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Keef v. Widuch

March 30, 2001

MELVIN KEEF, PLAINTIFF-APPELLANT,
v.
KATHLEEN WIDUCH; KOUTSKY, BOUDREAU, LASSEN AND MASON; BRIAN LASSEN; AND KENNETH KOUTSKY, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Cerda

Appeal from the Circuit Court of Cook County

Honorable Alfred J. Paul, Judge Presiding.

At issue in this case is whether a retained workers' compensation attorney has a duty to advise an injured worker that he might have a cause of action against third parties.

Plaintiff, Melvin Keef, appeals from the dismissal of his legal malpractice complaint against defendants, Kathleen Widuch, Brian Lassen, Kenneth Koutsky, and the law firm Koutsky, Boudreau, Lassen & Mason, who were the attorneys who pursued his workers' compensation claims. Plaintiff was injured at work twice when a lathe malfunctioned. Plaintiff alleged that defendants failed either to pursue products liability actions against the manufacturer of the lathe or to inform him about the possibility of third-party actions and their statutes of limitations. We conclude that, although defendants agreed in a written representation agreement to represent plaintiff only in his workers' compensation claims, they had a duty to advise plaintiff about the possibility of third-party actions and the applicable statutes of limitations. We affirm in part, reverse in part, and remand.

FACTS

Count I of plaintiff's first amended complaint alleged that on December 15, 1991, plaintiff was operating a lathe manufactured by Warner & Swasey and that the lathe failed to operate correctly, kicking back a piece of steel and injuring him. On or about January 1, 1992, plaintiff contacted Widuch allegedly "concerning her representation of him against persons and/or entities responsible" for his injuries. Plaintiff signed an attorney-client agreement with Widuch on or about January 1, 1992.

Count I further alleged that he and Widuch signed the agreement to prosecute or settle "all claims of personal injuries and/or entities responsible."

However, the agreement, which was filed with one of the motions to dismiss, clearly limited representation to a workers' compensation claim. It stated that plaintiff "retain[ed] Kathleen Widuch/Brian D. Lassen *** to prosecute and/or settle all disputed claims for benefits under the Illinois Worker's Compensation Act or Occupational Disease Act against Greenleaf Textron Co. *** on account of injuries arising out of and in the course of employment of [plaintiff] on or about January 15, 1991." (Emphasis added.)

Count I further alleged that Widuch failed to file a complaint based on the design and manufacture of the lathe. Widuch allegedly made no attempt to contact plaintiff regarding the need to file suit or to settle possible claims on his behalf. The statute of limitations for a products liability action expired on January 14, 1993.

Count I alleged that Widuch's negligence proximately caused plaintiff to suffer damages. Widuch was allegedly negligent in the following ways:

(a) by failing to file a complaint prior to the expiration of the statute of limitations on behalf of plaintiff against the manufacturer or any other persons and/or entities responsible for the design and manufacture of the lathe that injured him;

(b) by failing to make any attempts to settle possible products liability claims on behalf of plaintiff against the manufacturer or other persons and/or entities responsible;

(c) by failing to properly investigate the injuries sustained by plaintiff in connection with the injury caused by the lathe;

(d) by causing plaintiff to believe that he was being adequately represented when in fact no efforts at representation were being undertaken on his behalf;

(e) by failing to inform plaintiff that the statute of limitations for any claim he might have against the manufacturer or other persons responsible would expire on or about January 14, 1993;

(f) by failing to inform plaintiff at any time before the statute of limitations expired that Widuch would not be able to pursue an action against the manufacturer or other persons and/or entities responsible;

(g) by failing to advise plaintiff to consult with an attorney experienced in investigating and prosecuting ...


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