Appeal from the Circuit Court of Madison County; the Hon. John
W. Day, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The issue raised on appeal calls for a determination of whether an attorney's conduct of a lawsuit pro se amounts to the practice of law for purposes of an insurer's liability under a policy issued for protection against the attorney's "professional, office premises and personal injury liability."
The plaintiff, Ralph J. Mendelsohn, brought an action for declaratory judgment against the defendant, CNA Insurance Company, Inc., seeking a determination of his rights as an insured under a policy issued by the defendant and described above. The insured, an attorney, sought declaratory judgment that coverage was available to him and that the insurer had a duty to defend him in an action brought against him by his former wife, Dona Mendelsohn. The trial court granted the defendant insurer's motion to dismiss the complaint for declaratory judgment and subsequently denied the plaintiff's motion to reconsider the ruling. We dismissed an earlier appeal from a non-final order dismissing the complaint. Following dismissal of the appeal the trial court found that the insured had elected to stand on his complaint and ordered the complaint dismissed with prejudice pursuant to the defendant's motion for dismissal. Plaintiff appealed stating the single issue as "[w]hether the trial court erred in allowing the Defendant's Motion to Dismiss the Complaint for Declaratory Judgment."
The suit brought by plaintiff against his insurer arose out of a suit brought in 1980 by Dona Mendelsohn against Ralph Mendelsohn and three other attorneys. The suit brought by Dona Mendelsohn had, in turn, arisen out of a suit for divorce brought in 1977 by Ralph Mendelsohn against Dona Mendelsohn. The attorneys named as defendants in the suit brought by Dona Mendelsohn include, in addition to Ralph Mendelsohn, David Grounds, who represented Dona Mendelsohn in the suit brought against her for divorce, L. Thomas Lakin, who appears to be an associate of David Grounds, and Luther Simmons, who is described in Dona Mendelsohn's complaint as "the attorney representing Ralph J. Mendelsohn" in the suit against her for divorce. In the suit brought by her against Ralph Mendelsohn she alleges that he "knew that the plaintiff was suffering from mental and physical exhaustion and was of a peculiar or special sensitivity toward mental anguish and emotional distress" and that he knew or should have known that his conduct would cause her great mental anguish and emotional distress but, disregarding such knowledge, he "intentionally or in conscious disregard" of that risk committed certain acts and omissions with reference to the suit for divorce.
In the complaint for declaratory judgment Mendelsohn, the insured, made no allegations as to whether he was represented by counsel in the suit for divorce or whether he conducted part or all of that suit himself. In its motion to dismiss the complaint, the insurer attached and made a part of its motion copies of the complaint and certain petitions, motions and orders that had been filed in the suit for divorce in order to show that Luther Simmons represented Ralph Mendelsohn in that suit. These items expressly refer to Luther Simmons as Ralph Mendelsohn's attorney, and the complaint, like the petitions and motions, bears Simmons' signature as Ralph Mendelsohn's attorney. The court in its order granting the insurer's motion to dismiss the complaint stated that the insured "was represented by counsel," namely, Luther Simmons, in the suit for divorce. However, attached to and made a part of the insured's motion to reconsider the order of dismissal of the complaint for declaratory judgment is the affidavit of Diana Stolze, Luther Simmons' legal secretary. Of the items attached to the insurer's motion to dismiss she states that they were not prepared by Luther Simmons but were prepared by Ralph Mendelsohn. In his brief appellant placed considerable importance upon the fact that in a letter to the insured an attorney of the insurer stated, "The suit filed by Dona Mendelsohn, in Madison County, Il. Circuit Court, charges you with negligence arising from a case in which you were plaintiff in the Petition for divorce and represented your own interests." In view of the disposition we make and the result we reach in this case, the factual dispute as to whether Ralph Mendelsohn was represented by counsel in the suit for divorce is of no moment.
The insurance policy issued by the defendant provides in part:
Coverage A — Professional Liability
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages arising from the performance of professional services for others in the insured's capacity as a lawyer because of an error, negligent omission or negligent act of the insured or of any other person or organization for whose error, negligent omission or negligent act the insured is legally responsible.
Coverage B — Office Premises and Personal Injury
Liability To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages:
(a) because of bodily injury or property damage caused by an occurrence arising out of the ownership, maintenance or use of
(1) the insured premises as a lawyer's office, including operations necessary or ...