dissenting:
I cannot agree with my colleagues as to the disposition of the instant case. I believe the motion for summary judgment was properly allowed for the reason that the plaintiff did not properly state a cause of action alleging that he sustained damages proximately caused by reason of the failure of the defendant-attorneys to advise him of the proposed settlement which was to be made of the Quilico case. The record in the instant case, I believe, clearly calls for an affirmance.
I am in agreement with the disposition of all other issues in the case, as noted in the majority opinion, and agree that there was an unquestioned right on the part of the insurer (specifically provided in the insurance policy) to dispose of this case without the agreement or consent of the plaintiff Rogers. It should be noted that disposition of the Quilico action was made at a time when the insurer had the unquestioned right to settle this cause, without the consent of Rogers, and the insurer did so by taking a covenant not to sue and with a specific denial of liability as to Dr. Rogers. The contract of insurance, under the circumstances, and at the time of the disposition, expressly left the decision as to settlement to the insurer, as noted in the majority opinion.
I agree that when an insurance company retains an attorney to defend an action against an insured individual, that insured is the client and the insurance company is the attorney’s employer. The attorney has the same professional obligations which would exist had the attorney been personally hired by the insured. The fact that the attorney also represents the insurance company does not alter the obligations or responsibilities referred to. I also believe that the standards of the canons of ethics, applying to attorneys, would indicate that the preferred procedure is that the defendant-attorneys withdraw as counsel for plaintiff or as counsel for the insurance company, if a disagreement arose when the insurance company indicated its desire to settle the case. I also agree that, normally, an insured should be informed by the attorney of any settlement offers which may affect the client, so that the insured may take proper steps to protect his own interests.
I also recognize that obligations referred to in the canons of ethics are not binding obligations so as to deprive an attorney-defendant of the right to object to the failure of a plaintiff to state a cause of action on his complaint. The fact that the canons are not binding obligations in litigation for damages was noted by the Illinois Supreme Court in In re Taylor (1977), 66 Ill. 2d 567, 571. The canons of ethics, thus, are designed for consideration and concern in disciplinary proceedings, and not as a declared basis for maintenance of a tort action for damages such as we have in the instant case. We must consider whether or not the complaint and the support, when considered on a motion for summary judgment, justifies the maintenance of the action by the plaintiff.
The factual situation, as shown by the pleadings and support thereof at the time of the consideration of the motion for summary judgment, considered carefully, does not justify a reversal as specified in the majority opinion. The record in the instant case indicates that defendant Rogers was resistive to settlement. We must note, however, that the exhibit attached to the doctor’s affidavit filed by him in the trial court for consideration by the court in conjunction with the motion for summary judgment, must be considered carefully. The exhibit attached to the doctor’s affidavit is a copy of a letter from the doctor to the attorney, dated December 8, 1972, in which the doctor expresses his impatience and annoyance at having to spend time dealing with the Quilico case. In the letter, the doctor tells the attorneys, at length, why the Quilico case has no merit and cannot prevail. The doctor then states: “I refuse to participate any further with Mr. Quilico’s absurd accusations * * *. I trust you can dispose of this problem quickly and with little diffculty.” There are no further indications, in the meager record, as to what further, if anything, developed between the attorney and the doctor. Settlement was made in September of 1974, long after the December 8,1972, letter. Settlement was made for a nominal sum and there was an express denial of liability as to the doctor. It can readily be observed that disposition of the lawsuit “with little difficulty,” was certainly accomplished by the settlement.
The instant case involves an action for damages as against the defendant and is based upon the only specific allegations raising any issue of damages, i.e., specifically, that if the Quilico lawsuit had been tried and the decision was in favor of the doctor, the doctor speculates that he might have filed a malicious prosecution action against Quilico and recovered from Quilico. As we must note, the allegations raised only clearly speculative issues with respect to damages. It is unquestioned that the Quilico case could have been settled without the doctor’s consent and even over his objection or that of his attorneys, insofar as liability of the insurance company is concerned. Dr. Rogers was not deprived of any rights or benefits under the insurance contract. The doctor’s contention, that he would have been successful in defense of the action instituted by Quilico, is speculative, and not certain, and the doctor also now speculates, on appeal, as a basis for the action instituted as against defendant-attorneys, that, if the doctor had prevailed in the action by Quilico, the doctor could then file an action as against Quilico for malicious prosecution, in which the doctor, also, now speculates, that he would have been successful. There is no support for these conclusions in the record.
So far as the record discloses, no proximate or specific damages are alleged to have resulted from the action of the defendant-attorneys in failing to advise plaintiff, before the settlement of the Quilico case, which could support the cause of action sought to be asserted by plaintiff.
We have a record in the instant case in which an action for malpractice as against the doctor was disposed of, as authorized in the insurance policy. In the settlement, the doctor was specifically recited to be without liability and the disposition was made for a very nominal sum. We also have a letter in which Dr. Rogers tells the attorneys that he is not desirous of spending any more time or energy on the Quilico case and wanted it disposed of without further “difficulty.” To theorize, at the time of the presentation of the motion for summary judgment, that the doctor would have undertaken the defense in the Quilico case for the purpose of obtaining a verdict or judgment in his favor and for the further asserted purpose of filing a malicious prosecution action as against Quilico, is entirely speculative, and fails to show any proximate damage resulting from the disposition which actually was made.
On the basis of the record, therefore, while I believe that the better procedure would have been for defendant to have advised the doctor of the impending settlement arrangements, there is no specific allegation, in the complaint or its support, of any damage proximately resulting from the failure to advise the doctor of such proposed settlement. Consequently, on the basis of the record, I believe that the trial court properly granted the motion for summary judgment in the instant case.
To reverse the summary judgment granted in the instant case, I believe, would set a very unsound precedent. To argue that such speculative elements of damages, as asserted in the instant case, can sustain the complaint and authorize further procedures on the basis of such unfounded speculation, is inconsistent with the standards of practice which are designed to protect defendants from lawsuits which are not properly founded in fact and in law. Dr. Rogers was not put through the burden of an actual malpractice trial by reason of the disposition which was authorized under the insurance contract. The conclusion of the attorneys for Dr. Rogers that this was in his best interest should not be lightly overridden and subject such attorneys to a malpractice action against them based upon no sound allegation of damage. To do so would invite speculative action on the part of any individual who has expressed a desire that his particular action not be disposed of, even though in the best interests of the client.
The majority opinion suggests that the issue of damages to Dr. Rogers was not contested by defendant at the trial level or before this court. In his brief on appeal, however, Dr. Rogers concedes that the issue of damages was raised by defendant’s motion for summary judgment. His brief states that the “gist of the allegations of defendant’s motion for summary judgment is as follows” (and there follows a listing including the statement “Rogers was not damaged by the settlement and dismissal”). Thus, it is apparent, from the brief of Dr. Rogers, that he concedes that the issue of damages was raised by defendant and presented before the court on the summary judgment motion.
The issues raised by Dr. Rogers on appeal in this court clearly do not support a reversal. The issues so raised are actually properly determined against Dr. Rogers on all points raised by him on appeal, by the majority opinion, in finding that the insurer had the right to settle the case without Dr. Rogers’ approval. The latter portion of the majority opinion is premised, not on the issues raised on appeal, but rather on an effort to search the record to support Dr. Rogers’ claim against defendant. This is contrary to the established rule that a court of review will only search the record for the purpose of affirmance and not for the purpose of reversal. We should not search the record for the purpose of reversal. Dr. Rogers presented nothing by affidavit in the hearing on the motion for summary judgment to show damage proximately resulting from defendant’s omission to advise Dr. Rogers prior to the settlement by the insurer. He had the obligation to show any such damage. He failed to do so. In absence of any affidavit showing such damage in opposition to the summary judgment motion, the trial court properly granted the summary judgment motion.
This is not a case where an attorney has subjected a client to monetary damages by reason of negligent or incompetent action by the attorney.
This is a case where Dr. Rogers, as an insured, got precisely the insurance coverage and protection provided in his policy, which included the right by the insurer to settle the case, which was done without any cost to Dr. Rogers.
This is not a case where the court of review (as undertaken by the majority opinion in seeking to find some damage to Dr. Rogers) should strain to theorize that Dr. Rogers might have taken over the defense of the Quilico action and have been successful in such defense, and thereafter could file a malicious prosecution action against Quilico in which he would thereafter be successful (all without any support in the record in this case and wholly speculative).
This is a case where Dr. Rogers has suffered no damage by the failure of defendant, as counsel, to advise him of the pending settlement of the Quilico case.
This is a case where the only damages potentially claimed by Dr. Rogers are entirely speculative.
Under such circumstances, and on the basis of the record in this case, it is apparent that the trial court acted properly in granting summary judgment in this case and that such order should be affirmed.