General Liability Defense : Chicago General Liability Lawyer & Attorney : Mark McAndrew : Hennessy & Roach Law Firm : Civil Defense Litigation, Damages : Illinois, Wisconsin, Midwest

Passengers in a minivan were injured in a two-car collision. The passengers sued both drivers of the vehicles. The jury found no negligence on the part of both drivers. The judge granted the passengers’ motion for retrial concluding “the jury’s finding…is unreasonable and against the manifest weight of evidence…” The defendants appealed the order for retrial.   The Appellate Court, 1^st District reversed because “the jury could have found that the passengers failed to prove by a preponderance of the evidence that the drivers were negligent.” The verdicts were also not legally inconsistent or against the manifest weight of evidence.   Anderson v.Anderson, 2011 IL App (1st) 110034 (Sep. 30, 2011).

The court stated since this case involved plaintiffs suing multiple potential tortfeasers, the burdens of proof between innocent, injured parties must be discussed. This raises the “doctrine of alternative liability,” which the Illinois Supreme Court has adopted. Smith v. Eli Lilly & Co., 137 lll.2d 222 (1990).   Alternative liability may apply when two or more defendants act tortiously toward a plaintiff who, through no fault of her own, cannot identify which one of the joint defendants cause the injury. The burden of proof then shifts to each defendant to prove his innocence with respect to causation. However, the innocent plaintiff still must prove that each tortfeasor was negligent before the burden will shift. Wyscocki v. Reed, 222 Ill. App. 3d 268 (1991). 

Here, because the jury did not find negligence on the part of the drivers and because the jury could have found that that the plaintiffs failed to prove the negligence of both defendants, the use of the doctrine of alternative liability was unavailable.  

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Walsh Construction was the general contractor for an Illinois water reclamation district construction project. Luise, Inc. was a subcontractor of Walsh. Walsh requested coverage as an additional insured under Luise’s liability insurance policy, which was purchased from Scottsdale Insurance Company.   The language for the additional insured provision excluded coverage for accidents “arising out of the sole negligence of the additional insured.” A Walsh employee backed a bulldozer into Luise’s dump truck. The employee driving the truck sued Walsh and the water district but later dropped the water district from its claim. Scottsdale sued for declaratory judgment in federal district court arguing that there was no duty to defend Walsh because of the sole negligence exclusion. Subsequently, Walsh filed a third party complaint for contribution against Luise. The district court granted summary judgment against Walsh, concluding that Scottsdale was not obligated to defend Walsh.  Scottsdale Ins. Co. v. Walsh Const. Co., No. 10 C 1565 (Sept. 29, 2011). 

Walsh argued that the sole negligence exclusion did not apply because both drivers may have been negligent. Walsh further argued that the employee’s complaint initially included the water district as well. The court stated there is no case law to substantiate an inference that Walsh is not solely negligent just because the water district at one time was named as a defendant.  the court further explained that Walsh’s theories cannot be supported by the employee’s complaint if the complaint does not allege any supporting facts and would cause the court to speculate regarding certain facts as to how the accident occurred. A court will not read into the complaint facts that are not there.   Here, the facts alleged in the complaint were outside the bounds of the policy coverage. 

Walsh also relied on their third-party complaint and testimonial evidence, and argued under Pekin Insurance Company v. Wilson that the Illinois Supreme Court considered a third-party complaint where the insurance policy contained an exception to coverage exclusion provision.  237 Ill.2d 446 (2010).  Here, however, there was no such exception. The district court further went on to say that in L.J. Dodd Construction Company v. Federated Mutual Insurance the court held that a trial court may not look to a third-party complaint absent some unusual or compelling circumstance. Similarly, in National Fire Insurance v. Walsh Construction Company, the court applied the same rule in finding that the facts alleged in the complaint fell squarely into the sole negligence exclusion. 392 Ill. App. 3d 312 (Ill. App. Ct., 1st Dist. 2009) (citing American Economy Ins. Co., v. DePaul University, 383 Ill. App. 3d 172 (2008)) (declining to allow an additional insured to bolster its claim of coverage by referencing its own third-party claim). Here too, Walsh’s testimonial evidence is not entitled to an exception and the complaint is sufficient to find Scottsdale had no duty to defend. 

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While crossing a Chicago street, Beverly Longo strayed outside the crosswalk and was hit by a Chicago Transit Authority (CTA) bus. She claimed that she could not cross within the crosswalk because there were other pedestrians and a bicyclist who was making deliveries for a local sandwich shop. She claimed the bike was also in the crosswalk. Longo filed suit against the CTA.  

During summary judgment proceedings, the court concluded that there was no evidence of negligence. Summary judgment was granted in favor of the CTA. Longo appealed.

The appellate court affirmed but on grounds that there was a lack of duty owed to Longo. Amanda Jimolka v. Chicago Transit Authority, et al., No. 1-10-2894 (2011). Under Illinois Law, pedestrians traveling on a public roadway, outside of the crosswalk are neither intended or permitted users and  thus are owed no duty of care. Streets are used for vehicles not pedestrians.    It was undisputed that Longo collided with the lower, right hand corner of the bus near a manhole that was more than 9 feet outside of the crosswalk.   Under Illinois law, it was Longo who should have yielded to the traffic when she walked outside of the crosswalk. 

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Plaintiff, Andre Johnson, voluntarily enrolled as a beneficiary in defendant, Salvation Army’s, adult rehabilitation program. The treatment program included assigned job responsibilities. During the program, Johnson was injured in a car crash while a passenger in a Salvation Army owned vehicle being driven by a Salvation Army employee. Johnson filed a negligence claim. The Salvation Army filed an affirmative defense alleging that Johnson’s claims were barred because he signed an exculpatory agreement. Ultimately, the circuit court decided that the exculpatory clause in the beneficiary’s admittance statement was a complete bar to Johnson’s claims.  

The appellate court agreed. Johnson v. Salvation Army, 2011 IL App (1^st) 103323.  Johnson argued that the exculpatory clause was against public policy in that his relationship with the defendant was akin to an employee/employer.  While exculpatory agreements are generally contrary to public policy if between an employer and employee, the court disagreed with Johnson and concluded that the relationship was that of a beneficiary and charitable organization. The work therapy and training during rehabilitation was part of the rehabilitation process and gave the beneficiaries a sense of self worth. The beneficiaries were not paid for their work. The admittance statement Johnson signed even stated that “I am a beneficiary and not an employee of this center.” 

Johnson also argued that the disparity in bargaining power between him and defendant rendered the exculpatory clause unenforceable.  He argued that he had no free choice or reasonable alternative in bargaining with the defendant over the enrollment conditions and that he had no free choice but to accept the terms or be denied food and shelter. However, the court held that the food and shelter offered by the defendant were merely incident to the rehab program and that the defendant could have sought rehabilitation services elsewhere

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On November 8, 2004, plaintiff, Donald Van Gelderen, was at defendant, David Hokin’s home, installing automated window coverings.  As Van Gelderen was leaving the house, he fell down a flight of stairs inches away from the front door, and was injured.   A jury found the stairs were an unreasonably dangerous condition.  The jury found that Van Gelderen was 50% contributorily negligent, reducing the final award to about 1.5 million. Defendant filed a motion for judgment notwithstanding the verdict.  The motion was denied, and the defendant appealed. 

 The appellate court affirmed.  Van Gelderen v. Hokin, 2011 IL App (1st) 093152.  The court distinguished the case of Alcorn v. Stepzinski.  185 Ill. App. 3d 1 (1989).  The court in Alcorn held that while all stairs present some risk of harm, the risk of harm must be shown to be unreasonable to give rise to a duty of care.  The configuration of a stairway may be dangerous only if the stairway configuration masks or obscures the stairs in a way which prevents the invitee from becoming aware of the open and obvious configuration.  The appellate court, here, concluded that the Alcorn court’s decision heavily relied on the plaintiff’s failure to present expert testimony. 

 Hokin argued that there was no evidence that the stairwell was improperly designed, masked, or obscured.  However, the court said the Van Gelderen did present expert testimony that the stairwell was unreasonably dangerous.  The court held that this evidence was sufficient to support the jury findings.  The defendant also argued that the stairwell was an open and obvious condition. However, the appellate court concluded that the evidence fell short of establishing the condition was open and obvious as a matter of law. 

 A condition presents an open and obvious danger to the extent the risk is apparent to, and is appreciated by a reasonable person in the person’s exercise of ordinary perception, intelligence and judgment.  Plaintiff’s testimony that he did not see the condition presented a question of fact, precluding the court from finding an open and obvious condition.

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The estate of Scott Eskew filed a negligence claim against defendants, Burlington Northern Santa Fe Railway Company (BNSF) and Metra, after Scott was killed by a Metra train. In 2009, a Cook County Circuit Court jury returned a 5 million dollar verdict to the plaintiff.   Among various post-trial motions filed by Metra and BNSF, the defendants filed a motion for an evidentiary hearing on juror misconduct in regards to a juror who maintained a blog during trial. Cook County Circuit Court Judge Donald J. Suriano denied the motion. The defendants appealed. 

Justice Hoffman of the Illinois Appellate Court, 1^st District, upheld the trial court’s ruling. Eskew, et al., v. BNSF, et al., 2011 IL App (1^st) 093450. In Illinois, to compel a post-trial evidentiary hearing on juror misconduct, the moving party must produce specific, detailed evidence. People v. Kuntu, 188 Ill. 2d 157, 161 (1999). A verdict may be challenged by showing the existence of improper extraneous information. Redmond v. Socha, 216 Ill. 2d 622, 636 (2005).

The appellate court held that the trial court correctly observed that the defendants had not produced any evidence showing that the jurors were exposed to improper extraneous information bearing on the crucial issues in the case.  Further, the blog entries did not indicate that any information was received either from the juror’s husband or from any other source.

The court cited to People v. Runge in regards to the defense’s argument about premature deliberations. 234 Ill. 2d 68 (2009). Although premature deliberations are not proper, they may not be so serious as to warrant a new trial. “The important question is not whether the jurors kept silent with each other, but whether each juror kept an open mind…” Here, the court concluded that the blog’s content was not biased. In fact, the blog indicated that jurors were committed to keeping an open mind and were “guarding their objectivity fiercely until the last syllable of testimony [had] been uttered…”

You can find the juror’s blog entries at http://greenroomthoughts.blogspot.com/search/label/justice

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According to 28 USC §1446(b), a defendant has 30 days from the service of summons to remove the case to federal court.  The case cannot be removed unless all the defendants consent to removal.   However, Section 1446 does not address whether a later served-defendant in a multiple defendant case can obtain consent for removal from any previously served defendant whose 30 day time limit has expired.  So the question becomes, when does the 30 day countdown start running?  Some courts have adopted the “first-served defendant” rule, where notice of removal must be filed within 30 days of service on the first-served defendant.  However, courts are split on the issue.

In Seabright Insurance Company v. JLG Industries,   No. 11 C 2424 (June 20, 2011, N.D. Ill.) , Seabright, the later-served defendant filed a notice of removal 33 days after the first defendant was served.  U.S. District Judge Kennelly adopted the “later-served defendant” rule.   Applying the rule to the case, the court held that even if the first-served defendant was 3 days past the 30 day deadline, the later served defendant is able to file a notice of removal within its own 30 day window with the consent of all the defendants. 

The court stated that the “later-served defendant” rule more appropriately effectuates Section 1446, which uses the phrase “….shall be filed within 30 days after the receipt by the defendant.”  The court reasoned that this language allows each defendant, on a defendant-by-defendant basis,  to remove an action from state to federal court regardless of what the earlier served defendant did.   The court explained, if the “first-served defendant” rule is used, a later-served defendant might be deprived of the ability to remove the case, which is contrary to the language of Section 1446. 

The plaintiff argued that the “later-served defendant” rule gives the first-served defendant, whose 30 day deadline expired, another bite at the apple.  The court disagreed. The first-served defendant only has the ability to consent after its time has expired because of the unanimity requirement, not the ability to remove the case.  More so, if the “first-served defendant” rule was used, a plaintiff would be able to preclude removal to federal court by manipulating the timing of service on each defendant.  Lastly, dockets are often updated slowly.  Defendants not yet served would either be unaware of any previous service of summons or be forced to track down earlier served defendants in order to get a sense of timing.    
 

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The Illinois Appellate Court for the First District, Third Division, has affirmed a ruling by Judge Laurence J. Dunford of the Cook County Circuit Court. In Interstate Bankers Casualty Company a/s/o Michael Porter v. Waites,No. 1-10-2963, July 27, 2011,  the plaintiff, Interstate Bankers Casualty Company , brought a property damage action against defendant, Waites.  Interstate filed a Rule 237 motion, which required Waites’ appearance at the arbitration hearing.  The day before the hearing Waites filed an emergency motion to admit negligence and to be excused from appearing at arbitration.  The plaintiff objected.

The circuit court denied the motion.  The judge reasoned it was “standard practice” because “when a plaintiff…[objects] to the admission of negligence..., I deny the motion...”  Rule 237 creates a duty upon the party to appear.   The next day, Waites never appeared at the arbitration hearing.  The arbitrator awarded Interstate $3,912.  Waites rejected the award.  However, the circuit court granted Interstate’s motion to debar Waites’ rejection of the award.  Waites appealed. 

The appellate court stated that, despite the circuit court’s seemingly arbitrary rationale, its conclusion was correct.   Illinois Supreme Court Rule 90(g) provides that a party’s presence at an arbitration hearing may be excused by “court order for good cause shown not less than seven days prior to hearing.”  In this case, the defense counsel knew about the hearing two months in advance, filed the motion the day before, and admitted not having communicated with the client.  Furthermore, Waites provided no extenuating reason for excusal or for the delay, and violated Rule 237 by not attending the hearing.  Therefore, Waites did not comply with Rule 90(g).

The court also affirmed the circuit court’s order that debarred Waites from rejecting the arbitration award.  Rule 90(g) provides that a party whose absence is not waived by stipulation or excused by the trial court may be debarred from rejecting the award.  Even though Waites’ attorney was present at the arbitration hearing, Waites’ failure to show violated Rule 237.  Further, she did not communicate with counsel and did not provide any extenuating reasons for her unexcused absence.  The appellate court said that the sanction was appropriate under the circumstances. 
 

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While driving his own car on his way to visit a customer, Michael Molda, a Metro Lift employee, was involved in a car accident with Ms. Nola Wilson. Molda had his own auto insurance but as an employee of Metrolift, he was also covered under Metrolift’s insurance policy with the plaintiff, First Chicago Insurance www.firstchicagoinsurance.com/. Metrolift purchased the insurance policy through Associated Specialty Insurance (Associated). Mark Baskiewicz, an insurance broker of 20 years and an employee of Associated, was Metrolift’s primary contact for insurance issues. Metrolift notified Mark Baskiewicz two days after the accident and both allegedly agreed to a plan in which they would “wait and see” if any complaints were filed against Metro and if Molda had sufficient insurance under his policy. 

Wilson sued Molda in August 2007. Metrolift was later added as a defendant. Metrolift  forwarded the amended complaint to First Chicago. First Chicago then filed for declaratory judgment and alleged it was not liable to provide insurance to Molda or Metrolift because of unreasonably late notice it only first received in March 2008.   First Chicago filed for summary judgment and the motion was granted. Wilson and Molda appealed. (Metrolift was later dismissed from the Wilson’s tort case on statute of limitations ground and did not participate in the appeal).

The appellants argued that First Chicago was barred in claiming that notice was untimely because the conversation between Baskiewicz and Metrolift constituted “prompt” notice to First Chicago’s “authorized representative” per the notice provision of the insurance contract. The court stated that an insurance broker is generally considered to be the agent of the insured and not the insurance company.  State Security Insurance Co. v. Burgos, 145 Ill. 2d 423, 431 (1991). However, a broker may have apparent authority to provide notice if a reasonable person would believe that the broker was an agent. Id. at 431.

Apparent authority can manifest itself through course of dealings between the broker and insurance company, if a broker is continually used as an intermediary and conduit for premium payments and policy updates, and through the language of the contract such as a designated “representative” or “agent” clauses. See Id. at 423. The court found this case similar to the facts in Burgos and held that there could be apparent authority, which would make summary judgment improper. Furthermore, because there was a question of fact as to what was discussed between Metro and Baskiewicz and whether First Chicago suffered any prejudice from the late notice, the court could not determine if the delay was unreasonable. 

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