The case is captioned USF Holland, Inv. v. Radogno, Cameli and Hoag, P.C., Illinois Appellate Court, First District, 2014. The case arose out of an underlying personal injury case in which Holland was sued for damages after one of its trucks collided with a car in Indiana. The Radogno firm obtained summary judgment in the trial court and the Appellate Court affirmed.
The plaintiff, Keppen, sued Holland in Cook County. Holland hired the Radogno firm which filed a motion to dismiss on the grounds of forum non conveniens. Radogno explained that its strategy was to obtain a dismissal of the case, which would require the plaintiff to refile the case in Indiana. Radogno explained that Indiana juries typically awarded less money than did juries in Cook County, Illinois.
Unfortunately for Holland, the trial court denied the motion to dismiss and the Appellate Court affirmed the denial of the motion to dismiss. That meant that the litigation would remain in Cook County.
After the unsuccessful appeal, Holland terminated the Radogno firm and replaced it with Patton & Ryan. The Patton firm prepared an answer to the complaint in which it raised an affirmative defense – that a nonparty (the truck driver) was negligent and that his negligence was the sole proximate cause of the accident.
Plaintiff moved to strike the affirmative defense on the ground that Illinois law did not allow a nonparty defense and the statute of limitations on any contribution claim had expired. Plaintiff further argued that Indiana law would not allow the filing of the nonparty defense because it was not timely. The court explains: “Keppen’s motion to strike argued that under section 34-51-2-16 of the Indiana Code of Civil Procedure, USF was required to plead any nonparty defense no later than 45 days before the expiration of the 2-year limitations period governing Keppen’s negligence claim and that this deadline had also passed. Ind. Code Ann. § 34-51-2-16 (West 2004).”
The trial court granted the motion to strike. The case was ultimately settled for $5.65 million.
Holland then sued Radogno alleging that Radogno committed legal malpractice by failing to timely file the nonparty defense and that the failure to file the defense forced Holland to pay a large settlement to Keppen.
Here is where the legal malpractice case ran into trouble.
Radogno argued that (a) Holland had waived any claim by failing to make an appropriate record in the underlying case (Holland did not resist the motion to strike the affirmative defense); and (b) Holland was incorrect on Indiana law, which allowed the trial court to allow a late filing of the nonparty affirmative defense if there was no prejudice to either party.
The waiver argument is interesting: “That motion [to dismiss] argued that USF’s claim that Radogno had been negligent in failing to assert the non-party defense under Indiana law had been “waived by virtue of USF’s failure to create a record in the Keppen case from which this Court or any court could analyze and rule on the propriety and judicial basis of the trial court’s decisions in the Keppen case.” Radogno specifically argued there was an insufficient record to assess the alleged failure to assert the Indiana nonparty defense, as USF’s successor counsel had “failed to file a written opposition to the Keppen motion to strike the non-party defense,” “failed to create a record or transcript of the hearing on the Keppen motion to strike,” failed to seek review or reconsideration of the order granting the motion to strike, and failed to obtain clarification from the Keppen court as to whether it had applied Illinois or Indiana law.”
The trial court denied the motion to dismiss.
However, the trial court eventually granted summary judgment for Radogno on the ground that Indiana law governed the underlying case and that the affirmative defense could have been filed after the appeal on the forum non conveniens issue was resolved.
On appeal, the appellate court discussed but rejected the waiver argument. It explained:
“¶ 57 We recognize that USF’s successor counsel could have argued, but did not specifically argue, for application of the Indiana statutory nonparty defense and did not obtain an explicit order from the trial court that Indiana law governed the Keppen action. However, Radogno cites no authority suggesting that a malpractice plaintiff’s conduct of the underlying lawsuit, particularly its conduct after it had discharged defendant counsel, could waive the plaintiff’s right to allege malpractice in a subsequent lawsuit. Moreover, as noted by USF, waiver is the “intentional relinquishment of a known right.” Pielet v. Hiffman, 407 Ill. App. 3d 788, 798 (2011). The record does not suggest that USF’s conduct in the Keppen case after it retained successor counsel amounted to an “intentional relinquishment” of the right to assert the nonparty defense under Indiana law. Thus, we do not find sufficient basis in legal authority or on the facts of this case to conclude that USF’s conduct in defending the Keppen action after it had discharged Radogno waived its right to assert the alleged malpractice in this case.”
The waiver defense presented a question of first impression. The Appellate Court rejected the defense. However, I am convinced that this defense may be worth raising in other cases.
The Appellate Court, however, agreed that the nonparty defense was viable after the purported deadline and held affirmed the grant of summary judgment. The Appellate Court, after a lengthy and thoughtful discussion of Indiana law, held that the nonparty defense was not waived by the Radogno firm because it could have been included in the answer to the complaint, which was filed by successor counsel. The Appellate Court explained its ruling with this language:
“¶ 92 Our interpretation of section 34-51-2-16 of the Indiana Code disposes of each of USF’s arguments on appeal. That is, our holding that the nonparty defense was still available to USF even after its termination of Radogno leads us to affirm the trial court’s denial of USF’s motion in limine No. 2, which sought a ruling that the time to assert the defense had expired. In turn, since we find that the nonparty defense could in fact have been validly asserted by USF’s successor counsel, Radogno’s failure to do so while representing USF could not be the proximate cause of USF’s alleged damages in the Keppen settlement. Thus, we also affirm the trial court’s determination that Radogno was entitled to summary judgment upon denial of USF’s motion in limine No. 2, since USF could not establish the causation element of its malpractice claim.”
In sum, what looked like a great legal malpractice case (the lawyer missed a deadline) went up in smoke when the Appellate Court carefully analyzed Indiana law and the Indiana cases interpreting the Indiana statute.
The Appellate Court’s opinion essentially holds that the trial court in the underlying action made a legal error in striking the affirmative defense when it was filed by successor counsel. Since the defense was timely, Radogno could not have missed the deadline.
The opinion is also important because it highlights a problem with litigation malpractice cases – sometimes successor counsel does not make a record or even file a written objection to a motion to strike an affirmative defense. The Radogno firm felt that it was left hanging out to dry by the (in its view) poor effort of successor counsel. The Appellate Court appears to have been somewhat sympathetic to this view.
Edward X. Clinton, Jr.