Glavinskas v. William L. Dawson Nursing Center, Inc. – 332 Ill.Dec. 188 (1st Dist. 2009)
Facts: The plaintiff is a passenger in a vehicle owned by the defendant when he is severely injured, rendering him both mentally and physically disabled. He is later adjudicated a mentally disabled person by the probate court and his half brother, Michael Poland, is appointed plenary guardian. Poland subsequently files suit on behalf of the plaintiff in the law division through attorney Sheldon Belofsky.
During the pendency of the case, Belofsky neglects the matter and several discovery sanction orders are entered, the last of which he does not even respond to or attend the hearing such that an order was entered barring the plaintiff from calling any expert witnesses at trial and further barring the plaintiff from testifying on his own behalf. Subsequently, a pretrial conference was conducted where the defendant agreed to pay $175,000 in an annuity. (It is unclear in the record whether Belofsky was even present at this pretrial as the opinion indicates that the “only support for this assertion is a letter from defense counsel to plaintiff’s counsel”). A full year after the settlement/offer was extended to the plaintiff, no action was taken by plaintiff’s counsel to conclude the matter and counsel for defendant presents an unorthodox motion to both the law division and the probate division seeking the court to compel the plaintiff to approve the settlement.
In the law division Judge Lopez Cepero granted the motion to compel plaintiff to approve the settlement and then ordered plaintiff’s counsel to “seek to approve the settlement on or before October 21, 2005 or this Court will make its own motion to approve the settlement.” Par for the course, plaintiff’s counsel took no action and Judge Lopez Cepero subsequently entered an order that the settlement was “proper and hereby approves the settlement.”
In the probate division Judge Riley took an entirely different approach. Clearly suspicious that the motion was being forwarded without any active participation by the Plaintiff’s counsel, the probate court appointed a GAL to investigate the reasonableness of the settlement and to determine why nothing had been done to adjudicate or address a lien from Public Aid in the amount of $272,000, a figure far in excess of the settlement amount. The GAL conducted its investigation and reported to Judge Riley regarding the underlying facts of the case, the neglect of Plaintiff’s counsel and that the plaintiff’s representative had been previously convicted in 2001 of a felony for stealing money from the disabled plaintiff, a fact that was disclosed in a discovery deposition and presumably not mentioned in the defendant’s motion. Judge Riley ordered that the GAL file a motion to intervene in the law division and vacate the settlement order, which was then denied by Judge Lopez Cepero in the law division; then Judge Riley suspended the powers of the original representative and appointed a temporary guardian who quickly fired the original attorney and retained new counsel who quickly set about presenting a 2-1401 petition to vacate the law division dismissal order. Judge Riley then entered an order in the probate division specifically denying the petition to approve the settlement finding the amount of $175,000 unconscionable.
Meanwhile, in the law division Judge Lopez Cepero initially denied the 2-1401 petition, then reconsidered and vacated the order denying the petition but in doing so entered a new order striking the intial 2-1401 petition and then recused himself from further proceedings. The matter was then transferred to Judge Dooling who ultimately granted the plaintiff’s 2-1401 petition and vacated the December 1, 2005 dismissal order specifically finding that due to the disability of the plaintiff and the incompetence of his representatives in protecting his interests he was excused from strict compliance with the due diligence requirement of a 2-1401 petition and that enforcement of the order under these circumstances would be unjust. She further found that Judge Lopez Cepero’s dismissal order did not comply with local Circuit Court rules 6.4 and 12.15(c) governing the settlement of disabled persons’ personal injury cases in the law division and probate divisions and was thus deficient.
Holding: Courts have a responsibility to protect the interests of mentally disabled persons and plaintiff, who was adjudged incompetent, is not accountable for the negligence of his representatives such that any finding that under the facts of this case that plaintiff failed to exercise due diligence in prosecuting the action for purposes of subsequent petition to vacate judgment that approved settlement agreement in this case is unfair and unconscionable.
Filed in Trial Book Under: 735 ILCS 5/2-1401; Disabled Persons; Settlement
Commentary: For the normally dry and boring analysis of the validity of a 2-1401 petition this case really has a lot of drama and intrigue. We have a thieving family member, a bumbling plaintiff’s attorney, an opportunistic defendant’s attorney, a protracted turf battle between the law division and the probate division, and ultimately a hero in both the new plaintiff’s counsel and the probate judge. Despite all of the juicy details that are actually included in the opinion, including the names of all of the key players (a rarity in appellate decisions), I get the distinct impression that the written opinion doesn’t do justice to the perfect storm of incompetence and possibly scheming that nearly served to completely disadvantage this disabled plaintiff. On the bright side, the checks and balances built into the procedures for settling lawsuits for disabled persons in Cook County, requiring the involvement of both the law division and the probate division to approve the settlement, really worked in this case.
In that regard, the proposition that a court must act to protect a disabled person is not new and that function is not limited to the probate court, it applies to all judges. Therefore, it is surprising that the plaintiff’s counsel was able to be disengaged from the discovery process for so long without raising a red flag to one of the four law division judges that entered adverse orders in this case that something was amiss in the representation of this disabled plaintiff and needed to be investigated. Put simply, the brakes should have been applied before the case was hijacked and driven off of a cliff. This is particularly true where you have the defendant’s attorney literally quarterbacking the settlement in the absence of any involvement by the plaintiff’s attorney. This is highly unusual and should have set off alarm bells that something more needed to be done to determine the reasonableness of the settlement than merely relying upon the representations of the attorney that’s job is to pay the least amount possible to the plaintiff. The fact that the dismissal order did not consider the issue of liens, attorneys fees and costs is equally perplexing. Although the fact section of the appellate opinion goes out of its way to name the defendant’s attorney and then includes Judge Dooling’s criticism of him for a lack of candor to the trial court for not informing the court of the existence of a public aid lien, it seems as if this is a pretty basic question that the judge should have been asking without any prompting from the petitioner, particularly given the fact that the judge is required to approve the settlement and make a specific finding that the amount is reasonable. How that could be done without having information what amounts will be deducted from the gross to account for liens, attorneys fees and costs is anybody’s guess. The fact that the dismissal order did not include language that the settlement was reasonable, nor did the order comply with the local Circuit Court rules regarding the settlement of a disabled persons estate, would seem to indicate that neither the judge nor the defendant’s attorney was aware of the special requirements surrounding settlements for disabled persons and, instead, was treating the settlement just like any other arms length negotiation between consenting parties.
As an aside, it would be interesting to know whether the plaintiff was a resident of the nursing home at the time of the collision. If so, there would be a potential basis to file a count under the Nursing Home Care Act which could ultimately serve to protect the settlement from a requirement of reimbursement on the public aid lien.