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Metrou v. M.A. Mortenson Co.

United States District Court, N.D. Illinois, Eastern Division

September 22, 2014

PETER METROU, Plaintiff,
v.
M.A. MORTENSON COMPANY d/b/a MORTENSON CONSTRUCTION, and SCHUFF STEEL CO., Defendants.

MEMORANDUM OPINION AND ORDER

GEORGE M. MAROVICH, District Judge.

Plaintiff Peter N. Metrou ("Metrou" or the "Trustee"), as trustee of the bankruptcy estate of David Matichak ("Matichak"), has claims against defendants M.A. Mortenson Company (d/b/a Mortenson Construction) ("Mortenson") and Schuff Steel Co. ("Schuff"). Originally, Matichak was the plaintiff, but the Court substituted Metrou as plaintiff after: (1) defendants filed a motion for summary judgment in which they argued, among other things, that Matichak lacked standing; and (2) the Trustee informed the Court that he planned to pursue the case on behalf of the creditors. Defendants have now asked the Court to limit their liability in this case and to rule that Matichak is judicially estopped from receiving any proceeds from this case. For the reasons set forth below, the Court grants in part and denies in part defendants' motions.

I. Background

The following facts are undisputed, unless otherwise noted.

In his second-amended complaint against defendants Mortenson and Schuff, Matichak alleged that he had been injured on August 11, 2009 when he was struck by a beam at a construction site.

On August 26, 2010, Matichak retained the law firm Parente & Norem to represent him. On or about September 8, 2010, Parente & Norem filed with the Illinois Workers' Compensation Commission a workers' compensation claim on Matichak's behalf. Also on September 8, 2010, Parente & Norem sent Mortenson Construction a notice of attorney's lien, which stated:

You are hereby notified that, DAVID MATICHAK, has placed in my hands as his/her attorney, for suit or collection, a claim demand or cause of action against you growing out of the accident which happened on or about August 11, 2009, and has contracted with and agreed to pay me as a fee for my services in the matter a sum of money equal to 33 1/3% of whatever amount may be recovered therefrom by settlement, suit or otherwise and that I claim a lien upon said claim, demand or cause of action for such fee.

On September 14, 2010, Matichak and his then-wife filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Northern District of Illinois. In connection with his bankruptcy, Matichak was represented by Scott L. Bedford. In the bankruptcy petition, Matichak did not disclose the existence of the claims at issue in this case. Matichak did, however, disclose his workers' compensation claim, which he valued at $7, 500.00. On December 21, 2010, the bankruptcy court granted the Matichaks an order of discharge, and on December 27, 2010, the bankruptcy court closed the petition and discharged the trustee. The deadline for the trustee and creditors to ask a court to revoke the discharge was December 26, 2011. 11 U.S.C. ยง 727(e)(1). The next day, on December 27, 2011, Matichak filed this suit, although his lawyer says the timing was a coincidence.

The attorneys (Horwitz, Horwitz & Associates) who filed this suit on Matichak's behalf were not the attorneys who originally filed Matichak's workers' compensation claim and the lien with Mortenson. Horwitz, Horwitz & Associates replaced Matichak's original injury attorneys no later than April 12, 2011, the date on which Horwitz, Horwitz & Associates filed a stipulation with the Illinois Workers' Compensation Commission to substitute as Matichak's attorney. A "couple of months" before Matichak filed his suit in this case, Horwitz, Horwitz & Associates told Matichak that it intended to file suit against Mortenson. Before that time, the claim was not "economically viable due to the high cost of litigation."

Defendants learned of Matichak's bankruptcy discharge on May 23, 2013, when they deposed him. At his deposition, Matichak was asked the following questions and gave the following answers:

Q: In regards to Mortenson, you criticized them for not requiring your tie-on to be above your head. Did you form this opinion shortly after this accident, was it six months later? When was it in relationship to time?
A: It was after the accident.
Q: Do you know how long ...

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