DULBERG AMENDED COMPLAINT MOTION TO DISMISS REPLY Page 6, section B: It is written: "What necessary discovery was not conducted?" 1) There is no evidence that MAST pulled the homeowners policy of the property owners. When MAST turned over all documents on the case to DULBERG, neither the McGuire insurance policy nor the Gagnon insurance policy was included in the files. DULBERG repeatedly asked for the policy information but MAST never turned it over. Considering that MAST misrepesented the limits of the GAGNON insurance policy as being $100,000 when it was actually $300,000, there is no evidence that MAST was ever in possession of a copy of the terms of either insurance policy. 2) MAST never consulted a chainsaw expert. DULBERG later obtained a written opinion by a chainsaw expert in which the homeowners were cited as partly liable for the chainsaw accident. DULBERG introduced this expert witness to his new counsel. The new counsel then retained this expert witness and the expert witness helped them win their case by placing liability firmly on GAGNON and the property owners. 3) MAST never consulted a home owner premises liability expert. MAST originally filed a case against the property owners but one year later informed DULBERG that he had no grounds for a case against them. There is no evidence that a premises liability expert was ever consulted before making this decision. 4) There was no recognition by MAST that a circumstance which involved the felling of a tall tree and the use of a chainsaw could constitute an ultrahazardous situation which would further increase the level of liability the property owners had a duty to assume under Illinois law. Page 6, section B: It is written: "What is the law pertaining to property owner's duties and responsibilities?" The Premises Liability Act (740 ILCS 130/1), which provides, in pertinent part: § 2. The distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished. The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them. Therefore the law requires the property owners (MCGUIRES) owe the duty of reasonable care to the invitee (DULBERG). Furthermore, the felling of a tree and use of a chainsaw may be considered as an "ultrahazardous" circumstance which would require of the property owners the duty of a higher degree of liability (strict liability) toward the invitee (DULBERG). Page 6, section B: It is written: " How did defendents falsely advise DULBERG that the actions taken regarding the McGuires was proper?" MAST did so repeatedly through email exchanges and telephone conversations and in person with a witness present. Page 6, section B: It is written: "What was concealed from DULBERG?" The following were either concealed from DULBERG or simply not obtained or not known to MAST: 1) The terms of the MCGUIRES' insurance policy concerning coverage or specifics of premises liability. 2) The terms of the GAGNON insurance policy concerning coverage or specifics of liability. 3) Copies of the actual insurance policies. 4) A clear and accurate explanation of the Premises Liability Act (740 ILCS 130/1) regarding the MCGUIRES' duty of reasonable care toward an invitee onto their property. 5) A recognition that an invitee on the MCGUIRE property asked by the MCGUIRES to engage in chainsaw work could require the duty of a higher degree of liability than that of reasonable care due to the fact that the invitee (DULBERG) was asked to participate in what could be construed as an "ultrahazardous" undertaking. 6) Any explanation that the use of an expert witness concerning chainsaw use could be consulted to firmly establish the liability of GAGNON and the MCGUIRES concerning the accident. (As was later done by DULBERG.) 7) Any explanation that the use of an expert witness concerning premises liability law could be consulted to establish liability of the property owners (MCGUIRES) in providing the chainsaw to GAGNON without heeding the clear warnings stated in the owners manual. 8) Any explanation that the use of an expert witness concerning premises liability law could be consulted to establish liability of the property owners (MCGUIRES) for asking an invitee (DULBERG) to participate in what could be construed as an ultrahazardous situation, thus requiring the duty of strict care toward the invitee. 9) Insert something about time limit to drop MCGUIRE case here Page 7: It is written: "Additionally, DULBERG's allegation of coercion are not supported by his own pleadings. It is reasonably inferred from the pleadings that DULBERG had ample time to retain another attorney (in fact later he did). Exhibit E to his first amended complaint establishes that he deliberated over the decision to settle, and mailed a signed release back to MAST. So how was he coerced, when he alleges he met with MAST, and then later mailed the executed release?" (remains to be answered) Page 7: It is written: "Moreover, his allegations regarding the failure to retain an expert are unsupported. He fails to explain why his successor counsel did not retain an expert at the appropriate time if necessary." DULBERG did contact an expert on his own before he obtained successor counsel. He introduced the expert to his successor counsel when he entered into contract with them. His successor counsel retained the expert at DULBERG's expense and won their case with the help of this expert testimony. There is no evidence that MAST ever consulted with an expert witness on chainsaws or with an expert witness on premises liability. When DULBERG later consulted a chainsaw expert, the expert stated that the MCGUIRES are indeed partly responsible for the chainsaw accident by purchasing and providing GAGNON with a chainsaw without ever reading or following the instructions in the operator's manual. The expert stated within his findings: "Mr. and Mrs. McGuire who owned the saw apparently did not heed the warnings posted on page 2 of the owners manual which states, “Allow persons only who understand this manual to operate your chainsaw.”" and "After the review of the above evidence, it is my opinion tht Mr. Gagnon was fully responsible for this accident and his parents - the McGuires were also somewhat responsible by letting their son, Mr. Gagnon, use their chainsaw - a potentially dangerous tool - without enforcing the warnings and instructions available in the owner's manual." Also, the first sentence within the introduction of the user's manual states, "To correctly use the chainsaw and prevent accidents, do not start work without having first carefully read this manual." Had the owners of the chainsaw and of the property heeded the warning stated in bold font on page 2 of the owners manual, as the chainsaw expert stated, the accident never would have happened. Had MAST consulted with a chainsaw expert, he could have seen one of the ways in which the MCGUIRES were responsible for the accident by providing the chainsaw to GAGNON under such circumstances and asking DULBERG to help GAGNON. Moreover, there is no evidence that MAST ever consulted a premises liability expert to understand how the Premises Liability Act (740 ILCS 130/1) and the duty of "reasonable care" of property owners toward an invitee (DULBERG) could be applied to the MCGUIRES in this specific case. Page 7: It is written: "Lastly, DULBERG can never properly allege proximately caused damages regarding the allegation in section 31 (e), that GAGNON's insurance coverage was $300,000 and not $100,000. In fact, DULBERG admits in section 24 that he recovered $300,000 in available coverage fron GAGNON. If MAST incorrectly reported the available coverage, it did no cause any damage, as DULBERG's successor counsel was apparently able to recover the full amount of available coverage against the individual who injured DULBERG with a chainsaw." DULBERG does not allege proximately caused damages directly as a result of MAST repeatedly and incorrectly stating or understanding GAGNON's insurance coverage as $100,000 when it was in reality $300,000. Dulberg does allege proximately caused damages as a result of MAST not pursuing the MCGUIRES premises liability and their responsibility for providing GAGNON with a chainsaw which was used without reading or understanding the many warnings given within the owners manual. The fact that MAST incorrectly and repeatedly misrepresented GAGNON's insurance coverage limit as $100,000 when it was in reality $300,000 demonstrates either an intentional effort to mislead DULBERG or it demonstrates MAST never pulled, read carefully, or understood GAGNON's insurance policy. There is further reason to suspect that MAST never obtained a copy of either GAGNON's or MCGUIRES' insurance policy because copies of neither insurance policy were included in the case documents that MAST turned over to DULBERG as DULBERG was trying to retain new counsel. DULBERG pointed out the absence of both policies to MAST by email yet MAST still refused to allow DULBERG access to copies of either policy. Since it is not possible to know the MCGUIRES' type of premises liability coverage without pulling and reading the MCGUIRES' insurance policy, it is difficult to understand how MAST could have exercised due diligence in pursuing a case against the MCGUIRES.