Brummel v. Grossman ( 2018 )

2018 IL App (1st) 162540
No. 1-16-2540
Fourth Division
March 29, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
MARIA BRUMMEL, Executor of the Estate of Bruce ) Appeal from the Circuit Court
Brummel, Deceased, ) of Cook County.
)
Plaintiff-Appellant, ) No. 14 L 13363
)
v. ) The Honorable
) John P. Callahan, Jr.,
RICHARD D. GROSSMAN; AGNES E. GROSSMAN; ) Judge Presiding.
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). )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
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
No. 1-16-2540
Jason S. Marks and the law firm of Noonan, Perillo, Polenzani & Marks, Ltd. (collectively,
Marks defendants). 1 The lawsuit, originally filed by Bruce Brummel 2 (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 October 25, 2011. 3 The trial court ultimately dismissed the legal
malpractice complaint with prejudice pursuant to section 2-619(a)(5) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2014)), finding that the complaint was not
filed within the Code’s two-year statute of limitations governing legal malpractice actions
(735 ILCS 5/13-214.3 (West 2014)). Plaintiff appeals, arguing that the statute of limitations
was tolled since the decedent filed his complaint within two years of discovering his injury,
and that defendants should be estopped from asserting the statute of limitations defense
because the decedent reasonably relied on defendants’ misrepresentations, which delayed his
discovery of injury. For the following reasons, we affirm the judgment of the trial court.
1
Plaintiff also alleged a separate count of legal malpractice against attorneys Richard D.
Grossman and Agnes E. Grossman and the Law Offices of Richard D. Grossman (collectively,
Grossman defendants) for their handling of a separate related lawsuit, but that count is not at issue in
this appeal.
2
Bruce Brummel passed away on June 3, 2015, during the pendency of his legal malpractice
lawsuit. The trial court substituted Maria Brummel, the executor of his estate, as plaintiff on October
6, 2015.
3
The complaint filed in this matter refers to the action as a workers’ compensation claim. On
claims filed at the Illinois Workers’ Compensation Commission, the employees have the option to file
their claim under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2006)) or the
Workers’ Occupational Diseases Act (820 ILCS 310/1 et seq. (West 2006)) or both. The application
for adjustment of claim form filed in this matter is not contained in the record of this case, so we do
not know what act the decedent filed under. The briefs filed in this matter state that the claim that was
filed here was under the Workers’ Compensation Act, but we will assume it was under the
Occupation Disease Act or both.
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¶2 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 positions 4 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
The decedent’s job titles do not appear in the record on appeal.
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¶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
protection devices, which conformed the plumbing to city, state, and federal water safety
regulations.
¶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 Workers’ Compensation Act or Workers’
Occupational Diseases Act, nor did Nicor pay for any of his medical expenses.
¶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 Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)). The decedent and
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No. 1-16-2540
defendant Daniels entered into a retainer agreement that defendant Daniels would receive a
contingency fee of one-third of any recovery for extended benefits and that decedent would
pay all costs. Defendant Daniels also agreed to be paid his fee on the workers’ compensation
and/or occupational diseases action in accordance with the provisions of the Workers’
Compensation Act and the Workers’ Occupational Diseases Act. After the decedent retained
defendant Daniels as counsel, defendant Daniels recommended that the decedent also retain
defendant attorney Jason S. Marks as cocounsel for the Workers’ Compensation Act and
Workers’ Occupational Diseases Act claim since defendant Marks represented that he had
experience in handling those cases. Defendant Marks agreed, and defendants Daniels and
Marks entered into a fee sharing agreement, and the decedent agreed.
¶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 section
19(b-1) of the Workers’ Compensation Act was ever filed on his behalf (820 ILCS 305/19(b­
1) (West 2006)).
¶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 section 19(b-1)
petition to obtain temporary total disability payments for decedent during the pendency of his
Workers’ Compensation Act and/or Workers’ Occupational Diseases Act case and that
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No. 1-16-2540
defendants Daniels and Marks induced him into accepting an “unreasonably low” $125,000
settlement offer from Nicor. The lawsuit also alleged two counts against the Daniels
defendants and the Grossman defendants for their handling of the decedent’s related civil
lawsuit against Nicor for retaliatory discharge and violating the Whistleblower Act (740
ILCS 174/1 et seq. (West 2004)), and one count for defendant Daniels’s negligent referral of
the Marks and Grossman defendants. However, those counts are not at issue in this appeal.
¶ 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 Workers’ Compensation Act and/or
Workers’ Occupational Diseases Act case and lack of temporary total disability benefits, and
wanted to know why the matter was moving so slowly. Decedent alleged that defendant
Daniels reassured him that “everything was fine, that the matter took time, and that
Defendant Marks was handling the matter competently,” and defendant Marks reassured the
decedent that the case was progressing and that he would receive compensation for his
injuries. The complaint alleged that, “for unknown reasons,” neither defendant Marks nor
defendant Daniels sought temporary total disability benefits during the pendency of the
decedent’s workers’ compensation and/or occupational diseases case even though temporary
total disability benefits “were available and [the decedent] was entitled” to receive them. As
a result, the complaint alleged that the Daniels and Marks defendants committed legal
malpractice for failing to seek temporary total disability benefits for the decedent while his
case was pending.
¶ 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
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No. 1-16-2540
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 section 2-619(a)(5) motion to
dismiss the complaint as untimely pursuant to the Code’s two-year statute of limitations
governing legal malpractice actions. 735 ILCS 5/2-619(a)(5), 13-214.3 (West 2014). The
motion to dismiss argued that over three years had elapsed between the settlement of the
underlying workers’ compensation and/or occupational diseases case and the filing of the
decedent’s instant legal malpractice lawsuit and that the decedent did not show any
affirmative acts or misrepresentations by defendants after the settlement to prevent the
decedent’s discovery of the cause of action. The motion to dismiss also argued that the
decedent was aware of the potential for temporary total disability benefits prior to the
settlement and that the settlement order, which the decedent signed, stated that the settlement
was a complete and final resolution to his Workers’ Compensation Act and Workers’
Occupational Diseases Act case, including any unpaid temporary total disability payments.
The Daniels defendants later joined the motion to dismiss. The decedent’s response to the
motion to dismiss does not appear in the record on appeal.
¶ 14 On April 5, 2016, the trial court held a hearing on defendants’ motion to dismiss. The
trial court pointed to paragraph 94 of the complaint, which read, “Due to continued
assurances made by Defendant Daniels and Defendant Marks, [the decedent] did not learn
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No. 1-16-2540
until 2014 that his worker’s compensation and occupational diseases settlement amount was
far below what he should have received.” The trial court told plaintiff’s counsel, “I don’t
know what you’re telling me in paragraph 94” and indicated that it assumed that paragraph
94 was included to establish the discovery rule, which would toll the statute of limitations.
The trial court told plaintiff’s counsel that “I don’t even know what they’re saying the
assurances are, quite frankly,” and plaintiff’s counsel responded that the assurances
referenced in paragraph 94 of the complaint were the assurances that were given to the
decedent at the time of the settlement, which the trial court understood to be the typical
“assurances that are often given in many cases, [i]t’s the best we’re going to get; you could
do worse at trial; there’s a lot of uncertainty.” At the conclusion of the hearing, the trial court
considered the motion to dismiss as though it had been submitted pursuant to section 2-615
as a motion for failure to state a cause of action (735 ILCS 5/2-615 (West 2014)), rather than
section 2-619 (735 ILCS 5/2-619 (West 2014)), and granted the motion without prejudice,
providing plaintiff a “final opportunity to amend” the complaint with sufficient information
concerning “[w]hat are these assurances, exactly what fact or facts.” In a separate order on
April 13, 2016, the trial court granted plaintiff leave to file an amended complaint concerning
the legal malpractice claims against the Daniels and Marks defendants only. The order
further stated that plaintiff was not given leave to amend the pleadings concerning the
Daniels and Grossman defendants’ handling of the decedent’s separate whistleblower
lawsuit. However, that portion of the order is not part of this appeal.
¶ 15 On April 22, 2016, plaintiff filed an amended complaint in the instant lawsuit. In the
amended complaint, plaintiff claimed that, although the Workers’ Compensation Act and
Workers’ Occupational Diseases Act provide for temporary total disability benefits,
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No. 1-16-2540
defendants told the decedent that he was not eligible to receive payments without explaining
why. Plaintiff also claimed that some of the decedent’s Nicor coworkers told him that they
were not receiving temporary total disability benefits despite applying for them while their
cases were pending. Plaintiff further claimed that the decedent did not obtain temporary total
disability benefits because the Daniels and Marks defendants “failed to timely obtain or
develop medical support of his medical condition so an interim payment claim could be
successfully made” and that, prior to the settlement, defendants told the decedent that “he did
not need to worry about [temporary total disability benefits] payments because he would be
compensated for work injuries in the final resolution of the case.” As a result, the amended
complaint alleged legal malpractice against the Daniels and Marks defendants for failing to
timely obtain or develop the medical support evidence needed to seek temporary total
disability benefits.
¶ 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 they should
have received. Plaintiff also claimed that some of the decedent’s coworkers told him that
Nicor offered them settlement amounts that were similar to or less than the $125,000
settlement offer to the decedent and that they also had waited years to settle their cases. The
amended complaint, however, removed the allegation that the decedent initially considered
the $125,000 settlement offer “unreasonably low.” Plaintiff claimed that both defendants
Daniels and Marks told the decedent that the settlement offer from Nicor was good and urged
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No. 1-16-2540
him to accept the offer since Nicor was not willing to pay more. The amended complaint also
alleged that defendant Daniels, but not defendant Marks, assured the decedent that, in
addition to the settlement money he received, he would also “still be able to make a recovery
against [Nicor] in his retaliatory discharge/whistleblower case” and that, “on multiple
occasions” after the settlement but before the whistleblower case was dismissed, defendant
Daniels assured the decedent that “he would be receiving additional funds to the funds he
received in the worker’s compensation [and occupational diseases] action to compensate him
for his injuries.” Plaintiff argued that the decedent believed defendant Daniels’s “assurances”
after the settlement of additional compensation and “believed that [defendant] Daniels was
protecting his interests in both litigations.”
¶ 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.
¶ 18 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
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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.
¶ 20 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 Section 2-619(a)(5) provides that a defendant may file a motion for dismissal when an
action has not been commenced within the time limited by law (735 ILCS 5/ 2-619(a)(5)
(West 2014)). Section 2-619 is designed to afford litigants a means to dispose of issues of
law and easily proven issues of fact at the onset of litigation. Turner v. 1212 S. Michigan
Partnership, 355 Ill. App. 3d 885, 891 (2005). A motion to dismiss under section 2-619
admits the legal sufficiency of all well-pleaded facts but allows for the dismissal of claims
barred by an affirmative matter defeating those claims or avoiding their legal effect. Janda v.
United States Cellular Corp., 2011 IL App (1st) 103552, ¶ 83 (citing DeLuna v. Burciaga,
223 Ill. 2d 49, 59 (2006)). The failure to act within the time provided by law is an affirmative
matter, and “[w]here the affirmative matter asserted is apparent on the face of a pleading, no
affidavit is required to support a section 2-619 motion.” Asset Acceptance, LLC v. Tyler,
2012 IL App (1st) 093559, ¶¶ 23-24 (citing Sierens v. Clausen, 60 Ill. 2d 585, 588 (1975)).
“[I]n ruling on a section 2-619 motion, where the facts are undisputed and only one
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conclusion is evident, the court may determine the date of the commencement of the statute
of limitations as a matter of law.” Goran v. Glieberman, 276 Ill. App. 3d 590, 596 (1995)
(citing Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85 (1995)).
¶ 23 When ruling on a section 2-619 motion to dismiss, a trial court must interpret all
pleadings, affidavits, and other supporting documents in the light most favorable to the
nonmoving party. Caywood v. Gossett, 382 Ill. App. 3d 124, 128 (2008). The defendant has
the initial burden of proving the affirmative defense relied upon in its motion to dismiss.
Kirby v. Jarrett, 190 Ill. App. 3d 8, 12 (1989) (explaining that a defendant raising a statute of
limitations defense in a motion to dismiss bears the initial burden of demonstrating that the
action in question was not commenced within the applicable limitation period). Once the
defendant, however, has met this burden, it becomes incumbent upon the plaintiff to set forth
facts sufficient to avoid the statutory limitation. Cundiff v. Unsicker, 118 Ill. App. 3d 268,
272 (1983); Blair v. Blondis, 160 Ill. App. 3d 184, 188 (1987) (explaining that a plaintiff
seeking to come within the discovery rule exception to the limitations period has the burden
of proving the date of discovery).
¶ 24 An appeal from a section 2-619 dismissal requires the same analysis as an appeal
following a grant of summary judgment; in both instances, “the reviewing court must
ascertain whether the existence of a genuine issue of material fact should have precluded the
dismissal, or absent such an issue of fact, whether dismissal is proper as a matter of law.”
Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 178 (2007). In making this
determination, we apply a de novo standard of review. O’Toole v. Chicago Zoological
Society, 2015 IL 118254, ¶ 16. Under the de novo standard, we perform the same analysis
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that a trial court judge would perform. FirstMerit Bank, N.A. v. Soltys, 2015 IL App (1st)
140100, ¶ 13.
¶ 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. Section 13-214.3 of the Code sets forth the statute of limitations for a
legal malpractice action and provides that
“ ‘[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
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No. 1-16-2540
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 was inadequate. At the time of the settlement, the decedent had not been
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working for nearly eight years, during which time he had received only 11 weeks of extended
benefit account payments and no temporary total disability benefits at all. Under the
Workers’ Compensation Act or the Workers’ Occupational Diseases Act, an employee
injured or exposed to a dangerous chemical during the course and scope of their employment
would be entitled to weekly temporary total disability benefits and medical expenses, and a
lawyer can obtain those payments by the filing of a section 19(b-1) and section 8(a) petition.
820 ILCS 305/8(a), 19(b-1) (West 2006).
¶ 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
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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 case and that the
decedent believed that defendant Daniels was protecting his interest in “both litigations.”
Plaintiff also argues that the decedent did not in fact discover his injury until he consulted a
new attorney in 2014 concerning defendants’ handling of the whistleblower case, where he
learned that the workers’ compensation and/or occupational diseases settlement was far
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No. 1-16-2540
below what he should have received, that he was in fact eligible for temporary total disability
benefits, and that defendants Marks and Daniels mishandled his case. However, all these
facts were apparent to the decedent at the time of the settlement or at least he should have
known that something was wrong and investigated defendants’ handling of his case.
¶ 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;
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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 transaction knew or
understood the recording requirements or implications.” Trogi, 362 Ill. App. 3d at 99.
¶ 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
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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.
¶ 34 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
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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); 735 ILCS 5/13-215 (West 2014)). “As a general matter, one alleging
fraudulent concealment must ‘ “show affirmative acts by the fiduciary designed to prevent
the discovery of the action.” ’ ” Carlson, 2015 IL App (1st) 140526, ¶ 44 (quoting Clay, 189
Ill. 2d at 613, quoting Hagney v. Lopeman, 147 Ill. 2d 458, 463 (1992)). A plaintiff must
show “ ‘affirmative acts or representations [by a defendant] that are calculated to lull or
induce a claimant into delaying filing his [or her] claim or to prevent a claimant from
discovering his [or her] claim.’ ” Carlson, 2015 IL App (1st) 140526, ¶ 44 (quoting Barratt
v. Goldberg, 296 Ill. App. 3d 252, 257 (1998)).
¶ 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
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No. 1-16-2540
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
made those assurances, the damage from the insufficient settlement was obvious, and the
promise of future compensation from another source did not conceal or misrepresent the fact
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No. 1-16-2540
that the settlement amount was far below what the decedent should have received. Plaintiff
does not point to any statements made by defendants to the decedent that misrepresented or
concealed material facts that prevented his discovery of his cause of action for his attorneys’
mishandling of his workers’ compensation or occupational diseases case.
¶ 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
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No. 1-16-2540
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.
¶ 43 CONCLUSION
¶ 44 For the foregoing reasons, we affirm the judgment of the trial court. The trial court did
not err when it granted defendants’ section 2-619(a)(9) motion to dismiss plaintiff’s legal
malpractice lawsuit with prejudice since the decedent did not file his original complaint
within the two-year statute of limitations governing legal malpractice actions. 735 ILCS
5/13-214.3 (West 2014).
¶ 45 Affirmed.
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