Like many other states Illinois prohibits a legal malpractice plaintiff from obtaining punitive damages. However, if the plaintiff is a litigant who had punitive damages awarded against him, can he recover against his attorney? A recent decision answered that question with a “Yes.” In Midwest Sanitary Service, Inc. v. Sandberg, Phoenix & Von Gontard, P.C., 2021 IL App (5th) 190360, Midwest was assessed punitive damages. Midwest sued its former lawyers for negligence alleging that, but for the negligence of the attorneys, no punitive damages would have been awarded.
¶ 15 Having examined the reasoning of the circuit court in distinguishing the case at bar from Tri-C, we agree with its conclusion that
“it appears that the unique characteristics associated with legal negligence claims for lost punitive damages, and for which the Illinois Supreme Court [in Tri-C] and the Ferguson court expressed concern, do not necessarily attend legal negligence claims for the recovery of paid or incurred punitive damages. Absent those unique characteristics, it seems to this court that there * * * exists no just reason to deny the plaintiff in this case the opportunity to recover its actual loss. It should be remembered that `[t]he general rule of damages in a tort action is that the wrongdoer is liable for all injuries resulting directly from the wrongful acts * * *, provided the particular damages are the legal and natural consequences of the wrongful act imputed to the defendant, and are such as might reasonably have been anticipated. * * *’ Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 543 (1996).”
¶ 17 Although, as explained above, our standard of review is de novo, we find persuasive the thorough reasoning of the circuit court and find no reason to disturb it. In short, we agree that punitive damages that are assessed against a litigant as a proximate result of the professional negligence of its attorney are not, in the context of a subsequent legal malpractice action against the attorney, punitive in nature but are, instead, compensatory in nature and therefore not barred by public policy or by the terms of section 2-1115 of the Code. 735 ILCS 5/2-1115 (West 2018). Accordingly, we answer the certified question in the negative, affirm the circuit court’s June 3, 2019, order, and remand this cause for further proceedings.
Note: these are merely allegations. The complaint in this case has not been subjected to the test of discovery or trial.
Comment: the take away here is that punitive damages are only available to you if you had to pay them as damages. I do not agree with this rule, but that is the law in the State of Illinois.
Do not hesitate to call me if you have a question about a malpractice case or an issue that you think amounts to malpractice.
Ed Clinton, Jr.