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November 16, 2001

JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff, Brandi Romano, appeals from the trial court's ordergranting summary judgment in favor of defendant, Michael Morrisroe. We reverse and remand.

On August 2, 1996, plaintiff filed a one-count complaintagainst defendant and his partner, Paul Conarty, alleging legalmalpractice for the failure to make a written demand forunderinsured motorist (UIM) arbitration within the two-year timelimit set by the applicable insurance policy. Plaintiff eventuallynonsuited Conarty and filed her first amended complaint againstdefendant only. Cross-motions for summary judgment were filed, andthe trial court granted defendant's motion for summary judgment,finding that, as a matter of law, plaintiff's suit was barred bythe statute of limitations (735 ILCS 5/13-214.3(b)(West 2000)). This appeal followed.

Plaintiff now contends that the trial court erred in grantingdefendant's motion for summary judgment. A motion for summaryjudgment should be granted only when no genuine issue of materialfact exists and the moving party is entitled to judgment as amatter of law. Lawrence & Allen, Inc. v. Cambridge Human Resource Group, Inc., 292 Ill. App. 3d 131, 135 (1997). The disposition ofa summary judgment motion is not discretionary, and the standard ofreview is de novo. Lawrence & Allen, 292 Ill. App. 3d at 135. Todetermine whether a genuine issue of material fact exists, areviewing court should consider the pleadings, depositions,admissions, exhibits, and affidavits on file and construe themliberally in favor of the opponent of the motion and strictlyagainst the movant. Lawrence & Allen, 292 Ill. App. 3d at 135. While a plaintiff need not prove its case in opposition to asummary judgment motion, it must present some factual basis thatwould arguably entitle it to judgment in its favor; thus, if aplaintiff fails to establish an element of its cause of action,summary judgment in the defendant's favor is proper. Lawrence &Allen, 292 Ill. App. 3d at 135.

A cause of action for legal malpractice requires (1) anattorney-client relationship; (2) a duty arising from thatrelationship; (3) a breach of that duty; and (4) actual damages orinjury proximately caused by that breach. Profit ManagementDevelopment, Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309 IllApp. 3d 289, 308 (1999). A suit for attorney malpractice must bebrought "within 2 years from the time the person bringing theaction knew or reasonably should have known of the injury for whichdamages are sought." 735 ILCS 5/13-214.3(b)(West 2000). Under the"discovery rule," the two-year period does not necessarily beginthe day the plaintiff suffers his injury; rather, the period startswhen the plaintiff knows or should know facts that would cause himto believe that his injury was wrongfully caused. Racquet v.Grant, 318 Ill. App. 3d 831, 836 (2000). The injury is not thenegligent act itself; it is something caused by the negligent actor omission for which the plaintiff may seek damages. ProfitManagement Development, 309 Ill. App. 3d at 308. No cause ofaction accrues without actual damages, and damages are onlyspeculative if their existence itself is uncertain. ProfitManagement Development, 309 Ill. App. 3d at 308. Ordinarily, whena party becomes charged with such knowledge is a question of fact,and judgment should be entered as a matter of law only when theundisputed facts allow for only one conclusion. Racquet, 318 Ill.App. 3d at 836.

The following facts are undisputed. Romano was involved in anautomobile accident on August 29, 1990. She retained the servicesof defendant for all aspects of her claims until March 31, 1993. John Munday became plaintiff's attorney on April 28, 1993. Mundayproceeded to settle plaintiff's claim against the driver of theother car involved in the accident. On April 27, 1994, Munday senta written demand for arbitration on the underinsured motoristcoverage provided by Country Mutual Insurance Company (Country) onthe vehicle in which plaintiff had been a passenger at the time ofthe accident. On June 29, 1994, Country responded by notifyingMunday that it was forwarding the demand to its legal counsel todetermine whether the demand was made on a timely basis. The UIMpolicy required that a written demand for arbitration be filedwithin two years of the accident or of the claimant's reachingmajority. In this case, plaintiff reached majority on January 14,1991. The entire file of plaintiff's case had been turned over toMunday when he began his representation of plaintiff, and there wasno written demand for arbitration contained within.

On July 19, 1994, Country notified Munday that it would notname an arbitrator because of an "unresolved coverage questionwhich must be decided by the [c]ircuit [c]ourt." Munday respondedthat same day that he was unaware of any such issue. By lettersdated August 3, 1994, Country notified both Munday and plaintiffthat it denied UIM coverage on the basis that the arbitrationdemand was untimely. Munday received this letter on August 6 or 8,1994. Country then filed a declaratory action in the circuit courton September 21, 1994. Plaintiff filed this case on August 2,1996. The declaratory action was decided in Country's favor inDecember 1998, and this court affirmed that judgment. See CountryMutual Insurance Co. v. Romano, No. 2--98--0296 (1999) (unpublishedorder under Supreme Court Rule 23).

In its written ruling, the trial court held that it "must havebeen painfully, as well as plainly obvious" to Munday, upon receiptof plaintiff's file, that the UIM coverage was lost by defendant'sfailure to submit a timely written demand for arbitration. According to the court, Munday should have known of the injury onApril 27, 1994, when he sent the letter demanding arbitration, andhe certainly should have known no later than June 29, 1994, when hereceived the letter from Country questioning the timeliness of thedemand. Thus, citing Lucey v. Law Offices of Pretzel & Stouffer, Chartered, 301 Ill. App. 3d 349 (1998), the court found this to bea case where it is plainly obvious prior to an adverse ruling thatthe plaintiff was injured as a result of professional negligence. The trial court held that the cause of action existed, and thestatute of limitations began to run, no later than June 29, 1994,when Country notified Munday that it was forwarding the arbitrationdemand to legal counsel. The August 2, 1996, filing of the caseagainst Morrisroe was, therefore, untimely.

We conclude that the trial court erred in granting defendant'smotion for summary judgment. The undisputed facts do not lead onlyto the conclusion drawn by the trial court. See Racquet, 318 Ill.App. 3d at 836. The absence from the file of a written demand forarbitration is not sufficient to cause someone, even an attorney,to realize that a breach of duty has occurred, let alone that aninjury was wrongfully caused. It was not obvious to Country, whenit received the written demand some 15 months after the demand wasdue, that the demand was not timely. On June 29, 1994, Countrysent the demand to its legal counsel to make that determination,and, on July 19, 1994, Country notified Munday that there was an"unresolved coverage question which must be decided by the[c]ircuit [c]ourt." It was not until the letter dated August 3,1994, that Country notified plaintiff and Munday that it wasdenying UIM coverage because it deemed the arbitration demand to beuntimely. Thereafter, when it filed the declaratory action onSeptember 21, 1994, Country retreated to its position that thecoverage question required resolution by the circuit court. It wasnot obvious to defendant either, as is evidenced by the following exchanges that took place during defendant's January 19, 2000,deposition (taken in connection with the declaratory action):

"Q. Now, we can make this long or fast. I'm going toask you point-blank, do you think you breached a standard ofcare in not filing the demand for arbitration for BrandiRomano against Country Mutual prior to the expiration of thattwo-year period?

[Defendant] A. No.

Q. Why?

A. I believe that Country Mutual already had notice ofher claim.

Q. Did you do that? Did you file a written demand forarbitration within the time specified in the policy coveringBrandi Romano?

A. To the best of my knowledge, no.

Q. And as an attorney, would this be malpractice in thatyou failed to do that?

A. I think I go back to my earlier answer.

Q. And that answer is what? It's the last time I'll askyou. Your answer is, you don't think so?

A. No. That's correct."

Furthermore, in the area of insurance contracts, clausesimposing a period of limitation less than that required by thestatute of limitations are strictly construed; they are allowed tobe readily waived, and slight circumstances will be held sufficientto constitute waiver of such stipulations. Ciaccio v. North RiverInsurance Co., 17 Ill. App. 3d 940, 942 (1974), citing Ill. L. &Prac. Insurance