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09/03/97 JUSTINE WEISBLATT v. CHICAGO BAR

September 3, 1997

JUSTINE WEISBLATT, PLAINTIFF-APPELLANT,
v.
CHICAGO BAR ASSOCIATION, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE LORETTA C. DOUGLAS, JUDGE PRESIDING.

Released for Publication October 9, 1997.

The Honorable Justice Gordon delivered the opinion of the court. Cousins, P.j. and Leavitt, J., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

Plaintiff, Justine Weisblatt, appeals from the dismissal of her complaint against defendant, the Chicago Bar Association (the "CBA"), and from the trial court's denial of leave to file an amended complaint. In both complaints, the plaintiff alleged that the Chicago Bar Association was liable for the negligent referral that its Lawyer Referral Service made to her.

The CBA moved to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996) arguing that the complaint failed to state a cause of action. In her response to that motion, the plaintiff asserted two theories of liability. The plaintiff argued that the CBA was liable to the plaintiff for its negligent referral under the voluntary undertaking doctrine and as a "referring lawyer" under Rule 1.5(f) and (g) of the Illinois Rules of professional Conduct (134 Ill. 2d R. 1.5(f), (g)). In granting the motion to dismiss, the trial court found that the plaintiff could not plead damages against the CBA since her malpractice action against the attorney to whom she had been referred was pending; that the CBA had no duty to insure that lawyers who participate in its referral service have adequate malpractice insurance; that no precedent existed for a cause of action against the CBA for voluntary undertaking; and that the plaintiff's claim was barred by the economic loss doctrine stated in Moorman Manufacturinq Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E.2d 443, 61 Ill. Dec. 746 (1982).

The plaintiff filed a motion to reconsider and for leave to file an amended complaint which explicitly raised the two theories of recovery alleged in plaintiff's response to the CBA's motion to dismiss, namely, negligent referral under the voluntary undertaking doctrine and negligent referral in failing to comply with the duties of a "referring lawyer" under the Rules of professional Conduct. In that pleading, the plaintiff also alleged that her malpractice lawsuit against M.S., which sought in excess of one million dollars, had been settled for $167,000, the maximum amount available under his malpractice insurance policy. The trial court denied plaintiff's motion to reconsider and for leave to file her amended complaint; and the plaintiff filed her notice of appeal.

The plaintiff raises the following issues: (1) whether the trial court abused its discretion in denying plaintiff leave to file an amended complaint; (2) whether plaintiff's amended complaint stated a claim based upon the voluntary undertaking doctrine; (3) whether plaintiff's amended complaint stated a claim for legal malpractice based upon the Illinois Rules of Professional Conduct; and (4) whether the plaintiff's amended complaint stated a cause of action for negligent representation.

The decision to allow the filing of an amended complaint rests within the sound discretion of the trial court and will not be reversed absent a manifest abuse of discretion. E.g., Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 586 N.E.2d 1211, 1216, 166 Ill. Dec. 882 (1992); Trans World Airlines, Inc. v. Martin Automatic, Inc., 215 Ill. App. 3d 622, 575 N.E.2d 592, 159 Ill. Dec. 94 (1991). Four factors have been established to determine whether the trial court has abused its discretion. They are: (1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified. City of Elgin v. County of Cook, 169 Ill. 2d 53, 660 N.E.2d 875, 214 Ill. Dec. 168 (1995); Marczak v. Drexel National Bank, 186 Ill. App. 3d 640, 542 N.E.2d 787, 134 Ill. Dec. 441 (1989); Kupianen v. Graham, 107 Ill. App. 3d 373, 437 N.E.2d 774, 63 Ill. Dec. 125 (1982). Our disposition of the instant appeal turns on the first factor and whether the amended complaint stated a cause of action. See City of Elgin, 169 Ill. 2d 53, 660 N.E.2d 875, 214 Ill. Dec. 168; Caballero v. Rockford Punch Press & Manufacturing Co., 244 Ill. App. 3d 333, 614 N.E.2d 362, 185 Ill. Dec. 228 (1993); Bernstein v. Lind-Waldock & Co., 153 Ill. App. 3d 108, 505 N.E.2d 1114, 106 Ill. Dec. 323 (1987) (it is appropriate for the trial court to deny leave to amend when no cause of action can be stated). See also Marczak, 186 Ill. App. 3d at 643, 542 N.E.2d at 789 ("the court may consider the ultimate efficacy of a claim in passing on a motion to amend a pleading and may deny leave if the proposed amendment does not cure the defect").

I. Voluntary Undertaking

In count I of her amended complaint, *fn1 the plaintiff alleged that the CBA provided an attorney referral service from which members of the public could obtain the names of attorneys with purported expertise in specified areas of the law. She alleged that the attorney participants were required to demonstrate to the CBA expertise and adequate malpractice insurance. The plaintiff further alleged that she telephoned the CBA Lawyer Referral Service seeking the name of a lawyer who specialized in legal malpractice. The plaintiff alleged that the Lawyer Referral Service gave her the name of M.S. and told her that he specialized in legal malpractice matters. The plaintiff alleged that the CBA owed a duty of reasonable care to see that attorneys who participated in the lawyer referral service possessed expertise and that they had adequate malpractice insurance. The plaintiff alleged that the CBA was negligent and breached that duty of care because M.S. did not have expertise in the area of legal malpractice and did not have adequate malpractice insurance. In support of her allegation that M.S. did not have expertise in legal malpractice, the plaintiff alleged that M.S. negligently advised her to settle her fee dispute with her divorce attorney and caused her to release a collectible malpractice claim against that attorney worth in excess of one million dollars. The plaintiff alleged that she suffered economic damages in that she was unable to pursue her malpractice claim against her divorce attorney and that M.S.'s malpractice insurance was inadequate to cover the loss she suffered as a result of her inability to sue her divorce attorney.

In reliance on Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 199 N.E.2d 769 (1964) and Cross v. Wells Fargo Alarm Services, 82 Ill. 2d 313, 412 N.E.2d 472, 45 Ill. Dec. 121 (1980), the plaintiff argues that she pled a cause of action for negligent performance of a voluntary undertaking. As espoused in Nelson and Cross, the voluntary undertaking doctrine imposes liability upon one who gratuitously undertakes to render services to another and who fails to perform those services with due care or with such competence and skill as he or she possessed. ( Cross, 82 Ill. 2d 313, 412 N.E.2d 472, 45 Ill. Dec. 121; Nelson, 31 Ill. 2d 69, 199 N.E.2d 769. See Siklas v. Ecker Center for Mental Health, Inc., 248 Ill. App. 3d 124, 617 N.E.2d 507, 187 Ill. Dec. 299 (1993).

The CBA argues that the voluntary undertaking doctrine is inapplicable to the instant case because it only imposes liability for bodily injury or physical damage that results when the undertaking is negligently performed. The CBA argues that, since the plaintiff herein did not suffer any physical damage, she cannot allege a cause of action based upon the voluntary undertaking doctrine.

In Illinois, the voluntary undertaking doctrine generally has been applied to allow recovery where the injury has been of a bodily or physical nature. See, e.g., Nelson, 31 Ill. 2d 69, 199 N.E.2d 769 (involving personal injuries and wrongful deaths); Cross, 82 Ill. 2d 313, 412 N.E.2d 472, 45 Ill. Dec. 121 (involving bodily injuries); Huber v. Seaton, 165 Ill. App. 3d 445, 519 N.E.2d 73, 116 Ill. Dec. 483 (1988) (involving property damage). Our court recently held that there can be no recovery under the voluntary undertaking doctrine unless physical injury or damage has occurred. See Furtak v. Moffett, 284 Ill. App. 3d 255, 671 N.E.2d 827, 219 Ill. Dec. 660 (1996). But see Stefan v. State Farm Mutual Automobile Insurance Co., 284 Ill. App. 3d 727, 672 N.E.2d 1329, 220 Ill. Dec. 317 (1996) (applying voluntary undertaking doctrine to economic injury without discussion of that issue). See also Northfield Insurance Co. v. St. Paul Surplus Lines Insurance Co., 545 N.W.2d 57 (Minn. Ct. App. 1996); Southwestern Bell Telephone Co. v. Delanney, 809 S.W.2d 493 (Tex. 1991) (stating that physical injury is required to obtain recovery under the voluntary undertaking doctrine). But see Lloyd v. State Farm Mutual Automobile Insurance Co., 176 Ariz. 247, 860 P.2d 1300 (1992); Chew v. Paul D. Meyer M.D., P.A., 72 Md. App. 132, 527 A.2d 828 (1987) (allowing economic loss recovery under voluntary ...


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