Faier v. Ambrose & Cushing, P.C.

609 N.E.2d 315, 154 Ill. 2d 384, 182 Ill. Dec. 12

• Court: Illinois Supreme Court
• Decided: February 18, 1993
• Docket: 70753
• Status: Published

Opinions

JUSTICE HEIPLE

delivered the opinion of the court:

Martin Faier is an attorney. He represented Recora Company, which had been sued in a patent infringement suit. He filed a counterclaim in the company’s behalf. Subsequently, attorney Faier introduced the president of Recora to attorney John Ambrose. Recora then hired attorney Ambrose to handle all matters concerning the counterclaim portion of the lawsuit. Due to the failure of attorney Ambrose to comply with certain court orders, the counterclaim was dismissed.

Recora then brought suit against attorney Martin Faier and attorney John Ambrose for legal malpractice which had resulted in the dismissal of its counterclaim. Attorney Faier then filed his own counterclaim against attorney John Ambrose and Ambrose’s firm, Ambrose & Cushing, P.C., for contribution pursuant to the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.) and also for common law indemnity.

Attorney Faier then settled the entire malpractice claim which Recora had filed and Recora released all claims against Faier and Ambrose. Ambrose did not participate in the settlement agreement between Faier and Recora. Faier alleges that by settling with Recora he paid more than his pro rata share of his liability, and that his liability to Recora is wholly vicarious, arising out of the acts and omissions of Ambrose. Ambrose’s motion to dismiss Faier’s counterclaim for contribution and indemnity was denied, but the trial court indicated sua sponte that it would certify the following two issues for permissive interlocutory appeal pursuant to Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)). The appellate court denied leave to appeal these questions, but this court allowed the petition for leave to appeal.

“i. Whether a defendant-attorney, who has settled the entire claim of a plaintiff in a legal malpractice/professional negligence case, arising out of the dismissal of a federal antitrust counterclaim, has a right of contribution under the Illinois Contribution Act against a released nonsettling defendant-attorney, when the damages sought by the counter-plaintiff in the antitrust case were the following: lost profits, increased expenses, including attorney’s fees, and treble damages?

ii. Whether a defendant-attorney who has settled the entire claim of a plaintiff in a legal malpractice/professional negligence case, arising out of the dismissal of a federal antitrust counterclaim, may maintain a claim for implied indemnity against a released not-settling defendant-attorney?”

Our answer to both questions is yes.

Two recent decisions are directly on point. In Collins v. Reynard (1992), 154 Ill. 2d 48, we recently pointed out that a claim of legal malpractice resulting in purely economic damages may be couched in either contract or tort and that recovery may be sought in the alternative. The Contribution Act is grounded in tort. Thus, under the rationale set forth in Collins, a cause of action may be brought against an attorney for contribution.

In American National Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center (1992), 154 Ill. 2d 347, we determined that common law implied indemnity, stemming from vicarious liability, was not abolished by the Contribution Act. Thus, a claim against an attorney for recovery of a settlement may be based upon implied indemnity.

This cause is remanded to the circuit court for further proceedings consistent with the views herein expressed.

Certified question answered; cause remanded.

JUSTICES BILANDIC and McMORROW took no part in the consideration or decision of this case.