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…And You Think Your Case Is Taking a Long Time?

Riccardo A. Di Monte

Riccardo A. DiMonteLitigants bemoan the time and expense consumed by lawsuits. Whether you are the proponent or the respondent, our clients find that the quest for justice is not easy nor convenient. The discovery, the depositions, the court appearances, the motions, the hearings, trials and appeals – it’s all extremely time-consuming and expensive. Even a case that is resolved “quickly” – say less than a year – is something most people would rather not endure. Like a surgical procedure, a lawsuit is a legal procedure that most people would prefer to avoid, especially after having experienced one themselves. However, lawsuits, like surgery, are inevitable and neither surgery nor litigation is a pleasant experience for the parties involved. Given the annoyance of devoting your time and your treasure to the legal system in order to resolve a dispute, YOU WANT IT OVER NOW!

Clients often ask us, “How long will this take? How long could this take? What is the longest and oldest case you have handled?” Well, this one could take the cake!

During 1996, our client decided to build an ice arena facility in Lincolnwood. In order to design the building, the owner hired an architect who agreed to design the building and function as construction manager. The owner and architect agreed on a warehouse type masonry and steel building containing ice rinks, concession stands, locker rooms, and other amenities. The architect estimated the construction cost to be $1,800,000, exclusive of ice-making equipment. In July of 1996, the parties started construction with an anticipated completion date of December, 1996.

In his role as architect and construction manager, the architect was the owner’s agent for the purpose of construction. However, the owner later learned that the architect abused his authority by approving cost increases for the project without obtaining the consent of the owner. Without the owner’s knowledge or consent, the architect had approved extras with 40 subcontractors and material suppliers totaling approximately $1,000,000! The unauthorized cost increases came to the owner’s attention in December 1996 and the owner was forced to borrow extra money to settle with all of the subcontractors. This cost the owner an additional $900,000.

During 1997, various subcontractors and material suppliers filed mechanics lien foreclosure lawsuits and the owner settled and resolved all of them between 1997 and 2001. However, the dispute between the owner and the architect remained undetermined and we had a trial that took approximately 2.5 months between June 11th and August 31, 2001. 14 witnesses testified and the judge ruled in favor of the owner finding the architect liable for approximately $1,000,000 in unauthorized extras and attorney’s fees as a result of the architect’s failure to obtain the owner’s consent to order extras not authorized by the owner. The court’s decision was filed in May, 2002, six years after the construction project was finished. Six years is a long time. But the story goes on…

By 2002, the architect was broke and unable to pay a $1,000,000 judgment. However, he did have an architectural malpractice insurance policy that covered the architect and the owner for this type of loss. We should have received immediate payment in full. End of story? Nope – the story goes on…

In 2003, we pursued the insurance company to pay the architect’s covered claim. However, the New York insurance company was insolvent. After the judgment was entered against the architect and we demanded payment under the policy, the New York insurance company was placed into receivership by the New York Department of Insurance. After much investigation, we learned the New York insurance company was a subsidiary of a parent insurance company located in California. Although the New York insurance company was technically insolvent, its parent company in California was not. During 2003 and 2004, the claims we asserted against the New York and California insurance companies caused the California parent insurance company to be placed into receivership in California as well. We pursued the California Department of Insurance to get our client paid. After eight more years of delay, our client finally received its first distribution from the California Department of Insurance in March of 2012, ten years after the judgment was entered. In July of 2015, the owner received its final distribution, 18 years after the case was originally filed!

Lawyers and judges say, “The wheels of justice grind slowly, but always forward.” This case was a prime example. It took six years to resolve the original lawsuit and 12 more years of additional litigation against insurance companies to finally get paid. Thankfully, the client had the patience and the perseverance to hang on for 18 years. During this 18 year period, some of our children were born and others graduated from high school and college. So, next time you ask your lawyer how long your case might take, rest assured it will probably not take 18 years. But it will always take longer than you hoped!

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Di Monte & Lizak, LLC,

216 Higgins Road,

Park Ridge, IL 60068