concurring in part and dissenting in part:
I concur in all but Part V I agree with the majority that there was no prejudicial divergence between the allegations in Tri-G’s complaint and the allegations at trial. I also agree that the jury’s verdict with regard to lost compensatory damages was not against the manifest weight of the evidence. Finally, I agree that the trial court erred in denying Tri-G attorney fees and costs. However, I disagree that the award of lost punitive damages was proper.
In Illinois, punitive damages may be awarded only when torts are committed with fraud, actual malice, deliberate violence or oppression, wilful conduct, or gross negligence in disregard of the rights of others. Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186 (1978). In line with this principle, section 2 — 1115 of the Code of Civil Procedure (the Code) provides:
“In all cases, whether in tort, contract or otherwise, in which the plaintiff seeks damages by reason of legal, medical, hospital, or other healing art malpractice, no punitive, exemplary, vindictive or aggravated damages shall be allowed.” 735 ILCS 5/2 — 1115 (West 2002).
As is clear, a plaintiff may not seek punitive damages in a legal malpractice action.
The majority attempts to circumvent our common law and section 2 — 1115 of the Code by mischaracterizing punitive damages lost due to attorney malpractice as compensatory damages. The majority reasons that these lost punitive damages must be recovered in order for the plaintiff to be made whole. However, the majority ignores the well-settled principle that punitive damages are not awarded as compensation or to make a plaintiff whole. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 41 L. Ed. 2d 789, 811, 94 S. Ct. 2997, 3012 (1974).
Punitive damages are not compensation for loss and have nothing to do with the detriment suffered by a plaintiff. Gray v. National Restoration Systems, Inc., 354 Ill. App. 3d 345, 365 (2004). Rather, the function of punitive damages is similar to that of a criminal penalty. Beaver v. Country Mutual Insurance Co., 95 Ill. App. 3d 1122, 1123 (1981). Punitive damages are intended to punish the malicious, fraudulent, or deliberately oppressive wrongdoer and to deter that wrongdoer and others from committing like offenses in the future. Stojkovich v. Monadnock Building, 281 Ill. App. 3d 733, 743 (1996). Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. Restatement (Second) of Torts § 908 (1979). It should be presumed that a plaintiff has been made whole by compensatory damages, so punitive damages should be awarded only if the defendant’s culpability is so reprehensible that it warrants the imposition of further sanctions to achieve punishment or deterrence. See BMW of North America, Inc. v. Gore, 517 U.S. 559, 568, 134 L. Ed. 2d 809, 822, 116 S. Ct. 1589, 1595 (1996).
Punitive damages, or exemplary damages as they are sometimes called, originated in the English courts in the eighteenth century as a means of justifying awards of damages in excess of the plaintiff’s tangible harm. See Huckle v. Money, 2 Wils. K.B. 205, 95 Eng. Rep. 768 (C.P. 1763); Wilkes v. Wood, Lofft 1, 18-19, 98 Eng. Rep. 489, 498-99 (C.P 1763). Indeed, punitive damages are a windfall to a plaintiff. Naqvi v. Rossiello, 321 Ill. App. 3d 143, 150 (2001). Punitive damages are, therefore, not favored in the law, and courts should take caution to see that punitive damages are not improperly or unwisely awarded. Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 188 (1978). Punitive damages pose an acute danger of arbitrary deprivation of property. State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 417, 155 L. Ed. 2d 585, 600, 123 S. Ct. 1513, 1520 (2003). They are an “anomaly of excessive compensation.” Piscitelli v. Friedenberg, 87 Cal. App. 4th 953, 980, 105 Cal. Rptr. 2d 88, 107 (2001).
It is inconsistent with Illinois public policy to transfer punishment and deterrence intended for a malicious, fraudulent, or deliberately oppressive wrongdoer to another who has not acted with such a wanton disregard. For instance, in Beaver, 95 Ill. App. 3d at 1124, the Illinois Appellate Court, First District, determined that insurers may not insure against liability for punitive damages that arise out of an insured’s own misconduct. The Beaver court reasoned:
“ ‘The policy considerations in a state where *** punitive damages are awarded for punishment and deterrence, would seem to require that the damages rest ultimately as well [sic] nominally on the party actually responsible for the wrong. If that person were permitted to shift the burden to an insurance company, punitive damages would serve no useful purpose. Such damages do not compensate the plaintiff for his injury, since compensatory damages already have made the plaintiff whole. And there is no point in punishing the insurance company; it has done no wrong. In actual fact, of course, and considering the extent to which the public is insured, the burden would ultimately come to rest not on the insurance companies but on the public, since the added liability to the insurance companies would be passed along to the premium payers. Society would then be punishing itself for the wrong committed by the insured.’ ” Beaver, 95 Ill. App. 3d at 1124-25, quoting McNulty, 307 F.2d at 440-41.
In Penberthy v. Price, 281 Ill. App. 3d 16 (1996), the Illinois Appellate Court, Fifth District, cautiously considered whether a punitive damages claim should survive against the estate of an intoxicated motorist. The Penberthy court delineated two factors to be weighed in determining whether a punitive damages claim should survive or be transferable. Penberthy, 281 Ill. App. 3d at 21. The first factor is whether the requested punitive damages have a statutory basis or an integral part of a regulatory scheme. Penberthy, 281 Ill. App. 3d at 21. The second factor is whether strong equitable considerations favor the survival of the claim for punitive damages. Penberthy, 281 Ill. App. 3d at 21. After weighing the two factors, the Penberthy court determined that the punitive damages claim should survive against the intoxicated motorist’s estate because of an overwhelming equitable consideration, that being the need to deter other drunk drivers.
Penberthy is unlike the present case. There is no equitable need to punish an attorney who was negligent, especially in view of a statutory scheme that prohibits such punishment. Indeed, the Restatement (Second) of Torts guides us that punitive damages should not be awarded for mere inadvertence, mistake, errors of judgment, and the like, which constitute ordinary negligence. Restatement (Second) of Torts § 908 (1979). Furthermore, assessing lost punitive damages against an attorney is not likely to deter that attorney or other attorneys from future negligence. Negligence is most often caused by inadvertence, by which the negligent party is unaware of the results that may arise from his act. W. Keeton, Prosser & Keeton on Torts § 31, at 169 (5th ed. 1984). However, negligence may also arise where a negligent party has considered the possible consequences carefully and then exercised his best judgment. W. Keeton, Prosser & Keeton on Torts § 31, at 169 (5th ed. 1984).
The majority defies the above principles and punishes negligent attorneys for the reprehensible and fraudulent conduct of Elgin Federal. I fear that in doing so, the majority has set in motion a train that may be difficult to stop. If attorneys can be hable for lost punitive damages, can they also be liable for inadequate punitive damages awards? And if attorneys can be liable for inadequate punitive damages awards, can they also be liable for failing to seek punitive damages? And if attorneys can be liable for failing to seek punitive damages, how can they be discouraged from seeking punitive damages in cases in which they may be only remotely, if at all, recoverable?
In sum, I would hold consistently with the jurisdictions of California and New York, that a plaintiff may not recover punitive damages lost by reason of attorney malpractice.