Court of Appeals of Illinois, First District, Fourth Division
MARIA BRUMMEL, Executor of the Estate of Bruce Brummel, Deceased, Plaintiff-Appellant,
RICHARD D. GROSSMAN; AGNES E. GROSSMAN; LAW OFFICES OF RICHARD D. GROSSMAN; RICHARD C. DANIELS; DANIELS, LONG & PINSEL, LLC; JASON S. MARKS; and NOONAN, PERILLO, POLENZANI & MARKS, LTD., Defendants Richard C. Daniels; Daniels, Long & Pinsel, LLC; Jason S. Marks; and Noonan, Perillo, Polenzani & Marks, Ltd., Defendants-Appellees.
Rehearing denied May 2, 2018
from the Circuit Court of Cook County, No. 14-L-13363; the
Hon. John P. Callahan Jr., Judge, presiding.
A. Boynton and Donald L. Johnson, of Yorkville, for
R. Marconi, David M. Macksey, and Brian C. Langs, of Johnson
& Bell, Ltd., of Chicago, for appellees Richard C.
Daniels and Daniels, Long & Pinsel, LLC.
F. Konicek and Michael J. Corsi, of Konicek & Dillon,
P.C., of Geneva, for other appellees.
JUSTICE GORDON delivered the judgment of the court, with
opinion. Presiding Justice Burke and Justice Ellis concurred
in the judgment and opinion.
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).  The lawsuit, originally
filed by Bruce Brummel  (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. 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
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 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
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 ...