Wilson v. Coronet Insurance Co.

Annotate this Case
THIRD DIVISION
December 31, 1997

Nos. 1-96-1827, 1-96-2263, Consolidated

PATRICIA WILSON, as Mother and Next
Friend of JOYCE ANN WILSON, a Minor, and
Assignee of BRUCE SARTIN,

Plaintiff-Appellant,

v.

CORONET INSURANCE COMPANY, MARVIN S.
LANSKY, FISCH, LANSKY and ASSOCIATES,
f/k/a FISCH, LANSKY and HERMAN, f/k/a
FISCH, LANSKY and GREENBERG,

Defendants-Appellees. )
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) Appeal from the
Circuit Court of
Cook County

No. 92 L 016254

Honorable
Loretta C. Douglas,
Judge Presiding.


JUSTICE CAHILL delivered the opinion of the court:
Plaintiff Patricia Wilson appeals from trial court order
dismissing count III of her third-amended complaint. We review
whether a party to a lawsuit may assign a cause of action against
his lawyer for breach of fiduciary duty. We conclude that he may
not.
In her third-amended complaint, plaintiff alleges that in
November 1986, Joyce Ann Wilson was injured when struck by a
vehicle driven by Bruce Sartin. Joyce Ann Wilson, through her
mother, the plaintiff, sued Sartin. Sartin was insured by Coronet
Insurance Company (Coronet). Coronet retained Fisch, Lansky &
Associates to defend Sartin. Marvin Lansky was the trial attorney
primarily responsible for the defense.
On July 1, 1987, and on May 5, 1989, Wilson offered to settle
for the $15,000 limit on the policy. Coronet refused. At this
point, plaintiff contends, Coronet's and Sartin's interests
diverged, presenting an "actual conflict of interest" for Lansky
and his law firm. Plaintiff asserts that when Coronet first
learned about the accident, Coronet "knew or would have, in the
exercise of ordinary care, known that the probability of an adverse
finding of liability against [Sartin] was great and that the amount
of damages resulting from [Sartin's] acts would far exceed the
applicable limits of liability coverage."
Plaintiff alleges that Lansky and his law firm had financial
interests in Coronet, including: (1) Lansky was paid by Coronet for
Sartin's defense; (2) Fisch, Lansky, & Associates derived most of
its business from Coronet, and (3) Kenneth Fisch, a firm partner,
was vice-president of Coronet. Plaintiff further alleges that
Lansky and his law firm acted as agents of Coronet throughout the
litigation against Sartin.
After trial, a jury returned a verdict against Sartin and
assessed damages in the amount of $3,625,000. Sartin later
assigned his causes of action against Coronet, Lansky, and his law
firm to plaintiff. Plaintiff sued defendants.
In count III, plaintiff alleges that Lansky and his law firm
breached a fiduciary duty owed to Sartin by failing to disclose
conflicts of interest.
Defendants Lansky and his law firm moved to dismiss count III,
arguing that plaintiff did not plead sufficient facts to state a
cause of action for breach of fiduciary duty. On May 3, 1996, the
trial court granted the motion under section 2-619 of the Code of
Civil Procedure (735 ILCS 5/2-619(9) (West 1996)). On May 22,
1996, plaintiff filed a notice of appeal from the May 3, 1996,
order.
Plaintiff argues on appeal that the third-amended complaint
sufficiently stated that Lansky and his firm breached a fiduciary
duty owed to Sartin by continuing to represent Sartin without
revealing a conflict of interest or advising him to seek
independent counsel. The trial court found that the facts alleged
by plaintiff did not and could not support a cause of action for
breach of fiduciary duty.
We review a trial court's dismissal of a complaint under
section 2-619 de novo. Metrick v. Chatz, 266 Ill. App. 3d 649,
652, 639 N.E.2d 198 (1994). We consider all well-pleaded facts as
true, and dismissal is proper only if no facts exist that could
entitle plaintiff to recover. Griffin v. Fluellen, 283 Ill. App.
3d 1078, 1083, 670 N.E.2d 845 (1996). An appellate court can
affirm a section 2-619 dismissal on grounds supported by the
record, regardless of the trial court's reasons. Ko v. Eljer
Industries, Inc., 287 Ill. App. 3d 35, 39, 678 N.E.2d 641 (1997).
We need not decide whether count III sufficiently alleged that
Lansky and his law firm breached a fiduciary duty owed to Sartin.
Sartin's claims against his attorney were not properly assigned to
plaintiff.
Illinois courts have held that legal malpractice claims are
not assignable. Brocato v. Prairie State Farmers Insurance Ass'n,
166 Ill. App. 3d 986, 988-89, 520 N.E.2d 1200 (1988); Clement v.
Prestwich, 114 Ill. App. 3d 479, 480-81, 448 N.E.2d 1039 (1983);
Christison v. Jones, 83 Ill. App. 3d 334, 338-39, 405 N.E.2d 8
(1980). But see McGill v. Lazzaro, 62 Ill. App. 3d 151, 379 N.E.2d 16 (1978) (stating, in dicta, that an action in professional
negligence survives an attorney's death because such an action
would be assignable). The reason stems from the nature of the
attorney-client relationship and public policy. The fiduciary
relationship between an attorney and client is a personal and
confidential one, requiring the attorney to exercise "the utmost
degree of fidelity, honesty and good faith." See Christison, 83
Ill. App. 3d at 338. Illinois courts have reasoned that a
malpractice suit is not appropriately brought by a stranger to that
relationship and that allowing such assignments would commercialize
legal malpractice suits, "debase the legal profession," "'place an
undue burden on *** the legal profession [and] judicial system,
restrict the availability of competent legal services, embarrass
the attorney-client relationship and imperil the sanctity of the
highly confidential and fiduciary relationship existing between
attorney and client.'" Christison, 83 Ill. App. 3d at 339, quoting
Goodley v. Wank & Wank, Inc., 62 Cal. App. 3d 389, 397, 133 Cal. Rptr. 83, 87 (1976).
Although Illinois cases have only applied this rule to legal
negligence claims, we see no reason why this rule should not apply
to a "breach of fiduciary duty" claim. A "breach of fiduciary
duty" claim against an attorney is "[i]ncluded within the rubric of
legal malpractice." Doe v. Roe, 289 Ill. App. 3d 116, 128, 681 N.E.2d 640 (1997), citing Metrick v. Chatz, 266 Ill. App. 3d 649.
Sartin's "breach of fiduciary duty" claim was not assignable.
Affirmed in part and dismissed in part.
COUSINS, P.J. and GORDON, J., concur.

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