BENTON - U.S. District Judge Staci Yandle ruled that Ansur Insurance can proceed to trial on a claim that it lost millions in St. Clair County court due to malpractice by James Borland and the Quinn Johnston firm of Peoria.
Yandle denied summary judgment to Borland and the firm on Sept. 30, finding Ansur’s expert Sari Montgomery of Chicago didn’t have to prove that negligence proximately caused injury.
She found Borland and the firm cited authority from medical malpractice cases in Illinois requiring expert testimony to prove proximate cause.
She declined the invitation to create such a requirement applicable to legal malpractice cases.
“Expert testimony is only one type of evidence that a plaintiff can rely on to establish the causation element of a legal malpractice claim," she wrote.
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 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.
Montgomery delivered a report stating the answer to the original complaint denied knowledge of a defect when Signature Hardware representatives testified to such knowledge.
She stated Borland and the firm consistently reported a case value no greater than $325,000.
She stated they failed to timely advise their clients they had no experts of their own and failed to timely depose Miles’s experts resulting in inability to develop evidence.
She stated deadlines had passed or were too close to provide a meaningful opportunity to engage experts to refute her experts.
She stated they failed to communicate with Ansur regarding developments and their significance including the conflict of interest and a massive increase in estimated liability.
She stated they misled Ansur and Signature as to Signature’s right to control their defense and hire independent counsel at Ansur’s expense.
She stated they misled Ansur and Signature as to their expected exposure until it was too late to take remedial action.
Borland and the firm moved for summary judgment last November.
Their counsel John Duffy of Chicago claimed that a plaintiff in a legal malpractice case must essentially prove a case within a case.
He claimed a plaintiff must prove what the recovery would have been in the underlying action absent the alleged malpractice.
“In other words the plaintiff must establish that ‘but for’ the attorney’s negligence it would not have suffered the damages alleged,” Duffy wrote.
“Plaintiffs in medical malpractice actions carry the burden by proving through expert testimony that a defendant’s breach of the applicable standard of care is more probably than not the cause of the plaintiff’s injury.”
He claimed experts should testify about causation if the deviation from the standard of care is not apparent to a lay person.
“This matter also concerns complicated allegations of standard of care deviations in handling product liability matters in St. Clair County," he wrote.
Yandle found in her denial of the motion that Ansur could have issued a reservation of rights letter to Signature Hardware but for the failure to timely disclose a claim for punitive damages.
She found such a letter could potentially have avoided payment of a significant settlement including punitive damages and could have avoided any bad faith claims by Signature.
“As such, a factual issue exists regarding the ‘but for’ of defendants’ alleged negligence that must be determined by the trier of fact," she wrote.
She found Montgomery opined that to a reasonable degree of certainty Borland and Quinn did not fulfill their ethical responsibility to Ansur or Signature Hardware.
She has set trial in March.