When you sue a lawyer for a breach of the standard of care, you must prove proximate causation. If the underlying matter, was a lawsuit, you must show that, but for the negligence, you would have won the case.
Here, the lawyer was hired to pursue a lawsuit for insurance coverage. The lawyer allegedly missed the deadline to file the case. However, there was no legal malpractice because the underlying case lacked merit. The underlying case claimed that the insurance company did not cover certain losses. The problem was that the policy language excluded those losses. Thus, if the clients had read the insurance policy, they would have known that there was no coverage. Because the coverage case had no merit, the lawyer’s failure to file the lawsuit on time was of no importance. The trial court granted summary judgment for the lawyer and the appellate court affirmed that judgment.
The opinion explains the failure of proof in this fashion:
¶ 19 In the present case, after having reviewed the record, we find that summary judgment was properly granted for Johnson on Judith’s legal malpractice complaint because Judith was unable to establish either proximate cause or damages. See 735 ILCS 5/2-1005(c) (West 2014); Adams, 211 Ill. 2d at 43; Tri-G, Inc., 222 Ill. 2d at 226. Specifically, the pleadings and supporting documents presented in the summary judgment proceeding established that any alleged legal malpractice on the part of Johnson could not have harmed Judith’s ability to recover in the underlying breach of contract case for two reasons. First, there was no chance that Judith’s claim for breach of contract against Nohovig and Time in the underlying case would have been successful. In cases such as the underlying case, where an insured sues his insurer and/or his insurer’s agent claiming that a policy provision should not be given effect because the provision was incorrect or not in keeping with what the insured was told by the insurer or the agent, the insured may not recover against the insurer or the agent for that error or discrepancy if the insured failed in his duty to read the policy and to inform the insurer or the agent of that error or the discrepancy in the policy (the discrepancy rule). See Floral Consultants, Ltd. v. Hanover Insurance Co., 128 Ill. App. 3d 173, 176 (1984); Gaudina v. State Farm Mutual Automobile Insurance Co., 2014 IL App (1st) 131264, ¶ 29. In the underlying case, Judith and Thomas failed in their duty to read the policy and to inform either Nohovig or Time about the alleged error in the policy (that the policy contained a $100,000 maximum calendar year limit instead of being unlimited). Judith and Thomas (the estate), therefore, could not recover against Nohovig or Time in the underlying case for the alleged error or discrepancy in the policy. See Floral Consultants, Ltd., 128 Ill. App. 3d at 176; Gaudina, 2014 IL App (1st) 131264, ¶ 29.