## Facts

- A patient sued Dr. James D. Rogers for medical malpractice alleging negligent postoperative care caused a wound infection.
- Rogers was insured under a professional liability policy; by the time settlement was discussed, the policy had expired and Rogers was a “former insured.”
- The policy stated that a former insured’s written consent was not required for the insurer to settle any claim or suit, even if the claim arose while the person was an insured.
- The insurer retained the defendant law firm to defend Rogers in the malpractice action.
- Rogers claimed discovery showed he was not negligent and that he repeatedly told defense counsel he would not consent to settlement; he also claimed counsel assured him the case would be defended.
- Rogers asserted he was not advised that counsel intended to settle, but the firm settled at the insurer’s direction for $1,250, obtained a covenant not to sue, and secured dismissal of the malpractice action as to Rogers.
- Rogers then sued the law firm (pro se), alleging breach of duty and resulting harm, including reputational damage.
- The trial court granted summary judgment to the firm based in part on the policy’s settlement clause; Rogers appealed.

## Issues

1. Whether attorneys retained by an insurer to defend an insured may settle at the insurer’s direction, contrary to the insured client’s express instructions, without risking liability for breach of professional duty.
2. Whether the insurer’s contractual right to settle without the former insured’s consent conclusively defeats, at summary judgment, the insured’s claim that defense counsel breached duties of loyalty and communication by settling without consent or notice.

## Decision

- The appellate court reversed the summary judgment for the law firm and remanded.
- The court held Rogers’s allegations and affidavit created genuine disputes of material fact concerning whether counsel breached duties owed to Rogers, despite the insurer’s contractual settlement authority.
- The court concluded the policy provision governed insurer–insured rights but did not automatically resolve whether defense counsel satisfied independent professional obligations to the insured client.

## Legal Principles

- Defense counsel selected and paid by an insurer generally enters an attorney–client relationship with the insured and owes duties directly to the insured, including loyalty and adequate communication.
- An insurer’s contractual right to settle without the insured’s consent does not, by itself, establish that defense counsel met professional duties to the insured when the insured alleges express instructions not to settle and lack of notice.
- Summary judgment is improper when material factual disputes exist regarding client instructions, attorney communications, and whether counsel’s conduct was consistent with professional obligations in the face of insurer–insured conflict.

## Conclusion

The appellate court held that factual disputes about the insured’s objections and counsel’s communications precluded summary judgment, because the insurer’s settlement clause did not automatically insulate insurer-appointed defense counsel from claims that settling over the insured client’s express objection breached professional duties.


Rogers v. Robson, Masters, Ryan, Brumund & Belom, 392 N.E.2d 1365 (Ill. App. Ct. 1979)