Illinois Tort Law Update 2013 Case Summaries

Transcription

1 Illinois Tort Law Update 2013 Case Summaries Peoria County Bar Association CLE Spalding Pastoral Center January 25, 2014 Jeffrey R. Bach 110 SW Jefferson, Suite 410 Peoria, Illinois T: F:

2 TABLE OF CONTENTS PART I - SUBSTANTIVE LAW I. Contribution 3 II. Damages 3 III. Governmental Liability 4 IV. Insurance 10 V. Malpractice 22 VI. Negligence 27 VII. Product Liability 31 VIII. Miscellaneous Actions 33 PART II PROCEDURAL LAW I. General Procedure 42 II. Appeals 49 III. Evidence 51 IV. Limitations 57 V. Pleadings 58 VI. Trial Issues 61 VII. Miscellaneous 62 Copyright All rights reserved.

3 SUBSTANTIVE LAW I. CONTRIBUTION a. Miranda v. Walsh Group, Ltd., 2013 IL App (1st) : Intoxicated driver caused automobile accident, injuring Plaintiffs. Plaintiffs settled with intoxicated driver for her policy limits of $20,000. Plaintiffs then filed suit against the construction company who erected the concrete barriers that the intoxicated driver struck, leading to the accident with Plaintiff. Construction company filed third-party complaint against the intoxicated driver. Intoxicated driver filed a motion for a voluntary dismissal under Section arguing that the settlement was made in good faith as required under the Illinois Joint Tortfeasor Contribution Act (740 ILCS 100/1, et seq.). Trial court determined that the settlement was made in good faith because there was no evidence of wrongful conduct, collusion, or fraud and because the full policy limits had been tendered. The Appellate Court upheld the judgment, but noted that the standard of review in these matters is abuse of discretion, and the court was not willing to substitute its judgment for the trial court. II. DAMAGES a. Guzman v West Madison Street, Inc., 2013 IL App (1st) : The underlying suit in this matter involved a Dramshop action brought by an injured driver, passenger, and pedestrian against a tavern. After the filing of the complaint, but before trial, the Defendant s Dramshop insurer was declared insolvent and the Illinois Insurance Guaranty Fund assumed responsibility for the obligations of the insurance company. The attorneys for the Guaranty Fund argued that any money that Plaintiffs received from their own insurance companies or from any other source as a result of this accident should be used to set off the maximum amount allowable under the Dramshop Act (235 ILCS 5/6-21). Plaintiff filed a motion to strike this defense, alleging that any monies received from outside sources should first be used to reduce the amount of the jury verdict. The Appellate Court looked to the statues that were used to create the Guaranty Fund, specifically 215 ILCS 5/546(a), which states that a claimant possessing a covered claim is required to exhaust his rights under any other policy of insurance which involves the same facts, injury, or loss that did arise due to the covered claim. The Appellate Court also noted that it had repeatedly held that the fund is only to be used as a last resort. Therefore, the Fund was allowed to set off any monies received by Plaintiffs from other sources from the same accident. b. Rogers v. Imeri, 2013 IL App (5th) : The Appellate Court was called upon to answer a certified question in this matter regarding the role of the Illinois Insurance Guaranty Fund in a Dramshop action. 3

4 Plaintiffs son sustained fatal injuries in an automobile accident with an intoxicated driver. Plaintiffs were able to proceed against the driver and recovered approximately $26,000. They also recovered $80,000 from their own automobile insurance policy under the underinsured motorist and medical coverage provisions. Plaintiffs then filed suit against the tavern where the driver allegedly became intoxicated. At the time the accident occurred, Defendant maintained a Dramshop liability policy; however, while this matter was pending the insurance company was declared insolvent and liquidated. Consequently, the Illinois Insurance Guaranty Fund took over the defense of the litigation. In the trial court, the Guaranty Fund filed a motion asking that the amount of money Plaintiffs had already recovered should be applied to the statutory Dramshop cap of $130,000 and the Fund s liability reduced accordingly. Essentially, the Fund argued that Plaintiffs had already recovered $106,000, so the Fund s liability should be limited to an additional $24,000, which would allow Plaintiffs to recover the statutory cap of $130,000. Plaintiffs disagreed, and the trial court denied Defendant s motion. Defendant moved the trial court to certify the question to the Appellate Court for review under Illinois Supreme Court Rule 308 (a). The court determined that if it adopted the Fund s reasoning it would infringe upon the role of the jury as the finder of fact. Accordingly, the court determined that the Dramshop act requires the following procedure where setoffs are involved: first, the jury determines the total damages sustained. The jury s award is then offset by other recoveries. Finally, if the remainder is above the statutory limit it is reduced to statutory limit. III. GOVERNMENTAL LIABILITY a. Moore v. Chicago Park District, 2012 IL : Plaintiff was the estate of a pedestrian who died after suffering a fall in the parking lot of a city park. The estate alleged that the park district negligently created an unsafe natural accumulation of ice and snow on its property. The decedent fell on January 23, 2006; two days earlier three inches of snow had fallen and Defendant had plowed the parking lot and shoveled and salted the sidewalk leading to the main entrance. The decedent successfully negotiated the parking lot on her way into the building, but fell in the parking lot in between two cars as she was leaving when she attempted to step over a pile of snow. The snow had collected at the edge of the parking lot due to plowing. The decedent fractured her femur in the fall, and after undergoing surgery to repair the leg she suffered complications which lead to her death. Plaintiff s complaint alleged that Defendant had negligently and carelessly shoveled and plowed snow into mounds in the area of the 4

5 parking lot and walkway including the pedestrian ramp creating an unnatural condition to walk upon or step over. Defendant moved for Summary Judgment, arguing that it was immune from Plaintiff s claims under section of the Local Governmental and Government Employees Tort Immunity Act (745 ILCS 10/3-106) The specific section of the Tort Immunity Act indicated that immunity existed where liability is based on the existence of a condition of any public property. The trial court denied Defendant s Motion for Summary Judgment stating that section immunity did not apply because snow is not affixed to the property in a way that it would become a part of the property itself. Defendant filed a Motion to certify the question of whether a natural accumulation of snow and ice represented a condition of public property for interlocutory appeal. The Supreme Court had previously held in McCuen v. Peoria Park District, 163 Ill. 2d 125, 205 Ill. Dec 487,643 N.E. 2d 778 (1994) that the threshold question in determining whether something is a condition within the meaning of section is whether the Plaintiff s injury was caused by the property itself or by an activity conducted on the property. Plaintiff alleged that the decedent was injured by actions of Defendant s employee in negligently shoveling and plowing snow. The Supreme Court held that the existence of snow and ice was not an activity conducted on Defendant s property, but a condition of the property. The court also overturned its ruling in Stein v. Chicago Park District, 323 Ill.App.3d 574, 256 Ill.Dec. 751, 752 N.E.2d 631 (2001), which held that a watering hose that was moved on a daily basis was not affixed to the property in such a way that it was a part of the property itself. In this matter, the court determined that the temporary nature of the snow and ice did not prohibit the snow and ice from constituting a condition of the property under Section Justice Kilbride dissented, observing that the mere existence of snow and ice on the property did not cause the injury in this case. Rather, the injury was caused by the allegedly negligent snow removal activity conducted by the Defendant, resulting in mounds of snow and ice for the decedent to navigate. Further, the mounds of snow and ice would not have existed without the negligent snow removal activity. Justice Kilbride would have upheld the ruling in McCuen that made a distinction between the actions on the property and the property itself. b. Ballog v. City of Chicago, 2012 Ill App (1st) : A pedestrian filed a negligence complaint against the City of Chicago after she fractured her foot when she tripped in the street. The trial court granted the Defendant summary judgment and the Appellate Court affirmed on the basis that the condition was open and obvious. The court found that where there is no dispute about the physical nature of the condition, whether a danger is open and obvious is a question of law. The court also considered whether 5

6 the deliberate encounter exception applied. This exception arises when a landowner has reason to expect the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so outweigh the apparent risk. The court found that the deliberate encounter exception did not apply because if Plaintiff had taken notice of the gap in the street s surface to deliberately encounter the condition, she would have readily appreciated the slight risk of crossing the gap and, in the course of exercising due care for herself, been able to cross without incident, much as she did on the opposite side of the street. c. Bielema v. River Bend Community School, 2013 IL App (3d) : This case was very fact driven and involved whether a school district s act constituted willful and wanton conduct for purpose of liability under the Local Governmental and Governmental Employees Tort Immunity Act. At a high school volleyball scrimmage Plaintiff attended, someone spilled Gatorade onto the floor, causing a sizeable puddle to form. The principal of the high school noticed the puddle and went to get something to clean it up, leaving her husband to stand guard. Plaintiff, who knew the principal s husband, ran up to greet him and slipped in the puddle. Plaintiff s complaint alleged that Defendant had knowledge of a dangerous condition and failed to warn Plaintiff of it, constituting willful and wanton conduct. Defendant moved for summary judgment after discovery, arguing that the conduct Plaintiff complained of did not rise to the level of willful and wanton. The trial court granted the Defendant s motion and the appellate court affirmed, finding that in this particular instance, the conduct was not willful and wanton. d. Martinelli v. City of Chicago, 2013 IL App (1st) : Plaintiff was injured when he was struck by a car at a construction site. Plaintiff worked for a telecommunications company and was assisting city workers on a water department construction project. When the project began, the city established certain safety provisions including barricades and flagmen, but eventually removed those protections when the workers went on an extended lunch break. Plaintiff remained on the job site and was subsequently struck by a distracted motorist, who pinned the plaintiff to the bumper of a truck. Plaintiff sued the city, alleging that it was negligent in blocking direction of traffic one-way, forcing traffic to drive both ways on an undivided lane before removing the safety precautions. A jury trial returned a verdict of $6,952,000 for Plaintiff. The city appealed, alleging that it had immunity under the Local Governmental and Governmental Employees Tort Immunity Act and that the evidence showed that the sole proximate cause of plaintiff s injuries was the distracted driver. The Appellate Court held that the section of the act under which the city claimed it was immune (745 ILCS 10/3-104) 6

7 only provided immunity when an injury was caused by the failure to initially provide traffic control devices, and that since the city had initially provided traffic and control devices it was not immune from the suit. The court also held that the motorist s conduct was foreseeable and that the evidence was sufficient to support the finding that the city s negligence was a proximate cause of the worker s injuries. e. DeMambro v. City of Springfield, 2013 IL App (4th) : This case involved a Plaintiff who was injured while she attempted to enter her car, which was lawfully parked on a public street. As she attempted to enter her car, her foot stepped into a pothole located near the curb, causing the driver to injure her ankle. Plaintiff filed a suit against the city for failing to maintain its streets in a reasonably safe condition. The city filed a motion for summary judgment, claiming that it was immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-102(a)), which was granted by the trial court. Under the Tort Immunity Act, the city owes a duty of care to maintain their properties in a reasonably safe condition for intended and permitted users of the properties. The court reviewed some of the other cases involving individuals being injured on public streets, and determined that this was an example of an individual who was using the property for its intended and permitted purpose. Therefore, the Appellate Court denied the city s motion for summary judgment and remanded the case to the trial court. f. Berz v. City of Evanston, 2013 IL App (1st) : Bicyclist filed a complaint alleging negligence against the Defendant city stemming from an injury that occurred when the bicyclist struck a pothole while riding in an alleyway. Defendant filed a motion to dismiss under 2-619(a)(9) alleging that the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-102(a)) provided immunity for the Defendant where the Plaintiff was not an intended user of the alley. Defendant s motion to dismiss was granted. The Appellate Court determined that the proper test for determining if the Plaintiff was an intended user was to look at the nature of the property itself specifically. The court wrote that it was necessary to look at pavement markings, signs, and other physical manifestations of the intended use of the property. The Appellate Court found that there was nothing about the alley which suggested that it was intended for use by bicycles. It noted that there were not pavement markings or signs indicating that bicyclist were intended to ride in the alley. The Appellate Court upheld the trial court. g. Bruns v. City of Centralia, 2013 IL App (5th) : Plaintiff was an elderly woman who sustained injuries after she tripped over a raised section of a public sidewalk as she was walking into her doctor s office. 7

8 Defendant was aware of the defect in the sidewalk but took no action to rectify it. The Plaintiff testified that she had been to her doctor s office before and had noted the defect in the sidewalk and considered it to be an accident waiting to happen. She testified that at the time of her fall, she was not looking down at the sidewalk, rather she was looking towards the door of the office and steps where she was intending to enter. She further testified that because her attention was focused on the entrance she did not notice the crack in the sidewalk. The City filed a motion for summary judgment, arguing that the condition was open and obvious. Plaintiff countered that the fact that her attention was focused elsewhere was proof of the distraction exception to the rule. The trial court granted the Defendant s motion. The Appellate Court held that it was reasonably foreseeable that an elderly patient of the office might be focused on the pathway toward the door and steps of the office as opposed to the path immediately under foot. The court found that this fell into the distraction exception to the open and obvious condition rule. h. Rommel v. Illinois State Toll Highway Authority, 2013 IL App (2d) : This was a case which had previously been decided on an appeal. Plaintiffs were the estates of drivers who had died from cross-over vehicle collisions which occurred when another vehicle crossed over a median to strike Plaintiff s vehicles. The Plaintiffs sued the Illinois State Toll and Highway Authority. In the first iteration of this case, the court answered two certified questions in the negative: [1] Does Defendant have a common law duty to its users to correct, repair and/or improve its tollway system to prevent against crossover vehicle collisions when it was on notice that crossover vehicle collisions had occurred under the facts alleged by the Plaintiffs? [2] Does the Illinois Road and Bridges Tollway Highway Act (605 ILCS 10/1, et seq.) impose upon Defendant a statutory duty to its users to correct, maintain, repair or improve its tollway system as is alleged by the Plaintiffs to prevent against crossover vehicle collisions? The Appellate Court remanded the case back to the trial court for further proceedings. Plaintiffs then amended their complaints to allege that Defendant created a dangerous condition on the median by failing to properly maintain it. Plaintiffs asserted that the maintenance claims were not included in the first set of certified questions, as they had deliberately excluded the term maintain from the first certified question to avoid review of that issue. The trial court dismissed Plaintiffs new complaints. On appeal, the court held that the law of the case doctrine limits litigation of a previously decided issue in the same case and upheld the trial court. i. Dunet v. Simmons 2013 IL App (1st) : In this matter, the Administrator of a deceased pedestrian brought an action against the driver who hit the decedent, the village in which the accident occurred and the local electric company. With regard to the village s negligence, 8

9 Plaintiff alleged that the street lights were inoperable at the time that the decedent was crossing the street. At trial, the village filed a motion for summary judgment asserting that it had immunity under the Local Governmental and Governmental Employees Tort Immunity Act. (745 ILCS 10/3-102) The motion for summary judgment was granted, and Plaintiff appealed. Under the Act, municipalities have a duty to exercise ordinary care to maintain property for uses that are both permitted and intended. At issue on appeal was whether the decedent was an intended user at the place where she crossed the street. The Appellate Court, noting that there was no marked crosswalk at the place where the decedent attempted to cross the street, found that the decedent was not an intended user and upheld the dismissal. j. Gallarneau v. Calvary Chapel of Lake Villa, Inc., 2013 IL App (2d) : Plaintiff was a participant in a church sponsored program that provided teaching and activities for children one evening a week at the church. At the program s end-of-the-year party, Plaintiff was injured. He brought a negligence action against the Church on a premises liability theory. The Church argued that it was exempt from liability because of Section of the School Code (105 ILCS 5/24-24) which provided immunity from negligence for schools. At the trial court level, summary judgment was granted in favor of Defendant because the court held that the Church was acting as a school. The Appellate Court affirmed the trial court s finding that the Church was a school within the generic meaning of the term under the Act, but held that the program was not a school for purposes of the immunity statute because it acted more as a voluntary club, akin to a scouting organization. The court noted that such organizations are not eligible for immunity under the School Code and reversed the holding. k. Perfetti v. Marion County, 2013 IL App (5th) : A driver who was injured in a single vehicle accident brought this action against the county in which the accident occurred alleging that the unsafe construction, maintenance, and condition of the road caused him to lose control and suffer extensive injuries. The accident in question occurred as Plaintiff was descending a hill. His truck flipped and rolled into a ditch. Later on the day of the accident, Plaintiff returned to the scene and examined the road, which he described as all ripples and spongy. He further testified that when he stood on the road and moved his feet, the road moved three feet in front, like standing on a bowl of jello, and that the ripples were evident completely across the road and going fifty to seventy-five feet downhill. The highway engineer that was employed by the county testified that he had last inspected the roadway two days prior to the driver s accident and that he did not observe any unsafe condition. At the conclusion of Plaintiff s evidence the trial court directed a verdict in Defendant s favor 9

10 finding that Plaintiff had failed to prove that Defendant had actual knowledge of the defective condition of the roadway. The Appellate Court noted that constructive notice under the Illinois Local Government and Governmental Employees Tort Immunity Act can be established where the condition complained of has existed for such a length of time or so conspicuous or plainly visible that public entity should have known of its existence by exercising reasonable care and diligence. However, in this matter, they did not find that the county had constructive notice and affirmed the trial court s ruling. IV. INSURANCE a. Country Preferred Insurance Company v. Whitehead, 2012 IL : This case involved a claim for uninsured motorist coverage. The insurance company provided insurance for the insured under a policy which contained the following provision: Legal action against us. No suit, action or arbitration proceedings for recovery of any claim may be brought against us until the insured has fully complied with all of the terms of the policy. Further, any suit, action or arbitration will be barred unless commenced two years from the date of the accident. The insured was involved in an automobile accident in Wisconsin on July 27, The insured first made a claim with her insurance company for uninsured motorist benefits on October 17, The parties exchanged correspondence for approximately the next two years. The insured hired an attorney, and on May 5, 2009, her attorney wrote to the insurance company, stating that he would be providing representation. By letter dated May 12, 2009, the insurance company acknowledged the attorney s lien and requested that he forward the specials, supporting materials and your tax identification. The insured acknowledged that the insurance company had apprised her of its position that there was two year statute of limitations applicable to her bodily injury uninsured motorist claim. The insurance company filed a declaratory judgment action on October 30, 2009, asserting that they were not required to provide uninsured motorist coverage to the insured because she had not submitted a written demand for arbitration naming an arbitrator as required under the policy. The insured filed a counter claim alleging that the two year contractual limitation on claim arbitration in an auto insurance policy violates Illinois public policy. The court noted that in deciding whether an agreement violates public policy, the Supreme Court must determine whether the agreement is so capable of producing harm that its enforcement would be contrary to the public interest. The court then went on to say that the legislature has required uninsured motorist coverage to place the policy holder in substantially the same position he would occupy, so far as he was being injured or killed, had the wrongful 10

11 driver had had the minimum liability insurance required by the Illinois Safety and Family Responsibility Law (625 ILCS 5/7-101). Plaintiff also alleged that the two year limitation on arbitration was invalid because Wisconsin had a three year statute of limitations. The court rejected her arguments regarding public policy and found that the two year contractual limitation does not violate Illinois public policy when applied to a legally competent Plaintiff. Justice Kilbride dissented, believing that the two year limitation on claim arbitration violates Illinois public policy by effectively shortening the applicable Wisconsin statute of limitations from three years to two years relying on Severs v. Country Mutual Insurance Co., 89 Ill.2d 515, 61 Ill.Dec. 137, 434 N.E.2d 290 (1982). In that matter, the court held that a two year contractual limitation against the minor was unenforceable because it shortened the time the minor had to file suit. b. Standard Mutual Insurance Company v. Lay, 2013 IL : This case is a good example of why it is important to be careful about selecting a marketing plan. Defendant contracted with a marketing firm to send out fax advertisements. Unbeknownst to Defendant, the people and entities on the marketing firm s list did not consent to receive fax advertisements. Plaintiff was one of many who received such advertisements, and sued Defendant under the Federal Telephone Consumer Protection Act (47 USC 227) ( TCPA ) as part of a class action. Defendant tendered its defense to its insurance company, who determined that it had a conflict of interest. The insurer sent Defendant a letter indicating that it was defending the case under a reservation of rights that specifically included the coverage defense of conflict of interest and violations of penal statutes. Plaintiff and Defendant reached an agreement to settle the case which was premised upon Plaintiff accepting only whatever insurance coverage might exist. At the trial court, the insurer filed a declaratory judgment action asserting that because the Telephone Consumer Protection Act was a penal statute, Defendant did not have coverage. Defendant argued that the insurance company was estopped from asserting policy defenses, but the court found that the letter that the insurance company sent met its burden of a proper reservation of rights letter. The trial court found that the TCPA was a penal statute and that the insurance company did not have to provide coverage. The Appellate Court affirmed the trial court s ruling. The Supreme Court agreed that the insurance company was not estopped from asserting policy defenses; however it found that the TCPA was a remedial statute, not a punitive statute, because the purpose of the TCPA was to protect the privacy interest of residential telephone customers by restricting automated telephone calls to the home. 11

12 c. Alshwaiyat v. American Service Insurance Company, 2013 IL App (1st) : Plaintiff, a taxi driver, and his wife were injured in an automobile accident which occurred while the plaintiff was driving his employer s vehicle. Plaintiff and wife subsequently settled their personal injury action against the other driver for $100,000, but asserted that the employer s automobile insurance policy entitled them to $500,000 in underinsured motorist coverage. At the trial court, the parties filed crossmotions for summary judgment. The following facts were admitted: when plaintiff s employer originally obtained liability insurance it specifically requested limits of $20,000/$40,000 for uninsured/underinsured motorist coverage, and rejected higher limits for that coverage. Subsequently, the original policy was modified to include more endorsements, but did not increase the limits of the uninsured/underinsured motorist coverage. Thereafter, the employer submitted a GENERAL REQUEST FORM to the insurance company indicating that it was requesting an endorsement that would change its coverage. Specifically, it asked that its combined single limit coverage of $300,000 in bodily injury and property damage be increased to $500,000. At the time of the submission there was no request for increased underinsured or uninsured motorist coverage on the form. Defendant issued a new policy of insurance and subsequently issued a renewal policy covering the period from January 1, 2008, through January 1, 2009, which is during the period of time when the accident occurred. At issue was a provision of the Illinois Insurance Code which provided that all automobile insurance policies issued in excess of the minimum amounts required by the financial responsibility law also include an equal amount of coverage for uninsured and underinsured motorist unless the insured rejects the coverage in excess of the limits. (215 ILCS 5/143a- 2(1), (2)). The issue before the court was whether the issuance of the in coverage or renewal policy required the insured to reject the increased underinsured/uninsured motorist coverage or whether the initial rejection would suffice. The trial court held for Plaintiff and found that each change or renewal in coverage required a separate rejection. On appeal, the Appellate Court rejected this argument finding that neither was a new policy as referred to in the statute and that the renewal and change could be described as substitutes, amendments, or replacement policy which do not require an additional rejection. d. American Access Casualty Company v. Reyes, 2012 IL App (2d) : This case came before the Appellate Court on declaratory judgment filed by Defendant s insurance company. Defendant had been involved in an auto accident and at the time was covered by liability insurance policy issued by Plaintiff. However, the policy listed under the operator s section two persons, Defendant, with the notation that said excluded instead of a driver s license number, and another individual with an out of country 12

13 international driver s license number. Defendant also executed an endorsement providing that Plaintiff would not afford any coverage under the policy to any claim or suit that occurred as the result of the Defendant operating any vehicle. The policy also contained a provision excluding bodily injury and property damage liability coverage for any automobile while in control of excluded operator. The individuals who were injured in the accident caused by Defendant made a claim against Defendant s insurance but the claim was denied because Defendant was an excluded operator. Thereafter, they made a claim against their own policy for uninsured motorist coverage and their insurer filed a declaratory judgment action. The issue was whether the exclusion violated public policy. The court determined that because the Illinois Safety and Family Financial Responsibility statute (625 ILCS 5/7-101) mandates that any liability policy must cover both named insured and permissive drivers that this blanket exclusion violated public policy. e. American Zurich Insurance Company v. Wilcox and Christopoulos, LLC, 2013 IL App (1st) : This matter involved a declaratory judgment action brought by a liability insurance company seeking a determination that they did not have a duty to defend the named insured lawyer and law firm. The underlying action involved the attorney s and law firm s consulting work on a proposed restaurant/lounge. The attorney also maintained a separate business called Liquor License Solutions and worked with Plaintiff to obtain a liquor license as part of the process to open the restaurant. As you might imagine, things did not go as planned, and Plaintiff filed an action for civil conspiracy against the attorney and the law firm in addition to numerous others. The insurance policy which covered the attorney and the law firm provided a specific exclusion for any actions based upon or arising out of the insured s capacity as an officer of a business enterprise. After the parties filed cross-motions for summary judgment, the trial court ruled that because there was no exclusion specific to the law firm, the insurance company had an obligation to defend the law firm but not the individual lawyer. Both sides appealed, and the Appellate Court found that under the terms of the policy, the exclusion pertaining to officers was applicable to all insureds based upon the conduct or interest of any one insured. Therefore, they ruled that the insurance company had no duty to defend either the lawyer or the law firm. f. Auto-Owners Insurance Company v. Yocum, 2013 IL App (2d) : This was a very fact driven case involving a declaratory judgment action filed by the Plaintiff auto insurer, which alleged that there was no coverage when Defendant was involved in an automobile accident. Defendants had a policy of auto insurance that they claimed was in effect on September 13

14 22, 2005, when they were involved in an automobile accident where the other driver was killed. Thereafter, the estate of the other driver sued Defendants for wrongful death and Defendants tendered their defense to Plaintiff, Auto-Owners Insurance. Plaintiff alleged that it did not have a duty to defend or indemnify in the underlying suit because Defendants policy had been effectively canceled prior to the date of the accident. The facts of the alleged cancellation were as follows: Defendants originally obtained a policy from Plaintiff which covered two vehicles and was dated and began on June 23, 2004, and continued through June 23, Although there were some issues with payment, Defendants rectified them and on April 14, 2005, Plaintiff issued an endorsement effective March 22, 2005, adding a third vehicle to the policy, which increased the policy premium. On May 16, 2005, the policy was renewed for the period of June 23, 2005, through June 23, Defendant failed to make a payment and on June 3, 2005, Plaintiffs sent a notice of cancelation requesting the remaining premiums on the policy plus two months premiums for the policy. Defendants paid the requested amount on June 23, 2005, and ultimately received a reinstatement notice informing them to disregard the prior cancelation. On June 29, 2005, two of the vehicles on the policy were damaged in a traffic accident and were no longer being used. As a result Defendant requested these two vehicles be removed from the policy. Plaintiff issued an endorsement on August 30, 2005, effective as of June 30, 2005, reflecting the reduced number of vehicles on the policy and the reduced policy premium. Defendant subsequently failed to make the monthly premium payment in July 2005, and Plaintiff mailed him a notice of cancellation dated August 3, The parties subsequently filed crossmotions for summary judgment. At the hearing on the motions, Defendant indicated that he had not received any notice of cancelation and was not aware that the policy was being cancelled. Defendant argued that since he had paid two months of a much higher premium that he believed he had a credit since he had reduced the number of vehicles on his policy. The trial court found that this argument was persuasive as he did have a credit on the policy and found that the Plaintiff had a duty to defend and indemnify. The Appellate Court affirmed. g. Bridgeview Health Care Center, Ltd. v. State Farm Fire And Casualty Company, 2013 IL App (1st) : Plaintiff filed a declaratory judgment against Defendant seeking a declaration that Defendant had a duty to defend and indemnify Plaintiff in an underlying lawsuit for violations of the Federal Telephone Consumer Protection Act (47 USC 227), conversion, and a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1, et seq.) regarding advertisements. At the trial court level, Defendant argued that the most 14

15 significant contracts occurred in Indiana and that Indiana law should apply. The Indiana state courts had not rendered an opinion as to whether a duty to defend is owed to an insured in a case like this, whereas Illinois courts had held that such a duty did exist. The trial court determined that because Indiana law was silent, Illinois law should control and that the insurer had a duty to defend. The Appellate Court held that when a choice of law question like this arises, courts must undertake analysis to determine whether there is a conflict. If there is no information regarding what that state would do, then the court must consider decisions from federal courts and other jurisdictions, as well as law reviews, treatises, and other sources in an attempt to predict how the Indiana courts would decide the issues in this case. The Appellate Court remanded the case to the trial court to allow it to determine if the conflict of law issues would be decided differently given the Appellate Court s reasoning. h. Brown v. Stonebridge Life Insurance Company, 2013 IL App (3d) : Plaintiffs were the children of an insured who had a policy of accidental death insurance at the time of his death. The policy specifically excluded death due to any disease, bodily or mental infirmity, medical or surgical treatment of these. The insured subsequently died from medication that was prescribed to treat chronic low back pain. The insurance company filed a declaratory judgment action alleging that they did not have a duty to pay benefits to the insured s next of kin. The trial court found in favor of the insurance company and held that it did not have to pay any benefits. The Appellate Court affirmed, finding that there was no ambiguity in the policy language, and that an accidental death from drug intoxication resulting from ongoing medical treatment was expressly excluded by the unambiguous language of the policy. i. Menard, Inc. v. Country Preferred Insurance Company, 2013 IL App (3d) : This is a very interesting case. It began when one of Defendant s insureds went to Plaintiff s store to purchase bricks. The insured was helping Plaintiff s employee load the bricks into her vehicle by selecting the bricks she wanted and placing the bricks nearby Plaintiff s employee. At some point, the insured s foot became tangled in debris and she fell, injuring herself. She then brought a premises liability suit against Plaintiff. Plaintiff brought a declaratory judgment action, claiming that it was covered as an insured under the Defendant s policy, and that the Defendant had a duty to defend Plaintiff in the insured s suit. The insured s policy contained a clause indicating that coverage was provided for any bodily injury or property damage caused by an accident resulting from the ownership, maintenance, or use of an insured vehicle, including loading and unloading of the vehicle. 15

16 At the trial court, Plaintiff moved for partial summary judgment. The court ruled in its favor, finding that because the injuries to the insured were caused by the use of her vehicle to unload and load bricks that Plaintiff was covered under the policy. The other issue before the trial court was whether this coverage was primary or excess. Because the policy language stated that any insurance we provide with respect to a vehicle you do not own will be excess over any other collectable insurance, the court held that any insurance coverage was primary because you was defined only as the policy holder. The Appellate Court affirmed, finding that because the costumer s injury occurred during the loading of the vehicle that the insurer had a duty to defend the Plaintiff. j. Crane v. Admiral Insurance Company, 2013 IL App (1st) B: This action involved the manufacturer of a product containing asbestos and its umbrella and excess insurers. This case had a long history, but, briefly, the facts are as follows: Plaintiff and its primary insurer entered into an agreement concerning coverage. Subsequently, Plaintiff s policy limits were reached with its primary coverage. The umbrella and excess insurers sought to challenge the agreement concerning coverage on the basis that it was not agreed to in good faith. The Appellate Court held that the manufacturer and primary insurer did not owe the umbrella and excess insurers a duty to act in good faith when they negotiated the agreement concerning coverage, but that the umbrella and excess insurers had standing to object to the agreement concerning coverage. The Appellate Court also held that Plaintiff was required to prove that all the primary insurance policies, as written before Plaintiff and its primary insurers entered into the agreement concerning coverage were exhausted and that all trigger policies were jointly and severely liable. The other issue concerned what dates were required to trigger different insurance coverage. The dates in question were concerning exposure, sickness and disease. The Appellate Court held that the insured was not required to prove all three possible trigger dates. k. Empire Indemnity Insurance Company v. Chicago Province of the Society of Jesus, 2013 IL App (1st) : This case arose out of the allegations of sexual abuse against the Catholic priests. Plaintiff provided a policy of insurance to Defendant which covered Bodily Injury and Property Damage Liability as well as Sexual Abuse or Sexual Molestation Liability. Sexual abuse/molestation coverage was limited in that it would be cancelled if any executive officer, supervisory employee, director or trustee [had] actual knowledge of any act, incident or alleged act of sexual abuse or molestation. Plaintiff filed a declaratory judgment action alleging that Defendant had knowledge that the priest in question had sexually molested other children in 1969 and noted that the policy specifically excluded damages which were expected or intended from the stand point of the insured. The trial court found that the insurance 16

17 company had no duty to defend because the Jesuits were aware of the priest s previous abuse of minors and reasonably should have anticipated or expected the injuries he would subsequently inflict on the children. l. Delatorre v. Safeway Insurance Company, 2013 IL App (1st) : This case has a complicated procedural history; however, the facts are as follows: Plaintiff was injured in an automobile accident in At the time of the accident, Plaintiff (a relative of the driver) was a passenger in an automobile driven by an individual named Ruben Delatorre. Plaintiff initially filed a personal injury claim against Ruben, and the Defendant insurance company hired a lawyer to defend the insured. The insurance policy was for the state minimum of $20,000 per person and $40,000 per accident. Plaintiff was eventually able to have a default judgment entered against the insured and was awarded damages of $250,000. A copy of the default judgment was sent to the attorney for the insured, but the attorney took no action. The insured sued Defendant for breach of contract. Subsequently, the insured assigned his rights in the breach of contract action to Plaintiff at the trial court. The judge ruled in favor of Plaintiff s motion for summary judgment finding that Defendant had breached its contract with its insured by failing to follow up with the attorney it hired. The Appellate Court found that the entry of the default judgment followed directly from the breach of contract and upheld the result. m. Progressive Premier Insurance Company Of Illinois v. Emiljanowicz, 2013 IL App (1st) : An insurance company that insured a trucker brought a declaratory judgment action seeking a declaration of coverage under the trucking company s automobile policy. The trucker who was injured in this accident had leased his truck to the trucking company prior to the accident. Defendant drove the truck to pick up a friend and take the truck to the mechanic at the request of the trucking company. On his way to pick up the friend, Defendant collided with another vehicle. Plaintiff defended this matter under a reservation of rights and the claims were subsequently settled in the amount of $400,000. Plaintiff then filed this declaratory judgment asking that the trucking company s insurance company be held liable for damages resulting from the accident. The trial court granted summary judgment in favor of Plaintiff, ruling that the underlying action trigged the trucking company s insurer s duty to defend. The Appellate Court held that the trucker was engaged in the business of the trucking company at the time of the accident and thus was a covered insured under the trucking company s policy and that the truck was a covered auto according to the terms of the policy. n. Indiana Insurance Company v. Royce Realty And Management, Inc., 2013 IL App (2d) : The Defendant realty company managed many properties, one of which was a golf course. The insurance company had 17

18 contracted with the realty company to provide an umbrella policy. The policy provided coverage for any medical expenses incurred for injuries that occurred on premises that the insured owned, rented, or because of the insured s operation. However, the policy contained an endorsement limiting the coverage to only the office of the realty company. The record indicated that there was no evidence that anyone from the insurance company had made anyone at the realty company aware of the endorsement. Subsequently, a pedestrian was injured on the golf course the realty company managed and filed a lawsuit against the realty company and the golf course. The insurance company filed a declaratory judgment contending that the policy did not provide coverage for the pedestrian s injury. The realty company and the pedestrian filed a motion for summary judgment alleging that the endorsement was ineffective because it was ambiguous. The trial court found in favor of the realty company and the pedestrian because the judge believed that it would not make sense for a realty company to purchase an umbrella policy that only covered its office. The Appellate Court affirmed, finding that the endorsement was ambiguous and that it had to be construed against the insurer. o. Illinois State Bar Association Mutual Insurance Company v. Frank M. Greenfield and Associates, P.C., 2012 Ill App (1st) : This case concerned whether an admission of error in a legal malpractice claim by a policy holder without his insurance company s approval gave the company the right to deny coverage and not defend the attorney and his firm. The attorney admitted to making a mistake in drafting a client s will that affected the distribution of funds from a trust established by his client. The attorney sent a letter acknowledging his mistake to all the trust beneficiaries. The Appellate Court held that the voluntary payments exclusion in the attorney s professional liability insurance policy, which required the attorney not to admit any liability without the insurer s prior written consent, was unenforceable as against public policy because it could operate to limit an attorney s disclosure to his clients. p. State Farm Mutual Automobile Insurance Company v. McFadden, 2012 IL App (2d) : This case required the court to determine if an insured could stack its underinsured coverage. The insured was involved in an automobile accident. In the automobile accident, the driver of the other vehicle had coverage in the amount of $250,000; however, the insured s damages exceeded $250,000. The insured and her husband collectively held five policies which contained an underinsured limit of $100,000 apiece. The insured argued that they should be allowed to stack the underinsured coverage to provide them with an additional $250,000 in coverage in excess of the $250,000 of insurance coverage of the driver of the automobile that hit them. 18

19 State Farm filed a declaratory judgment action arguing that the policy language explicitly forbade stacking and that even if the policy language did not explicitly forbid stacking, previous Illinois cases held that the driver s policy be offset one by one against each of the insured s policies underinsured coverage amount before a policy amount may be stacked with the others. The court found that the language of the policy was unambiguous as it said if underinsured motor vehicle coverage for bodily injury is available to an insured for more than one policy provided by us or any other insurer, the total limit of liability available from all policies provided by all insurers shall not exceed the limit of liability of the single policy providing the highest limit of liability. q. United National Insurance Company v. 200 N. Dearborn Partnership, 2012 IL App (1st) : This case arose out of an accident suffered by an employee at the building that the Defendant partnership owned. Prior to the accident, the partnership was added to another insurance policy issued by United National Insurance Company as an additional insured. One of the endorsements of being an additional insured was that if liability was to be imposed on the additional insured because of its acts or omissions and those who have been named insured, the insurance would serve as co-insurance with any other insurance available to the additional insured in proportion to the limits of the availability of all involved policies. Defendant also had their own primary insurance through Hartford Insurance. United National filed a declaratory judgment action, alleging that they did not have a duty to defend because their policy contained an exclusion for employer s liability which excluded coverage for bodily injury to an employee of the insured arising out of and in the course of employment by the insured. Hartford sought summary judgment against United National on the basis that United National was estopped from denying coverage or raising any coverage defenses because United National breeched its duty to defend. Hartford further alleged that United National was estopped from contesting coverage because United National waited almost four years after the partnership s tender of defense and less than one month before trial was to begin in the underlying lawsuit to file a declaratory judgment action. The court held that United National was not estopped from contesting coverage because they defended the partnership under a reservation of rights and also filed a declaratory judgment action. The next issue was whether the employee liability exclusion in United National s policy excluded coverage for the injured worker because he was the insured s employee. The partnership argued that since he was never named as an employee in the pleadings he should not be treated as an employee. United National argued that the partnership had presented evidence to the trial court that the individual was an employee in various underlying 19

20 documents. The court held that the trial court was within its rights to find that the individual in question was an employee. The court next considered the targeted tender rule. The targeted tender rule stands for the proposition that when an insured is covered under more than one insurance policy it may tender its defense solely to one insurer. That insurer may not seek equitable contribution from another insurer whose policy is in existence but whose coverage the insured has refused to invoke. Early on in this matter, the partnership had instructed United National that it would not invoke its Hartford coverage to provide a defense. Subsequently, United National only provided 50% of the defense costs since it believed its policy only acted as co-insurance. However, under the targeted tender rule, the partnership could choose which insurance it wished to invoke and therefore United National should have provided 100% of the defense. r. Vedder v. Continental Western Insurance Company, 2012 IL App (5th) : This case involved a volunteer for an ambulance service, who struck someone in her own vehicle while serving as a volunteer. The individual whom the volunteer struck filed suit against both the volunteer and the ambulance company. The volunteer was insured under a personal insurance policy at the time of the accident. The ambulance service also had insurance coverage in this matter, but the policy provided that for any covered automobile that the ambulance company owned, the coverage was primary insurance, and for any covered automobile that they did not own the insurance provided by the coverage was excess. The volunteer and her insurance company attempted to tender this matter to the ambulance s insurance company. The court found that the targeted tender of her defense to the ambulance s insurance company was ineffective because the coverage provided by that insurer was excess and because the volunteer did not pay a premium for or bargain for coverage under the ambulance service s policy. The court found that the principle of horizontal exhaustion required that an insured who has multiple primary and excess policies covering a common risk to exhaust all primary policy limits before invoking excess coverage, thus the principle of horizontal exhaustion did not allow the volunteer to target tender to an excess insurer. s. Illinois Emcasco Insurance Co. v. Waukegan Steel Sales, Inc., 2013 IL App (1st) : Worker was injured at a construction site. The worker was an employee of the subcontractor. The worker sued both the contractor and the subcontractor for negligence. The contractor attempted to tender its defense to the subcontractor s insurance company because the subcontractor had a policy on which the contractor was an additional insured. The subcontractor s policy only provided coverage for the contractor for vicarious liability, though. It was undisputed that the 20

21 worker s complaint did not allege any facts which would tend to lead to vicarious liability against the contractor. Insurance company filed a declaratory judgment asking the court to find that it had no duty to defend the contractor. The trial court, on its own initiative, reviewed the third party complaints against the subcontractor, which tended to indicated that vicarious liability might exist. The trial court denied the Plaintiff s motion. The Appellate Court held that the trial court was not precluded from reviewing third party complaints to determine whether the insurer had a duty to defend the contractor. t. Pekin Insurance Company v. Equilon Enterprises, LLC, 2012 Ill App (1st) : Plaintiff insurance company brought a declaratory judgment action in which it alleged it had no duty to defend a franchise in an underlying lawsuit brought by a gas station patron who was injured when gasoline fumes exploded after he lit a cigarette. At issue were two endorsements in the gas station franchisee s liability policy. The first one provided coverage to franchisors for negligence in granting a franchise, and the second provided coverage for liability arising out of a franchisee s operations or premises owned or rented by the franchisee, but not for the franchisor s negligence. The matter arrived at the Appellate Court after the Circuit Court denied the insurer s motion for summary judgment and granted judgment in favor of the franchisors. The first issue was whether the Circuit Court was precluded from considering summary judgment evidence other than that contained in the underlying personal injury complaint. The Appellate Court found that it was not precluded because the consideration of the franchise agreements that the franchisors relied on to challenge the insurer s motion for summary judgment could have operated to determine an issue critical to the underlying personal injury action brought by the injured patron. The court went on to find that the two endorsements, when read together, were ambiguous and had to be construed against the insurer as the issuer of the policy. u. Metzger v. Country Mutual Insurance Co., 2013 IL App (2d) : Plaintiff driver filed a declaratory judgment action against his insurance company. Plaintiff owned and operated a construction business. At the time of the automobile accident which led to the declaratory judgment, Plaintiff was operating a truck which was registered in the Plaintiff s name individually, but was used only for business purposes, was purchased with the trade-in allowance of another business truck, and the insurance for the vehicle was paid for out of the business checking account. There was a liability policy on the vehicle itself, but the Plaintiff alleged that the insurance policy for the business also provided coverage for the automobile accident. Within the business policy, there was coverage only for non-owned auto, which was defined as any auto you do not own, lease, hire, or borrow which is used in connection with your business. At the trial court, the judge agreed with the Plaintiff, finding 21

22 that the truck in question was a non-owned auto because the vehicle was titled in the name of the driver only and not the business. The Appellate Court found that who owned the vehicle was irrelevant, because at the time of the accident the corporation had borrowed the vehicle from the driver. Since a borrowed vehicle was not considered a non-owned auto, the Appellate Court reversed the trial court. v. West American Insurance Co. v. Midwest Open MRI, Inc., 2013 IL App (1st) : The facts of this matter are is as follows: Defendant, a medical company which specialized in MRI services, was sued by a competitor who alleged that Defendant had violated the Consumer Fraud and Deceptive Business Practices Act. (815 ILCS 505/1, et seq.) The competitor alleged that Defendant was giving kickbacks to doctors who referred MRI s to their location. Defendant had a policy of insurance with Plaintiff, which covered bodily injury, property damage and personal and advertising injury liability. Under the policy, Plaintiff provided coverage for any loss of use of tangible property that is not physically injured and for any loss caused by discrimination or humiliation that results in injury to the feelings or reputation of a natural person. V. MALPRACTICE The parties filed cross-motions for summary judgment at the trial court and the judge granted Plaintiff s motion, finding that there was no duty to defend or indemnify in this matter. The Appellate Court affirmed, holding that any loss incurred by Defendant in this matter was not a loss of use of tangible property; rather it was an ordinary economical loss that was not covered under the policy. Further, the court held that any loss would also not be covered by the personal or advertising injury clause, as such injuries only occur to a natural person and therefore could not be applied to a corporation. a. Wilson v. Edward Hospital, 2012 IL : This case involved a medical malpractice claim. Plaintiffs filed a complaint in the trial court which alleged that the doctors were acting as actual agents of the hospital at the time of the alleged malpractice. The hospital filed a motion for summary judgment, which the court granted in part on the grounds that the two doctors were not the hospital s actual agents. Subsequently, Plaintiffs filed an amended complaint which alleged that the doctors were the hospital s apparent agents. The hospital then moved to dismiss on the grounds that the trial court s earlier finding that the doctors were not the hospital s actual agents was a final judgment on the merits and that the re-filed action should be barred. The trial court denied the motion but certified a question to the Appellate Court pursuant to Supreme Court Rule 308(a) on the issue of whether actual agency and apparent agency are separate claims. If they were not, the prohibition against claim 22

23 splitting would bar the re-filing of the complaint based on apparent agency. The Appellate Court answered the certified question in the affirmative and the Supreme Court granted Plaintiffs leaves to appeal. The Supreme Court held that apparent agency and actual agency were theories of recovery that were elements of a medical malpractice claim and not separate claims themselves. This overruled Williams v. Ingalls Memorial Hospital, 408 Ill.App.3d 360, 348 Ill.Dec. 468, 944 N.E. 2d 421 (2011). b. Home Star Bank and Financial Services v. Emergency Care and Health Organization, Ltd., 2012 IL App (1st) : The guardian of the estate of a disabled patient brought a medical malpractice action against the emergency room physician and the emergency room physician s group. The Defendant doctor was working in the emergency department at a hospital. During his shift, he responded to a code blue call for a disabled adult whom the doctor had never met. The doctor attempted to intubate the disabled adult and otherwise respond to the situation, but as a result of the doctor s action the disabled adult suffered permanent brain injury. The doctor did not charge a fee for his services. The estate of the disabled adult filed a medical malpractice claim but the doctor asserted that he was immune from liability under a provision of the Good Samaritan Act (745 ILCS 49/25) which states that any person licensed to practice medicine who in good faith provides emergency care without fee to a person shall not, as a result of his acts or omissions, be held liable for civil damages except if the person engages in willful or wanton misconduct. The trial court was persuaded by the doctor s argument and granted summary judgment on the counts relating to the doctor. The Appellate Court noted that a case decided in a different circuit, Estate of Edgcomb, 355 Ill.App. 3d 645, 823 N.E.2d 1123 (2005), had held that a physician claiming immunity under the Act must show that he or she acted in good faith, provided emergency care, and did not charge a fee. The holding specifically stated that unless a physician has billed for the emergency care services he has not charged a fee as contemplated by the legislature and Section 25 of the Act. The Appellate Court went on to note that it was uncontested in this case that the doctor had provided emergency care in good faith to the disabled adult and it was also uncontested that neither the disabled adult nor the insurer was billed for the emergency care provided by the doctor; neither the doctor nor his company was ever compensated for the emergency care. The court noted that they are not bound by the opinions of sister appellate courts and went on to find that the Good Samaritan Act was ambiguous because the legislature never defined without fee. The Appellate Court determined that the Good Samaritan Act was meant to protect volunteers and it was never meant to be a shelter for practicing physicians who acting in the scope of their 23

24 employment received payment for their emergency services. It found that even though a fee was never charged for this specific act, because the doctor group had a contract with the hospital to provide emergency physician services to the hospital s emergency room 24 hours a day and 7 days a week in return for a monthly stipend he was paid by the hour and the emergency room doctor on duty was expected to respond to a code blue. As a result, the case was reversed and remanded. c. The Estate of Perry C. Powell v. John C. Wunsch, PC, 2013 IL App (1st) : This legal malpractice case addressed the issue of to whom a duty is owed in a wrongful death case. In this case, the decedent had two children, one of whom was disabled. Decedent allegedly died from medical malpractice, and his next of kin hired the Defendant law firm to prosecute a wrongful death and survival claim. Subsequently, the law firm was able to retain two recoveries: one for $5,000, and the other for $118, The disabled adult s guardian was his sister, who also received $118, as part of the same settlement. The funds were deposited into a joint bank account in both the sister and the disabled adult s name. Approximately three years after the settlement, the disabled adult s mother became concerned that he was not being cared for properly. She filed a petition to remove the sister as the disabled adult s guardian. Subsequently, the public guardian was appointed for the disabled adult and filed a complaint alleging that the Defendant law firm was negligent in not making sure that the settlement was distributed through the probate court. The Defendant law firm filed a motion to dismiss, arguing that they did not owe a duty to disabled adult and that even if a duty was owed the breach of that duty was not the proximate cause of Plaintiff s damages. The trial court granted the law firm s motion to dismiss. The Appellate Court held that the law firm did owe a duty to the decedent s next of kin in the underlying wrongful death action and specifically that the settlement proceeds be distributed in accordance with the wrongful death act. The court agreed with the trial court s dismissal of the count regarding the $5,000 settlement, but found that but for the law firm s breach of its duty, a guardian would have been appointed to receive the wrongful death proceeds in the second action. d. Frezados v. Ingalls Memorial Hospital, 2013 IL App (1st) : In this case, a patient of a hospital brought an action against the hospital alleging the hospital was vicariously liable for the negligent acts of two of its treating physicians. At the hospital, Plaintiff signed a form indicating that he was aware that all physicians providing services at the hospital were independent contractors and were not employees, agents, or apparent agents of the hospital. At issue was whether or not an apparent agency relationship existed between the hospital and Plaintiff s treating 24

25 physicians. The Appellate Court upheld the trial court s grant of summary judgment for Defendants, finding that the form was clear and understandable, and that because Plaintiff signed it, he is presumed to have read it. The court specifically rejected a claim made by Plaintiff that he did not read the form because he was in too much pain. e. Fink v. Banks, 2013 IL App (1st) : Defendant represented Plaintiff in a criminal defense case. The State alleged that Plaintiff had committed first degree homicide in the shooting of his girlfriend. A jury convicted Plaintiff and the trial court sentenced him. Plaintiff s conviction was later vacated on the basis of ineffective assistance of trial counsel and a new trial was ordered. Authorities then charged Plaintiff with a lesser offense in connection with the same incident, which he was convicted of. Plaintiff filed a two-count legal malpractice complaint against Defendant alleging negligent misrepresentation in the first criminal trial and breach of fiduciary duty for failing to refund money. Defendant filed a motion to dismiss on the theory that Plaintiff could not prove his actual innocence, which is a prerequisite for a criminal legal malpractice claim. The trial court dismissed Plaintiff s complaint, finding that the order vacating the Plaintiff s first conviction did not prove that he was actually innocent, rather Plaintiff s conviction on a lesser criminal charge refuted any contention that he was actually innocent. f. 800 South Wells Commercial, LLC. v. Horwood Marcys and Berk Chartered, 2013 IL App (1st) : Plaintiff filed a lawsuit against Defendant law firm alleging that it aided and abetted the manager and vice president of its company in breaching their fiduciary duties to Plaintiff. Plaintiff did not allege legal malpractice. The suit was filed more than two years after the alleged conduct. The trial court granted a motion to dismiss by the law firm finding that the two year statute of limitations for legal malpractice is not limited to legal malpractice claims but also includes any claims arising out of the provision of legal services. The Appellate Court affirmed. g. Nelson v. Quarles and Brady, LLP, 2013 IL App (1st) : Client brought legal malpractice action against former attorney for failing to raise additional available arguments in underlying litigation. Attorneys filed a motion to dismiss, alleging that Plaintiff had failed to state a claim. Trial court granted the motion to dismiss. Appellate Court held that the allegations made by Plaintiff were enough to state an actionable claim against Defendant. Further, that in proving the case within a case, the client did not have to show what the trial judge and the underlying action would have done if presented with the evidence, but rather what a reasonable judge would have done. 25

26 h. Steele v. Provena Hospitals, 2013 IL App (3d) : The estate of an adult patient who died from undiagnosed chicken pox brought a wrongful death and medical malpractice suit against the emergency room physician and hospital where she was treated. Patient s estate argued in the trial court that her failure to read the hospital s consent form, which provided that physicians were independent contractors and not subject to supervision or control by the hospital, negated the consent. The estate also argued that the patient was relying on her physician s status as an employee of the hospital in seeking emergency care. After jury trial, judgment on a jury verdict was entered in favor of Plaintiff s estate. The Appellate Court held that the patient s failure to read the form before signing it did not negate consent, and that vicarious liability against the hospital was precluded by the form itself. It also held that the trial court abused its discretion in admitting the lay testimony of three witnesses that the patient s rash looked like chicken pox. It held that evidence of subsequent treatment provided to the patient was relevant to whether the ER doctor breached the standard of care and that the trial court was acting within its discretion in allowing an infectious disease specialist to testify as an expert witness on the standard of care applicable to an emergency room physician. i. Wells v. St. Bernard Hospital, 2013 IL App (1st) : This is a case that should be near and dear to all of our hearts. Plaintiff s decedent died as a result of medical malpractice at Defendant s hospital. The decedent hired an attorney who was able to secure a large settlement. The attorney then filed a petition for enhanced attorneys fees pursuant to 735 ILCS 5/2-1114, which was granted. Four months after the trial court awarded the enhanced fees, Plaintiff was examined by a psychiatrist who determined that Plaintiff was suffering from major psychiatric illness. The Office of the Public Guardian was appointed as temporary guardian of Plaintiff, and the court subsequently declared her to be a disabled person. The public guardian then filed a petition to vacate the enhanced fee award, arguing that Plaintiff lacked capacity to consent to her counsel s petition for enhanced fees. The trial court found in favor of the attorney and the Office of the Public Guardian appealed. The Appellate Court noted that a party s ability to give consent is not one of the enumerated factors that courts must use in determining whether or not an attorney performed extraordinary services necessary to receive enhanced fees. After reviewing the evidence, the Appellate Court determined that the attorney had presented sufficient evidence that he had performed extraordinary services and affirmed the trial court. 26

27 VI. NEGLIGENCE a. Wilkins v. Williams, 2013 IL : Plaintiff was a motorist who was making a left turn when she was struck by an ambulance. At the time of the accident, the ambulance was engaged in the non-emergency transport of a patient, and did not have its emergency lights engaged. Plaintiff sued the ambulance driver and the ambulance company. At issue was the interpretation of the Emergency Medical Services Act (210 ILCS 50/3.150(a)). The Act provides immunity from civil liability based on provision of emergency or non-emergency medical services in the normal course of conducting one s duties except in the case of willful and wanton conduct. Defendants filed a motion for summary judgment, which was granted. The Appellate Court reversed, holding that the immunity provided in the EMS Act did not extend to third party negligence claims based on the ordinary operation of a motor vehicle. The Supreme Court accepted appeal. The Supreme Court held that there was no distinction for purposes of immunity under the EMS Act between ambulances operating under lights and siren and those not operating under lights and siren. The Plaintiffs had alleged that the section of the Vehicle Code Act (625 ILCS 5/ (b)) setting forth the duty on part of an authorized emergency vehicle to drive with due regard for the safety of all persons using the highway did not abridge the provisions of the EMS Act conferring immunity. The Supreme Court held that because Plaintiff had never amended her complaint to allege willful and wanton conduct, the case would not be remanded to the trial court. Justice Kilbride filed a dissent, writing that he believed that when a general statutory provision and a more specific one related to the same subject, that the court should presume that the legislature intended the more specific statement to govern. Justice Kilbride would have held that the provision of the vehicle code abrogated the EMS Act immunity and that Plaintiff should be allowed to go forward with her negligence claim. b. Choate v. Indiana Harbor Belt Railroad Company, 2012 IL : Plaintiff was a minor who was injured while attempting to jump aboard a moving freight train. After a jury trial, the Circuit Court entered judgment for the minor and denied the railroad s post-trial motion for a judgment not withstanding the verdict. The Appellate Court noted that the law imposes a duty upon a land owner to exercise reasonable care to remedy dangerous conditions on the premises, or to otherwise protect children from injury resulting from the dangerous condition, where: (1) The landowner knew or should have known that children habitually frequent the property, (2) A defective structure or dangerous condition was present on the property, (3) A defective structure or dangerous condition was likely to injure the children because they are incapable based upon 27

28 age and maturity, of appreciating the risk involved, and (4) The expense and inconvenience of remedying the defective structure or dangerous condition was slight when compared to the risk to the children. The court went on to write that the foreseeability of harm to children is the cornerstone of a landowner s liability from failing to protect children from injury resulting from a dangerous condition on the property. The Supreme Court ruled that a moving train is an obvious danger that any child allowed at large should realize the risk of coming within the area made dangerous by it. This overruled LaSalle National Bank v. City of Chicago, 132 Ill.App.3d 607, 88 Ill.Dec. 102, 478 N.E.2d 417 (1985); and Engel v. Chicago and Northwestern Transportation Company, 186 Ill.App.3d 522, 134 Ill.Dec. 383, 542 N.E.2d 729 (1989). Justice Kilbride filed a dissent in which he noted that the uncontested facts of this matter establish that the Defendant railroad company knew that children, including Plaintiff, were regularly and repeatedly trespassing on its property. These trespassing children attempted to board moving trains and climb over or through trains. In other words, not only was it foreseeable to Defendant that children were trespassing and engaging in dangerous conduct that could harm them but Defendant had actual knowledge of the situation. He went on to write that until this decision the court only recognized three per se examples of an obvious danger that a landowner has no duty to protect child trespassers from: fire, drowning in water and falling from height. Justice Kilbride would not have added moving trains to this list. c. McDonald v. Northeast Illinois Regional Commuter Railroad Corporation 2013 IL App (1st) B: This case involved a pedestrian who was struck by a train while crossing railroad tracks. The facts showed that the oncoming train sounded its horn as it approached the pedestrian crossing, the pedestrian could have seen the train approaching if he had looked both ways before stepping into its path, the pedestrian had time to stop and step back away from the tracks before the train arrived, and the pedestrian should have realized the risk of entering the crosswalk in attempting to hurry across the tracks in advance of the trains arrival. In the trial court, a jury found in favor of the pedestrian s estate and the judge subsequently denied the railroad s motion for judgment notwithstanding the verdict. The Appellate Court affirmed the trial court and the Supreme Court granted leave to appeal. The Supreme Court, in its supervisory capacity, directed the court of appeals to vacate its order and reconsider the case in light of Choate v. Indiana Harbor Belt R.R. Co., 2012 IL , 366 Ill. Dec. 258, 980 N.E. 2d 58 (Ill. 2012), discussed above. Not surprisingly, after reviewing Choate, the Appellate Court reversed the trial court s order and found that the facts presented in the case indicated the pedestrian crossing was an open and obvious danger. 28

29 d. Morris v. Ingersoll Cutting Tool Co., 2013 IL App (2d) : Slip and fall case. Plaintiff was a truck driver who stopped at the Defendant s premises to receive goods. He backed his truck into the loading bay and began to exit from the vehicle. As he proceeded towards his rear trailer door, his foot got caught on a difference in elevation in the ground, which was approximately 1 ½ inches, causing him to fall and sustain injury. Plaintiff was aware of the crack prior to the date of the accident and had informed Defendants of it. The Defendants filed summary judgment arguing that the de minimis rule precluded negligence claims for minor defects in outdoor surfaces. The trial court granted the Defendant s motion for summary judgment. On appeal, the court agreed that this case fell under the de minimis rule and that there were not sufficient aggravating factors to remove the case from the purview of the de minimis rule. e. Lough v. BNSF Railway Company, 2013 IL App (3d) : The Defendant railroad company s employee struck Plaintiff while Defendant was driving an automobile. Plaintiff died twenty-two months after the accident from congestive heart failure and/or chronic obstructive pulmonary disease/emphysema, which were the causes of death listed on the death certificate. Plaintiff s heirs sued Defendant for wrongful death and survival. At the trial court, the Defendant argued that the conditions that caused Plaintiff s death were not caused or exacerbated by the accident and that wrongful death was inappropriate. Plaintiff s doctor testified that he believed that there was no connection between the accident and the Plaintiff s death. The trial court granted Defendant summary judgment on the wrongful death counts while allowing the survival action to proceed. The Appellate Court affirmed the circuit court s finding, noting that when Plaintiff relies upon circumstantial evidence to establish proximate cause to defeat a motion for summary judgment in a negligence action, the circumstantial evidence must be of such a nature and so related as to make the conclusion more probable as opposed to merely possible. f. Foreman v. Gunite Corporation, 2012 IL App (1st) : A truck driver who was injured when his truck overturned on an interstate ramp brought a personal injury action against the facility s owner that loaded the driver s trailer with goods. At trial, Plaintiff testified that he had no recollection of the accident because of a brain injury that he sustained. However, he presented testimony from a fellow truck driver who testified that on the day of the accident the load in his truck was not secured properly and that when he arrived at his destination, he observed that the two trucks before him had also been loaded improperly such that the two trailers were touching. The defense introduced a report which found that the accident resulted from driver error. Defendant also filed a motion to strike the other truck driver s testimony but never gained a 29

30 ruling prior to the court granting summary judgment for Defendant. The Appellate Court found that circumstantial evidence could lead the trier of fact to find in favor of Plaintiff and remanded the case back to the trial court. It also noted that because Defendant had never obtained a ruling on the motion to strike, Defendant s objection was waived. g. Greene v. Wood River Trust, 2013 IL App (4th) : Slip and fall case. Plaintiff was injured as she approached her apartment, which she rented from Defendant. Plaintiff filed a complaint alleging that Defendant s snow removal efforts as well as the construction of Defendant s property led to an unnatural accumulation of snow and ice, causing her to slip and fall. Defendants filed a motion to dismiss the initial complaint, which was granted. Plaintiff subsequently filed another complaint with similar allegations to the initial complaint, adding that the conduct was willful and wanton. Defendants filed another motion to dismiss, which was granted. The Appellate Court held that Plaintiff s allegations of defective construction were not barred by the Snow and Ice Removal Act (745 ILCS 75/1, et seq.) because the allegations were not premised on the removal of snow, rather by the defective condition of the property. h. Rettig v. Heiser, 2013 IL App (4th) : Plaintiff filed a negligence action against the driver who struck her vehicle from the rear. The other driver was attempting to avoid a head-on collision at the time of the accident, which caused her to strike Plaintiff. The facts showed that at the time of the accident, the rear driver was driving within the speed limit, it was drizzling, several other vehicles were on the road, and the rear driver had to react in an instant to another car. Defendant filed a motion for summary judgment arguing that she did not breach any duty to Plaintiff. The trial court granted the motion to dismiss. The Appellate Court held that, as a matter of law, a rear driver is not precluded from prevailing on a motion for summary judgment. The court then went through the individual allegations of negligence and found that there was no genuine issue as to any material fact with regard to any duty of care owed to the Plaintiff, so it affirmed the trial court s order. i. Skaperdas v. Country Casualty Insurance Co., 2013 IL App (4th) : Plaintiff sued Defendant insurance company and Defendant insurance agent for negligence in failing to add a named insured to the policy that Plaintiff purchased. The trial court found that because Defendant insurance agent was acting as an agent rather than as broker he did not owe Plaintiffs a duty of care in procuring insurance coverage for them. The Appellate Court analyzed the Illinois Insurance Placement Liability Act (735 ILCS 5/2-2201) to determine if the legislature meant to distinguish between treatment for insurance agents and insurance brokers. The court held that anyone who is required to be licensed to 30

31 sell, solicit, or negotiate insurance has a duty to exercise ordinary care in procuring the insurance, reversing the trial court. j. Solorio v. Rodriguez, 2013 IL App (1st) : Dog bite case. Plaintiffs filed a complaint against the dog owner and the owners of the land where the dog was kept. The counts against the dog owner were based upon theories of strict liability and negligence, as well as statutory liability pursuant to the Animal Control Act (510 ILCS 5/1, et seq.). The other counts were for private nuisance, alleging that the Defendant land owner unreasonably interfered with Plaintiffs use and enjoyment of their property by allowing a vicious dog to be harbored at its neighboring premises and for negligence alleging that the land owner knew that the dog owner was keeping a vicious and dangerous dog on the premises. In the trial court, the land owner filed a motion to dismiss, claiming that Plaintiffs had failed to allege any facts showing that he engaged in a private nuisance and that he owed Plaintiffs no duty that would give rise to a negligence action because he did not control or own the dog. The counts relating to the property owner were dismissed. On appeal, the court found that the private nuisance claim was properly dismissed because Plaintiffs did not present any evidence to suggest the dog being kept on the premises prevented or impaired the use or enjoyment of their property. With regard to negligence claim, the Appellate Court found that absent evidence of a dog s vicious propensity the dog is presumed to be tame, docile, and harmless. Therefore, in a negligence action based on a dog biting incident, to show the Defendant owed a duty to Plaintiff, Plaintiff needs to show that Defendant knew or had reasons to know the dog would be dangerous to children. Since Plaintiff had not presented any evidence that the land owner knew that the dog was dangerous, the court affirmed the dismissal of the negligence counts against the landlord, declining to extend a landlord s duty to protect third parties from injury caused by tenants pets. VII. PRODUCT LIABILITY a. Baley v. Federal Signal Corporation, 2012 IL App (1st) : The precedential value of this opinion may be limited as it was reached by one justice who wrote for a majority, another justice separately concurred and another justice dissented. Plaintiffs were a group of firefighters who brought a products liability action against a siren manufacturer alleging the sirens were unreasonably dangerous and defective as exposing firefighters to excessive noise. Plaintiffs proceeded under a strict liability theory which required them to prove: (1) The injury complained of resulted from the condition of the product, (2) The condition was unreasonably dangerous, and (3) The condition existed at the time the product left the manufacturer s control. Specifically, Plaintiffs alleged a 31

32 design defect. This required them to meet one of two tests: (1) The risk utility test, which required Plaintiffs to prove that the magnitude of the danger outweighed the utility of the product as designed or (2) The consumer expectation test, which required the Plaintiffs to prove that the product failed to perform as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. At trial, Plaintiffs called an expert witness with the following qualifications: Bachelor s and Master s Degrees in Physics with a Doctorate in Acoustics, experience as a research scientist in acoustics for an electronics division of an automobile manufacturer, designer of audio and noise control systems in automobiles, published articles on acoustics, and held various patents in noise control designs. The trial court certified the Plaintiff s witness as an expert and the expert witness testified to an alternative design based on manufacturer s documents including scientific data, manuals and reports, and computer models but had not actually been built. Defendant objected to this testimony regarding a feasible alternative design because the product had never been built. Following the presentation of the evidence, the jury returned a verdict in favor of the Plaintiffs and Defendant filed a motion for JNOV which was denied. Defendant appealed. The Appellate Court held that the Plaintiffs had laid a proper foundation for their expert witness and that the expert witness was properly allowed to testify as to a feasible alternative design. The court noted that the factor is called a feasible alternative design and not an actual alternative design. b. Solis v. BASF Corporation, 2012 Ill App. (1st) : Plaintiff filed a negligence and strict liability personal injury case against the distributor of a chemical used in artificial butter flavoring. At the trial court, a jury verdict was returned for Plaintiff, but the court directed a verdict on the statute of limitations defense made by Defendant. At issue was the discovery rule, which states that the cause of action does not accrue until Plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another. At trial, Plaintiff presented evidence that he was not diagnosed with any injury to his lungs until 2006, and subsequently filed suit in However, the defense presented evidence that Plaintiff was aware of his symptoms prior to the diagnosis. The Appellate Court found that the standard for directing a verdict had not been met in this case and reversed and remanded for a new trial so the jury could consider the statute of limitations question. The Appellate Court also held that the trial court erred in allowing Plaintiff to question his treating pulmonologist about his specific case report article that was published in a medical journal between the time of filing suit and trial because its only function was to bolster his opinion testimony. Further, it 32

33 was an error to allow the Plaintiff to use a revised material safety data sheet for anything other than impeachment. In this case, Plaintiff properly used the revised material safety data sheet to impeach the Defendant s expert, who stated in trial that it was not scientifically proven that diacetyl caused Plaintiff s symptoms. However, it was improper to allow Plaintiff to use the revised material safety data sheet to ask experts who had not taken a position on whether the exposure to the chemical had caused Plaintiff s symptoms if they had seen the revised material safety data sheet. Further, in giving guidance to the trial court, the Appellate Court held that a distributor s duty to disclose dangers of exposure only runs to those who use the product that it distributed and the distributor had a duty to adequately warn and instruct users of the dangers of its products. VIII. MISCELLANEOUS ACTIONS a. Toftoy v. Rozenwinkel, 2012 IL : The case involved the Farm Nuisance Act (740 ILCS 70/1 et seq.). In March of 1991, Defendants purchased 160 acres of farmland in rural Kendall County. Across the street from Defendant s farm, on a 120 acre plot of farmland owned by Clarence Toftoy, was a farmhouse that was at least 100 years old. At the time of Defendant s purchase, the farmhouse was occupied by a tenant who had been in the home since In December of 1991, the tenant left the farmhouse. No other tenant moved in. In March of the following year, Defendants began using their property as a cattle farm. In 1998, Clarence Toftoy divided his property and gave 1.3 acres to his son and daughter-in-law, Plaintiffs. The old farmhouse was included in the land given to Plaintiffs. Plaintiffs tore down the farmhouse and began construction of a new home on the same spot. Construction took several years, but Plaintiffs eventually moved into their completed home in In August 2007, Plaintiffs filed suit against Defendants alleging that Defendant s cattle farm was generating a large number of flies that were interfering with Plaintiffs use and enjoyment of their property, and that the flies constituted a nuisance for which Defendants were legally liable. Plaintiffs sought injunctive relief to abate the flies. Defendants moved for summary judgment, citing the Farm Nuisance Act, stating no farm shall be or become a private or public nuisance because of any change conditions in the surrounding area when the farm has been in existence for one year and was not a nuisance at the time it began its operations. Defendants argued that Plaintiffs acquisition and occupation of the property were changed conditions in the surrounding area and that these changes had occurred after Defendant s cattle operation had been in existence for more than one year. The Circuit Court denied Defendant s motion for summary judgment, noting that the manner in which Plaintiff s land was used had not changed since the time of the old 33

34 farmhouse, stating that there was a new house where there was always a farmhouse, only with a new owner. At the conclusion of the trial, the circuit court entered judgment in favor of Plaintiffs and ordered Defendants to take remedial measures, including moist bedding manure to reduce the number of flies. The Appellate Court affirmed. The Supreme Court held that Plaintiffs acquisition of ownership created the legally protected interest, but since Plaintiffs did not acquire the property until 1998, Plaintiffs were not entitled to the protection given by the statute and that their suit was barred by the Farm Nuisance Act. b. Lawlor v. North American Corporation of Illinois, 2012 IL : The facts of this case are as follows: Plaintiff worked for Defendant selling customized corporate branded promotional items. Her role was to generate business, after which the day to day management of the accounts was handled by other employees. In 2005, she began working for a competitor of Defendant. Plaintiff and Defendant had a noncompetition agreement. To determine if Plaintiff had violated the noncompetition agreement, Defendant hired a private investigation firm. Defendant provided the firm with Plaintiff s personal information, and the firm used that information to obtain her personal phone records. Shortly after leaving the company, Plaintiff filed suit against Defendant seeking outstanding commissions and a declaration concerning the enforceability of the non-competition agreement. She later learned of the investigation and amended her complaint alleging intrusion upon seclusion based upon the actions of private investigation firm. Defendant counter-claimed that Plaintiff had breached her fiduciary duty of loyalty by attempting to conduct business with a competitor while employed by Defendant and by communicating confidential information to her new employer. At trial, the jury returned a verdict in Plaintiff s favor and awarded her $65,000 in compensatory damages and $1.75 million in punitive damages. Regarding the breach of fiduciary duty claim, the trial court entered a verdict in favor of Defendant and against Plaintiff in the amount of $78,781 in compensatory damages and $551,467 in punitive damages. Defendant filed a Motion for JNOV after the trial, requesting that the trial court grant its motion for a JNOV or order a new trial, and asking the trial court to vacate or reduce the amount of the jury s punitive damages award. The trial court denied the motion but reduced the punitive damages award from $1.75 million to $650,000. The parties appealed. The Appellate Court affirmed the judgment in Plaintiff s favor on the intrusion claim and reinstated the jury s $1.75 million punitive damages award. The Appellate Court reversed the trial court s order in favor of the Defendant on the breach of fiduciary duty claim. 34

35 The Supreme Court noted that Illinois recognizes the tort of intrusion upon seclusion but found that there was no evidence that the Defendant had an intentional, premeditated scheme to harm Plaintiff, that the phone records were obtained as part of a legitimate investigation to a possible violation of a non-competition agreement, and no evidence was presented that the records were distributed outside of the company or that they were used for improper purposes. The court also noted that the Plaintiff never sought medical or psychological treatment for the invasion of privacy. For all of those reasons, the Supreme Court reduced the award of punitive damages from $1.75 million to $65,000 and affirmed the Appellate Court s judgment regarding Defendant s counter claim in favor of Plaintiff. c. Clanton v. Ray, 2011 IL App (1st) : Plaintiff was a motorist who was involved in two unrelated automobile accidents. The suits were eventually consolidated and the parties agreed to participate in voluntary binding arbitration. Plaintiff had entered into a high-low agreement with the first Defendant wherein he would be awarded no less than $250,000 in damages and no more than $600,000. Plaintiff also entered into an agreement with the second Defendant where the damages awarded would be fixed at $90,250. In his initial decision, the arbitrator found that Plaintiff had suffered $550,000 in damages and that his damages were indivisible, therefore each Defendant was liable for 50%. Plaintiff filed a motion with the Circuit Court requesting clarification from the arbitrator. The Circuit Court granted the motion and remanded the case back to the arbitrator for clarification. In between the first award and the rendering of the second award, the arbitrator discovered the high-low agreement between the parties, although each party had sworn confidentiality and the arbitration agreement specifically barred the parties from disclosing the high-low agreement to the arbitrator. The arbitrator then awarded $275,000 to Plaintiff from the first Defendant and $90,250 from the second Defendant. Plaintiff appealed. The Appellate Court first noted that judicial review of an arbitration award is extremely limited and an arbitration award may only be vacated where a gross error of law or fact appears on the award s face. The court noted that in this case, even though Plaintiff filed her motion for clarification outside of the 20 day limit contained in the Uniform Arbitration Act (710 ILCS 5/1, et seq.), the limit served only as a restriction on the parties seeking clarification from the arbitrator, not as a restriction upon the court s authority. Therefore, it was proper for the arbitrator to provide clarification in this matter. The court found that the fact that one Defendant s liability is capped does not preclude the applicability of joint and several liability and, in such a situation, the cap on the first Defendant s liability does not affect the liability of the other 35

36 Defendant from whom Plaintiff may still recover his full measure of damages. The court vacated the second arbitration award finding that the arbitrator had exceeded his authority under the arbitration agreement. The court found that it could not enter judgment on either award and remanded the parties to seek a new arbitrator. d. Clayton v. Planet Travel Holdings, Inc., 2013 IL App (4th) : This was a fact driven case involving claims of consumer fraud and deceptive business practices made by Plaintiffs. At the trial court, judgment was entered in favor of Plaintiffs for actual damages of $5, The trial court also awarded Plaintiffs $32, in attorney s fees. On appeal, Defendant contended that the award of attorney fees was disproportionate to the recovery. The Appellate Court first noted that under the Consumer Fraud Act, (815 ILCS 505/10a(c)), reasonable attorney fees may be awarded to the prevailing party. The Appellate Court then enumerated the test to determine reasonableness, which is: (1) the skill and standing of the attorney; (2) the nature of the case; (3) a novelty or difficulty of the issues and work involved; (4) the importance of the matter; (5) the degree of responsibility required; (6) the usual and customary charges for the comparable services; (7) the benefit to the client; and (8) whether there was a reasonable connection between the fees charged and the amount involved in litigation. See Parker v. Nichting, 2012 IL App. (3d) , 358 Ill. Dec. 878, 966 N.E.2d 63. The Appellate Court found that the trial court had not abused its discretion and upheld the award of fees. e. Coghlan v. Beck, 2013 IL App (1st) : This case is further proof that breaking up is hard to do. Plaintiff was a managing partner of an information technology services company who was also the president and served on the board of a business holder s organization. Plaintiff first met Defendant when Defendant submitted a post to Plaintiff s business organization listserv seeking information on technology services for her company. Plaintiff and Defendant entered into an arm s length transaction whereby Plaintiff would provide information technology services to Defendant. Defendant subsequently paid approximately $110,000 in payments to Plaintiff but was not satisfied with the work. Three months after Defendant terminated Plaintiff s relationship, Plaintiff s business organization held a monthly meeting of its Board of Directors. In advance of the meeting, Defendant prepared a written statement claiming that Plaintiff: (1) is a corrupt Director who must indeed go, (2) intercepted a listserv posting for her own benefit, which is indeed a classic conflict of interest, (3) gave away proprietary information belonging to the business organization, (4) induced Defendant to contract with her and to take out a loan for $100,000, (5) pocketed the money, (6) failed to give the deliverable that was 36

37 contracted for, (7) used bully tactics to try to gain yet more money, (8) was using the business organization to operate a fraud machine, (9) used smokescreen tactics to conceal its wrongdoing, and (10) is an offending Director. Plaintiff was understandably upset and filed an action for breach of contract libel per se and slander per se. At the trial court level, Defendant filed a motion to dismiss for failure to state a cause of action, which the trial court granted. The Appellate Court found that the statements used by Defendant were either substantially true or were loose, figurative statements and thus non-actionable. Since both are defenses to liable and slander, the Appellate Court affirmed the trial court. f. Hayes v. Adams, 2013 IL App (2nd) : This is a dog-bite case, and an example of bad facts resulting in bad law. Here, Plaintiff was bitten by a dog whose owner had dropped it off for surgery at a veterinarian s office. Before surgery, the veterinarian attempted to walk the dog, but the dog slipped loose from its collar and subsequently bit the Plaintiff. The section of the Animal Control Act which applied in this case has only four elements, which are (1) an injury caused by an animal owned by the Defendant; (2) lack of provocation; (3) the peaceable conduct of the injured person; and (4) the presence of the injured person in a place where he has a legal right to be. (510 ILCS 5/16). The Appellate Court found that the owner of the dog was not liable for Plaintiff s injuries and went on to write that while the Animal Control Act is not a negligencebased statute, neither is a strict liability statute. The reasoning seemed to be driven by the idea that the Defendant dog owner should not be held accountable for her dog biting someone when she was not in actual physical control of the dog at the time of the bite. g. Jacobson v. Gimbel, 2013 IL App (2d) : Plaintiff sued Defendant for defamation. The facts were as follows: Defendant s husband committed suicide. On the day that he committed suicide, he sent a text message to Plaintiff stating I m gonna be taking my life and I want you to take care of my family and notify them. You can come by way of the back door. I m leaving it open. Thanks for everything. Bye. Plaintiff alleged that Defendant had made statements indicating that Plaintiff had helped Defendant s husband kill himself. To complicate matters, Plaintiff signed a release in favor of Defendant absolving the Defendant of liability after the alleged defamatory statements were made. In the first complaint, Plaintiff alleged that Defendant made the defamatory statements prior to signing the release. The trial court dismissed the claim, but allowed Plaintiff leave to file. For his first amended complaint, the Plaintiff made allegations that the Defendant had made defamatory statements subsequent to Plaintiff signing the release. The first amended complaint was dismissed because 37

38 Defendant argued that Plaintiff s allegations were factually defective and that he failed to plead context of the entire conversations containing the alleged defamatory statement. Plaintiff then filed a second amended complaint which was the subject of this appeal. The specific statements in question were: a. Ask Marc Jacobson about Stuart s death, he helped him and b. Marc Jacobson helped Stuart kill himself. The Appellate Court noted that Plaintiff could not maintain any appeal on his earlier complaints because he had not adopted them in his second amended complaint. As the Appellate Court is fond of reminding us, to avoid forfeiture and preserve claims for appellate review a party can: (1) Stand on the dismissed counts, take a voluntary dismissal of any remaining counts, and argue the matter at the appellate level, (2) File an amended pleading that realleges, incorporates by reference, or refers to the dismissed counts, or (3) Perfect an appeal from the dismissal order prior to filing an amended pleading that does not refer to or adopt the dismissed counts. The Appellate Court then analyzed the content of the statements themselves, and found that these statements were susceptible to an innocent construction, so they were not actionable. Specifically, the court determined that the word help can be reasonably interpreted to mean that the Plaintiff failed to call 911 or the police as soon as he received the message allowing the decedent to complete the deed. Thus, it was not a defamatory statement. h. Stanton v. Rea, 2012 IL App (5th) : Plaintiff was a passenger in a vehicle that was struck by an uninsured motorist. Plaintiff filed suit against the driver of the vehicle in which she was riding and obtained a directed verdict. Following trial, the issue became how to properly apply the Healthcare Services Lien Act (770 ILCS 23/1, et seq.) to the proceeds, specifically whether lien holders under the Healthcare Services Lien Act are responsible for the costs of procuring the settlement or judgment. The trial court did not apportion the costs to the healthcare providers in acquiring the verdict, ordering that those costs be paid solely by Plaintiff. As a result, Plaintiff received nothing. The Appellate Court found that the legislature intended that a plaintiff should receive 30% of any judgment or settlement. To effectuate this, the court ordered that the computation of the 40% of the verdict or settlement that the lien holders are entitled to does not begin until costs associated with bringing the case to trial and securing payment of the judgment have been deducted from the original amount of the verdict. The court also determined the calculation of 40% would not include attorney s fees. i. McRoberts v. Porter, 2013 IL App (5th) : Auto accident case. Plaintiffs recovered $50,000 from liability insurance and another $50,000 in underinsured motorist benefits. Numerous health care providers filed 38

39 liens under the Health Care Services Lien Act stating that they were entitled to 40 percent of the underinsured motorist benefits. The trial court held that because the Health Care Services Lien Act contained the phrase all claims and causes of action, that underinsured motorist benefits were included in this and awarded the health care providers 40 percent of the underinsured motorist benefits. The Appellate Court affirmed and specifically noted that the legislature had used the word any with regard to award, settlement, or compromise which did not limit the recovery in any way. j. Manago v. County of Cook, 2013 IL App (1st) : Plaintiff was a minor who was injured and received medical treatment at the Defendant hospital. Prior to the trial of Plaintiff s premises liability suit, Defendant filed a lien against Plaintiff. Plaintiff subsequently won a verdict and filed a motion to extinguish the lien, based on the following theories: (1) A medical care provider has no claim for reimbursement against funds received by a minor from a tortfeasor pursuant to a judgment or settlement, and (2) Any claim for medical expenses incurred in treating a minor for injuries sustained due to a tortfeasor s negligence belongs to the parents, rather than the child. Defendant filed a response arguing that the Health Care Services Lien Act (770 ILCS 23/1, et seq.) does not allow a lien to be disallowed or reduced for medical services rendered to a minor, regardless of whether the minor s parents have a claim to recover medical expenses from a tortfeasor. The trial court granted the Plaintiff s motion, extinguishing the hospital s lien. The Appellate Court held that the Defendant had no duty to intervene in the underlying personal injury action to protect its hospital lien, and that the lien only comes into existence when a recovery is made because it is only then that there is property on hand to which it may attach. The Appellate Court also found that the lien could be enforced against the Plaintiff even though he was a minor. k. Burns v. Simon Properties Group, LLP, 2013 IL App (5th) : Plaintiff was injured in a mall parking lot after she fell in a pothole. She filed a complaint alleging public nuisance against the former mall owner, which had transferred its ownership interest in the mall and the parking lot prior to the patron s accident. To plead public nuisance, one must allege: (1) The existence of a public right, (2) A substantial and unreasonable interference with that right by the defendant, (3) Proximate cause, and (4) Injury. Defendant filed a motion to dismiss alleging that Plaintiff could not prove public nuisance, because she did not allege the existence of a public right. The court held that the public right that she was attempting to assert was not the type of public right that was contemplated by the nuisance statute, and dismissed the case. The Appellate Court noted that a public right, for purposes of a public nuisance claim, is collective in nature and not like the individual right that everyone has not to be 39

40 negligently or wantonly injured. For that reason, the Appellate Court affirmed. l. Trannel v. Prairie Ridge Media, Inc., 2013 IL App (2d) : Plaintiff brought this matter under the Right of Publicity Act, alleging that Defendant had used her daughter s photograph without the proper permission. (765 ILCS 1075/1 et seq.) The facts were as follows: Defendant published a small magazine that was distributed locally, and Plaintiff and her daughter were contest winners the year previously. As contest winners, Plaintiff and her daughter consented to the use of their photograph in an issue of the magazine. Subsequently, Defendant used a photograph of Plaintiff s minor daughter in a kit it sent out to twentyseven of its advertisers from the previous year. Plaintiff and her daughter then sued under the Right of Publicity Act. To recover under the Act, Plaintiff must show: (1) An appropriation of one s name or likeness, (2) Without one s consent, (3) For another s commercial benefit. Both parties filed motions for summary judgment and after argument Defendants motion was granted. On appeal, the court held that the use of Plaintiff and her daughter s photograph in the media kit sent by Defendant to its advertisers was for a commercial purpose, but Plaintiffs could not prove any damages higher than the $1,000 that was required to recover under the Act. m. Wells v. Endicott, 2013 IL App (5th) : The underlying action in this matter was a wrongful death case that was brought by the father of a three year-old child who was beaten to death by his mother s paramour. At the time of the child s death, the mother and her boyfriend lived with the mother s parents. Plaintiff sued the mother, the boyfriend, the grandparents, and the director of DCFS. The director of DCFS was sued because the agency failed to remove the child from the mother. In the trial court, the grandparents and the director of DCFS filed a motion to dismiss pursuant to Section alleging that the complaint failed to state a cause of action. The trial court granted the motion to dismiss and Plaintiff appealed. The Appellate Court noted that generally, Illinois law does not impose a duty to protect another from a criminal attack by a third person unless the attack is reasonably foreseeable and the parties stand in one of the four special relationships, namely: (1) Common carrier and passenger, (2) Innkeeper and guest, (3) Business invitor and invitee, and (4) Voluntary custodian and protectee. The court first found that the grandparents were not voluntary custodians because the mother had custody of the child, meaning the grandparents had no physical or constructive control, and the mother did not entrust the care of the child to the grandparents. The court affirmed the dismissal of the grandparents case. With regard to the DCFS matter, the court noted that the due process clause only imposes a duty upon the state to protect individuals from harm by private actors when: (1) It has a special 40

41 relationship by virtue of its custody over the individual or (2) Has a duty to protect individuals against dangers the state created itself. In this case the court found the special relationship did not exist because even though DCFS had temporary custody four months prior to the child s death, at the time of his death, the child had been returned to the mother s custody. 41

42 PROCEDURAL LAW I. GENERAL PROCEDURE a. Cooney v. Rossiter, 2012 IL : This matter involved a psychiatrist who was appointed as a psychological evaluator to give an opinion in a custody case. The psychologist diagnosed the mother with mental illness. The trial court relied upon this diagnosis in awarding custody to the father. The mother and two other plaintiffs filed a class action lawsuit in federal court under section 1983 of the Civil Rights Act against the 12 defendants who each played a role in their child custody proceedings, including the named Defendant in this case. The Federal District Court dismissed the lawsuit in its entirety, finding that it was well established that court-appointed psychological evaluators are protected by the same immunity extended to judges and other judicial officers. Plaintiff then refiled the case in state court. Defendant filed a motion to dismiss pursuant to Section of the Code of Civil Procedure. The trial court granted the motion finding that the lawsuit was barred by res judicata and absolute immunity. In analyzing the case, the Supreme Court noted that there were three requirements that must be met for the application of the doctrine of res judicata: (1) there was a final judgment on the merits rendered by a court of competent jurisdiction, (2) there was an identity of cause of action, and (3) there was an identity of parties or their privies. The court noted that the first and third requirement were met and did not offer any analysis on those points. As to the second requirement, Plaintiff argued that there was not an identity of cause of action because Illinois common law and federal common law immunities are different. Writing for the majority, Justice Kilbride noted that Illinois does not require the same evidence or an identical theory of relief, specifically noting that the court had rejected the same evidence test and adopted the transactional test in evaluating whether there is an identity of cause of action between the two cases. Thus, Justice Kilbride wrote: in Illinois, separate claims are considered the same cause of action for purposes of res judicata if they arise from a single group of operative facts regardless of whether they assert different theories of relief. b. Russell v. SNFA, 2013 IL : This case involved exciting issues of personal jurisdiction and minimum contacts analysis. Plaintiff was the estate of the decedent who was a sole occupant of a helicopter, which crashed. At the time of the crash, the decedent was a resident of Georgia, but was living in Illinois and working for an Illinois corporation. The alleged cause of the crash was a poorly manufactured part in the tail of the helicopter, which was made in France. The Supreme Court gave a nice review of a first year civil procedure class, and some of you may 42

43 remember that for a long-arm jurisdiction statute to apply there must be some act by which the Defendant purposely availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Anyone who needs to brush up on their civil procedure should feel free to read the complete facts of this case; however, suffice it to say, the Supreme Court found that the Defendant had the requisite minimum contacts with Illinois for the following reasons: the manufacturer made custom-made bearings for the aerospace industry; the manufacturer knowingly used distributors to market and distribute its products throughout the world, including the United States and Illinois; the distributors made multiple sales of manufacturer s product in Illinois; the bearings at issue were made specifically for a Pennsylvania based company, which provided manufacturer with specifications for the manufacture of the bearings; and the manufacturer had a business relationship with a company in Rockford, Illinois, for custom made bearings used in planes. c. Relf v. Shatayeva, 2013 IL : Plaintiff was injured in an automobile accident in February In February 2010, just prior to the expiration of the two year statute of limitations for personal injury actions, Plaintiff filed suit against Defendant. At the time Plaintiff filed the complaint, Defendant had been deceased for approximately one and a half years, and his will had been admitted to probate in September Plaintiff filed a motion to have a special administrator appointed, and the motion was granted. The special administrator moved to dismiss the complaint on the basis that Plaintiff had failed to take substantive efforts to serve the Defendant with the lawsuit in a timely fashion. The special administrator also noted that the Plaintiff could have proceeded against the personal representative of the estate but did not do so. The trial court granted the Defendant s motion to dismiss the action as time-barred. The Appellate Court reversed and remanded, finding that at the time of the Defendant s death Plaintiff was not aware of the same. The Supreme Court noted that 735 ILCS 5/13 209(c) addresses the situation where Plaintiff is not aware of Defendant s death at the time Plaintiff files suit. That section permits a plaintiff to preserve his or her cause of action by substituting the deceased person's personal representative as the defendant. The plaintiff must also proceed with reasonable diligence in moving the court for leave to file an amended complaint substituting the personal representative as defendant and serving process upon the personal representative. If process is served more than six months after issuance of letters of office to the personal representative, the liability of the estate is limited as to recovery to the extent the estate is protected by liability insurance. Further, in no event can a party commence an action under this subsection unless a personal representative is appointed and an amended complaint is filed within two 43

44 years of the time limited for the commencement of the original action. The court held that for purposes of Plaintiff s lawsuit, the personal representative of the decedent was the one who had been appointed in probate court, and not the special representative that was appointed by Plaintiff. The Supreme Court agreed with the trial court and found that Plaintiff s claims were time-barred. d. Dowd v. Berndtson, 2012 IL App (1st) : Plaintiff had some bad luck choosing her lawyers. She was divorced in 2001 and represented by one law firm. She subsequently hired another law firm to handle post-divorce matters, and eventually decided to pursue a legal malpractice claim against both attorneys. Her malpractice attorney sued the first attorney only and let the statute of limitations run on the second attorney. Thereafter, Plaintiff filed a complaint against the malpractice attorney for not properly preserving her legal malpractice claim against the postdivorce attorney. Plaintiff initially filed her claim in DuPage County but voluntarily dismissed her complaint and refiled it in Cook County. The Defendant law firm then filed a motion to transfer venue based on forum non conveniens. Defendant argued in its motion that the underlying marital settlement agreement was entered in DuPage County as well as the judgment of dissolution. Additionally, all the post judgment proceedings occurred in DuPage County. The motion further claimed that Defendant s principal place of business was in DuPage County and that all the work performed by Defendants was performed in DuPage County. Plaintiff filed a response claiming that the dissolution occurred in Cook County, not in DuPage County, that one of Defendants resided in Cook County, and Defendant could not show the inconvenience greatly outweighed her substantial right to a chosen forum. Plaintiff also claimed that both of her prior attorneys represented her in and had their registered offices in Cook County and that other witnesses likely to be called such as Plaintiff s ex-husband, her ex-husband s attorney, and one of the Defendant s attorney s wife also had offices in Cook County. Finally, since Plaintiff had moved to Florida after the divorce she claimed that it was more convenient for her to travel to Cook County because when she flew in from Florida to Chicago she stayed in Cook County. The trial court denied Defendant s motion and Defendant appealed. At the Appellate Court level, the justices first noted that a forum non conveniens motion requires the court to balance both private and public interest factors. The private interest factors that the court balances include: (1) The convenience of the parties, (2) The relative ease of access to sources of testimonial, documentary, and real evidence, (3) All other practical problems that make trial of the case easy, expeditious and inexpensive. The public interest factors that the court considered included: (1) The interest in deciding controversies locally, (2) The unfairness of imposing 44

45 trial expense and burden of jury duty on residents of a forum that has little connection to the litigation, (3) The administrative difficulties presented by adding litigation to an already congested court docket. After some discussion the court concluded none of the factors required transfer and denied Defendant s appeal. e. Glasgow v. Associated Banc-Corp., 2012 Ill App (2d) : This case involved a bank teller who was injured during a bank robbery and subsequently brought an intentional tort action against her employer. In her complaint, Plaintiff alleged that Defendants knowingly, willfully and purposely failed with obvious intent and outrageous conduct to provide adequate bank security to deter and/or prevent the bank robbery in question. The employee also filed a worker s compensation claim, which was pending at the time of the intentional tort action. The Appellate Court found that the worker s compensation claim was her sole remedy for the injuries allegedly sustained during the bank robbery because once the teller applied for and accepted worker s compensation benefits she was barred from pursuing an intentional tort action against the bank. The court went on to find that even if the claim was not barred by the worker s compensation exclusivity, the teller failed to allege that the bank and branch specifically intended to injure her. f. Pendergast v. Meade Electric Company, Inc., 2013 IL App (1st) : Plaintiff was the estate of a motorist who brought a wrongful death action against the driver of the truck that struck decedent, driver s employer, and designers and manufacturers of traffic control system and devices. The Defendants filed a motion for forum non conveniens. The facts showed that decedent and Defendant driver both resided in Kendall County, the witnesses and the evidence were located in Kendall County, and the accident occurred in Kendall County. Plaintiff filed suit in Cook County. The trial court denied the Defendant s motion for forum non conveniens, and Defendants appealed. After reviewing the facts, the Appellate Court concluded that the determination of a forum non conveniens motion lies within the sound discretion of the Circuit Court, and that there was not enough evidence to reverse the decision. g. Taylor v. Lemans Co., 2013 IL App (1st) : Plaintiff was a motorcyclist who was injured when his front tire blew out. He brought a products liability action against the dealer that sold him the motorcycle and other Defendants alleging strict liability, negligence, and breach of implied warranties. Plaintiff resided in the central Illinois area; the accident occurred in Bureau County. His treatment took place in Peoria County. Plaintiff chose to file suit in Cook County. Defendants were Wisconsin corporations with their principal places of business in Janesville, Wisconsin and an Illinois corporation with its principal place of business in Whiteside County, Illinois. Defendants made a motion to 45

46 transfer venue on the basis of forum non conveniens. The motion requested a transfer to Bureau County, Illinois which was the accident site. After reviewing the appropriate factors, the trial court denied Defendant s motion. The Appellate Court upheld the trial court. h. Rodgers v. Cook County, 2013 IL App (1st) : Plaintiff was the estate of a deceased inmate who brought a medical malpractice action against the county, doctor, and the mental health specialist who treated Plaintiff. Plaintiff also filed a similar suit in Federal Court. At the trial court, the Defendants made a motion to dismiss, arguing that the Plaintiff s State action was precluded by the Federal case. Plaintiff argued that because he did not name the Defendant doctors in the Federal case, that the action should not be dismissed. Trial court granted the motion to dismiss. On appeal, the Plaintiff argued that the case should be reversed, as Plaintiff would not be able to obtain complete relief if the State action was dismissed because the two year statute of limitations would bar it from maintaining an action against the doctors in the Federal case. The Appellate Court found that in deciding a motion to dismiss on the basis of another action between the parties for the same cause of action is pending, the trial court must use its discretion in weighing the prejudice that would result to the non-movant if the motion is granted against the policy of avoiding duplicative litigation. The Appellate Court reversed the matter and remanded it to the trial court with instructions to stay the proceedings until such time as the statute of limitations question could be decided in the Federal Court. i. Klehr v. Illinois Farmers Insurance Company, 2013 IL App (1st) : This case involved arbitration under Plaintiffs automobile insurance policy, specifically the underinsured/uninsured motorist coverage. The case began when the insured made a claim under her own policy, which was referred to the American Arbitration Association for resolution. After the arbitration process began, Defendant served several discovery requests on Plaintiff which included interrogatories, document requests and a request to appear for a sworn statement. Plaintiff refused to comply, contending that discovery of that type is not permissible under the terms of the arbitration clause and applicable Illinois law, or alternatively that any discovery must be conducted within one hundred and eighty days of the initiation of the claim. Plaintiff did not bring the dispute to the arbitrators for a ruling but instead filed a declaratory judgment action in the circuit court. The Circuit Court dismissed the complaint for failure to state a claim and the Appellate Court affirmed. Shortly after the Appellate Court ruling, Plaintiff filed a motion with the arbitrators asking for the same relief that she had sought from the circuit court. The arbitrators denied the motion and ordered Plaintiff to respond to Defendant s discovery requests. Instead, Plaintiff filed another declaratory judgment action and Defendant moved to dismiss because Plaintiff failed to state a 46

47 claim under Section of the Code of Civil Procedure. The Circuit Court on its own initiative raised the issue of subject-matter jurisdiction and found that it did not have subject-matter jurisdiction until the arbitration process had been completed. Accordingly, it dismissed the complaint. The Appellate Court found that the circuit court did have subject-matter jurisdiction over the declaratory judgment action, but as a matter of first impression, since the insured failed to allege that the arbitrators had issued a final award she could not state a claim and that the declaratory judgment had to be dismissed. j. O Halloran v. Luce, 2013 IL App (1st) : This case involved the issue of service of process. The estate of a resident who was killed in a fire at a residence brought an action against the purported property owner, for whom a public guardian had been appointed. The estate initially filed suit against both Defendant and the public guardian. However, the public guardian filed a motion to dismiss, which was granted. Subsequently, Plaintiff filed a complaint solely against Defendant. After failed attempt at personal service, Plaintiff then filed a motion requesting the courts permission to serve Defendant by publication. In the motion, Plaintiff alleged that the Defendant lived as homeless person in the area of Evanston, Illinois and that when the complaint was filed, Defendant could not be located by investigators. Thus, Plaintiff argued that the only available means of service was by publication. The trial court granted Plaintiff s motion for alternative service by publication. On appeal, the court noted that there are two main purposes of service of process. First, service of process gives notice to those whose rights are about to be affected by a plaintiff s action. Second, it vests jurisdiction in the court over the person whose rights are to be affected by the litigation. The Appellate Court held that service by publication was not adequate in this matter because Defendant was adjudicated a disabled person, and it was unlikely that even if he had seen the notice that he would have understood what it meant. The Appellate Court reversed the trial court and held that service by publication was not adequate. k. Payne v. Hall, 2013 IL App (1st) : In this case, Plaintiff was the independent administrator of the estate of a man who fell under a bus and was killed. Defendant was the bus driver. The primary issue was whether Plaintiff could force Defendant to watch a video of the accident during his deposition. Defendant claimed that he had never watched the accident video. Defendant also claimed he was suffering from posttraumatic stress disorder and filed a protective order asking that he not have to view the video or the still photos during both his discovery deposition and trial testimony. The trial court denied the protective order. Defendant agreed to be held in friendly contempt so that he could appeal the denial of the order. 47

48 The Appellate Court first noted that protective orders are proper under Supreme Court Rule 201(c) and are to be granted as justice requires to deny, limit, condition or regulate discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage or oppression. In reviewing the facts of this case the court noted that the Defendant s claim that watching the video would exacerbate his PTSD did not fall under any of the reasons listed for granting a protective order. The court also noted that motions made with respect to limiting testimony at trial are more properly made as motions in limine and should not be the subject of protective orders. l. Walker v. Ware, 2013 IL App (1st) : The underlying action in this matter involved a premises liability claim. After Plaintiff was injured, but before suit was filed, the Defendant property owner passed on. Plaintiff attempted to serve Defendant but the return of service was returned as not served with a notation that indicated that Defendant was deceased. Plaintiff attempted to serve Defendant twice more and each time the return of service was returned as not served with a notation that Defendant was deceased. Between the second and third attempts the statute of limitations expired on Plaintiff s claim. Four months after the issuance of the third summons, Plaintiff filed a motion to serve by special order of the court claiming that Defendant is unable to be served because her family members are falsely stating that she is deceased. The court appointed a special process server who indicated that Plaintiff s family members stated that Defendant was deceased and that he had also spoken to another neighbor who was unaware of the litigation, who confirmed that Defendant was indeed deceased. Plaintiff was subsequently granted leave to spread Defendant s death of record and amend her complaint to name her personal representative. The personal representative was personally served and filed a motion to dismiss arguing that Plaintiff s claim was barred by statute of limitations because Plaintiff had not filed her complaint within the allotted period of time after learning of the death of the Defendant. The trial court denied the personal representative s motion and certified the question to the appellate court as to whether the sheriff s return of service properly provided knowledge of the decedent s death. The court noted that returns of service are prima face evidence of service as to matters within the personal knowledge of the individual executing the service of summons. The court determined that there was no such analogous provision for when service was not completed; however, it found that a return of service that is not served does not have a presumption of validity and can only provide prima face evidence as to matters within the personal knowledge of the sheriff that executed the 48

49 summons. Therefore, the Appellate Court ruled in Plaintiff s favor and allowed her suit to continue. II. APPEALS a. Gaylor v. Campion, Curran, Rausch, Gummerson, Dunlop, P.C., 2012 IL App (2d) : This case involved a law firm who was being sued by its former clients for legal malpractice and fraud. The underlying transaction in this matter began when Plaintiffs decided to participate in a technology venture and wanted to form a new company. Plaintiffs planned to transfer some assets from another company and to secure patents for the new company. The attorney who handled this matter at closing reassured Plaintiffs that he had in his possession the patents which came from the former company in his office. The attorney looked for the patents, but could not find them, and subsequently another patent attorney faxed a memorandum to the closing stating that he was preparing patent applications on the company s behalf but had not filed them. The attorney also said that pending patent applications were better legal protection than the patents themselves. Plaintiffs went through with the closing and the former company signed a licensing agreement, however, the licensing agreement did not transfer intellectual property rights in the patents as Plaintiffs had desired. The Plaintiffs filed a complaint alleging fraud and legal malpractice. The trial court dismissed the fraud counts but allowed the legal malpractice counts to continue. In its second amended complaint, the Plaintiffs did not raise any fraud issues but attempted to assert them on appeal. The Appellate Court noted that a party has three methods available to it for avoiding waiver and preserving dismissed claims for appellate review: (1) A party can stand on the dismissed counts, take a voluntary dismissal of any remaining counts, and argue the matter at the appellate level, (2) A party can file an amended pleading that re-alleges, incorporates by reference or refers to the dismissed counts in a simple paragraph or footnote sufficient for this purpose, (3) A party can perfect an appeal from the dismissal order prior to the filing of an amended pleading that does not refer to or adopt the dismissed counts. Since the Plaintiffs amended complaint did not refer to the fraud counts at all, the Appellate Court held that the Plaintiffs could not proceed on the fraud count. Plaintiffs also contended that the damage award was inadequate because they had paid $365, at closing but were only awarded $182, in damages. The court found that because the evidence as to whether the clients would have gone through with the closing if they had received adequate legal advice was controverted that the award of damages was not manifestly inadequate. b. Geisler v. Everest National Insurance Company, 2012 Ill App (1st) : Plaintiff was a doctor who filed a complaint against his malpractice 49

50 insurance company alleging that the insurance company failed to make timely defense payments, settled a lawsuit involving Plaintiff without the consent of Plaintiff or his counsel, and failed to reimburse Plaintiff for his costs in defending another lawsuit. Defendants filed a motion for summary judgment claiming that Plaintiff was not insured under the policy when he filed his claim reporting the second lawsuit, or alternatively, Defendants did not have a duty to defend. Defendants further argued that payments to Plaintiff for defense of the first lawsuit were not untimely and that Plaintiff s consent was not required to settle the second lawsuit. The trial court granted Defendant s motion for summary judgment. In its written order, the trial court stated that the reimbursements of Plaintiff s defense costs were timely paid when they were paid within 18 months, that Defendant had no obligation whatsoever to defend Plaintiff in the second lawsuit because he was not an insured when the claim was first made as he was insured under a claims based policy and that Defendant did not require Plaintiff s consent to settle the first lawsuit. Plaintiff then filed a timely motion to reconsider, a motion for leave amend his complaint, and a motion to set aside and vacate orders entered on July 13, 2010, and August 25, The first issue in the Appellate Court was whether the filing of Plaintiff s motion tolled the 30-day period to file an appeal. Defendants argued that Plaintiff s motion was essentially a motion to amend his complaint which would not serve to toll the 30-day window to file an appeal as required under Illinois Supreme Court Rule 303(A)(1). The Appellate Court found that because Plaintiff did ask that the court vacate previous orders in addition to filing a second amended complaint that it was a proper post-trial motion as would be required to extend the 30 day window to file a notice of appeal. The Appellate Court next considered whether an 18 month delay in payment of defense costs pursuant to a medical malpractice policy to Plaintiff was unreasonable or vexatious and found that it was not because the delay involved payments that were the responsibility of the insured hospital pursuant to a self-insured retention clause and the insurer sent the doctor a reimbursement payment two weeks after the self-insured retention clause was exhausted. As to the argument whether the doctor had a right to consent to settlement, the court found that because the doctor was not a named insured under the insurance policy, he did not have a right to consent. The last issue before the court was whether the trial court abused its discretion in denying the doctor s motion to amend pleadings to add additional claims and more specific allegations of damages. The court found that it would have been prejudicial to Defendant because the doctor waited two years after filing his initial case and at that time he did not move to amend his pleadings until he made a motion for summary judgment and lost. 50

51 III. EVIDENCE a. Martin et al. v. Keeley and Sons, Inc., 2012 IL : Plaintiffs were construction workers who were injured when a concrete I-beam fell from a bridge and struck them. Plaintiffs brought an action against the manufacturer of the beam and manufacturer of the bearing assembly that supported the beam. They also asserted a claim of negligent spoliation of evidence against the contractor arising out of the destruction of the beam. The issue was whether the Defendant had a duty to preserve the I-beam which was involved in the accident. To present a claim of spoliation of evidence in Illinois, one must prove that: (1) The defendant owed the plaintiff a duty to preserve the evidence, (2) The defendant breeched that duty by losing or destroying the evidence, (3) The loss or destruction of the evidence was the proximate cause of the plaintiff s inability to prove an underlying suit, and (4) As a result, the plaintiff suffered actual damages. The general rule in the state of Illinois is that there is no duty to preserve evidence; however, a Defendant does have a duty to preserve evidence if: (1) An agreement, contract, statute, special circumstance, or voluntary undertaking has given rise to a duty to preserve evidence on the part of the defendant, and (2) A reasonable person in the defendant s position should have foreseen that the evidence was material to a potential civil action. The court determined that Plaintiffs could not prove that an agreement contract or statute required Defendant to preserve evidence, so it analyzed whether a special circumstance or voluntary undertaking existed in this matter. The court first noted that a voluntary undertaking of a duty to preserve evidence requires a showing of affirmative conduct by Defendant evincing the Defendant s intent to voluntary assume a duty to preserve evidence. In this case, the court found that the Defendant did not voluntarily undertake to preserve the I-beam because they never manifested intent to preserve it as evidence. The court then found that Defendant s possession and control of the I-beam did not constitute a special circumstance under which Defendant had a duty to preserve that evidence without additional actions, such as a request from Plaintiffs to preserve evidence or Defendant s segregation of evidence for Plaintiff s benefit. The court also found that Defendant s status as Plaintiff s employer and as a potential litigant did not give rise to a duty to preserve evidence. Justice Kilbride dissented, noting that Defendant destroyed the I-beam before Plaintiffs had an opportunity to inspect it. He also noted that Plaintiffs were not aware of the beam s destruction until well after it had been destroyed. b. Kilburg v. Mohiuddin, 2013 IL App (1st) : This case involved a plaintiff who was injured in an automobile accident while she was riding in a taxi. In anticipation of litigation, Plaintiff s attorney sent a letter to 51

52 Defendant three days after the accident asking that the taxi be preserved and protected. Plaintiff subsequently filed a complaint one week after the accident and obtained a protective order which required Defendant to preserve and protect the taxi in its current condition nine days after the accident. Defendant removed the data recorder contained in the taxi sometime between the date of the accident and a month after the accident. Plaintiff filed a spoliation of evidence claim against the Defendant, which was dismissed by the trial court. The Appellate Court found that the appropriate test to determine whether a defendant has a duty to preserve evidence is two-pronged: (1) The plaintiff must show that an agreement, contract, statute, special circumstance or voluntary undertaking has given rise to a duty to preserve evidence on the part of the defendant, and (2) The plaintiff must show that the duty extends to the specific evidence at issue by demonstrating that reasonable person in the defendant s position should have foreseen that the evidence was material to a potential civil action. The court found that the factual situation in this case fell under the special circumstance portion of the test and that Defendant had a duty to preserve the evidence. c. Calloway v. Bovis Lend Lease, Inc., 2013 IL App (1st) : Wrongful death lawsuit filed by estate of construction worker. At trial, Defendant s employee was not available to testify. The court held that Plaintiff could use the employee s discovery deposition as evidence in the trial as a sanction against Defendant. Plaintiff won a jury verdict at the trial court. Defendants appealed, contending that Plaintiff should not have been allowed to use the employee s discovery deposition as evidence. The Appellate Court held that it was not proper for the trial court to allow the Plaintiffs to use one of the Defendant s employees discovery deposition as evidence as a sanction for discovery violation, however, it found that the deposition was admissible as an admission by a party opponent. Issues of contributory negligence and damages were also addressed in the court s opinion. d. Cundiff v. Patel, 2012 IL App (4th) : The issue in this rear end auto accident case was whether Plaintiff s conversation with Defendant s insurance adjustor regarding Plaintiff s neck pain was admissible as evidence. In the trial court, Defendant filed a motion in limine arguing that the statement constituted proof of liability insurance, or alternatively, that it was part of settlement negotiations, or the statement was hearsay. Plaintiff failed to present an offer of proof during the trial with regard to what the evidence would have shown. The Appellate Court first noted that Defendant did not raise the issue that Plaintiff failed to preserve the trial court s motion by failing to make an offer of proof at trial in its appellate brief and so Defendant forfeited the point. The Appellate Court went on to say that it was willing to relax Plaintiff s failure to make an offer of proof because Plaintiff indicated that he 52

53 intended to offer the insurance adjustor s testimony as it was relevant to show that he voiced continued neck pain and a desire to see a chiropractor. The record contained a basis for the judge s decision to exclude the adjustor s testimony indicating that the judge understood what she would testify to if permitted. The court went on to address the Defendant s arguments, stating that the insurance adjustor s identity and relationship to Defendant did not need to be introduced in court as the witness foundation could be laid by stipulation. The statement was not hearsay because it was not introduced for the truth of the matter whether Plaintiff was feeling neck pain, it was merely introduced to bolster Plaintiff s testimony that he had suffered neck pain during the treatment. e. Noble v. Earle M. Jorgensen, 2013 IL App (5th) : This was an automobile accident case where Plaintiff allegedly suffered injuries to her tailbone region. At trial, Plaintiff filed a motion in limine asking that the court bar the defense from presenting any evidence that Plaintiff had previously experienced low back injuries. As part of the motion in limine, Plaintiff presented expert testimony indicating that the area of injury in the automobile accident was 8-10 inches lower than the area in which she had previously been injured. The defense did not present any expert testimony to contest the motion. The trial court ruled in favor of Plaintiff. On appeal, the court held that because the relationship between the first and second injury were such that a layperson could not readily understand the relationship between the injuries, expert testimony was required, and affirmed the trial court s holding. f. Reyes v. Menard, Inc., 2012 IL App (1st) : Plaintiff filed a slip and fall complaint against Defendant. Defendant propounded written discovery to Plaintiff and subsequently filed a motion to compel which was heard by the Court on February 10, On the same day, the trial court entered an order requiring the Plaintiff to answer all written discovery by February 24, 2011, and to present herself for a deposition by March 24, The order stated that: failure to comply with the specific terms of this Order will result in the Plaintiff being barred from testifying and presenting evidence at the arbitration and/or trial in this matter. The above stated sanctions shall remain in effect until removed by Order of the Court upon Motion by the party against whom the sanction applies. Plaintiff filed her answers to interrogatories on March 3, 2011, and her deposition was subsequently taken on March 21, The case proceeded to mandatory arbitration on May 2, 2011, but Plaintiff s attorney took no steps to remove the proposed sanction of the trial court. Prior to the commencement of arbitration, Defendant s attorney asked the arbitration panel to bar Plaintiff from testifying, arguing that the February 10, 2011, order barred Plaintiff s testimony since she had filed 53

54 her discovery one week after the order s deadline. Plaintiff argued that the order had been cured because all discovery was filed as soon as possible and Defendant was not prejudiced or surprised because the late written discovery was still completed two months prior to the arbitration hearing. The arbitration panel barred Plaintiff from testifying and from offering any evidence at the hearing. At the close of hearing, the arbitrators entered an award in favor of Defendant and awarded court costs against Plaintiff. The arbitration panel found, however, that both parties had acted in good faith during the arbitration process. Plaintiff then filed a motion to vacate in the trial court asking the court to vacate the February 10, 2011, Order and the arbitration award. The trial court found that Defendant s motion to bar was appropriate because Plaintiff did not have the barring order vacated and that arbitration proceeded with the barring order in effect as a result. The trial court then entered Judgment on the arbitration award in favor of Defendant. Regarding the discovery sanction, the Appellate Court noted that there are six factors to be considered by the trial court when determining which sanction is appropriate to a discovery violation. Those are: (1) The surprise to the adverse party, (2) The prejudicial effect of the proffered testimony or evidence, (3) The nature of the testimony or evidence, (4) The diligence of the adverse party in seeking discovery, (5) The timeliness of the adverse party s objection to the testimony or evidence, (6) The good faith of the party offering the testimony or evidence. The Appellate Court also noted that self-executing sanction orders for discovery violations should be considered carefully because the trial court cannot apply the factors to a discovery violation that has not yet occurred and the sanction applied remains the same whether the conduct is egregious or minor. The Appellate Court found that the sanction was unwarranted and that because Plaintiff had acted in good faith, the arbitration award should be vacated. g. Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) : This case arose out of an accident involving a pedestrian who was struck by a motorist while crossing the street. The pedestrian filed a negligence action against the motorist. At trial, Defendant admitted liability, but filed three motions. Defendant s first motion was to bar the testimony of one of Plaintiff s medical expert witness whom Plaintiff disclosed as a rebuttal witness to Defendant s medical expert. In the motion, Defendant objected, claiming that the doctor s testimony was not true rebuttal evidence but instead only to offer a similar opinion to that of Plaintiff s other medical expert. The trial court denied Defendant s motion to bar Plaintiff s medical expert. The second motion filed by Defendant was a motion to quash the evidence depositions of two of Plaintiff s coworkers. After Defendant 54

55 admitted liability, Plaintiff indicated that she would not be calling one of her coworkers as a witness because the coworker did not see the accident. Defendant withdrew her motion to quash and told the trial court that she might want to call the coworker as a witness. The trial court denied Defendant s request to call the coworker. The third motion was a motion to bar the testimony of another one of Plaintiff s coworkers who was expected to testify that she saw Plaintiff approximately ten days after the accident and further testify to her mental status. Defendant claimed that this constituted medical opinion testimony from a lay witness and thus lacked an adequate foundation. The trial court denied Defendant s motion and ruled the coworker could testify as to what she observed about Plaintiff after the accident. During Plaintiff s opening statements her counsel repeatedly referred to the Defendant s medical expert as a hired witness and indicated that he had made a career out of this. In her closing statement, Plaintiff again attacked the Defendant s expert stating that he worked for a factory or an assembly line of defense opinions and defense reports. At the Appellate Court, Defendant claimed that these remarks were blatantly argumentative and inflammatory, as well as being unreasonable and highly prejudicial, thereby meriting reversal as a matter of right. The Appellate Court found that these comments did not cause substantial prejudice to Defendant because they were all supported by facts and evidence before the jury. It noted, for example, that it was undisputed that defendant s expert was a hired witness. The Appellate Court similarly found that the other statements were supported by the record at trial. Regarding Defendant s ability to call Plaintiff s coworker, the court found that the trial court did not abuse its discretion in refusing Defendant permission to call her as a witness. The Appellate Court also found that a lay witness had a proper foundation to testify as to personal observations regarding the Plaintiff s physical and mental status before and after the accident because Plaintiff s coworker had known her for twenty-five years. Regarding the testimony of Plaintiff s retained medical expert witness, the Appellate Court found that the trial court properly determined that this witness was a rebuttal witness because she had been called to specifically refute accusations made by Defendant s expert witness. Finally, the Appellate Court found that it was not improper for the trial court to allow Plaintiff to testify that she had quit physical therapy because she lacked the money to continue. At trial, Defendant s attorney had indicated that the reason Plaintiff quit physical therapy was because that she was not really in pain anymore and felt she no longer needed treatment. h. Mauvais-Jarvis v. Wong, 2013 IL App (1st) : This case involved a Northwestern University professor who sued the university and some administrators for defamation and civil conspiracy. The defamation 55

56 claims arose out of statements that were made at a scientific research misconduct proceeding. At the trial court, the issue was whether the statements made in the research misconduct proceeding were subject to qualified privilege or absolute privilege. The statements were found to be absolutely privileged and the defamation counts were dismissed. On appeal, the Appellate Court noted that whether these statements were subject to qualified privilege or absolute privilege was a matter of first impression. The court went on to state that the class of occasions where defamatory statements are absolutely privileged is very narrow and has generally been limited to legislative, judicial, and some quasi-judicial proceedings. In determining whether the research misconduct hearing was a quasi-judicial proceeding, the court noted that the panel was not authorized to compel witness to attend nor did it possess the power to make binding orders in judgments that effect personal or property rights. Therefore, the court determined that the statements made in the research misconduct proceeding were only subject to qualified privilege, meaning that Defendants had to prove that the following elements were present: (1) Good faith by the Defendant in making the statement, (2) An interest or a duty to uphold, (3) A statement limited in its scope to that purpose, (4) A proper occasion, and (5) Publication in the proper manner and to proper parties only. The Appellate Court remanded the case to the trial court to determine if the statements were subject to qualified privilege. i. Pontiac National Bank v. Vales, 2013 IL App (4th) : This was a very fact driven medical malpractice case. Plaintiff sued on behalf of the estate of a young boy who had passed away from complications involving non- Hodgkin s lymphoma. The allegation was that his family physician should have caught this condition sooner. At the trial court, the judge allowed the defense to present a summary judgment motion on the eve of trial and did not allow Plaintiff to respond. Subsequently, the judge granted the motion for summary judgment in part and dismissed the count of institutional negligence. During the trial, Plaintiff s expert was cross examined by the defense counsel. The judge allowed defense counsel to inquire about the expert s earnings for an eight year period prior to the trial and did not allow Plaintiff to rehabilitate the witness by asking if defense counsel had ever used Plaintiff s expert as a witness before. The trial court also allowed defense counsel to contrast the expert witness earnings with an average physician s earnings according to the United States Bureau of Labor Statistics. A jury verdict was entered in favor of Defendant on all counts. The Appellate Court held that the trial court abused its discretion in allowing defense counsel to cross examine Plaintiff s expert regarding income he had earned from expert testimony in the eight year period before the trial, finding that the Supreme Court has determined that two years is permissible. It also found that the use of the United States Bureau 56

57 of Labor Statistics information was misleading and not relevant and that Plaintiff should have been allowed to rehabilitate its witness by inquiring as to whether the defense had ever used him. Finally, it found that the summary judgment motion was presented improperly and that a genuine issue of material fact existed with regard to the institutional negligence claim. IV. LIMITATIONS a. Cushing v. Greyhound Lines, Inc., 2013 IL App (1st) : The underlying injury action in this matter involved a passenger on the Greyhound Line who was run over and killed by the bus driver in Colorado. At the time of the accident, the decedent s daughter was seven years-old. Subsequently, the litigation stretched on for eleven more years until she reached the age of majority. The main issue before the court was whether the daughter would be allowed to repudiate the settlement that was previously reached once she reached majority even though she had a guardian ad litem at the time. The court addressed matters of estoppel and contract, and found that the daughter was not estopped from taking a position different from the guardian ad litem because she did not benefit from the previous position. The court also found that the settlement agreement was invalid because a party is not bound by a settlement agreement if his or her interests were not fully and adequately represented. The 50 page opinion is a real page turner! b. Fiorito v. Bellochio, 2013 IL App (1st) : Plaintiff was injured in an automobile accident. His attorney filed a personal injury complaint without his knowledge. Subsequently, Plaintiff filed another personal injury complaint. Plaintiff voluntarily dismissed the second complaint upon discovery of the first complaint. Plaintiff prosecuted the first complaint for over 6 years until he voluntarily dismissed it. Plaintiff then re-filed a third complaint less than one year after voluntarily dismissing the first suit, but more than 7 years after voluntarily dismissing the second suit. The trial court held that the one year period for re-filing under 735 ILCS 5/ began to run when he dismissed the second complaint. The Appellate Court upheld the trial court s reasoning. c. Steinmetz v. Wolgamot, 2013 IL App (1st) : Plaintiff filed a complaint alleging fraud and conspiracy, as well as legal and accounting malpractice against his former accountants and attorneys. Plaintiff had enrolled in a program offered by the Defendants which promised asset protection and tax savings. Subsequently, Plaintiff received a notice of deficiency from the IRS. Plaintiff filed his case in the trial court more than two years after receiving the notice of deficiency. The Defendants moved for summary judgment based on a failure to file within the two year statute of limitations. Plaintiff claimed that he did not realize that 57

58 V. PLEADINGS malpractice had occurred until well after receiving the notice of deficiency because he relied on the attorneys assurances that the program was legal. The trial court granted the Motion to Dismiss. The Appellate Court determined that the statute of limitations began to run when the Plaintiff received a notice of deficiency because a reasonable person would realize that malpractice may have occurred. a. Dovalina v. Conley, 2013 IL App (1st) : This case provides an answer to the question of what happens when a lawsuit is filed without an Illinois Supreme Court Rule 222(b) Affidavit of Damages. Plaintiff filed a verified three-count personal injury action in Cook County, seeking damages in an amount in excess of $50,000 from each of the three Defendants. Subsequently, the court entered a default judgment for $128, One of the Defendants filed a motion to vacate the default judgment two years after it had been entered claiming that the failure to attach a Supreme Court Rule 222(b) affidavit limited Plaintiff to $50,000 in damages. The trial court granted Defendant s motion and reduced the damages to $50,000. Plaintiff appealed, arguing that the failure to attach the affidavit should not result in the award being limited to $50,000. The Appellate Court held that the failure to attach the affidavit was not fatal because Plaintiff asked for damages in excess of $50,000 in its complaint and filed against three separate Defendants. The court went on to find that the judgment in this case was not void and that the court still retained subject matter jurisdiction even with the failure to file the affidavit. b. Howle v. Aqua Illinois, Inc., 2012 Ill App (4th) : This was a dog bite case. Defendant was a water treatment plant which allowed one of its employees to live on the property. The employee owned two dogs, but the dog that actually bit Plaintiff was owned by the employee s son, who was living with the employee at the time of the accident. Plaintiff filed suit under the Animal Control Act (510 ILCS 5/1, et seq.) and also alleged common law negligence in her complaint. Defendant filed a motion under Section 2-619(a)(9) of the Code of Civil Procedure alleging that it could not be held responsible for the acts of the dog because it was not the dog s owner. The trial court dismissed the count of the complaint that was brought under the Animal Control Act, but the Appellate Court found that this was improper because Defendant s motion was not based on an affirmative matter; rather, Aqua s motion was essentially an answer denying the complaint. The Appellate Court treated the motion as a motion for summary judgment and analyzed it as such, finding that since the landlord did not exercise any measure of care, custody, or control over 58

59 the residential tenant s dog, it did not keep or harbor the dog within the meaning of the Animal Control Act even though the tenant was also the landlord s employee. The court also found that Plaintiff s negligence action was not well founded because a landlord is not liable for injuries caused by a defective or dangerous condition on premises leased to a tenant and under the tenant s control. It further found that a leasor who relinquishes control of a property by leasing it to another owes no duty to a third party who was injured while on the leased property; the conveyance of the property ends the leasor s control over the premises which is a prerequisite of the imposition of liability. The Appellate Court also noted that the Defendant filed a combined motion asking that Plaintiff s claim be dismissed based under two different rules of civil procedure and noted that although there is a rule that allows combined motions, circuit courts should not accept motions which are not segregated into parts, do not specify which portions were claims based on the pleadings or based upon defects or defenses, and which did not clearly show points or grounds under rules which they were based. c. Pippen v. Pedersen and Houpt, 2013 IL App (1st) : Plaintiff was a famous basketball player who was suing his former law firm for allegedly committing negligence and breach of fiduciary duty regarding an aircraft that he purchased. At trial, the judge granted summary judgment for Defendant on the breach of fiduciary duty claims, but allowed the negligence claim to proceed to jury. The jury awarded a verdict for Plaintiff and the judge entered judgment on the verdict. Plaintiff appealed, claiming that he should have been allowed to pursue both a breach of fiduciary duty claim and a negligence claim against Defendant. The Appellate Court found that since the two claims were based on the same set of operative facts that the trial court properly dismissed the breach of fiduciary duty claims as duplicative. The court went on to note that negligence and breach of fiduciary duty claims against attorneys are conceptually distinct and that the relevant standard of care in a negligence claim encompasses a broader range of conduct that is covered by a fiduciary duty. d. Fox v Gauto, 2013 IL App (5th) : This case answers the question of what happens when a party attempts to amend the rule 2-622(a)(1) affidavit that is required to be attached to any medical malpractice complaint. Plaintiffs attorney had originally attached a report wherein the doctor had found that Plaintiffs doctor did not breach the standard of care. Subsequently, the Plaintiffs obtained a review of the records from a different physician, who opined that the Plaintiffs did have a cause of action. Plaintiffs made a motion to amend their complaint to attach the new report, to which Defendant objected. The court dismissed the Plaintiffs case with prejudice, but subsequently granted a motion to reconsider by the Plaintiffs and allowed the Plaintiffs to amend the report 59

60 attached to its complaint. The Appellate Court held that the standard to determine whether to allow Plaintiffs to file an Amended Complaint and an Amended Certificate of Merit was prejudice to the opposing party, and in this case the Circuit Court had the discretion to find that Defendant was not prejudiced by the amendment. e. Reynolds v. Jimmy John s Enterprises, LLC, 2013 IL App (4th) : Plaintiff was a motorist who was struck by a delivery driver for the Defendants, Jimmy John s. Plaintiff initially filed a one-count complaint naming the driver, the Jimmy John s corporate office, and the franchisee as defendants. The trial court dismissed this complaint because Plaintiff comingled theories of direct and vicarious liability. Subsequently, Plaintiff settled with the defendant driver and filed a seven-count complaint alleging: (1) negligent training against the franchisee, (2) negligent training against the franchisor, (3) negligent supervision against the franchisor, (4) negligent supervision against the franchisee, (5) implied authority against the franchisee, (6) joint venture against all defendants, and (7) principal agent/apparent authority against all defendants. The Defendant franchisor and franchisee filed a motion for involuntary dismissal pursuant to second 2-619(a)(9) of the Code of Civil Procedure. The motion was written as a memorandum of law and included the Plaintiff s deposition and all exhibits. The trial court granted the motion and dismissed Plaintiff s complaint. The Appellate Court noted that Defendant s motion to dismiss based on affirmative matter did not properly assert the affirmative matter but sought to contest Plaintiff s factual allegations. The court found that such a fact based motion was properly treated as a motion for summary judgment. The Appellate Court went on to state that Plaintiff pled sufficient facts to raise a question of negligence as to whether the franchisee engaged in a course of action creating a foreseeable risk of injury to members of the public, thereby creating a duty to mitigate that risk by training its employees that the rules of the road trump its speedy delivery policy and must always be adhered to. f. Shatku v. Wal-Mart Stores, Inc., 2013 IL App (2d) : In March of 2009, Plaintiff filed a negligence complaint against Defendant in Cook County. Defendant moved for a forum non conveniens transfer of the case to Kane County, and the court granted the motion. Plaintiff subsequently moved to dismiss the cause of action voluntarily pursuant to section of the Code of Civil Procedure. The court granted the motion in October 2010 and also granted Defendant the leave to file a motion asking the court to involuntarily dismiss the case or bar Plaintiff from presenting evidence, as a sanction for noncompliance with discovery. One year later, Plaintiff filed a motion to refile, citing sections and of the Code of Civil Procedure as basis for relief. Defendant filed a 60

61 motion to dismiss Plaintiff s motion, which was granted on December 22, Plaintiff filed a motion to reconsider which was mailed and faxed on January 23, The motion to reconsider was subsequently argued on the merits and the trial court again found in favor of Defendant. On appeal, the Appellate Court disposed of this case by noting that a motion for reconsideration cannot be filed by fax and that the actual motion was filed on January 26, 2012, which was three days after the last day to file the motion. g. Stoelting v. Betzelos, 2013 IL App (2d) : Plaintiff filed a medical malpractice complaint alleging that Defendant, a dentist, had committed various acts of omission that constituted medical malpractice. Attached to Plaintiff s complaint was a report of another dentist who alleged that Defendant was negligent in treating Plaintiff. Although Plaintiff s complaint was signed by her attorney, her attorney did not file an attorney affidavit as required by Section 735 ILCS 5/ Defendant moved to dismiss Plaintiff s medical malpractice complaint citing Paragraph (G) of Section 622, which provided that failing to file an affidavit as required by this Section shall be grounds for dismissal. Defendant also asserted that unless Plaintiff could establish good cause for her failure to file an attorney affidavit, the dismissal should be with prejudice. Neither Plaintiff nor her attorney appeared at the hearing on the motion to dismiss so the trial court granted the motion and dismissed the case with prejudice. Plaintiff filed a motion to reconsider, arguing that neither she nor her counsel could appear at the hearing on the motion to dismiss because her counsel was in another courtroom attending to another matter. She attached to her motion her attorney affidavit. At the hearing on the motion to reconsider, the trial court judge indicated that the statute required that an affidavit and the report be filed with the complaint or within a 90 day period of filing of the complaint. Since Plaintiff had not complied with either, the trial court judge did not believe that he had authority to grant extensions under the statute. The Appellate Court determined that the trial court judge did have authority to grant extensions for good cause shown and remanded the proceedings to determine whether good cause could be shown. VI. TRIAL ISSUES a. Hernandez v. Pritikin, 2012 IL : Plaintiff filed a legal malpractice claim against his former attorneys alleging that they had not pursued all available claims given the circumstances of Plaintiff s case. Defendant filed a motion to dismiss arguing that the statute of limitations had run on Plaintiff s other claims before Defendants were retained as his attorneys. The judge who heard the motion ruled in favor of Defendant, 61

62 but Plaintiff asked for and was granted leave to file an amended complaint adding allegations that Defendants were negligent for failing to file other claims. When Plaintiff filed its amended complaint, some of the allegations were similar to the complaint that was dismissed. A different judge heard the second motion to dismiss and denied the Defendant s motion. Defendant subsequently filed an answer to Plaintiff s amended complaint but for each of the numbered paragraphs of Plaintiff s amended complaint that were identical to the first complaint indicated that Defendants were making no answer with respect to these paragraphs in as much as said allegations were dismissed pursuant to the order of the first judge. Defendant then filed a motion for summary judgment which was heard by a third judge. Plaintiff filed a motion to voluntarily dismiss the case without prejudice before the summary judgment motion could be heard, but alleged insufficient evidence to avoid the entry of summary judgment. The third judge granted the voluntary motion to dismiss. Plaintiff subsequently filed a complaint for legal malpractice six months later stating that it was a re-filing of the original case. Defendants filed a motion to dismiss, arguing that Plaintiff s claim was barred. The trial court judge noted that the nature of the allegations of the first complaint and the current complaint were similar, but acknowledged Plaintiff s argument that the first judge s order of dismissal did not indicate it was with prejudice and stated that he would be inclined to agree with Plaintiff but the Appellate Court s ruling in Matejczyk v. City of Chicago, 397 Ill.App.3d 1, 922 N.E.2d 24, 337 Ill.Dec. 166 (Ill.App. 1 Dist., 2009), required him to find otherwise. In the Appellate Court, Plaintiff argued that the first order dismissing the case only disposed of one of two of Plaintiff s grounds for legal recovery, but Defendants argued there was only one theory of recovery: legal negligence. The Appellate Court held that Plaintiff could continue because the original order barred only the allegations and not the theory of negligence. The Supreme Court affirmed the Appellate Court finding that there was no clear and convincing evidence because none of the orders were clear enough to be relied upon. The Court also stated that it was mindful of the fact that this case was heard by many different Judges and that it recognized the Circuit Court s inherent power to review, modify or vacate interlocutory orders while the Court retains jurisdiction over the entire controversy. VII. MISCELLANEOUS a. Hussein v. L.A. Fitness International, L.L.C., 2013 IL App (1st) : Plaintiff was an individual injured while exercising at his health club. Prior to exercising at the health club, Plaintiff signed a contract which 62

63 included an exculpatory clause. At the time of the signing of the contract Plaintiff lived in Minnesota, and the contract indicated that Minnesota law would govern all disputes. At the trial court, Defendant filed a motion to dismiss based on the contract. The trial court granted the motion. The Appellate Court noted choice-of-law provisions in contracts will be enforced as long as there is some reasonable relationship between the chosen forum and the parties and it is not dangerous, inconvenient, immoral, nor contrary to the public policy of the local government. The choice of law provision was upheld, so the next issue was how the case would be interpreted under Minnesota law. The Appellate Court ruled that the exculpatory clause would operate to bar Plaintiff s claim. The reasoning was that the clause clearly stated that a member assumed full responsibility for risks of injury from use of club s equipment, the sentence at the top of the agreement explicitly alerted member that he was agreeing to terms printed on the reverse side of the page, the member acknowledged by his signature that he understood the release on the reverse side, and the exculpatory clause was printed in bold font, offset by a box, and was a prominent provision on that page of the agreement. b. McGee v. City of Chicago, 2012 Ill App (1st) : Plaintiff brought an action alleging malicious prosecution and intentional infliction of emotional distress because he was falsely arrested for a murder by the Chicago Police Department. After a jury trial, the jury returned a verdict in favor of Plaintiff with regard to the malicious prosecution claims and in favor of the Defendant with regard to the emotional distress claim. During the trial, the court bailiff informed the court that a juror had performed her own research on the Internet and brought that information into the jury room. The Appellate Court found that if extraneous or unauthorized information has reached the jury, it is presumed prejudicial; the party challenging the verdict needs to show only that the information relates directly to something at issue in the case which the losing party did not have the opportunity to refute and that may have influenced the verdict. At that point, the burden shifts to the winning party to show that no prejudice has occurred. In this case, one of the major issues was Plaintiff s memory loss. Since the juror had brought in outside information regarding the Plaintiff s memory loss, the Appellate Court found that the Plaintiff did not overcome the presumption of prejudice from the juror s use of independent research. c. Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) : The Plaintiff was a Circuit Court Judge who had been the subject of an investigation aired by a local Fox station. Plaintiff filed a lawsuit against Defendants alleging defamation, invasion of privacy, intentional infliction of emotional distress, and invasion of privacy by intrusion upon seclusion. Defendants moved to dismiss the complaint on the grounds 63

64 that it was barred because it was a Strategic Lawsuit Against Public Participation (SLAPP). The court stated that the threshold step in analyzing the motion to dismiss based on the Citizen s Participation Act (735 ILCS 110/5) is first to determine whether the suit is the type of suit that the Act was intended to address. A lawsuit may only be dismissed due to immunity under the Citizen s Participation Act if: (1) The defendant was in furtherance of his/her right to petition, speak, associate, or otherwise participate in government to obtain favorable government action, (2) The plaintiff s claims are solely based on, related to or in response to the defendant s acts in furtherance, and (3) The plaintiff failed to produce clear and convincing evidence that the defendant s acts were not genuinely aimed at solely procuring favorable government action. The court found that the television station aired the investigatory report on the working hours of judges in county circuit court in furtherance of the rights to petition, speak, associate or otherwise participate in government. The court found that the second prong of the test was also present. Specifically, it found that Plaintiff s suit was solely based on, related to, or in response to the exercise of First Amendment rights. The court did find that the third element of the test was unsatisfied because Defendant could not prove that Plaintiff s defamation, false invasion of privacy, intentional infliction of emotional distress, and invasion of privacy by intrusion upon seclusion actions were meritless. d. Schott v. Halloran Construction Company, Inc., 2012 IL App (5th) : A police officer alleged that he was injured when he fell off a retaining wall that was being rebuilt. Plaintiff alleged that Defendant was negligent in failing to build a guardrail or other barrier at the top of the retaining wall to prevent people from falling off. At the point where Plaintiff stepped off the wall, it was only two feet high. Defendant alleged at trial that Plaintiff s action was barred by the Statute of Repose (735 ILCS 5/13-214b) which states that no action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person design, planning, supervision, observation or management of construction or construction of an improvement of real property after ten years have elapsed from the time of such act or omission. Defendants went on to allege that the construction of the wall was completed in 1990, more than ten years prior to Plaintiff s fall from the wall on April 6, Defendants did acknowledge that a portion of the wall had collapsed in 1994 due to heavy rain and needed to be rebuilt but the repair work was completed in Defendants went on to argue that this repair of the wall did not constitute construction of an improvement of real property within the meaning of the Statute of Repose. The trial Judge denied Defendant s affirmative defense and a jury awarded Plaintiff damages. 64

65 The question before the Appellate Court was what constitutes an improvement to real property within the meaning of the construction Statute of Repose. The court first determined that this was a question of law, but that the answer would be grounded in fact. It went on to note that the relevant criteria for determining what constitutes an improvement to real property within the meaning of the construction Statute of Repose include: whether the addition was meant to be permanent or temporary, whether it became an integral component of the overall system, whether the value of the property was increased, and whether the use of the property was enhanced. The Appellate Court ruled that an improvement to real property within the meaning of the construction Statute of Repose was an addition to the property amounting to more than a mere repair or replacement that substantially enhances the value of the property. e. Schroeder v. RGIS, Inc., 2013 IL App (1st) : Plaintiff brought a complaint for intentional infliction of emotional distress against his former employer. The facts indicated that Plaintiff s supervisor had made derogatory comments about Plaintiff s sexual orientation in the presence of several co-workers. At the trial court, Defendant argued that Plaintiff s claim is preempted and barred by the Human Rights Act (775 ILCS 5/1, et seq.) and that the alleged injury is compensable only under the Worker s Compensation Act (820 ILCS 305/1, et seq.). The trial court agreed with Defendants, and dismissed the complaint. The Appellate court held that Plaintiff s claims were so inextricably bound in with the violations of his civil rights that the claim should have been brought under the Human Rights Act. The court also found that psychological injuries are compensable under the Worker s Compensation Act where, as here, there was a physical component alleged by the employee. In this case, the employee alleged that his former employer had forced him to work so hard that he was physically exhausted. f. Simmons v. Campion, 2013 IL App (3d) : Plaintiff was a police officer who was ordered to undergo a psychological evaluation and was subsequently terminated. At the time of the evaluation, Plaintiff signed a form indicating that he understood that the test and experience he was about to undergo were not confidential and subsequently signed a form stating that he agreed that the psychologist could release the results of the evaluation to the police chief or his designee. He also signed a form indicating that the results of the test could be released to the Pekin Police Department. The psychologist s report indicated that the Plaintiff was not fit for duty and, consequently, Plaintiff was not allowed to return to work. Plaintiff filed a complaint alleging special negligence damages under the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1, et seq.), tortious interference with a contractual or business relationship, and fraudulent and negligent misrepresentation. The trial 65

66 court granted summary judgment on the negligence claim and dismissed the other claims. The Appellate Court held that the psychologist was immune from any claim under the Mental Health and Developmental Disabilities Confidentiality Act because even if the disclosure violated the Act, the psychologist was entitled to immunity on the grounds that he believed the officer posed a clear, eminent risk of inflicting serious physical or mental health injury on himself or another. Similarly, with regard to the tortious interference with business relationship claim, the court found that Defendant s conduct was privileged from a claim of interference with a contract where Defendant was acting to protect an interest which the law deems to be of equal or greater value than Plaintiff s contractual rights, in this case the public safety. g. Smola v. Greenleaf Orthopedic Associates, S.C., BQMCC, LLC, 2012 IL App (2d) : Plaintiff brought a slip and fall claim against Defendant as a result of an accident in Defendant s parking lot. The parties agreed to binding arbitration. The Circuit Court reserved jurisdiction to enforce the arbitration award. After arbitration, the arbitrator entered an award for Defendant and Plaintiff filed a motion to reconsider. The issue before the Appellate Court was whether the trial court could enter judgment on the award pending the motion to reconsider. The judge at the trial court determined that the award was final and granted the motion to enforce and Plaintiff appealed. The Appellate Court noted that under the Illinois Uniform Arbitration Act (710 ILCS 5/1, et seq.) there was no provision as to whether a party can move an arbitrator to reconsider its decision. Since the arbitration agreement did not forbid such a motion or provide the circumstances under which the award would become final, the arbitrator did have the ability to review the award. Therefore, the award was not final _2.DOCX 66