Brummel v. Grossman

         Appeal from the Circuit Court of Cook County. No. 14 L 13363 The Honorable John P. Callahan, Jr., Judge Presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.

          OPINION

          GORDON, JUSTICE

         ¶ 1 The instant appeal arises from the dismissal of plaintiff Maria Brummel's amended complaint for legal malpractice filed against defendants, attorney Richard C. Daniels and the law firm of Daniels, Long & Pinsel, LLC (collectively, Daniels defendants), and attorney Jason S. Marks and the law firm of Noonan, Perillo, Polenzani & Marks, Ltd. (collectively, Marks defendants).^[1] The lawsuit, originally filed by Bruce Brummel^[2] (decedent) on December 30, 2014, alleged legal malpractice against defendants for negligently representing him during a workers' compensation or occupational diseases case against his employer, Nicor Gas, which settled on October 25, 2011.^[3] The trial court ultimately dismissed the legal malpractice complaint with prejudice pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2014)), finding that the complaint was not filed within the Code's two-year statute of limitations governing legal malpractice actions (735 ILCS 5/13-214.3 (West 2014)). Plaintiff appeals, arguing that the statute of limitations was tolled since the decedent filed his complaint within two years of discovering his injury, and that defendants should be estopped from asserting the statute of limitations defense because the decedent reasonably relied on defendants' misrepresentations, which delayed his discovery of injury. For the following reasons, we affirm the judgment of the trial court.

         ¶ 2 BACKGROUND

         ¶ 3 The decedent's employer Nicor Gas (Nicor) is a natural gas distribution company. The decedent began working for Nicor in December 1980 when he was 18 years old, and he remained with the company in various positions^[4] for over 22 years. In 2001, the decedent and some of his coworkers at Nicor began to feel ill with symptoms of vomiting, diarrhea, abdominal pain, weakness, and fatigue. The decedent consulted a physician who opined that the decedent's symptoms were caused by ingestion from chemicals. From 2001 to 2003, the decedent, as well as other employees, informed Nicor about his concerns that its drinking water was contaminated, but Nicor did not take any action to investigate or remedy the problem. The decedent also reported his concerns to the Occupational Safety and Health Administration in 2001 after Nicor did not take action. The decedent conducted his own investigation designed to discover the source of the chemicals at the Nicor facility where he worked, and he found that the drinking water in the break room connected to the flush line of the boiler, which allowed toxins to be emitted from the boiler into the drinking water consumed by Nicor employees. The decedent informed his union about the contaminated drinking water, but the union also ignored his requests for help. In late 2002, the decedent reported his findings concerning the connection between the boiler and the drinking water to the Occupational Safety and Health Administration for the second time, and he reported his findings to the City of Aurora, the Kane County Health Department, and the Illinois Department of Public Health. The decedent's health continued to deteriorate, and he was forced to take a medical leave of absence on October 6, 2003.

         ¶ 4 On October 14, 2003, the City of Aurora's emergency response team and head plumbing inspector, Robert Thompson, inspected the plumbing in the boiler room and closed the facility. The inspection revealed that the drinking water was contaminated with methylene chloride and/or dichloro methane. Nicor later resolved the problem by installing backflow protection devices, which conformed the plumbing to city, state, and federal water safety regulations.

         ¶ 5 During his career at Nicor, the decedent received regular raises and was entitled to various employment benefits, and at the time he began his leave of absence, he was earning over $100, 000 per year in wages, with an average weekly wage of $1800. From October 2003 to January 2004, the decedent applied for and received 11 weeks of extended benefit account payments from an insurance benefit program he had purchased at Nicor to cover sick leave absences. Although the decedent was eligible for extended benefit account payments for 39 weeks, Nicor terminated the decedent's benefits after only 11 weeks of payments. As a result of the loss of income, the decedent did not have enough money to pay for his medical treatment and family expenses. Nicor officially terminated the decedent's employment on April 15, 2004. During this period of absence, the decedent received no temporary total disability payments from Nicor under the Workers' Compensation Act or Workers' Occupational Diseases Act, nor did Nicor pay for any of his medical expenses.

         ¶ 6 In late 2005 or early 2006, the decedent discussed his health and work issues with defendant attorney Richard C. Daniels, a friend that the decedent had met through the Shriner's, and defendant Daniels agreed to represent decedent in a workers' compensation and occupational diseases case and an action against Nicor for retaliatory discharge and violating the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)). The decedent and defendant Daniels entered into a retainer agreement that defendant Daniels would receive a contingency fee of one-third of any recovery for extended benefits and that decedent would pay all costs. Defendant Daniels also agreed to be paid his fee on the workers' compensation and/or occupational diseases action in accordance with the provisions of the Workers' Compensation Act and the Workers' Occupational Diseases Act. After the decedent retained defendant Daniels as counsel, defendant Daniels recommended that the decedent also retain defendant attorney Jason S. Marks as cocounsel for the Workers' Compensation Act and Workers' Occupational Diseases Act claim since defendant Marks represented that he had experience in handling those cases. Defendant Marks agreed, and defendants Daniels and Marks entered into a fee sharing agreement, and the decedent agreed.

         ¶ 7 In 2006, defendant Marks filed a workers' compensation and/or occupational diseases claim against Nicor on the decedent's behalf. As noted, during the pendency of this case, the decedent never received any temporary total disability benefits, and no petition under section 19(b-1) of the Workers' Compensation Act was ever filed on his behalf (820 ILCS 305/19(b-1) (West 2006)).

         ¶ 8 Five years later, while the workers' compensation claim was still pending, Nicor offered the decedent a lump sum settlement of $125, 000, and decedent accepted it on October 20, 2011. Defendant attorney had made a demand for only $150, 000 to settle the matter. An arbitrator approved the settlement five days later on October 25, 2011.

         ¶ 9 On December 30, 2014, the decedent filed the instant lawsuit against the Daniels and Marks defendants for legal malpractice, claiming that they failed to file a section 19(b-1) petition to obtain temporary total disability payments for decedent during the pendency of his Workers' Compensation Act and/or Workers' Occupational Diseases Act case and that defendants Daniels and Marks induced him into accepting an "unreasonably low" $125, 000 settlement offer from Nicor. The lawsuit also alleged two counts against the Daniels defendants and the Grossman defendants for their handling of the decedent's related civil lawsuit against Nicor for retaliatory discharge and violating the Whistleblower Act (740 ILCS 174/1 et seq. (West 2004)), and one count for defendant Daniels's negligent referral of the Marks and Grossman defendants. However, those counts are not at issue in this appeal.

         ¶ 10 In the complaint, the decedent claimed that he spoke to defendants Daniels and Marks multiple times and asked them about the status of his Workers' Compensation Act and/or Workers' Occupational Diseases Act case and lack of temporary total disability benefits, and wanted to know why the matter was moving so slowly. Decedent alleged that defendant Daniels reassured him that "everything was fine, that the matter took time, and that Defendant Marks was handling the matter competently, " and defendant Marks reassured the decedent that the case was progressing and that he would receive compensation for his injuries. The complaint alleged that, "for unknown reasons, " neither defendant Marks nor defendant Daniels sought temporary total disability benefits during the pendency of the decedent's workers' compensation and/or occupational diseases case even though temporary total disability benefits "were available and [the decedent] was entitled" to receive them. As a result, the complaint alleged that the Daniels and Marks defendants committed legal malpractice for failing to seek temporary total disability benefits for the decedent while his case was pending.

         ¶ 11 Concerning the settlement of the underlying workers' compensation case, the decedent alleged in the complaint that he initially thought Nicor's $125, 000 settlement offer was "unreasonably low" prior to accepting, but defendant Daniels reassured him that the amount was the best offer that he could receive and that it was a good settlement amount. The decedent further claimed that, "[d]ue to continued assurances" made by defendants Daniels and Marks, he did not know that the settlement amount "was far below what he should have received in compensation" until he consulted with a new attorney in 2014.

         ¶ 12 The decedent passed away on June 3, 2015, while his lawsuit was still pending. The trial court substituted Maria Brummel, the executor of his estate, as plaintiff on October 6, 2015.

         ¶ 13 On December 4, 2015, the Marks defendants filed a section 2-619(a)(5) motion to dismiss the complaint as untimely pursuant to the Code's two-year statute of limitations governing legal malpractice actions. 735 ILCS 5/2-619(a)(5), 13-214.3 (West 2014). The motion to dismiss argued that over three years had elapsed between the settlement of the underlying workers' compensation and/or occupational diseases case and the filing of the decedent's instant legal malpractice lawsuit and that the decedent did not show any affirmative acts or misrepresentations by defendants after the settlement to prevent the decedent's discovery of the cause of action. The motion to dismiss also argued that the decedent was aware of the potential for temporary total disability benefits prior to the settlement and that the settlement order, which the decedent signed, stated that the settlement was a complete and final resolution to his Workers' Compensation Act ...