefore reversed the circuit court’s grant of summary
judgment for Gallagher. Id. ¶ 17.
¶ 13 On remand, Gallagher raised several affirmative defenses, and the parties
proceeded to discovery. Gallagher’s affirmative defenses asserted that the
Foundations’ conduct in the LBO transaction was fraudulent and therefore
uninsurable. Moreover, Gallagher alleged, the Foundations knew of “an ongoing,
progressive loss” before they changed insurers in June 2010 and therefore would
never have been entitled to coverage under an insurance policy purchased in June
2010 regardless of its terms. Gallagher stated to the circuit court that, in order to
prove its defenses, it hoped to garner facts relating to the following: (1) the extent
to which the Foundations advocated for the LBO, (2) the Foundations’ knowledge
that the sustainable debt burden that the LBO structure placed on the Tribune would
result in bankruptcy, and/or (3) the Foundations’ knowledge that they would be
sued as a result of their involvement with the LBO. These contentions echo key
allegations made in the LBO Litigation against the Foundations.
¶ 14 During discovery, Gallagher subpoenaed the Foundations and their legal
counsel, seeking any and all communications between the Foundations and their
attorneys related to the Tribune bankruptcy and the LBO Litigation. Gallagher
argued that it needed these documents to prove its affirmative defenses. The
Foundations refused to tender the documents, citing attorney-client privilege. The
Foundations asked the circuit court to quash the subpoenas or, in the alternative, to
stay the case until the completion of the LBO Litigation. When the Foundations
maintained that the documents Gallagher sought included attorney-client privileged
communications and attorney work product, Gallagher argued that it was entitled
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to the documents under the common-interest exception announced in Waste
Management, 144 Ill. 2d 178.
¶ 15 The circuit court agreed with Gallagher, finding that Gallagher had a “common
interest” with the Foundations because it was “standing in the insurer’s shoes for
the purposes of this malpractice issue and may bear the ultimate burden of payment
of the underlying claims and defense costs, so [Gallagher’s] interests have become
aligned with [the Foundations’ interests] in defeating or settling the underlying
litigation.” The circuit court also denied the Foundations’ request for a stay. To
preserve its appeal rights, the Foundations refused to turn over the privileged
documents, and the circuit court then issued a “friendly” contempt order to allow
appeal of the issue.
¶ 16 On appeal, the appellate court found Waste Management controlling as to
allowing discovery of the documents and therefore affirmed the circuit court’s
discovery order in all material respects, although it vacated the contempt order. See
2018 IL App (2d) 170939, ¶¶ 15, 23. It also affirmed the denial of a stay but
remanded with directions for the circuit court to proceed with discovery while
monitoring the necessity for a stay in the future. Id. ¶ 23.
¶ 17 We allowed the Foundations’ petition for leave to appeal, which asks this court
to determine whether the holding of Waste Management applies to render the
attorney-client privilege in this professional negligence case inapplicable with
respect to the attorney communications mentioned in Gallagher’s subpoena. Ill. S.
Ct. R. 315 (eff. July 1, 2018).
¶ 18 ANALYSIS
¶ 19 Where legal advice of any kind is sought from a lawyer in his or her capacity
as a lawyer, the communication relating to that purpose, made in confidence by the
client, is protected from disclosure by the client or lawyer, unless the protection is
waived. Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., 189 Ill. 2d 579, 584
(2000); People v. Adam, 51 Ill. 2d 46, 48 (1972); 8 John H. Wigmore, Evidence
§ 2292 (McNaughton rev. ed. 1961). The attorney-client privilege is an evidentiary
privilege, providing “ ‘limited protection to communications from the client by
prohibiting their unauthorized disclosure in judicial proceedings.’ ” In re Marriage
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of Decker, 153 Ill. 2d 298, 312 (1992) (quoting Annotated Model Rules of Prof’l
Conduct R. 1.6, at 90 (2d ed. 1992)). The privilege is among the oldest privileges
for confidential communications known to the common law and is essential to the
proper operation of our adversarial system of justice. United States v. Zolin, 491
U.S. 554, 562 (1989); Decker, 153 Ill. 2d at 312-13. The privilege is based upon
the confidential nature of the communications between the lawyer and client.
People v. Simms, 192 Ill. 2d 348, 381 (2000). And the purpose is “ ‘to encourage
and promote full and frank consultation between a client and legal advisor by
removing the fear of compelled disclosure of information.’ ” Waste Management,
144 Ill. 2d at 190 (quoting Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d
103, 117-18 (1982)). Furthermore, the attorney-client privilege recognizes “ ‘that
sound legal advice or advocacy serves public ends and that such advice or advocacy
depends upon the lawyer being fully informed by the client.’ ” Fischel & Kahn, 189
Ill. 2d at 585 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).
¶ 20 But Illinois also has a general public policy of strongly encouraging disclosure
of information, with a view to ascertaining the truth, which is essential to the proper
disposition of a lawsuit. Waste Management, 144 Ill. 2d at 190. Thus, the attorney-
client privilege is to be strictly confined within its narrowest bounds, limited solely
to those communications that the claimant either expressly made confidential or
that he could reasonably believe under the circumstances would be understood by
the attorney as such. Id.¶ 21 The Foundations argue before this court that the lower courts erred in applying
Waste Management to the facts of this case to negate the privilege.
¶ 22 In Waste Management, both the insureds and insurers filed declaratory
judgment actions seeking a determination of their respective rights and liabilities
under the applicable insurance policies relative to the insurers’ right to defend and
duty to indemnify the insureds in personal injury and property damage lawsuits
stemming from the insureds’ operation of hazardous waste disposal sites. Id. at 186-
87. The insurers denied coverage for the tort suits and, in the declaratory judgment
action, sought production in discovery of the files of the insureds’ defense counsel
that dealt with the underlying tort litigation. The insureds claimed attorney-client
and work-product privileges. Id. at 187.
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¶ 23 This court held that all the files pertaining to the underlying litigation were
discoverable and the privileges were not applicable. Id. at 200-01. In ruling in favor
of the insurers and holding that the attorney-client privilege had no application, this
court found that two of the arguments that the insurers had made were “equally
significant” and controlling. Id. at 191, 195. With respect to the first, the court
agreed with the insurers’ argument that the cooperation clause in the parties’
agreement, which required the parties to cooperate and imposed a duty on the
insureds to assist in the conduct of litigation, negated the attorney-client privilege.
Id. at 192. The court found that, in light of the language in the policy, “it cannot
seriously be contended that insureds would not be required to disclose contents of
any communications they had with defense counsel representing them on a claim
for which insurers had the ultimate duty to satisfy.” Id. This court further found that
the fact that “the parties are now adverse concerning the interpretation of such terms
does not negate the insureds’ contractual duty,” and “[a] fair reading of the terms
of the contract renders any expectation of attorney-client privilege, under these
circumstances, unreasonable.” Id. at 192-93.
¶ 24 Waste Management next turned to consider the insurers’ second argument for
their entitlement to the litigation files. In that regard, the insurers argued that, under
the common-interest doctrine, “the attorney-client privilege is unavailable to
insureds.” (Emphasis added.) Id. at 193. This court found this second argument
“equally compelling” and began its analysis by noting that “no Illinois cases ***
presented like facts.” Id. But this court then found that there was a wealth of foreign
authority to support the insured’s position, citing seven cases that all involved an
insurer-insured relationship. See id. (citing International Insurance Co. v. Peabody
International Corp., No. 87 C 464, 1988 WL 58611 (N.D. Ill. 1988), Truck
Insurance Exchange v. St. Paul Fire & Marine Insurance Co., 66 F.R.D. 129 (E.D.
Pa. 1975), Southeastern Pennsylvania Transportation Authority v. Transit Casualty
Co., 55 F.R.D. 553 (E.D. Pa. 1972), Shapiro v. Allstate Insurance Co., 44 F.R.D.
429 (E.D. Pa. 1968), Mitchum v. Hudgens, 533 So. 2d 194 (Ala. 1988), Goldberg
v. American Home Insurance Co., 439 N.Y.S.2d 2 (App. Div. 1981), and Liberty
Mutual Insurance Co. v. Engels, 244 N.Y.S.2d 983 (Sup. Ct. 1963)). This court
found the foreign authority to be persuasive. Waste Management, 144 Ill. 2d at 193.
¶ 25 With the help of various evidence treatises, Waste Management then stated the
common-interest doctrine as follows: “when an attorney acts for two different
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parties who each have a common interest, communications by either party to the
attorney are not necessarily privileged in the subsequent controversy between the
two parties.” Id. (citing Michael H. Graham, Cleary and Graham’s Handbook of
Illinois Evidence § 505.7, at 277 (5th ed. 1990), Edward W. Cleary, McCormick
on Evidence § 91, at 219 (3d ed. 1984), and 8 John H. Wigmore, Evidence § 2312,
at 603 (McNaughton rev. ed. 1961)).
¶ 26 Waste Management noted that, in the typical case where the common-interest
doctrine is applied, the attorney has provided joint or simultaneous representation
to both parties. Waste Management stated, however, that it “believe[d] that the
doctrine may properly be applied where the attorney, though neither retained by
nor in direct communication with the insurer, acts for the mutual benefit of both the
insured and insurer. [Citations.] It is the commonality of interests which creates the
exception, not the conduct of the litigation.” Id. at 194.
¶ 27 Waste Management then concluded its analysis with the following:
“On these facts, a less flexible application of the doctrine effectively defeats
the purpose and intent of the parties’ agreement. Insureds and insurers share a
special relationship; they are in privity of contract. In a limited sense, counsel
for insureds did represent both insureds and insurers in both of the underlying
litigations since insurers were ultimately liable for payment if the plaintiff in
the underlying action received either a favorable verdict or settlement. To deny
discovery in this instance would be to disregard considerations of public policy
which require encouragement of full disclosure by an insured to his insurer.”
(Emphases added.) Id. at 194-95.
¶ 28 The Foundations argue that Waste Management does not apply here because
there was no “special relationship” that existed between Gallagher and the
Foundations. The agreement of the parties in this case only required Gallagher to
indemnify the Foundations for Gallagher’s own negligence. This is therefore not
like the situation in Waste Management where the parties had an obligation by
contract and by public policy to act in good faith toward each other and to share
and communicate. In this case, there was no cooperation clause, and the relationship
of the parties was such that they never had a need for cooperation—Gallagher
agreed to indemnify for its own negligence, not for the Foundations’ negligence,
and it never had any duty or right to defend the Foundations like an insurance
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company would. The appellate court in this case confused the common-interest
exception with the joint-defense and nonwaiver doctrines, and it thus expanded
Waste Management. Also, unlike the insurer in Waste Management, Gallagher
never had a nonadversarial interest in the Foundations’ defense. To establish
Gallagher’s negligence, the Foundations had to sue Gallagher.
¶ 29 In response, Gallagher argues that the Foundations’ effort to “superimpose a
‘special relationship’ requirement” on the common-interest doctrine is contrary to
the explicit test set forth in Waste Management. Gallagher contends that the
Foundations’ argument is, at its core, an effort to require a contractual duty to
cooperate in order for the common-interest doctrine to apply, even though Waste
Management specifically stated that the common-interest issue was “equally
significant” and “equally compelling” and found either argument “dispositive.”
Gallagher argues that it is the “commonality of interests which creates the
exception, not the conduct of the litigation,” and that here that commonality exists
because, by the Foundations’ own admission, Gallagher stepped into the shoes of
the insurer as a de facto insurer. And, according to Gallagher, none of the treatises
cited by the court in Waste Management predicated the applicability of the
common-interest doctrine on the special relationship of insured and insurer.
¶ 30 Although good arguments have been presented on both sides and it is certainly
true, as Gallagher maintains, that no Illinois court so far has explicitly limited the
common-interest doctrine to the insurer-insured relationship (see Selby v. O’Dea,
2017 IL App (1st) 151572, ¶ 25 (“while Illinois courts have never explicitly limited
this doctrine to the insurer-insured relationship, that is the situation where it is most
obviously applicable”)), we nonetheless find the Foundations’ argument to be more
persuasive than Gallagher’s. Gallagher’s argument misses the fact that the treatises
relied upon in Waste Management discuss the common-interest doctrine in terms
of two or more clients who retain or consult the same lawyer. As a matter of first
impression in Illinois, Waste Management expanded this doctrine to the situation
involving two parties who do not consult the same lawyer but who are in a “special
relationship” so that they could be treated as if they did retain the same counsel.
The treatises cited in Waste Management, including the updated versions of those
treatises to reflect the current state of the law, do not indicate that the common-
interest doctrine is as broad as Gallagher makes it out to be. See, e.g., Edward J.
Imwinkelried, The New Wigmore: A Treatise on Evidence: Evidentiary Privileges
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§ 6.13.2 (2019) (discussing the nature of the joint-client and fiduciary exceptions
to the attorney-client privilege); 1 Kenneth S. Broun et al., McCormick on Evidence
§ 91.1 (7th ed. 2013) (in the step beyond the joint consultation situation involving
an insured-versus-insurer suit, it seems undisputed that “there is no privilege where
the controversy is between the insured *** and the [insurance] company itself over
the company’s liability under the policy”); Michael H. Graham, Graham’s
Handbook of Illinois Evidence § 505.7(4), at 452 (2019 ed.) (noting common-
interest exception to the privilege in the typical dual representation situation and
also its expansion by Waste Management to insured-insurer suits “even though the
insurer is not a party to the initial [underlying] proceeding” that brings the policy
potentially into play).
¶ 31 Moreover, no Illinois case has expanded the common-interest exception beyond
the context of the insurer-insured relationship. Gallagher suggests that
BorgWarner, Inc. v. Kuhlman Electric Corp., 2014 IL App (1st) 131824, extended
Waste Management in a way that is helpful to its position. But we do not find that
to be the case.
¶ 32 In BorgWarner, the court decided the case solely on the grounds of the
cooperation clause in the parties’ contract, which required that the parties cooperate
with respect to any underlying litigation because of third-party suits. Id. ¶ 33. In
that case, BorgWarner sold a manufacturing site to Kuhlman. As part of the deal,
BorgWarner agreed to indemnify Kuhlman against liabilities arising out of any
third-party environmental claims relating to the property, on the condition that
Kuhlman cooperate in connection with the defense of those matters. Id. ¶ 4.
BorgWarner thus undertook obligations to defend and indemnify third-party claims
and placed a cooperation clause in the parties’ agreement akin to that found in an
insurer-insured agreement. On those facts, the appellate court held that “the plain
language of the 1999 merger agreement’s cooperation clause created obligations”
“[s]imilar to the ‘cooperation clause’ in the Waste Management, Inc. insurance
policies ***. Thus, we find that any expectation of attorney-client privilege was
unreasonable.” Id. ¶ 26. The appellate court in BorgWarner specifically stated that
it was not addressing the common-interest doctrine. Id. ¶ 34. To the extent that
BorgWarner can be read to expand Waste Management, its reasoning has no
application here where the compensation agreement between Gallagher and the
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Foundations did not include any duty to indemnify the Foundations against third-
party claims or any duty to cooperate.
¶ 33 We also note that many Illinois decisions as well as courts in other jurisdictions
have generally refused to expand Waste Management. See Motorola Solutions, Inc.
v. Zurich Insurance Co., 2017 IL App (1st) 151465, ¶ 33; Hartz Construction Co.
v. Village of Western Springs, 2012 IL App (1st) 103108 ¶ 30; Illinois Emcasco
Insurance Co. v. Nationwide Mutual Insurance Co., 393 Ill. App. 3d 782, 790
(2009); Netherlands Insurance Co. v. National Casualty, 283 F.R.D. 412, 418 (C.D.
Ill. 2012); Kmart Corp. v. Footstar, Inc., No. 09 C 3607, 2010 WL 5101406, at *1
(N.D. Ill. Dec. 8, 2010)). And some courts have “assailed the decision as unsound
and improperly reasoned.” See Allianz Insurance Co. v. Guidant Corp., 373 Ill.
App. 3d 652, 664 (2007) (collecting cases from other jurisdictions criticizing Waste
Management). But cf. Abbott Laboratories v. Alpha Therapeutic Corp., 200 F.R.D.
401, 407-08 (N.D. Ill. 2001) (decision to deny privilege turned primarily on
cooperation clause in the parties’ agreement that concerned indemnification for
third-party claims but also relied upon the common-interest doctrine). 1
¶ 34 We further note that every one of the cases that Waste Management found
persuasive in finding that the attorney-client privilege is unavailable to insureds
specifically involved an insured-insurer relationship. In fact, the first case cited by
this court in Waste Management as being persuasive—Peabody International
Corp.—had the benefit of assessing all of the earlier decided cases before setting
forth the analytical framework for holding that the attorney-client privilege is
unavailable to insureds in the type of case before it (which involved similar facts to
those at issue in Waste Management). In Peabody, the federal district court
observed the following:
“[T]wo doctrines are at work here: (1) the joint-client exception to the attorney-
client privilege and (2) the doctrine that privity under a fiduciary contract can
allow a party access to the fiduciary’s attorney-client communications. The
joint-client theory is typically presented when two clients of the same lawyer
1
Abbott Laboratories is factually inapposite from the present case, though, for the same reasons
as BorgWarner: (1) it involves an express cooperation clause, and (2) it concerns indemnification
against third-party claims, not damages or indemnification for losses suffered on account of the
negligence of the very party seeking to negate the privilege.
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become adversaries. *** The privity-fiduciary theory stems from the position
of trust that one party holds for another, such as corporate directors for the
corporation and its shareholders, or an insurer for its policyholder. In the
fiduciary relation, the fiduciary has the power to take advantage of the other
party. *** Courts will in effect impose the party to whom the fiduciary duty is
owed on the fiduciary’s lawyer (make him a joint-client) in order to protect that
party from disadvantage although the fiduciary’s lawyer never formally
represented him.” 1988 WL 58611, at *3.
¶ 35 We note generally that the fiduciary-duty exception to the attorney-client
privilege is a concept that arose from trust law, and it has not been recognized in
Illinois law. See MDA City Apartments LLC v. DLA Piper LLP (US), 2012 IL App
(1st) 111047, ¶¶ 15-16; Garvy v. Seyfarth Shaw LLP, 2012 IL App (1st) 110115,
¶ 35. But the fiduciary-duty exception rejected in MDA and Garvy seems to be on
some level different than the concept set forth in Peabody, as it is described there
as the “privity-fiduciary theory.” See Peabody, 1988 WL 58611, at *3.
Nonetheless, the concept described in Peabody seems somewhat akin to the
underpinnings of Waste Management—which relied upon a “special relationship,”
“privity of contract,” and “public policy”—to tether its decision. Compare id., with
Waste Management, 144 Ill. 2d at 194-95.
¶ 36 At any rate, the best indication of the limited nature of Waste Management’s
holding is the language employed in Waste Management itself. There, the court
carefully constricted its ruling by noting that “[o]n these facts, a less flexible
application of the doctrine effectively defeats the purpose and intent of the parties’
agreement.” (Emphases added.) Waste Management, 144 Ill. 2d at 194. The court
also emphasized that the parties had a special relationship and were in privity of
contract. We believe that the same key circumstances found in Waste Management
are absent from the present case and that this reality requires a different result here.
¶ 37 Gallagher argues that it too is in privity of contract with the Foundations. We
find, however, that the privity of contract here is fundamentally different than that
which was at stake in Waste Management and is not helpful to Gallagher’s position
in any crucial way. The insured-insurer relationship in Waste Management brought
into play public policy considerations (which are absent here) that required full
disclosure by an insured to his insurer. Here, the contract between the Foundations
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and Gallagher simply required Gallagher to indemnify the Foundations for
Gallagher’s own negligence, a duty the law would arguably impose upon any
tortfeasor for its own negligence regardless of contractual obligations. This is much
different, we believe, than the situation in cases like Waste Management where the
insurer has a duty to indemnify its insured for the insured’s negligence, not the
insurance company’s own negligence.
¶ 38 To apply the doctrine here would be at odds with the purpose of the attorney-
client privilege to promote full and frank consultation between a client and legal
advisor without fear of compelled disclosure. It seems to us that Gallagher’s and
the Foundations’ interests were always adverse, and there was not a commonality
of interest in the same way that is the case when an insurer has a duty to indemnify
and defend from the beginning. Here Gallagher had no such duty or right to defend
and had no duty to indemnify for any negligence on the part of the Foundations; in
fact, Gallagher disclaims all such duties and is being sued for its own malpractice,
which arguably could be established quite apart from any duty to indemnify
undertaken contractually by Gallagher. Under the circumstances, the Foundations
never had any reason whatsoever to think that their attorneys would share any
confidences with Gallagher. Moreover, unlike in Waste Management, we cannot
see how the communication by the Foundations with their defense counsel is of a
kind reasonably calculated to protect or further any kind of common interest
between the parties in this case in defeating or settling the claims against the
Foundations in the underlying LBO Litigation.
¶ 39 CONCLUSION
¶ 40 For the foregoing reasons, we affirm the portions of the appellate court’s
judgment that affirmed as modified the denial of the stay and vacated the circuit
court’s contempt ruling. However, we reverse the portion of the appellate court’s
judgment that affirmed the circuit court’s order to compel discovery. We remand
the cause to the circuit court of Du Page County for further proceedings consistent
with this opinion.
¶ 41 Appellate court judgment affirmed in part and reversed in part.
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¶ 42 Circuit court judgment affirmed in part and reversed in part.
¶ 43 Cause remanded.
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