Josephson in Circuit Court of Cook County Case No. 95 L 8773 ("1995 Kearns Action").
Chuhak Firm and Josephson have filed an Answer and Counterclaim, which they followed by filing an alternative motion for judgment on the pleadings or summary judgment, while Kearns has filed an Answer followed by an adoption of the Chuhak Firm-Josephson motion. Old Republic has responded to those motions, and it is plain that the scheduled defendants' replies (which are due November 8) are not required for resolution of the issues. For the reasons stated in this memorandum opinion and order, this Court determines that Old Republic is obligated to defend Josephson in the 1995 Kearns Action.
This matter has been complicated by a prior lawsuit between the parties, stemming from an earlier Complaint brought by Kearns against virtually identical defendants (including Josephson) in Circuit Court of Cook County Case No. 91 L 8429 ("1991 Kearns Action"). As to that 1991 lawsuit, this Court's colleague Honorable Charles Norgle granted summary judgment for Old Republic in this District Court's Case No. 93 C 4407, holding there that Old Republic did not have a duty to defend Josephson because under the allegations of the 1991 Kearns Action Josephson was not an insured under the Policy.
That, says Old Republic, bars this action under principles of claim preclusion.
Old Republic is simply wrong. It is of course conventional wisdom that claim preclusion cannot bar future litigation between litigants that is based in part or whole on facts that arise after the earlier litigation between them. For recent examples under Illinois law, which both parties have treated as providing the rules of decision here, see such cases as Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490-93, 626 N.E.2d 225, 228-29, 193 Ill. Dec. 192 (1993), Mannion Mechanical Serv., Inc. v. Stallings & Co., 189 Ill. App. 3d 1097, 1103, 545 N.E.2d 956, 960, 137 Ill. Dec. 195 (1st Dist. 1989) and cases cited in both.
And in this instance the 1995 Kearns Action, which forms the gravamen for Josephson's current demand to be defended, includes some critical (and in this case outcome-determinative) allegations that Kearns did not make in his 1991 Complaint on which Judge Norgle based his decision. Hence the decision by Judge Norgle negating Old Republic's obligation to defend the 1991 Kearns Action cannot have preclusive effect here--there is no reason that Old Republic could not be excused from that quite different obligation to defend (assuming for this purpose that our Court of Appeals upholds Judge Norgle's decision) while it still remains duty-bound to defend Kearns' present (and materially different) 1995 lawsuit.
It is of course true that the conduct on Josephson's part that Kearns complained about in his 1991 lawsuit is the same in generic terms as the type of conduct that Kearns complains about in his new 1995 Complaint: Josephson is charged with having missed a statute of limitations for the assertion of Kearns' personal injury claim arising out of an August 6, 1986 injury while Kearns was working as a carpenter (he fell off a roof under construction). And Kearns still asserts in his 1995 Complaint, as he did in his now-superseded 1991 Complaint, that he retained Josephson (who had originally been a partner in the law firm of Mass, Miller & Josephson) as his lawyer to handle his case. But what Kearns now alleges, as he did not in his 1991 Complaint on which Judge Norgle ruled, is that the applicable statute of limitations may have been a four-year statute expiring on August 6, 1990 (1995 Kearns Complaint P38), rather than the two-year personal injury statute that would have expired on August 6, 1988. And what Kearns further now alleges, as the 1991 Complaint ruled upon by Judge Norgle did not, is that after the Mass, Miller & Josephson firm ceased to operate in 1989 (1995 Complaint P39) Josephson became associated with Chuhak Firm (id. P41) and:
42. That after his association with the firm of Chuhak & Tecson, defendant, Edwin Josephson, committed the acts or omissions described in this complaint as an agent and/or employee of the firm of Chuhak & Tecson.
43. That at the time the alternative statute of limitations expired on August 6, 1990, Defendant, Edwin Josephson, was an agent and/or employee of Chuhak & Tecson.