United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. Daly United States Magistrate Judge
the Court are Defendants' Motion to Reconsider and
Defendant Dynegy Midwest Generation, LLC's Motion for
Leave to Amend. (Docs. 297, 298.) On June 16, 2010,
Plaintiffs filed this action against Defendant Universal
Scaffolding & Equipment (“Universal”),
alleging claims of negligence, strict liability, and loss of
consortium. (Doc. 2-1.) At this stage of the proceedings,
Plaintiffs' remaining claims against Dynegy and Brand
consist of claims of negligent spoliation and loss of
consortium. (Doc. 283.)
request that the Court reconsider a ruling from an Order that
disposed of several pretrial motions and issues raised in
trial briefs. Specifically, Defendants challenge the
Court's decision denying Defendant Brand's request
for a jury instruction stating that Plaintiff's lawyers
acted as Plaintiff's agents for purposes of assessing
contributory negligence. The Court found that Defendants had
not shown an agency relationship between Plaintiffs and their
counsel under Illinois law. In relevant part, the Order
Additionally, Defendant Brand seeks Plaintiffs'
counsel's testimony in furtherance of the affirmative
defense of comparative fault and asks the Court to find that
Plaintiffs' counsel acted as Plaintiffs' agent. (Doc.
227.) Illinois courts have adopted the doctrine of
comparative negligence under which “each party must
bear the burden of the percentage of damages of all parties
in direct proportion to his fault.” Alvis v.
Ribar, 421 N.E.2d 886, 897 (Ill. 1981). “A
principal-agent relationship exists when the principal has
the right to control the manner in which the agent performs
his work and the agent has the ability to subject the
principal to personal liability.” Amigo's Inn,
Inc. v. License Appeal Comm'n of City of Chicago,
822 N.E.2d 107, 113 (Ill.App.Ct. 2004). Under Illinois law,
“when attorneys act pursuant to independent
professional judgment, they are presumptively independent
contractors whose alleged misconduct may not be imputed to
their clients, unless it is shown that the client directed,
controlled, authorized, or ratified the alleged
misconduct.” Horwitz v. Holabird & Root,
816 N.E.2d 272, 284 (Ill. 2004). Defendants have not shown
that Plaintiffs directed their counsel in this manner, and
the Court denies Defendant Brand's motion for a finding
that Plaintiffs' counsel acted as Plaintiffs' agent.
Although Plaintiffs' instructions to counsel and
knowledge of his counsel's conduct may be relevant for
purposes of comparative fault, eliciting testimony from
Plaintiffs' counsel is not necessary for this purpose.
(Doc. 283 at 4-5)
support of their motion, Defendants argue that
Horwitz does not apply to this action because
Horwitz addressed the question of whether clients
may be held liable for an attorney's intentional torts,
and, by contrast, Plaintiff's claims sound in negligence.
To Defendants' point, in Horwitz, the Illinois
court states, “[T]his opinion must be understood as
limited to the narrow scope of vicarious liability claims
against a client based upon an attorney's alleged
intentional tortious conduct.” Horwitz, 816
N.E.2d at 284. However, the Court disagrees with Defendants
to the extent that they suggest that Horwitz
forecloses the extension of its holding to negligent tortious
conduct. Several factors convince the Court that whether
clients should be held liable for an attorney's negligent
conduct is an open issue under Illinois law. To start,
Horwitz does not discuss whether clients should be
held liable for their attorneys' negligent conduct, which
indicates that the Horwitz court did not
meaningfully consider or intend to resolve the issue.
Moreover, the arguments before the Horwitz court
pertained to intentional conduct; thus, any statements
regarding vicarious liability for negligent conduct would
have likely constituted dicta. Additionally, Defendants have
cited no Illinois cases that speak to the issue of whether
clients may be held liable for an attorney's negligent
conduct and no cases that support Defendants'
interpretation of Horwitz.
presented with an open question of state law, “a
federal court must attempt to decide the case as the highest
court of the state supplying the law would do.”
Todd v. Societe BIC, S.A., 9 F.3d 1216, 1221 (7th
Cir. 1993). The reasoning of Horwitz offers no basis
to distinguish between clients' liability for the
negligent torts of their attorneys and their liability for
the intentional torts of their attorneys. In
Horwitz, the court determined that whether clients
may be held liable for an attorney's intentional torts
was an issue of first impression. Horwitz, 816
N.E.2d at 277. The court noted a split of authority between
other state courts and sided with those that declined to
impose vicarious liability for the actions of attorneys.
Id. at 278. Significantly, none of the cases on
either side of the split of authority distinguishes between
negligent or intentional conduct. See Baldasarre v.
Butler, 625 A.2d 458 (1993); Stumpf v. Continental
Casualty Co., 794 P.2d 1228 (1990); Southwestern
Bell Telephone Co. v. Wilson, 768 S.W.2d 755 (Tex. Ct.
App.1988); Peterson v. Worthen Bank & Trust Co.,
N.A., 753 S.W.2d 278 (Ark. 1988); Lynn v. Superior
Court, 180 Cal.App.3d 346 (1986); United Farm
Bureau Mutual Insurance Co. v. Groen, 486 N.E.2d 571
(Ind. App. 1985); Plant v. Trust Co. of Columbus,
310 S.E.2d 745 (Ohio 1983); Continental Insurance Co. v.
Bayless & Roberts, Inc., 608 P.2d 281 (Alaska 1980);
Nyer v. Carter, 367 A.2d 1375 (Me. 1977).
Horwitz court reasoned that the nature of an
attorney-client relationship is such that an attorney most
frequently operates as an independent contractor rather than
an agent; therefore, in line with general agency principles,
the intentional conduct of an attorney cannot be imputed to
the client absent a showing that the client specifically
directed or ratified the attorney's specific conduct.
Horwitz, 816 N.E.2d at 277-79. The court further
reasoned that to hold otherwise would lead to the untenable
requirement that the client closely scrutinize their
attorneys to avoid tortious liability. Id. at 281.
As stated by the Horwitz court, “This would
not only chill the willingness of Illinois citizens to
vindicate their legal rights, it would make them ultimately
responsible for their own legal representation - the very act
for which they hire an attorney in the first place.”
Id. This reasoning applies with even greater force
in the case of negligent tortious conduct, which is often
more subtle than intentional tortious conduct, and would thus
require an even greater level of scrutiny.
also rely on a litany of federal cases for the proposition
that clients are bound by the actions of their attorneys.
See Link v. Wabash Railroad Company, 370 U.S. 626
(1962); Smego v. Payne, 854 F.3d 387 (7th Cir.
2017); Bakery Machinery & Fabrication, Inc. v.
Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir.
2009); United States v. 7108 West Grand Avenue, 15
F.3d 632, 634 (7th Cir. 1994); United States v.
DiMucci, 879 F.2d 1488, 1496 (7th Cir. 1989);
Tolliver v. Northrop Corporation, 786 F.2d 316, 319
(7th Cir. 1986). As an initial matter, whether a party is
liable for the conduct of another is a substantive issue, and
therefore, Illinois law rather than federal law controls.
See Gasperini v. Ctr. for Humanities, Inc., 518 U.S.
415, 427 (1996) (“Under the Erie doctrine, federal
courts sitting in diversity apply state substantive law and
federal procedural law.”). Additionally, the cases
cited by Defendants share a common theme - each of these
cases finds a client accountable for the actions of an
attorney who failed to raise an objection in court; failed to
appear at a court proceeding; or failed to meet a court
deadline. Holding a client accountable for the attorney's
conduct as it pertains to the client's court obligations
is fundamentally different than holding a client accountable
for the attorney's conduct as it pertains to tortious
liability to third parties. Indeed, in Horwitz, the
Supreme Court of Illinois condoned the former as it
disapproved of the latter, stating that the holding did not
“impact the ability of an attorney to bind his or her
client in a traditional, representational context.”
Horwitz, 816 N.E.2d at 284.
foregoing reasons, the Court concludes that the Supreme Court
of Illinois would extend Horwitz to negligent
conduct. Accordingly, Defendants' Motion to Reconsider is
for Leave to Amend
Dynegy moves for leave to amend its affirmative defenses to
include the affirmative defense of comparative fault. Courts
have broad discretion to grant or deny leave to amend
“where there is undue delay, bad faith, dilatory
motive, repeated failure to cure deficiencies, undue
prejudice to the defendants, or where the amendment would be
futile.” Arreola v. Godinez, 546 F.3d 788, 796
(7th Cir. 2008).
argue that that the affirmative defense is futile because
Plaintiffs had no duty to preserve the bar. Plaintiffs'
arguments suggest that, because the Court has concluded that
Defendants owed a duty to preserve the bar, Plaintiffs do
not, and Plaintiffs' efforts to preserve the bar are
wholly irrelevant. However, none of the decisions in this
case have held that Defendants were exclusively responsible
for the preservation of the bar. Rather, Illinois law
provides that “[a] plaintiff is contributorily
negligent when she acts without that degree of care which a
reasonably prudent person would have used for her own safety
under like circumstances, and which action is the proximate
cause of her injury.” Blacconeri v. Aguayo,
478 N.E.2d 546, 549-50 ( Ill. App. 1985); Ill. Pattern Jury
Instr.-Civ. B10.03 (applying contributory negligence to a