BENTON - U.S. District Judge Staci Yandle must decide whether 38 years of legal practice qualifies Joseph Bleyer of Marion as an expert in legal malpractice.
Ansur America Insurance, seeking damages from the Quinn Johnston firm of Peoria and attorney James Borland, moved to exclude Bleyer from trial on Sept. 23.
Ansur counsel Robert Sweeney of Chicago wrote, “Bleyer’s purported qualification as a legal malpractice expert is simply that he has practiced law.”
“His opinions are merely his own judgment of what he himself would have done under the circumstances," Sweeney wrote.
”He has never handled a legal malpractice case and lists no legal ethics experience in his qualifications.”
Ansur retained Borland in 2016 to defend policy holder Signature Hardware against a suit that Helen Miles filed in St. Clair County circuit court.
Her counsel Tom Keefe and Thomas Keefe III of Swansea claimed Miles purchased an adjustable height bamboo shower stool that broke and caused her to suffer injuries.
Chief Circuit Judge Andrew Gleeson entered summary judgment on liability and prepared for trial on actual and punitive damages.
Ansur advised Signature Hardware it reserved a right to deny coverage for punitive damages.
Ansur advised that punitive damages created a conflict of interest and Troy Bozarth of Hepler Broom in Edwardsville would act as independent counsel.
Ansur settled for more than $10 million and its reinsurers covered some of the cost.
Ansur counsel Lucas Terna of Chicago sued Quinn Johnston and Borland in district court in 2021 for the difference between the settlement and the actual value of the claim.
“The defense Borland and Quinn Johnston mounted was woeful in a multitude of respects and resulted in an enormous loss to Signature and Ansur,” Terna wrote.
Quinn Johnston’s counsel Robert Stephens of Chicago answered by shifting blame to Bozarth.
Stephens wrote that Bozarth, “who was considerably less familiar with the case than defendants, advised Ansur to settle the case within Signature’s policy limits.”
He claimed that against Borland’s advice Ansur settled the Miles litigation for an amount significantly more than defendants recommended.
Tom Keefe stated at a deposition in 2022 that only one lawyer represented Signature Hardware at mediation and, “I told the guy he was screwed.”
He said he asked, “How can you be representing these people?”
“There’s a punitive case.The case was unlosable.”
He said he recalled a conversation with his son and Bozarth.
“I remember telling Tommy, don’t take a penny less than the policy. They’ve got to pay the policy, that’s all I remember.”
In 2022, Quinn Johnston and Borland moved for summary judgment that Ansur could not recover for its reinsurers.
Ansur claimed contracts required it to litigate for all who paid but Yandle granted the motion.
This January, Yandle set trial to start Aug. 12.
On Aug. 1 she set it to start March 10.
Ansur’s motion to exclude Bleyer from trial also called for exclusion of expert testimony from insurance claims manager Daryl Douglas.
Sweeney claimed they based their testimony entirely on their own say so.
He claimed they failed to provide any objective, reliable standard against which they measure or explain why their experience is a reliable basis for their conclusions.
He claimed neither of their reports cites any authority to support their opinions.
“Their methodology is essentially, I know it when I see it,” Sweeney wrote.
He claimed Bleyer’s lack of experience in the specialized matter of professional responsibility rendered him unqualified and rendered his opinion unreliable.
He claimed Bleyer didn’t reference a single one of the mandatory standards set forth in Illinois rules of professional conduct.
“Bleyer did not even attempt to link his testimony to any authoritative standard in the rules or indeed any standard at all," he wrote.
He claimed Bleyer opined in his report that Quinn Johnston and Borland did not breach fiduciary duties to Ansur but couldn’t identify their duties at a deposition.
He claimed after multiple attempts Bleyer said, “It’s an art. It’s just the way you do it.”
He claimed Bleyer opined in his report that Quinn Johnston and Borland abided by a standard of care but was unable to explain what the standard was.
He claimed Bleyer opined that claims managers should have paid more attention, “primarily because attorney Tom Keefe was the opposing counsel.”
Here’s an excerpt of lawyer Robert Sweeney deposing lawyer Joseph Bleyer:
Q: Do you have a duty to report to the insurer updates?
A. I don't know if it's a duty, but you do have a -- you do report to the -- to the insurer because that's the person, as I explained, who has the ultimate authority making decision initially of whether or not the case is resolved.
Q. Do you think you have a duty to report to the insurer?
A. I don't know if it's -- I wouldn't say -- duty is a very legal term and I wouldn't use the word duty in that particular context.
Q. You might not actually have a duty to do it?
A. I don't like the word duty.
As lawyers we know what duty means and -- but we do update the insurer because that insurer is the one unless you have a defendant that is going to pay the verdict or like I said has a self insurance retention.
The insurer is the one that's got to make the decision as to whether or not to settle the case, pay any money or anything of that nature so yes, you have to keep them involved but I don't know if it's actually duty as defined in the legal term.
Q. After having reviewed the Illinois pattern instructions for legal malpractice, do you believe that Mr. Borland owed a duty to Ansur to timely report updates, or you don't know?
A. I'm trying -- I'm thinking. Hang on.
I think he as a reasonable, prudent defense lawyer would provide updates to the insurer of the defendant he is defending.
I'm not going to fall for that word duty but I think as a reasonable, prudent attorney he would report to the insurance company as to how the case was progressing.