United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on plaintiff Carolina Casualty
Insurance Company's (“Carolina Casualty”)
motion for summary judgment (Doc. 23). Defendants Robert S.
Forbes PC and Robert S. Forbes have responded to the motion
(Doc. 28), and defendants Earnest Bates and Jessica Bates
have adopted that response (Doc. 29). Carolina Casualty has
replied to that response (Doc. 30).
judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000).
The reviewing court must construe the evidence in the light
most favorable to the nonmoving party and draw all reasonable
inferences in favor of that party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir.
2008); Spath, 211 F.3d at 396.
material facts in this case are essentially undisputed.
Application for Policy
period of April-May 2014, Forbes applied to Carolina Casualty
for lawyers professional liability insurance. He requested
that the insurance policy be issued to the firm of
“Robert S. Forbes, P.C., Attorney At Law.” Forbes
was the only attorney practicing law at Forbes PC.
application, Forbes represented that neither the applicant
firm nor any lawyer in the firm was “aware of any fact,
circumstance or situation that might reasonably be expected
to result in any professional liability claim or suit”
against the firm or any lawyer in the firm. Carolina Casualty
Incorporated Proposal Form 1, ¶ 1 (Doc. 1-1 at 2, 7). He
also represented that no attorney in the firm was aware of
“an actual or alleged act, omission, circumstance, or
breach of duty that a reasonable attorney would recognize
might reasonably be expected to result in a claim”
against the firm or any lawyer in the firm. CNA Application
for Lawyers Professional Liability Insurance 4, ¶ 35(b)
(Doc. 1-2 at 5).
reality, Forbes was aware at the time that the Illinois
Appellate Court for the Fifth District had rendered a
decision in October 2013 in the workers' compensation
case of Earnest Bates, who was represented by Forbes, adverse
to Bates. Winchester v. Illinois Workers' Comp.
Comm'n, 2013 IL App. (5th) 120421WC-U, 2013 WL
5594469, at *1 (Ill.App.Ct. Oct. 9, 2013). The reason for the
adverse decision was that Forbes had failed to timely file a
document necessary to give the circuit court jurisdiction to
hear the appeal of an adverse decision by the Illinois
Workers' Compensation Commission in favor of Bates's
employer. Id. at *4. As a result, the
Commission's decision adverse to Bates was allowed to
also represented in the application for professional
liability insurance that no attorney in the firm had
“been subject to any disciplinary inquiry, complaint or
proceeding for any reason other than non-payment of
dues” within the five years preceding the application.
CNA Application for Lawyers Professional Liability Insurance
4, ¶ 36(a) (Doc. 1-2 at 5).
reality, Forbes was in the middle of proceedings in front of
the Illinois Attorney Registration and Disciplinary
Commission (“ARDC”) stemming from allegations of
professional misconduct beginning in 2006. The ARDC began its
investigation in or around June 2012. Shortly before
submitting his completed application for lawyers professional
liability insurance from Carolina Casualty, Forbes had
provided a written, sworn statement to the ARDC (February 20,
2014) and testified before the ARDC Inquiry Board (May 1,
2014) concerning the alleged misconduct. The ARDC proceeding
was ultimately resolved by Forbes's November 2014 removal
from the roll of attorneys authorized to practice law in
Illinois. See, generally, In re: Robert Scott
Forbes, No. M.R. 26897 (Ill. 2014) (Doc. 1-5 at 2-5;
application for insurance, Forbes represented that his
statements in the application were true and made after due
diligence and that he was aware Carolina Casualty would rely
on the truth of his statements in issuing insurance. Carolina
Casualty Incorporated Proposal Form 2 (Doc. 1-1 at 3, 8); CNA
Application for Lawyers Professional Liability Insurance 5
(Doc. 1-2 at 6).
2014, in reliance on the application completed by Forbes,
Carolina Casualty's insurance underwriter issued a
Carolina Casualty lawyers professional liability insurance
policy number 1301292 (“Policy”) naming
“Robert S. Forbes, P.C., Attorney At Law” as the
named insured. Policy 1 (Doc. 1-3 at 4) The Policy covered
May 13, 2014, to May 13, 2015. If the underwriter had known
of the circumstances surrounding the final denial of
Bates's workers' compensation claim or the