concurring in part and dissenting in part:
My colleagues in the majority hold that lost punitive damages are not recoverable in a legal malpractice action. See 222 Ill. 2d at 257-68. The majority offers insufficient justification for allowing legal malpractice plaintiffs to be candidly undercompensated. Further, the majority disregards the fundamental distinction between the nature of the damages that would have been awarded to Tri-G in the underlying case and the nature of the damages that were actually awarded to Tri-G in this legal malpractice action. Accordingly, I dissent specifically from this portion of the court’s opinion.
After recognizing that this “is a question on which reasonable minds can certainly disagree,” and “that sound arguments can be made for both sides of the issue,” this court now holds: “Lost punitive damages are not recoverable in a subsequent action for legal malpractice.” 222 Ill. 2d at 266-67. The court then frankly concedes: “Disallowing lost punitive damages means that plaintiffs in legal malpractice actions may not receive as much money as they might have if the underlying action had been handled properly.” 222 Ill. 2d at 267. After making this candid admission, my colleagues in the majority attempt to justify this gross injustice by positing: “Compensating plaintiffs, however, is but one of several factors that must be balanced in assessing whether lost punitive damages should be recognized in legal malpractice actions.” 222 Ill. 2d at 267.
This declaration leads the reader to anticipate a thorough discussion of the reasons why this court is going to allow legal malpractice plaintiffs to be candidly undercompensated. However, the court points to only one reason for its conclusion: the attorney in the legal malpractice action was not the wrongdoer in the underlying case. I cannot accept this reasoning.
A bare majority of this court accepts Burke’s emphasis on the nature of punitive damages and relies solely thereon in bluntly denying full compensation to legal malpractice plaintiffs. However, I consider reference to the nature of compensatory damages to be more helpful in resolving this case. An award of compensatory damages is intended to compensate an injured person for the wrong or injury that person sustained. The goal is to make the injured party whole and restore the injured party, as nearly as reasonably possible, to the position in which he or she would have held absent the injury. See Harris v. Peters, 274 Ill. App. 3d 206, 207 (1995); Rodrian v. Seiber, 194 Ill. App. 3d 504, 508-09 (1990); Roark v. Musgrave, 41 Ill. App. 3d 1008, 1011 (1976); 25 C.J.S. Damages § 21 (2002). In this case, the appellate court reasoned:
“Of course, a punitive damages award was not imposed against [Burke], The verdict form designates the $2,337,550 simply as ‘damages,’ and one of the special interrogatories specifies what amount of that award represents punitive damages that Tri-G would have recovered but for [Burke’s] negligence. Thus, the judgment against [Burke] is designed to compensate, not punish.” 353 Ill. App. 3d at 229.
I agree. I view the punitive damages that would have been imposed against Elgin Federal in the underlying case as an element of Tri-G’s compensatory damages in this legal malpractice action.
It is indisputable that Burke’s negligence deprived Tri-G of a punitive damages award and that Tri-G will not receive all sums to which it was entitled in the underlying case unless Burke is directed to pay an amount equal to the underlying punitive damages. “The legal malpractice action places the plaintiff in the same position he or she would have occupied but for the attorney’s negligence.” Bloome v. Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., 279 Ill. App. 3d 469, 478 (1996). Thus, a plaintiff’s damages in a legal malpractice action are limited to the actual amount the plaintiff would have recovered had he or she been successful in the underlying case. Eastman, 188 Ill. 2d at 412; see Weisman v. Schiller, Ducanto & Fleck, 314 Ill. App. 3d 577, 580 (2000) (“A legal malpractice plaintiff is entitled to recover those sums which would have been recovered if the underlying suit had been successfully prosecuted.” In this case, “[Burke] simply has been called to account for the full consequences of its professional negligence.” 353 111. App. 3d at 229.
Further, this court relies on section 2 — 1115 of the Code of Civil Procedure, which bars recovery of punitive damages in a legal malpractice action. 735 ILCS 5/2— 1115 (West 2002). My colleagues in the majority explain:
“By characterizing lost punitive damages as ‘compensatory,’ Tri-G is attempting to evade reach of this statute. In our view, its efforts are ultimately unpersuasive. If the General Assembly has determined that lawyers cannot be compelled to pay punitive damages based on their own misconduct, as section 2 — 1115 decrees, it would be completely nonsensical to hold that they can nevertheless be compelled to pay punitive damages attributable to the misconduct of others. Any construction of the law that permits such a result would be absurd and unjust.” 222 Ill. 2d at 267-68.
My colleagues in the majority misperceive the nature of the damages that the jury awarded in this legal malpractice action.
As revealed by a special interrogatory, the jury in this legal malpractice action awarded Tri-G $1,168,775 in compensatory damages for lost punitive damages that would have been imposed against Elgin Federal in the underlying case. The jury’s assessment of lost punitive damages was not a finding that Burke’s conduct was outrageously willful and wanton; it was a finding that Elgin Federal’s conduct was. Although Burke’s conduct was only negligent, it nevertheless caused Tri-G to lose its entire underlying claim. See Elliott v. Videan, 164 Ariz. 113, 119, 791 P.2d 639, 645 (1989). In this case, the appellate court reasoned as follows:
“[A]s we noted above, a punitive damages award has not been imposed against any party to this dispute. Rather, [Burke] has been made to compensate Tri-G for the recovery, composed in part of punitive damages, that was denied it by [Burke’s] negligence. Elgin Federal, the party that should have been punished, was insulated by [Burke’s] negligence, and now [Burke] is being held hable for the full consequences of that negligence, in accord with the dictate that a legal malpractice plaintiff is entitled to whatever sums it would have recovered in the underlying action but for the malpractice. [Burke] is not being punished; it is being made to compensate.” 353 Ill. App. 3d at 230.
I agree with the appellate court’s view of the record.2
This court expressly adopts the rationale of the above-discussed Ferguson and Summerville decisions. 222 Ill. 2d at 266. However, I view as better reasoned the decisions that allow the recovery of lost punitive damages in the underlying case as an element of compensatory damages in the legal malpractice action. See Jacobsen v. Oliver, 201 F. Supp. 2d 93 (D.C. 2002) (interpreting District of Columbia law); Haberer v. Rice, 511 N.W.2d 279 (S.D. 1994); Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990); Elliott v. Videan, 164 Ariz. 113, 791 P.2d 639 (1989); Hunt v. Dresie, 241 Kan. 647, 740 P.2d 1046 (1987).
These cases are in accord with a fundamental principle of tort law. “The general rule of damages in a tort action is that ‘the wrongdoer is liable for all injuries resulting from the wrongful acts ***, provided the particular damages are the legal and natural consequences of the wrongful act imputed to the defendant, and are such as might reasonably have been anticipated.’ ” Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 543 (1996), quoting Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 259 (1987). I agree with the court in Jacobsen that “permitting recovery of punitive damages as compensatory damages in a legal malpractice action is consistent with [this principle].” Jacobsen, 201 F. Supp. 2d at 102, citing Haymon v. Wilkerson, 535 A.2d 880, 885 (D.C. 1987) (“The normal measure of tort damages is the amount which compensates the plaintiff for all of the damages proximately caused by the defendant’s negligence”). I agree with these cases that, from the vantage point of the legal malpractice action, all the damages are simply those which proximately resulted from the attorney’s negligence. Accordingly, the punitive damages assessed in the underlying case are included in the damages which the plaintiff suffered as a result of the defendant’s negligence. See, e.g., Jacobsen, 201 F. Supp. 2d at 100-02; Haberer, 511 N.W.2d at 288; Elliott, 164 Ariz. at 119-20, 791 E2d at 645-46. As the dissent in Ferguson correctly explained: “In a malpractice action, punitive damages lost because of attorney error are not true punitive damages but are merely a measure of some of the injury resulting from the attorney’s malpractice. Thus, lost punitive damages are a form of compensatory damages.” (Emphasis in original.) Ferguson, 30 Cal. 4th at 1055, 69 E3d at 976, 135 Cal. Rptr. 2d at 59 (Kennard, J., concurring and dissenting, joined by Werdegar and Moreno, JJ.).
To be sure, the divergence of opinion in the appellate court’s decision as well as in the above-cited cases from foreign jurisdictions reveals a “[r]ough equality in the persuasiveness of the competing arguments.” C. Thatcher, Recovery of “Lost Punitive Damages” as “Compensatory Damages” in Legal Malpractice Actions: Transference of Liability or Transformation of Character?, 49 S.D. L. Rev. 1, 3-4 (2003). However, after careful consideration, I would adopt the reasoning of the courts that have allowed recovery of lost punitive damages in the underlying case as compensatory damages in the legal malpractice action. As a learned commentator recently explained:
“Even if the competing arguments are considered to be about equally persuasive, it does not seem appropriate *** to adopt an exception to the general rule entitling plaintiff-clients in legal malpractice actions to recover the full value of their lost claim, including any punitive damages they would have collected but for the defendant-lawyer’s negligence. *** [T]he punitive damages portion of the award the client should have collected from the original tortfeasor is legitimately transformed into a portion of the compensatory damages the client must be able to recover from the negligent lawyer in order to make the client whole and vindicate the client’s expectation interest.” (Emphasis omitted.) 49 S.D. L. Rev. at 30.
I agree with the appellate court that section 2 — 1115 of the Code of Civil Procedure does not bar recovery of lost punitive damages in a legal malpractice action.
Although I would have upheld the award of lost punitive damages as a component of Tri-G’s compensatory damages in the legal malpractice action, I note that a remittitur would have been required. The jury assessed Tri-G’s compensatory and punitive damages in the underlying case in the amount of $1,168,775 for each component, a ratio of one-to-one. Earlier in this opinion, this court entered a remittitur of $420,213 in compensatory damages, reducing the compensatory damages award to $748,562. Consequently, to maintain the jury’s one-to-one ratio of compensatory and punitive damages, I would have entered a remittitur of $420,213 in punitive damages, thereby reducing the punitive damages award to $748,562. Therefore, in my view, the total amount remitted should be $840,426, thereby reducing the total amount of Tri-G’s award to $1,497,124. See 155 Ill. 2d R. 366(a)(5).
Lastly, I agree with the court’s conclusions regarding the following issues. The trial court’s decision to allow Tri-G to recover damages for the 23 vacant lots and the 14 partially completed lots not specified in the 1981 complaint and the appellate court’s review of that decision did not deprive Burke of procedural due process. 222 Ill. 2d at 242-47. The evidence supported the award of lost profits on the 14 partially completed lots. 222 Ill. 2d at 247-49. The jury’s award of $1,168,775 was excessive and required a remittitur, thereby reducing Tri-G’s compensatory damages award to $748,562. 222 Ill. 2d at 249-54. Also, the lower courts correctly rejected Tri-G’s claim for judgment interest. 222 Ill. 2d at 254-58. Indeed, I embrace the court’s analysis of these issues as though it were my own.
For the foregoing reasons, I concur in part and dissent in part.
JUSTICES McMORROW and FITZGERALD join in this partial concurrence and partial dissent.
Parenthetically, the court correctly recognizes that this “is a question on which reasonable minds can certainly disagree,” and “that sound arguments can be made for both sides of the issue.” 222 Ill. 2d at 266-67. It is curious that my colleagues in the majority subsequently castigate this viewpoint of Tri-G, shared by their dissenting colleagues, as “nonsensical” and “absurd and unjust.” 222 Ill. 2d at 267-68. The use of such rhetoric in this case is unfortunate and uncivil.