A malpractice insurance company accused of conspiring to avoid covering an attorney claims the plaintiff inappropriately filed his claims in Madison County, violating the forum selection clause in his contract.

Thomas W. Burkart filed the Nov. 14 lawsuit against the Illinois State Bar Association Mutual Insurance Company, Johnson & Bell, P.C., and Peter R. Ryndak.

According to the suit, Bukart was being sued for malpractice when a conflict of interest arose between him and the insurance company.

The insurance company agreed to pay for the higher rates of Burkart’s independent counsel, but Ryndak, a Johnson & Bell attorney, allegedly circumvented Burkart’s counsel on behalf of the insurance company to trigger a clause that would allow the company to no longer pay for fees associated with Burkart’s case.

The defendants filed a motion to dismiss on Jan. 12, arguing that the lawsuit is an “impermissible collateral attack on the judgments rendered against [Burkart] in both Sangamon and Madison Counties.”

They wrote that ISBA Mutual represented Burkart in Sangamon County when he was sued by former clients. The insurance company filed a declaratory judgment action in an effort to determine its coverage obligations. Then Burkart filed his own declaratory judgment suit in Madison County.

Circuit Judge Dennis Ruth dismissed Burkart’s Madison County action because ISBA’s action was pending in Sangamon County. Burkart appealed, and the case is still pending in the Fifth District Appellate Court.

ISBA moved forward with other defendants and negotiated a settlement with the underlying claimants. However, Burkart refused to consent to the settlement.

ISBA then requested the Sangamon County court to terminate its defense of Burkart. The court granted ISBA’s request and denied Burkart’s request to file a counterclaim for conspiracy against the three defendants in this case. Burkart appealed that ruling, as well.

The defendants argue dismissal is proper.

“It is also legally insufficient, where a court of competent jurisdiction has declared that ISBA Mutual and its agents were authorized to settle a claim against him and upon his refusal, terminate his defense,” the motion states.

The defendants also argue the action should be dismissed because it violates the forum selection clause, which states that all disputes must be litigated in federal court or in either Cook County or Sangamon County.

Since the case was filed in Madison County, three judges have presided over the case. Ruth was first assigned to the case on Nov. 17. Then Circuit Judge Andreas Matoesian was assigned to preside over the case on Feb. 2 before it was transferred to Circuit Judge Barbara Crowder’s courtroom on March 9.

Burkart is representing himself in the case and seeks more than $50,000, plus court fees.

Stephen C. Mudge of Reed, Armstrong, Mudge & Morrissey in Edwardsville is local counsel for the defendants.

Madison County Circuit Court case number 14-L-1564

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