______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________ 201 8 IL App (1st) 162540 No. 1-16-2540 Fourth Division March 2 9, 2018

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

) MARIA BRUMMEL, Executor of the Estate of Bruce ) Appeal from the Circuit Court Brummel, Deceased, ) of Cook County. ) Plaintiff -Appellant, ) No. 14 L 13363 ) v. ) The Honorable ) John P. Callahan, Jr., RICHARD D. GROSSMAN; AGNES E. GROSSMAN; ) Judge Presiding. LAW OFFICES OF RICHARD D. GROSSMAN; ) RICHARD C. DANIELS; DANIELS, LONG & ) PINSEL, LLC; JASON S. MARKS; and NOONAN, ) PERILLO, POLENZANI & MARKS, LTD., ) ) Defendants ) ) (Richard C. Daniels; Daniels, Long & Pinsel, LLC; ) Jason S. Marks; and Noonan, Perillo, Polen zani & Marks, ) Ltd., Defendants- Appellees). ) )

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.

OPINION ¶ 1 The instant appeal arises from the dismissal of plaintiff Maria Brummel’s amended complaint for legal malpractice filed against defendants, attorney Richard C. Daniels and the law firm of Daniels, Long & Pinsel, L LC (collectively, Daniels defendants), and attorneyNo. 1-16-2540

Jason S. Marks and the law firm of Noonan, Perillo, Polenzani & Marks, Lt d. (collectively, Marks defendants). 1 The lawsuit, originally filed by Bruce Brummel 2 (decedent) on December 30, 2014 , alleged legal malpractice against defendants for negligently represent ing him during a w orkers’ compensation or occupational disease s case against his employer,
Nicor Gas , which settled on October 25, 2011. 3 The trial court ultimately dismissed the legal malpractice complaint with prejudice pursuant to section 2 -619(a)(5 ) of the Code of Civil Procedure (Code) (735 ILCS 5/2 -61 9(a)( 5 ) (We st 2014)), finding that the complaint was not
filed within the Code’s two

- year statute of limitations gover ning legal malpractice actions ( 735 ILCS 5/13 -214.3 (West 2014)) . Plaintiff appeal s , arguing that the statute of limitations
was tolled since the dec edent filed his complaint within two years of discovering his injury , and that defendants should be estopped from asserting the statute of limitations defense because the decedent reasonably relied on defendants’ misrepresentations, which delayed his discovery of injury. For the following reasons , we af firm the judgment of the trial court

.

1 Plaintiff also alleged a separate count of legal malpractice against attorneys Richard D. Grossman and Agnes E. Grossman and the Law Offices of Richard D. Grossman (collectively, Grossman defendants) for their handling of a separate related lawsuit, but that count is not at issue in this appeal. 2 Bruce Brummel passed away on June 3, 2015, during the pendency of his legal malpractice lawsuit. The trial court substituted Maria Brummel, the executor of his estate, as plaintiff on October 6, 2015. 3 The complaint filed in this matter refers to the action as a workers’ compensation claim. On claims filed at the Illinois Workers’ Compensation Commission, the employees have the option to file their claim under the Workers’ Compensation Act (820 ILCS 305/1 et seq . (West 2006)) or the Workers’ Occupational Diseases Act (820 ILCS 310/1 et seq . (West 2006)) or both. The application for adjustment of claim form filed in this matter is not contained in the record of this case, so we do not know what act th e decedent filed under. The briefs filed in this matter state that the claim that was filed here was under the Workers’ Compensation Act, but we will assume it was under the Occupation Disease Act or both.
2No. 1-16-2540
¶ 2 BACKGROUND ¶ 3 The decedent’s employer Nicor Gas (Nicor) is a natural gas distribution company. The decedent began working for N icor in December 1980 when he was 18 years old, and he remained with the company in various positions 4 for over 22 years. In 2001, the decedent and
some of his co workers at Nicor began to feel ill with symptoms of vomiting, diarrhea, abdominal pain, weakness, and fatigue. The decedent con sulted a physician who opined that
the decedent’s symptoms were caused by ingestion from chemicals. From 2001 to 2003, the decedent, as well as other employees, informed Nicor about his concerns that its drinking water was contaminated, but Nicor did not t ake any action to investigate or remedy the problem . The decedent also reported his concerns to the Occupational Safety and Health
Administration in 2001 after Nicor did not take action

. The decedent conducted his own investigation designed to discover the source of the chemicals at the Nicor facility where he worked, and he found that the drinking water in the break room connected to the flush line of the boiler, which allow ed toxins to be emitted from the boiler into the drinking water
consumed by Nicor e mployees. The decedent informed his union about the contaminated drinking water, but the union also ignored his requests for help. In late 2002 , the decedent reported his findings concerning the connection between the boiler and the drinking water to
the O ccupational Safety and Health Administration for the second time , and he reported his findings to the City of Aurora, the Kane County Health Department, and the Illinois Department of Public Health. The decedent’s health continued to deteriorate , and he wa s forced to take a medical leave of absence on October 6, 2003.

4 The decedent’s job titles do not appear in the record on appeal.

3No. 1-16-2540
¶ 4 On October 14, 2003, the City of Aurora’s emergency response team and head plumbing inspector, Robert Thompson, inspected the plumbing in the boiler room and closed the facility

. The inspecti on revealed that the drinking water was contaminated with methylene
chloride and/or dichloro methane. Nicor later re solved the problem by installing backflow protection devices , which conformed the plumbing to city, state, and federal water safety regulations. ¶ 5 During his career at Nicor, the decedent received regular raises and was entitled to various employment benefits , and at the time he began his leave of absence, he was earning over $100,000 per year in wages , with an average weekly wage of $1 800. Fr om October 2003 to January 2004, the decedent applied for and received 11 weeks of extended benefit account payments from an insurance benefit program he had purchased at Nicor to cover sick leave absences. Although the decedent was eligible for ext ended benefit account payments for 39 weeks, Nicor terminated the decedent’s benefits after only 11 weeks of payments. As a result of the loss of income, the decedent did not have enough money to pay for his medical treatment and family expenses. Nicor off icially terminated the decedent’s employment on April 15, 2004

. During this period of absence, the decedent received no temporary total disability payments from Nicor under the Workers’ Compensation Act or Workers’ Occupational Diseases Act, nor did Nicor pay for any of his medical expenses. ¶ 6 In late 2005 or early 2006, the decedent discussed his health and work issues with
d efendant attorney Richard C. Daniels, a friend that the decedent had met through the
Shriner’ s, and defendant Daniels a greed to represent decedent in a workers’ compensation and occupational disease s case and an action against Nicor for retaliatory discharge and violating the Whistleblower Act ( 740 ILCS 174 /1 et seq . (West 200 4 )). The decedent and

4No. 1-16-2540

defendant Daniels entered into a retainer agreement that defendant Daniels would receive a contingency fee of one

- third of any recover y for extended benefits and that decedent would
pay all costs. Defendant Daniels also agreed to be paid his fee on the workers’ compensation and/or occupational diseases action in accordance with the provisions of the Workers ’ Compensation Act and the Workers’ Occupational Disease s Act. After the decedent retained
defendant Daniels as counsel , defendant Daniels recommended that the decedent al so retain
d efendant attorney Jason S. Marks as co counsel for the W orkers ’ Compensation Act and
Workers’ Occupational Disease s Act claim since defendant Marks represented that he had experience in handling those cases. D efendant Marks agreed , and defendants Daniels and Marks entered into a fee sharing agreement, and the decedent agreed

. ¶ 7 In 2006, defendant Marks filed a workers’ compensation and /or occupational disease s claim against Nicor on the decedent’s behalf

. As noted, during the pendency of this case, the
decedent never received any temporary total disability benefits , and no petition under section 19(b-1) of the Workers’ Compensation Act was ever filed on his behalf (820 ILCS 305/19(b

1) (West 2006)). ¶ 8 Five years later , while the w orkers ’ compens ation claim was still pending , Nicor offered
the decedent a lump sum settlement of $125,000, and d ecedent accepted it on October 20,
2011. Defendant attorney had made a demand for only $150,000 to settle the matter. An

a rbitrator appr oved the settlement five days later on October 25, 2011. ¶ 9 On December 30, 2014, the decedent filed the instant lawsuit against the Daniels and
Marks d efendants for legal malpractice , claiming that they failed to file a section 19(b

- 1) petition to obtain temporary total disa bility payments for decedent during the pendency of his
Workers ’ Compensation Act and /or Workers’ Occupational Disease s Act case and that

5No. 1-16-2540

defendants Daniels and Marks induced him into accepting an “unreasonably low” $125,000
settlement offer from Nicor

. Th e lawsuit also alleged two counts against the Daniels
defendants and the Grossman defendants for their handling of the decedent’s related civil lawsuit against Nicor for retaliatory discharge and violating the Whistleblower Act (740
ILCS 174 /1 et seq

. (West 200 4 )) , and one count for defendant Daniels’ s negligent referral of the Marks and Grossman defendants. However, those counts are not at issue in this appeal. ¶ 10 In the complaint , the decedent claimed that he spoke to d efendant s Daniels and Marks
multi ple times and asked them about the status of his W orkers’ Compensation Act and /or
Workers’ Occupational Disease s Act case and lack of temporary total disability benefits, and
wanted to know why the matter was moving so slowly. D ecedent alleged that d efenda nt
Daniels reassured him that “everything was fine, that the matter took time, and that Defendant Marks was handling the matter competently,” and d efendant Marks reassured the
decedent that the case was progressing and that he would receive compensation for his injuries. The complaint alleged that, “f or unknown reasons, ” neither d efendant Marks n or d efendant Daniels sought temporary total disability benefits during the pendency of the
decedent’s workers’ compensation and/or occupational diseases case even though temporary total disability benefits “ were available and [the decedent] wa s entitled” to receive them. As a result, the complaint alleged that the Daniels and Marks d efendants committed legal malpractice for failing to seek temporary total disabilit y benefits for the decedent while his case was pending. ¶ 11 Concerning the settlement of the underlying w orkers ’ c ompensation case, the decedent alleged in the complaint that he initially thought Nicor’s $125,000 settlement offer was

“ unreasonably low ” prior to accepting, but d efendant Daniels reassured him that the amount

6No. 1-16-2540

was the best offer that he could receive and that it was a good settlement amount

. The decedent further claimed that, “[d]ue to continued assurances ” made b y defendants Daniels and Marks, he did not know that the settlement amount “was far below what he should have received in compensation” until he consulted with a new attorney in 2014. ¶ 12 The decedent passed away on June 3, 2015, while his lawsuit was still pending

. The trial
court substituted Maria Brummel, the executor of his estate, as plaintiff on October 6, 2015. ¶ 13 On December 4, 2015 , the Marks d efendants filed a section 2 -619(a)(5) motion to
dismiss the c omplaint as untimely pursuant to the Code’s two

- year statute of limitation s
gover ning legal malpractice actions

. 735 ILCS 5/ 2- 619(a)(5), 13-214.3 (West 2014). The motion to dismiss argued that over three years had elapsed between the settlement of the underlying workers’ compensation and/or occupational diseases case and the filing of the
decedent’s instant legal malpractice lawsuit and that the decedent did not show any affirmative acts or misrepresentations by defendants after the settlement to prevent the decedent’s discovery of the cause of action

. The motion to dismiss al so argued that the decedent was aware of the potential for temporary total disability benefits prior to the
settlement and that the settlement order, which the decedent signed, stated that the settlement was a complete and final resolution to his W orkers’ Compensation Act and Workers’ Occupational Diseases Act case, including any unpaid temporary total disability payments. The Daniels defendants later joined the motion to dismiss. The decedent’s response to the motion to dismiss does not appear in the record on appeal. ¶ 14 On April 5, 2016, the trial court held a hearing on defendants’ motion to dismiss. The trial court pointed to paragraph 94 of the complaint, which read, “Due to continued assurances made by Defendant Daniels and Defendant Marks, [the deceden t] did not learn

7No. 1-16-2540

until 2014 that his worker ’ s compensation and occupational diseases settlement amount was
far below what he should have received .” The trial court told plaintiff’s counsel, “ I don ’ t know what you ’ re telling me in paragraph 94 ” and indicated that it assumed that paragraph 94 was included to establish the discovery rule, which would toll the statute of limitations. The trial court told plaintiff’s counsel that “ I don ’ t even know what they ’ re saying th e assurances are, quite frankly,” and p laintiff ’ s counsel responded that the assurances referenced in paragraph 94 of the c omplaint were the assurances that were given to the
decedent at the time of the settlement, which the trial court understood to be the typical

“ assurances that are oft en given in many cases , [i]t’ s the best we ’ re going to get; you could do worse at trial; there ’ s a lot of uncertainty. ” At the conclusion of the hearing, t he trial court considered the motion to dismiss as though it had been submitted pursuant to section 2 -615 as a motion for failure to state a cause of action ( 735 ILCS 5/2 -615 (West 2014)) , rather than
section 2

- 619 ( 735 ILCS 5/2-619 (West 2014) ), and granted the motion without prejudice , providing plaintiff a “final opportunity to amend” the complaint with sufficient information concerning “[w]hat are these assurances, exactly what fact or facts.” In a separate order on April 13, 2016, the trial court granted plaintiff leave to file an amended complaint concerning the legal malpractice claims against t he Daniels and Marks defendants only. The order further stated that plaintiff was not given leave to amend the pleadings concerning the Daniels and Grossman defendants’ handling of the decedent’s separate whistleblower
lawsuit. However, that portion of the order is not part of this appeal. ¶ 15 On April 22, 2016, plaintiff filed an amended complaint in the instant lawsuit. In the amended complaint, plaintiff claimed that, although the Worker s’ Compensation Act and
Workers’ Occupational Diseases Act provide for temporary total disability benefits,

8No. 1-16-2540
defendants told the decedent that he was not eligible to receive payments without explaining why. Plaintiff also claimed that some of the decedent’s Nicor co workers told him that they were not receiving temporary total disability benefits despite applying for them while their cases were pending. Plaintiff further claimed that the decedent did not obtain temporary total disability benefits because the Daniels and Marks defendants “failed to timely obtain or develop medical support of his medical condition so an interim payment claim could be successfully made” and that , prior to the settlement, defendants told the decedent that “he did not need to worry about [temporary total disability benefits] p ayments because he would be compensated for work injuries in the final resolution of the case.” As a result, the amended complaint alleged legal malpractice against the Daniels and Marks defendants for failing to timely obtain or develop the medical suppor t evidence needed to seek temporary total disability benefits

. ¶ 16 Plaintiff also argued that the settlement was insufficient since the amount of money the
decedent settled for was less than what he should have received

. Plaintiff claimed that the
decedent k new that, based on his own experience and what some his co workers had told him, Nicor had a practice of prolonging w orkers ’ compensation or occupational diseases cases for extended periods of time to pressure employees to settle for less money than they should
have receive d . Plaintiff also claimed that some of the decedent’s co workers told him that
Nicor offered them settlement amounts that were similar to or less than the $125,000
settlement offer to the decedent and that they also had waited years to settle their cases

. The amended complaint, however, removed the allegation that the decedent initially considered the $125,000 settlement offer “unreasonably low.” Plaintiff claimed that both defendants
Daniels and Marks told the decedent that the settlement offer from Nicor was good and urged

9No. 1-16-2540
him to accept the offer since Nicor was not willing to pay more. T he amended complaint also alleged that d efendant Daniels, but not d efendant Marks, assured the decedent that, in addition to the settlement money he rece ived, he would also “still be able to make a recovery against [Nicor] in his retaliato ry discharge/whistleblower case ” and that, “ on multiple
occasions ” after the settlement but before the whistleblower case was dismissed, defendant
Daniels assured the dec edent that “ he would be receiving additional funds to the funds he
received in the worker ’ s compensation [ and occupational diseases ] action to compensate him for his injuries. ” Plaintiff argued that the decedent believed d efendant Daniels ’s “ assurances ”
after the settlement of additional compensation and “ believed that [defendant] Daniels was protecting his interests in both litigations. ” ¶ 17 A t a hearing on defendants’ motion to dismiss on August 25, 2016, t he trial court
determined that , “ whether you ’ re a n attorney or not an attorney , [the settlement agreement]’s pretty clear in terms of what it includes and what it doesn’t include .” T he trial court found
that , considering the amount of money that the decedent ha d been making per year at Nicor and the eigh t years he was out of work, “[the decedent] knew or should have known at the time of the entry of original [ s ettlement ] order *** that something was a miss [ sic ].” As a result, the trial court granted defendants’ motion to dismiss , and plaintiff now appeals

. ¶ 18 ANALYSIS ¶ 19 On appeal, plaintiff claims that the trial court erred when it dismissed decedent’s complaint, arguing (1) that the complaint was not untimely because the statute of limitations
was tolled since the decedent filed his original compla int within two years of discovering his injury, and (2) that defendants should be estopped from asserting the statute of limitations

10No. 1-16-2540
because the decedent reasonably relied on defendants’ misrepresentations, which delayed his discovery of his injury. For th e following reasons , we af firm the judgment of the trial court

. ¶ 20 I. Statute of Limitations ¶ 21 Plaintiff first argues that, although the original complaint was not filed within two years of the decedent’s injury, the complaint was timely filed since the d ecedent did not discover his injury until he consulted a new attorney in 2014, approximately three years after the
settlement

. Defendants argue that the facts indicate that the decedent knew, or should have known, that his settlement was insufficient at the time of the se ttlement agreement, and that
the statute of limitations was not tolled as a result. For the following reasons, we affirm the
trial court’s dismissal of p laintiff’s first amended complaint. ¶ 22 Section 2

- 619(a)(5) provides that a defendant may file a motion for dismissal when an
action has not been commenced within the time limited by law (735 ILCS 5/ 2 -619(a)(5) (West 201 4 )). Section 2

- 619 is designed to afford litigants a means to dispose of issues of law and easily proven issues of fact at the onset of litigation. Turner v. 1212 S. Michigan Partnership , 355 Ill. App. 3d 885, 891 (2005). A motion to dismiss under section 2 -619 admits the legal sufficiency of all well

- pleaded facts but allows for the dismissal of claims barred by an affirmative matter defeating those claims or avoiding their legal effect. Janda v. United States Cellular Corp

. , 2011 IL App (1st) 103552, ¶ 83 (citing DeLuna v. Burciaga , 223 Ill. 2d 49, 59 (2006)). The failure to act within the time provided by law is an affirmative matter, and “[ w] here the affirmative matter asserted is apparent on the face of a pleading, no affidavit is required to support a section 2

- 619 m otion.” Asset Acceptance, LLC v. Tyler , 2012 IL App (1st) 093559, ¶ ¶ 23-24 (citing Sierens v. Clausen , 60 Ill. 2d 585, 588 (1975 )). “[I] n ruling on a section 2- 619 motion, where the facts are undisputed and only one

11No. 1-16-2540
conclusion is evident, the court may det ermine the date of the commencement of the statute
of limitations as a matter of law. ” Goran v. Glieberman , 276 Ill. App. 3d 590, 596 (1995) ( citing Hermitage Corp. v. Contractors Adjustment Co. , 166 Ill. 2d 72, 85 (1995)). ¶ 23 When ruling on a section 2

- 619 motion to dismiss, a trial court must interpret all pleadings, affidavits, and other supporting documents in the light most favorable to the nonmoving party. Caywood v. Gossett , 382 Ill. App. 3d 124, 12 8 (2008). The defendant has
the initial burden of proving the affirmative defense relied upon in its motion to dismiss. Kirby v. Jarrett , 190 Ill. App. 3d 8, 12 (1989) (explaining that a defendant raising a statute of limitations defense in a motion to dismiss bears the initial burden of demonstrating that the action in question was not commenced within the applicable limitation period). Once the defendant, however, has met this burden, it becomes incumbent upon the plaintiff to set forth facts sufficient to avoid the statutory limitation. Cundiff v. Unsic ker , 118 Ill. App. 3d 268, 272 (1983); Blair v. Blondis , 160 Ill. App. 3d 184, 188 (1987) (explaining that a plaintiff seeking to come within the discovery rule exception to the limitations period has the burden of proving the date of discovery). ¶ 24 An appe al from a section 2

- 619 dismissal requires the same analysis as an appeal following a grant of summary judgment; in both instances, “the reviewing court must ascertain whether the existence of a genuine issue of material fact should have precluded the
dism issal, or absent such an issue of fact, whether dismissal is proper as a matter of law

. ” Ultsch v. Illinois Municipal Retirement Fund , 226 Ill. 2d 169, 178 (2007). In making this determination, we apply a de novo standard of review. O’ Toole v. Chicago Zool ogical Society , 2015 IL 118254, ¶ 16. Under the de novo standard, we perform the same analysis

12No. 1-16-2540

that a trial court judge would perform. First M erit Bank, N.A. v. Soltys , 2015 IL App (1st) 140100, ¶ 13. ¶ 25 In the instant case, p laintiff sued defendants for legal practice, claiming that the
decedent ’s settlement of his workers’ compensation or occupational diseases case against
Nicor was insufficient. Section 13

- 214.3 of the Code sets forth t he statute of limitations for a legal malpractice ac tion and provide s that “ ‘[a]n action for damages based on tort, contract, or otherwise (i) against an attorney arising out of an act or omission in the performance of professional services *** must be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought. ’ ”
Evanston Ins urance Co. v. Riseborough , 2014 IL 114271, ¶ 14 (quoting 735 ILCS 5/13-214.3(b) (West 2008)). ¶ 26 The statute of limitations incorporates the “ ‘ discovery rule, ’ ” which delays the
commencement of the two

- year statutory period until the injured party “knows or should know facts that would cause him to believe that his injury was wrongfully caused .” Romano

v. Morrisroe , 326 Ill. App. 3d 26, 28 (2001). “The limitations period in a legal malpractice case begins to run from the time the injured party knows or reasonably should know that he has suffered an injury which was wrongfully caused.” Trogi v. Diabri & Vicari, P.C. , 362 Ill. App. 3d 93, 98 (2005). “ Although that time is normally a question of fact, a court may decide the issue as a matter of law where the facts are undisputed and only one conclusion may be
drawn from them. ” Trogi , 362 Ill. App. 3d at 98

. The statute of limitations does not require that the injured party acquire actual knowledge of negligent conduct before; rather, the statutory period will begin once an injured party has a reasonable belief that the injury was

13No. 1-16-2540
caused by wrongful conduct thereby creating an obligation to inquire further on that issu e. Dancor International, Ltd. v. Friedman, Goldberg & Mintz , 288 Ill. App. 3d 666, 673 (1997). It is not required that plaintiff knew or should have known of both the injury and negligent
conduct since such a standard is beyond the comprehension of the ordinary lay person to recognize and assume a conclusion that must await legal determination. Dancor
International , 288 Ill. App. 3d at 673 ( citing Nolan v. Johns

- Manville Asbestos , 85 Ill. 2d 161, 170

- 71 (198 1) ). “ A person knows or reasonably should know an injury is ‘wrongfully caused’ when he or she possesses sufficient information concerning an injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.”
Carlson v. Fish , 2015 IL App (1st) 140526, ¶ 23. On ce a party knows , or reasonably should know, both of his injury and that the injury was wrongfully caused, the injured person has the
burden to inquire further as to the existence of a cause of action. Castello v. Kalis , 352 Ill. App. 3d 736, 745 (2004). “ For purposes of a legal malpractice action, a client is not considered to be injured unless and until he [or she] has suffered a loss for which he [or she] may seek monetary damages.” Northern Illinois Emergency Physicians v. Landau, Omahana & Kopka, Ltd. , 216 Ill. 2d 294, 306 (2005). ¶ 27 In the instant case, the decedent sued the Daniels and Marks defendants for their handling of his workers’ compensation or occupational diseases case, which resulted in a settlement that was approved by an arbitrator on October 25, 2011 . The settlement’s final approval marked the end of the decedent’s case against Nicor , including all claims for temporary total disability benefits and unpaid medical expenses

. At that point, the decedent’s alleged injury accrued, and we cannot say that the decedent did not know, or should not have known, that the settlement was inadequate. At the time of the settlement, the decedent had not been

14No. 1-16-2540
working for nearly eight years, during which time he had received only 11 weeks of extended
benefit account payments and no temporary total disability benefits at all. Under the Workers’ Compensation Act or the Workers’ Occupational Diseases Act, an employee injured or exposed to a dange rous chemical during the course and scope of their employment would be entitled to weekly temporary total disability benefits and medical expenses, and a lawyer can obtain th ose payments by the filing of a section 19(b- 1) and section 8(a ) petition.
820 ILC S 305/ 8(a), 19(b-1) (West 2006). ¶ 28 The decedent claimed in his complaint that, due to his loss of income, he did not have enough money to pay for his medical treatment and family expenses. Before he took a leave of absence, the decedent earned a salary of m ore than $100,000 per year with an average weekly wage of $1800. The settlement, however, paid only one lump sum of $125,000, of
which the decedent received $98,291.55 . The settlement order stated that the payout to the decedent, when factoring in his rema ining life expectancy of 28 years, would result in the equivalent of $67.51 per week for the rest of his life. It was clear in the settlement order th at the decedent was receiving an amount of money that was less than 1 year of his previous Nicor salary to compensate him for nearly 8 years of back p ay and 28 years of future income and disability that he was claiming he was entitled to , including unpaid medical expenses. ¶ 29 Moreover, plaintiff claimed that t he decedent knew that Nicor had a practice of prolonging workers’ compensation and occupational diseases cases in order to force its employees to settle for less money than they should have received . Also, despite defendants’ assurances that he did not need to worry about temporary total disability benefits and that he would be compensated at the conclusion of his case, the decedent knew at the time of the
settlement that he would not receive any temporary total disability benefits since the

15No. 1-16-2540

settlement order stated that the settlement covered all claim s for recovery by the decedent against Nicor , including any unpaid temporary total disability benefits. The order also stated
that it was “ disputed” whether the decedent was ever temp orarily totally disabled, which
would have indicated to the decedent that his claim for temporary total disability benefits was
unresolved before the settlement. Plaintiff also claimed t he decedent had discussions with defendant Daniels after the settlement, to which defendant Daniels had to “reassure” the
decedent that he woul d receive additional compensation in the whistleblower lawsuit to compensate for his injuries

. As a result, the decedent knew, or should have known, of his injury at the time the settlement order was entered since he was agreeing to accept a sum of money t hat was substantially less than what he should have received as reasonable compensation after considering his previous salary of over $100,000 and that nearly eight
years that had lapsed since he was working, during which he received only 11 weeks of

exten ded benefit account payments . As a result, the decedent had until October 25, 2013, to file his legal malpractice complaint, which he did not actually file until 13 months later on December 30, 2014. As a result, the trial court did not err when it granted the defendants’
motion to dismiss. ¶ 30 Plaintiff argues that the decedent did not know of his injury because he relied on
defendant Daniels’s assurances on multiple occasions after the settlement that he would receive additional compensation for his injur ies from the whistleblower case and that the decedent believed that defendant Daniels was protecting his interest in “both litigations.”
Plaintiff also argues that the decedent did not in fact discover his injury until he consulted a new attorney in 2014 conc erning defendants’ handling of the whistleblower case, where he learned that the workers’ compensation and/or occupational diseases settlement was far

16No. 1-16-2540
below what he should have received, that he was in fact eligible for temporary total disability benefits, and that defendants Marks and Daniels mishandled his case

. However, all these facts were apparent to the decedent at the time of the settlement or at least he should have known that something was wrong and investigated defendants’ handling of his case. ¶ 31 Further, the assurances by defendant Daniels concerning further compensation relate d to the whistleblower case only. At that point in time, the workers’ compensation or occupational diseases case was over and the decedent was aware of the outcome ; the fact that he expected more money in a different lawsuit had little bearing on the professional negligence that may have occurred in the prior action. Also, “[t] he discovery rule may be employed where ‘ uncertainty exists as to the fact of damage ’ but not where uncertainty exists only as to the amount of damage. ” Belden v. Emmerman , 203 Ill. App. 3d 265, 270 (1990) (quoting Jackson Jordan, Inc. v. Leydig, Voit & M a yer , 199 Ill. App. 3d 728, 73 4 (1990),
rev’d , 158 Ill. 2d 240 (1994) ). At the time of the settlement, the decedent was depending on receiving additional compensation in the whistleblower lawsuit, but whether he would ultimately receive that extra money would only mitigate the damage that occurred from the
insufficient settlem ent. The fact that the decedent was damaged by the insufficient settlement

was known as soon as the settlement was approved , but the uncertainty of additional funds
from another lawsuit would have only lessen ed the amount of damage caused by the
insufficie nt settlement. ¶ 32 Plaintif f heavily relies on Trogi , 362 Ill. App. 3d 93, to support his claim that the complaint was timely. In Trogi , the plaintiff client hired the defendant attorney to represent him in the purchase of real estate from his daughter. Trogi , 362 Ill. App. 3d at 94. The attorney told the plaintiff that the deed was recorded in Lake County and mailed him a copy;

17No. 1-16-2540
however, the deed should have been recorded in Cook County. Trogi , 362 Ill. App. 3d at 94. Five years later, the daughter sold her interest in the property to a third party, and that deed was recorded in Cook County. Trogi , 362 Ill. App. 3d at 94. Since the attorney did not properly record the initial deed, the plaintiff ’s interest did not appear in the title search, which resulted in the loss of the plaintiff ’s interest in the property. Trogi , 362 Ill. App. 3d at
94-95. The plaintiff sued the defendant attorney for legal malpractice, but the trial court dismissed the case, finding that the complaint was not filed within the two

- year sta tute of
limitations. Trogi , 362 Ill. App. 3d at 94 -95. On appeal, the appellate court reversed, finding that plaintiff did not become aware of the recording error until the deed was conveyed to the third party. Trogi , 362 Ill. App. 3d at 98 -99. The appella te court found that, even if the plaintiff had noticed where the deed was recorded, that fact did “ not lead to the conclusion that a layperson who hired an attorney to represent him in a real estate transaction knew or understood the recording requirements or implications .” Trogi , 362 Ill. App. 3d at 99. ¶ 33 In the instant case, plaintiff argues that the decedent likewise relied on the advice of his attorneys and that, since he was a lay person, he could not have been expected to know what the requirements for receiving temporary total disability payments were, what a reasonable settlement amount would be, or whether he could have received more money by taking the case to a hearing. However, Trogi is distinguishable because , in that case, the plaintiff was

not expected to understand the complex deed recording process. Here, the deficiency of the settlement amount was obvious to even a lay person at the time of the settlement just considering the bottom line

— that the decedent was receiving less than one years’ wo rth of his previous salary to compensate him for nearly eight years of back pay, medical expenses,
and permanent disability . Therefore, the decedent, even if he lacked legal expertise, was

18No. 1-16-2540
aware that his settlement amount was insufficient, which would have at least put him on notice to investigate whether his attorneys were negligent. As a result, the statute of
limitations was not tolled since the decedent was aware of his injury at the time the
settlement order was entered , and the trial court did not err when it dismissed the legal malpractice complaint as untimely. ¶ 34 II

. Equitable Estoppel ¶ 35 Plaintiff argues in the alternative that defendants should be estopped from asserting the
statute of limitations unde r a theory of equitable estoppel or fraudulent concealment because the decedent reasonably relied on defendants’ misrepresentations, which delayed his discovery of his injury. For the following reasons , we af firm the judgment of the trial court. ¶ 36 A defendant is estopped from asserting t he l imitations bar if the plaintiff’ s failure to act within the statutory period results from reaso nable reliance on the defendant’s conduct or representations. Witherell v. Weimer , 118 Ill. 2d 321, 330 (1987)

. “To establish equitable estoppel, the party c laiming estoppel must demonstrate that: (1) the other party misrepresented or concealed material facts; (2) the other party knew at the time the representations were made that the representations were untrue; (3) the party claiming estoppel did not know th at the representations were untrue when they were made and when they were acted upon; (4) the other party intended or reasonably expected the representations to be acted upon by the party claiming estoppel or by the public generally; (5) the party claiming estoppel reasonably relied upon the representations in good faith to his or her detriment; and (6) the party claiming estoppel has been prejudiced by his or her reliance on
th e representations.” In re Parentage of Scarlett Z.

- D. , 2015 IL 117904, ¶ 25 (citing Parks v.
Kownacki , 193 Ill. 2d 164, 180 (2000)). “ ‘ “ [I]t is not necessary that the defendant

19No. 1-16-2540
intentionally mislead or deceive the plaintiff, or even intend by its conduct to induce delay. [Citations.] Rather, all that is necessary for invocati on of the doctrine of equitable estoppel is that the plaintiff r easonably rely on the defendant’s conduct or representations in forbearing
suit. ” ’ ” Jackson Jordan, Inc. v. Leydig, Voit & Mayer , 158 Ill. 2d 240, 252 (1994) (quoting
Witherell v. Weimer , 85 Ill. 2d 146, 159 (1981), quoting Bomba v. W.L. Belvidere, Inc

. , 579 F.2d 1067, 1071 (7th Cir. 1978)). ¶ 37 Under the fraudulent concealment doctrine, the statute of limitations will be tolled if a plaintiff pleads and proves that fraud prevented discovery of a cause of action, and i f so, a plaintiff can commence his or her suit at any time within five years after he or she discovers a
cause of action. Carlson
, 2015 IL App (1st) 140526, ¶ 44 (citing Clay v. Kuhl , 189 Ill. 2d 603, 613 (2000); 735 ILCS 5/13 -215 (West 201 4)). “ As a general matter, one allegin g fraudulent concealment must ‘ “ show affirmative acts by the fiduciary designed to prevent the discovery of the action. ” ’ ” Carlson , 2015 IL App (1st) 140526, ¶ 44 (quoting Clay , 189
Ill. 2d at 613 , quoting Hagney v. Lopeman , 147 Ill. 2d 458, 463 (1992)). A plaintiff must
show “ ‘ affirmative acts or representations [by a defendant] that are calculated to lull or induce a claimant into delaying filing his [or her] claim or to prevent a claimant from
discoverin g his [or her] claim. ’ ” Carlson , 2015 IL App (1st) 140526, ¶ 44 (quoting Barratt

v. Goldberg , 296 Ill. App. 3d 252, 257 (1998)). ¶ 38 However, i t is well

- established that the basis of a legal malpractice action also cannot
constitute the grounds for equitable estoppel; there must be some misrepresentation by the
d efendant that the plaintiff relied on to his or her detriment to prevent the filing of a legal malpractice action. Koczor v. Melnyk , 407 Ill. App. 3d 994, 1000 (2011) (citing Barratt , 296
Ill. App. 3d at 257-58 (“t he allegedly fraudulent statements or omissions that form the basis

20No. 1-16-2540
of the cause of action may not constitute the fraudulent concealment in the absence of a showing that they tend to conceal the cause of action” ). In the instant case, none of defendants’ assurances or representations to the decedent that plaintiff claims constituted legal practice may be used as grounds to estop defendants from asserting the statute of limitations bar in the instant case. Here, plaintiff claims that defendan ts Daniels and Marks committed malpractice when they to ld the decedent that his worker s’ compensation or occupational diseases case was progressing and then urged him to accept Nicor’s settlement offer, arguing that it was a good offer and that he would receive additional money through the separate whistleblower case. Since plaintiff argues that those assurances are a part of a
course of defendants’ conduct that amounted to legal malpractice, plaintiff cannot point to those same assurances as grounds for es toppel. See Koczor , 407 Ill. App. 3d at 1000. ¶ 39 Moreover, plaintiff also points to one type of assurance after the settlement in which
decedent claims that defendant Daniels continued to re assure the decedent on multiple occasions that he would receive money in the whistleblower case in addition to the money he received in the workers’ compensation and occupational diseases settlement. First, those

assurances are nearly identical to the pre settlement assurances of additional compensation in
the whistleblower case that plaintiff argues were a part of defendants’ mishandling of the
decedent’s workers’ compensation or occupational diseases case, and plaintiff cannot assert those assurances to estop defendants from a sserting the statute of limitations. Second, as stated, those assurances are related to a separate lawsuit and have no bearin g on the outcome
of the workers’ compensation or occupational diseases case. At the time defendant Daniels
made those assurances , t he damage from the insufficient settlement was obvious, and the promise of future compensation from another source did not conceal or misrepresent the fact

21No. 1-16-2540

that the settlement amount was far below what the decedent should have received. Plaintiff
does not point to any statements made by defendants to the decedent that misrepresented or concealed material facts that prevented his discovery of his cause of action for his attorneys ’ mishandling of his workers’ compensation or occupational diseases case

. ¶ 40 Plai ntiff relies on DeLuna , 223 Ill. 2d 49, where the plaintiffs , who did not speak English
and relied in good faith on their attorney’ s reassurances , claimed that their attorney failed to
reveal material facts ; misled them by twice telling them their case was going well when it had, in fact, been dismissed ; and failed to disclose facts bearing on the procedural status of
the case. DeLuna , 223 Ill. 2d at 79 -80. The Illinois Supreme C ourt found that the plaintiff’s allegations that their attorney twice misrepresented the status of their case after it had been
dismissed were sufficient to meet the pleading requirements for fraudulent concealment.
DeLuna , 223 Ill. 2d at 81

. However, this case i s factually distinguishable from the instant

case since plaintiff does not allege any assurances that defendant s made to the decedent after
the settlement that explicitly misrepresented or concealed material facts concerning the workers’ compensation or occupational diseases case
. ¶ 41 Plaintiff also relies on Jackson Jor dan , 158 Ill. 2d 240, where the defendant law firm did
not advise the plaintiff client of a patent held by a third party in 1973. Jackson Jordan , 158 Ill. 2d at 244. In 1975, the third party sued to enforce its pre existing patent, and the law firm

unsucces sfully attempted to invalidate the third

- party’s patent over the next 12 years ( Jackson Jordan , 158 Ill. 2d at 244 -47), during which time the law firm repeatedly and incorrectly reassured the client that it would prevail ( Jackson Jordan , 158 Ill. 2d at 252-53).
The Illinois Supreme Court found that the law firm was equitably estopped from asserting the
statute of limitations when the client sued in 1988 for the negligent advice it provided in

22No. 1-16-2540

1973. Jackson Jordan , 158 Ill. 2d at 253

. Again, this case is distinguishable from the instant case since plaintiff has not pointed to any assurances that defendants made to the decedent after the settlement that explicitly misrepresented or concealed material facts concerning the workers’ compensation or occupationa l diseases case. Whereas defendant Daniels may have
assured the decedent that he would receive additional compensation in the whistleblower lawsuit, that did not conceal or misrepresent the plainly obvious fact that the amount of money the decedent receive d in the settlement was far below what he should have received. ¶ 42 As a result, defendants were not estopped from asserting the statute of limitations, and the trial court did not err when it dismissed plaintiff’s legal malpractice lawsuit as untimely

. ¶ 43 CONCLUSION ¶ 44 For the foregoing reasons, we af firm the judgment of the trial court

. The trial court did
not err when it granted defendants’ section 2

- 619(a)(9) motion to dismiss plaintiff’s legal malpractice lawsuit with prejudice since the decedent did not file his original complaint
within the t wo
- year statute of limitations gover ning legal malpractice actions

. 735 ILCS 5/13-214.3 (West 2014). ¶ 45 Affirmed.

23