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Laurent v. Johnson

Court of Appeals of Illinois, Third District

September 18, 2017

JUDITH LAURENT, Executor of the Estate of Thomas J. Laurent, Deceased, Plaintiff-Appellant,
v.
KAY JOHNSON, Defendant-Appellee.

         Appeal from the Circuit Court of the 21st Judicial Circuit, Iroquois County, Illinois. Appeal No. 3-16-0627 Circuit No. 14-L-8 The Honorable Ronald J. Gerts, Judge, presiding.

          JUSTICE CARTER delivered the judgment of the court, with opinion. Justices O'Brien and Schmidt concurred in the judgment and opinion.

          OPINION

          CARTER JUSTICE.

         ¶ 1 Plaintiff, Judith Laurent, as the executor of the estate of her deceased husband, Thomas J. Laurent, filed suit against defendant, attorney Kay Johnson, for legal malpractice related to Johnson's handling of the estate's lawsuit for breach of contract against Thomas's health insurer for reimbursement for Thomas's medical expenses (the underlying lawsuit). During pretrial proceedings, Johnson filed a motion for summary judgment, alleging that Judith could not establish proximate cause or damages in the instant malpractice case because her claim in the underlying lawsuit would not have been successful and had been released and extinguished. After a hearing, the trial court agreed with Johnson and granted her motion for summary judgment. Judith appeals. We affirm the trial court's ruling.

         ¶ 2 FACTS

         ¶ 3 In September 2005, Judith Laurent and her husband, Thomas, purchased a health insurance policy for Thomas from insurance agent Gary Nohovig. The policy was issued by Time Insurance Company (Time) and went into effect the following month. Of relevance to this appeal, the policy provided that (1) the maximum policy limit for any calendar year was $100, 000, (2) the insured could not file a lawsuit regarding the policy more than three years after written proof of loss was given to Time (a three-year statute of limitations), (3) the policy provisions could not be changed except by a written alteration attached to the policy and signed by a Time executive officer, and (4) no agent or employee of Time had authority to waive or change any policy provision.

         ¶ 4 In August 2006, while the policy was in effect, Thomas suffered an accidental fall and was seriously injured. He passed away the following month. From the time of the accident until the time of his death, Thomas incurred substantial medical expenses, which were presumably covered under the Time health insurance policy. Time paid out the $100, 000 policy limit, but Thomas's expenses exceeded that amount. Judith requested that Time make additional payments, but Time refused, and Judith was eventually required to pay the medical expenses from her own (and presumably Thomas's) personal funds.

         ¶ 5 In October 2006, Judith hired defendant, Kay Johnson, a licensed Illinois attorney, to open an estate for Thomas; to collect all real estate, personal property, and causes of action owned by Thomas at the time of his death; and to administer all claims filed against the estate. After the estate was opened, Judith was named executor. One of the assets of the estate was a claim for reimbursement from Time for Thomas's medical expenses.

         ¶ 6 In November 2010, more than four years after Thomas's accident, Johnson filed suit on Judith's behalf in the state trial court against Nohovig and Time for breach of contract for Time's failure to pay Thomas's remaining medical expenses resulting from the accident (medical bills that were incurred in August and September 2006). The complaint alleged, among other things, that Nohovig was Time's agent and that he had represented to Judith and Thomas that the most that Thomas would have to pay out-of-pocket during any given year for a claim was $4000 (that the policy was essentially unlimited). Although the lawsuit was filed in November 2010, Johnson did not attempt service of process until eight months later, in July 2011, when summons was first issued. In addition, Johnson did not have defendant Time served with summons until August 2011, over nine months after the breach of contract case had been filed.

         ¶ 7 In September 2011, Time removed the underlying breach of contract case to federal court. Johnson withdrew from the case, and Judith obtained a new attorney-the same attorney that she now has on appeal. Time filed a motion to dismiss the suit, alleging, among other things, that Judith had failed to file the suit within the three year statute of limitations established by the policy and had failed to exercise reasonable diligence in effectuating service of process. In response to the motion to dismiss, Judith sought leave to file a proposed amended complaint. In the proposed amended complaint, Judith again stated or alleged that Nohovig was Time's agent.

         ¶ 8 In April 2012, a magistrate judge who had been assigned the matter issued his report and recommendations. The magistrate judge recommended that Time's motion to dismiss Judith's complaint be granted, that the case be dismissed with prejudice, and that Judith's request to file the proposed amended complaint be denied. After Judith's objections were filed, a federal district court judge agreed with and accepted the report and recommendations, granted Time's motion to dismiss, and dismissed Judith's breach of contract case against Time (and Nohovig) with prejudice. The order dismissing the breach of contract case in the federal court was entered on May 7, 2012.

         ¶ 9 On May 15, 2012, Judith executed a written release and settlement agreement with Nohovig as to the federal court case (the underlying breach of contract case). Among other things, the release and settlement agreement provided that:

"For the sole consideration of Nine Thousand Dollars ($9, 000.00) ("Settlement Sum"), [Judith] release[d] and forever discharge[d] Nohovig, including his current and former directors, current and former officers, current and former agents, current and former employees, subsidiaries, parent corporations, attorneys and insurers, and all other affiliates, persons, firms or corporations, none of whom admit any liability, from any and all claims, demands, damages, actions, causes of action, or suits of any kind or nature whatsoever, direct or derivative, known or unknown, for any and all acts and/or omissions of Nohovig, including his current and former directors, current and former officers, current and former agents, current and former employees, subsidiaries, parent corporations, attorneys and insurers, and all other affiliates, persons, firms or corporations, occurring prior to this Agreement's Effective Date."

         ¶ 10 In March 2014, Judith, as the executor of Thomas's estate, filed a complaint for legal malpractice against Johnson in the current case. In the complaint, Judith again stated or alleged that Nohovig was Time's agent. Of relevance to this appeal, Judith also alleged that (1) Johnson had failed to file suit against Time until approximately two years after the statute of limitations had run, (2) Johnson had not attempted service of process on Time or Nohovig until eight months after the complaint had been filed, ...


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