Subject: Fwd: Re: Dulberg v. Law Offices of Thomas Popovich, et al. References: To: Office Office From: me X-Forwarded-Message-Id: Message-ID: <1798f2be-3354-4e74-6633-f7e999cc3117@comcast.net> Date: Thu, 16 Aug 2018 14:12:51 -0500 User-Agent: Mozilla/5.0 (Windows NT 6.1; WOW64; rv:52.0) Gecko/20100101 Thunderbird/52.9.1 MIME-Version: 1.0 In-Reply-To: Content-Type: multipart/mixed; boundary="------------951AE1D81B628584030F9883" Content-Language: en-US This is a multi-part message in MIME format. --------------951AE1D81B628584030F9883 Content-Type: multipart/alternative; boundary="------------9E68E7C1AD56D496D48C0F97" --------------9E68E7C1AD56D496D48C0F97 Content-Type: text/plain; charset=windows-1252; format=flowed Content-Transfer-Encoding: 8bit -------- Forwarded Message -------- Subject: Re: Dulberg v. Law Offices of Thomas Popovich, et al. Date: Thu, 16 Aug 2018 10:17:30 -0500 From: me To: Sabina Walczyk Hi Sabina, Please find the attached ReplytoDraft.txt file for your review. If you have any issues with this file please let me know so I can get you a workable copy asap. Did you or Tom consult with or pick a premises liability expert? I'm available all day to discuss the changes suggested in the attached file. Thank you, Paul 847-497-4250 On 8/15/2018 11:50 AM, Sabina Walczyk wrote: > > Hi Paul, > > Here is a copy of the draft of our Response. > > I incorporated parts of your notes in the Response as well. > > Sabina D. Walczyk > > Associate Attorney > > The Gooch Firm > 209 South Main Street > Wauconda, Illinois 60084 > (847) 526-0110 (phone) > (847) 526-0603 (fax) > > This communication is covered by the Electronic Communications Privacy > Act, found at 18 U.S.C. 2510 et. seq. and is intended to remain > confidential and is subject to applicable attorney/client and/or work > product privileges. If you are not the intended recipient of this > message, or if this message has been addressed to you in error, please > immediately alert the sender by reply e-mail and then delete this > message and all attachments. Do not deliver, distribute or copy this > message and/or any attachments and if you are not the intended > recipient, do not disclose the contents or take any action in reliance > upon the information contained in this communication or any attachments. > > *From:*me > *Sent:* Tuesday, August 14, 2018 8:38 AM > *To:* Office Office > *Cc:* Thomas W. Gooch III ; Sabina Walczyk > ; Nikki > *Subject:* Re: Dulberg v. Law Offices of Thomas Popovich, et al. > > Good Morning Sabina and Tom, > > Do we have a draft of our response that I can review? > > Thanks, > Paul > > On 7/20/2018 1:42 PM, Office Office wrote: > > Dear Mr. Dulberg: > > Attached please find the Order that was entered today in regards > to the above-referenced matter. > > Please note this matter was set for hearing on Defendant’s Motion > to Dismiss First Amended Complaint on September 12, 2018 at 10:00 > a.m.  We will keep you advised of what transpires in Court that day. > > In the interim, if you have any questions please let us know. > > Thank you, > > Melissa J. Podgorski > Paralegal > > The Gooch Firm > 209 South Main Street > Wauconda, Illinois 60084 > (847) 526-0110 (phone) > (847) 526-0603 (fax) > > This communication is covered by the Electronic Communications > Privacy Act, found at 18 U.S.C. 2510 et. seq. and is intended to > remain confidential and is subject to applicable attorney/client > and/or work product privileges. If you are not the intended > recipient of this message, or if this message has been addressed > to you in error, please immediately alert the sender by reply > e-mail and then delete this message and all attachments. Do not > deliver, distribute or copy this message and/or any attachments > and if you are not the intended recipient, do not disclose the > contents or take any action in reliance upon the information > contained in this communication or any attachments. > --------------9E68E7C1AD56D496D48C0F97 Content-Type: text/html; charset=windows-1252 Content-Transfer-Encoding: 8bit




-------- Forwarded Message --------
Subject: Re: Dulberg v. Law Offices of Thomas Popovich, et al.
Date: Thu, 16 Aug 2018 10:17:30 -0500
From: me <pdulberg@comcast.net>
To: Sabina Walczyk <swalczyk@goochfirm.com>


Hi Sabina,
Please find the attached ReplytoDraft.txt file for your review.
If you have any issues with this file please let me know so I can get you a workable copy asap.

Did you or Tom consult with or pick a premises liability expert?

I'm available all day to discuss the changes suggested in the attached file.

Thank you,
Paul

847-497-4250



On 8/15/2018 11:50 AM, Sabina Walczyk wrote:

Hi Paul,

Here is a copy of the draft of our Response.

I incorporated parts of your notes in the Response as well.

 

Sabina D. Walczyk

Associate Attorney

The Gooch Firm
209 South Main Street
Wauconda, Illinois 60084
(847) 526-0110 (phone)
(847) 526-0603 (fax)

This communication is covered by the Electronic Communications Privacy Act, found at 18 U.S.C. 2510 et. seq. and is intended to remain confidential and is subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this message, or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this message and all attachments. Do not deliver, distribute or copy this message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

 

 

 

From: me <pdulberg@comcast.net>
Sent: Tuesday, August 14, 2018 8:38 AM
To: Office Office <office@goochfirm.com>
Cc: Thomas W. Gooch III <gooch@goochfirm.com>; Sabina Walczyk <swalczyk@goochfirm.com>; Nikki <nikki@goochfirm.com>
Subject: Re: Dulberg v. Law Offices of Thomas Popovich, et al.

 

Good Morning Sabina and Tom,

Do we have a draft of our response that I can review?

Thanks,
Paul

 

On 7/20/2018 1:42 PM, Office Office wrote:

Dear Mr. Dulberg:

 

Attached please find the Order that was entered today in regards to the above-referenced matter.

 

Please note this matter was set for hearing on Defendant’s Motion to Dismiss First Amended Complaint on September 12, 2018 at 10:00 a.m.  We will keep you advised of what transpires in Court that day.

 

In the interim, if you have any questions please let us know.

 

Thank you,

 

Melissa J. Podgorski
Paralegal

The Gooch Firm
209 South Main Street
Wauconda, Illinois 60084
(847) 526-0110 (phone)
(847) 526-0603 (fax)

This communication is covered by the Electronic Communications Privacy Act, found at 18 U.S.C. 2510 et. seq. and is intended to remain confidential and is subject to applicable attorney/client and/or work product privileges. If you are not the intended recipient of this message, or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this message and all attachments. Do not deliver, distribute or copy this message and/or any attachments and if you are not the intended recipient, do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments.

 

 

 


--------------9E68E7C1AD56D496D48C0F97-- --------------951AE1D81B628584030F9883 Content-Type: text/plain; name="ReplytoDraft.txt" Content-Transfer-Encoding: 8bit Content-Disposition: attachment; filename="ReplytoDraft.txt" Argument 9. In this case, DULBERG was an invitee of the McGuires. “An invitee is defined as one who enters the premises of another with the owner's or occupier's express or implied consent for the mutual benefit of himself and the owner, or for a purpose connected with the business in which the owner is engaged.” Rhodes v. Illinois Cent. Gulf R.R., supra. The McGuires had a duty of reasonable care to DULBERG as an invitee because DULBERG was on their property for their benefit, to cut down a tree. (See First Amended Complaint, Exhibit B, ¶6.) DULBERG was not invited on the property to cut down a tree. DULBERG was invited on the property to see if he wanted the wood from the tree. While on the property DULBERG was asked by Caroline McGuire if he could help. Original: 10. MAST’s failure to become familiar with this law, resulted in him coercing and pressuring DULBERG to accept a paltry settlement of $5,000.00 with the McGuries, when in fact their liability was much more, as presented by the expert during the mediation. Based on this law, MAST would have seen that McGuires as homeowners did in fact owe a duty to DULBERG. Should Read: 10. MAST’s failure to become familiar with either Premises Liability Law or Chainsaw Ownership Liability, resulted in him coercing and pressuring DULBERG to accept a paltry settlement of $5,000.00 with the McGuries. Based on Premises Liability Law, MAST would have seen that McGuires as homeowners did in fact owe a duty of reasonable care to DULBERG. 11. Also, had MAST reviewed the law on premise liability, he could have considered the law as to ultrahazardous circumstances and the strict liability of the homeowners. “Illinois has recognized strict liability principally in two instances:” * * * “(2) when a defendant engages in ultrahazardous or abnormally dangerous activity as determined by the courts, giving particular consideration, inter alia, to the appropriateness of the activity to the place where it is maintained, in light of the character of the place and its surroundings.” (internal citations omitted) Miller v. Civil Constructors, Inc., 272 Ill.App.3d 263, 266 (2nd Dist., 1995). MAST should have considered strict liability as to the McGuires prior to advising DULBERG to settle. "premise" should be "premises" "* * *", Where is the first instance? 15. As to the specific allegations relating to Defendants’ concealment of facts to DULBERT, paragraph 31(k) of the First Amended Complaint, DULBERG stated what was concealed from him by the Defendants. Defendants concealed from DULBERG the actual policy limits from the McGuires and Gagnon, concealed facts relating to the explanation of liability law and what type of duty the McGuires owed to DULBERG, concealed that retaining an expert witness prior to accepting settlement would have been beneficial to DULBERG’s case, and concealed the fact that Defendants were handling everything properly when this was not the truth. "DULBERT" should read "DULBERG" "actual policy limits from" should read "actual policies and the policy limits for both" "liability law" could read "Premises Liability law and Chainsaw Ownership Liability" - the reason for this is the McGuires were subject to both liabilities. The McGuires owned the chainsaw, which clearly stated on page 2 of the owners manual "Allow only persons who understand this manual to operate your chainsaw", on page 7 the owners manual recommends that other people (bystanders) be kept at least 35 feet from someone operating a chainsaw, the McGuires did not heed these warnings nor any other warning contained in the owners manual, and the McGuires also owned the Premises where the work was being done making the McGuires liable not just once but twice as to a breach of duty owed DULBERG. Mast was provided a copy of the Chainsaw Owners Manual at the McGuires Deposition. Mast should have read it since it was Mast who requested it be produced. Original: 19. DULBERG pled that MAST essentially gave him two options: to take the $5,000.00 settlement or get nothing. DULBERG was coerced into this decision because he was unaware of any other option and forced to take the only available option. Can be changed to: 19. DULBERG pled that MAST essentially gave him two options: to take the $5,000.00 settlement or get nothing. DULBERG was coerced into this decision because he was unaware of any other option and forced to take the only available option under an artificial time constraint constructed by Mast. Original: 26. The pleading and exhibit show that DULBERG made the decision to settle after meeting with MAST in person, and MAST telling him that he had no choice but to accept the settlement. DULBERG acted quickly to accept the settlement based on the information that MAST told him that if he would not accept it, the offer would be withdrawn. Should be Changed to: 26. The pleading and exhibit show that DULBERG made the decision to settle after meeting with MAST in person, and MAST telling him that he had no choice but to accept the settlement. DULBERG acted quickly to accept the settlement based on the information that MAST told him that if he would not accept it, the offer would be withdrawn and the McGuires would win on a summary judgement and get off free. Original: 27. Simply because Exhibit E states that the release was mailed weeks later, does not mean that DULBERG was not coerced into accepting the settlement based on the information that he was given by his attorney whom he trusted. Why not reference and exhibit the emails between November 18th and the December 26th letter sent from Mast to Auto Owners Attorney Barch which clearly shows the small time frame Dulberg actually had? Perhaps this is evidence reserved for discovery and should not be needed at this stage? Perhaps these facts need to be determined by a jury and not the Judge at this stage? not sure, need more explanation Original: 29. Last Defendants raise the issue of proximate cause as to MAST’s improper determination of Gagnon’s insurance coverage limit being $300,000.00 and not $100,000.00. (See Motion to Dismiss attached as Exhibit A, pg. 7.) As argued above, this allegation supports DULBERG’s argument that MAST did not conduct the proper discovery, as evidenced by the incorrect policy limit. Had MAST not breached the standard of care and had he conducted discovery, DULBERG would have had the correct policy amount for Gagnon, and would have the insurance policy for the McGuires in order to make an informed decision as to settlement. Should Read: 29. Last Defendants raise the issue of proximate cause as to MAST’s improper determination of Gagnon’s insurance coverage limit being $300,000.00 and not $100,000.00. (See Motion to Dismiss attached as Exhibit A, pg. 7.) As argued above, this allegation supports DULBERG’s argument that MAST did not conduct the proper discovery, as evidenced by the incorrect policy limit. Had MAST not breached the standard of care and had he conducted proper discovery, DULBERG would have had the correct policy amount for Gagnon, and would have the insurance policy for the McGuires in order to make an informed decision as to settlement. Original: 32. DULBERG has proved that the actions and inactions of the Defendants have caused DULBERG damages. (See First Amended Complaint, Exhibit B, ¶31, 32.) Any dispute as to the proximate cause and damages must be left to the jury as it is a factual question. The issues of proximate cause and damages must be determined by a jury or trier of fact after all proper evidence and testimony is presented at trial. Proximate cause is a question of fact to be decided by a jury. (internal citation omitted) (Emphasis added) Hooper v. County of Cook, 366 Ill.App.3d 1, 7 (1st Dist., 2006). “The determination of damages is a question of fact that is within the discretion of the jury and is entitled to substantial deference.” (Emphasis added.) Linhart v. Bridgeview Creek Development, Inc., 391 Ill.App.3d 630, 636 (1st Dist., 2009). Should Read: 32. DULBERG has proven that the actions and inactions of the Defendants had caused DULBERG damages. (See First Amended Complaint, Exhibit B, ¶31, 32.) Any dispute as to the proximate cause and damages must be left to the jury as it is a factual question. The issues of proximate cause and damages must be determined by a jury or trier of fact after all proper evidence and testimony is presented at trial. Proximate cause is a question of fact to be decided by a jury. (internal citation omitted) (Emphasis added) Hooper v. County of Cook, 366 Ill.App.3d 1, 7 (1st Dist., 2006). “The determination of damages is a question of fact that is within the discretion of the jury and is entitled to substantial deference.” (Emphasis added.) Linhart v. Bridgeview Creek Development, Inc., 391 Ill.App.3d 630, 636 (1st Dist., 2009). --------------951AE1D81B628584030F9883--