Comparative Negligence Not A Defense to Breach of Fiduciary Duty in Illinois Federal Judge Rules

In a first-of-its-kind decision, an Illinois Federal District Court ruled that comparative negligence is not a defense to a claim for breach of fiduciary duty. Judge Andrea Wood, in explaining her ruling, acknowledged that no Illinois court had considered the issue before and, as such, she was forced to rule as she believed the Illinois Supreme Court would rule if faced with the same issue.

The case, Federal Deposit Insurance Corporation (FDIC) v. Chicago Title Insurance Company and Chicago Title and Trust Company, concerned four commercial real estate closings in which the defendants, collectively referred to as Chicago Title, acted as the escrow agent. After being appointed receiver of Founders Bank, the lender in the four transactions, the FDIC filed the lawsuit alleging that Chicago Title breached its fiduciary duty by misrepresenting the true sales price and other critical information related to the four closings. The FDIC also asserted claims for breach of contract, negligent misrepresentation, and negligence.

The FDIC alleged that each of the four real estate transactions followed a similar pattern. Each purchase was funded by a down payment with the remainder coming from a loan from Founders Bank. The down payment and loan proceeds were placed with Chicago Title who released the down payment to an entity closely related to the purchaser, instead of to the seller.

On the day each transaction closed, Chicago Title also closed a separate, second transaction for the same property for a lower price. Chicago Title only recorded a deed from the first, higher-priced conveyance, however. The scheme allowed the purchasers to avoid paying a down payment and obtain the properties using solely the funds loaned by Founders Bank. The purchasers ultimately defaulted on all four loans forcing the bank to sell the properties at a loss.

The case proceeded to trial where a jury entered judgment in favor of the FDIC and against Chicago Title on all four transactions. The jury ultimately reduced the FDIC’s award by 50% due to Founders Bank’s own negligence in failing to discover and prevent the scheme. Due to a mistake in one of the jury instructions, the Court ordered a new trial as to the damages awarded for the breach of fiduciary duty, negligence, and negligent misrepresentation claims. The FDIC argued that no new trial was needed on the breach of fiduciary duty claims because contributory negligence was not a defense to a breach of fiduciary duty.

The Court acknowledged that no Illinois court had decided the issue previously so it began by reviewing both the cause of action of breach of fiduciary duty and the defense of contributory negligence. In Illinois, contributory negligence, the Court explained, is an affirmative defense that operates to reduce a tort plaintiff’s recovery where the plaintiff’s own negligence is a contributing proximate cause of its injury. The operative characteristic is that the defense applies only to tort claims.

A breach of fiduciary duty, however, is not a tort claim under Illinois law the Court explained. Although it has elements similar to a tort claim, the Illinois Supreme Court has held that claims for breaches of fiduciary duty are governed by the substantive laws of agency, contract and equity. For a breach of fiduciary duty claim to lie, the defendant must be in a position of trust and confidence. In other words, the fiduciary is in a superior position to the other party and the other party must trust and rely on the fiduciary to carry out its duties honestly and appropriately. “Absolving a fiduciary of fault, in whole or in part, on the basis of another party’s negligence would be inconsistent with the relationship giving rise to a fiduciary’s duty,” the Court concluded.

The Court’s full opinion is available here.

Our Chicago breach of fiduciary duty and business litigation attorneys have defended and prosecuted minority oppression, business divorce, stolen corporate opportunity and breach of fiduciary duty lawsuits for more than three decades.

Super Lawyers named Chicago and Elmhurst business litigation and fiduciary duty attorneys Peter Lubin and Patrick Austrermuehle a Super Lawyer and Rising Star respectively in the categories of Class Action, Business Litigation, and Consumer Rights litigation. Lubin Austermuehle’s Wheaton, Naperville, and Oak Brook litigation attorneys have more than thirty-five years of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business divorce litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices near Aurora and Elgin, we serve clients throughout Illinois and the Midwest.

If you’d like to discuss how the experienced Illinois breach of fiduciary duty attorneys at Lubin Austermuehle can help, we would like to hear from you. To set up a consultation with one of our Chicago business trial lawyers, please call us toll-free at 630-333-0333 or contact us online.

Client Reviews
"I was referred to Peter Lubin from someone in the car business to handle a law suit. From the moment I made the appointment Peter and his staff were outstanding. This wasn't an easy case, most lawyers had turned me down. However, Peter took the time to meet with me and review everything. He took on the case, and constantly communicated with me about updates and case information. We beat this non-compete agreement case in record time. I would use him again and recommend him to my closest family and friends. 5 stars is not enough to thank him for his service." Sebastian R.
"I worked on two occasions with Peter Lubin and his staff. They took their time with me and discussed each and every item in detail. The group makes you feel like you are part of the family and not just another hourly charge. I recommend Peter to anyone who asks me for a referral. If you are looking for a top notch attorney at a reasonable rate, look no further than Lubin Austermuehle." Kurt A.
"Excellent law firm. My case was a complicated arbitration dispute from another state. Was handled with utmost professionalism and decency. Mr. Peter Lubin was able to successfully resolve the case on my behalf and got me a very favorable settlement. Would recommend to anyone looking for a serious law firm. Great staff and great lawyers!" Albey L.
"I have known Peter Lubin for over 30 years. He has represented me on occasion with sound legal advice. He is a shrewd and tough negotiator leading to positive outcomes and averting prolonged legal hassles in court. He comes from a family with a legal pedigree and deep roots in Chicago's top legal community. You want him on your case. You need him on your opponents case. He won't stop fighting until he wins." Christopher G.
"Peter and his team helped us with an auto fraud case. They communicated well (timely and very responsive), investigated deeply, and negotiated a very good settlement. We were able to resolve our significant issue without a large burden and in a manner that allowed for us to come out ahead. I'd recommend Peter and his team strongly!" R.J. Callahan
"Peter was really nice and helpful when I came to him with an initial question about a non-compete. Would definitely reach out again, recommended to everyone." Johannes B.