Illinois Tort Law Update 2013 Case Summaries

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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

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