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

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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Keith Allendorf was an employee of Mr. and Mrs. Clifford Redfearn. He also lived on their farm. On August 15, 2008 the Redfearn's bull escaped and ran loose. The Redfearns asked  for Keith's assistance to retrieve the bull and equipped him with the their ATV to facilitate the search. While in the process of pursuing the bull, Keith was injured when he struck a tree stump. As a result, he broke several ribs.

Mr. Allendor filed suit and alleged in his complaint that the defendants violated the Running at Large Act, in that the bull was the proximate cause of injury and that the bull was improperly restrained. Count II of the complaint was for common law negligence. The defendants filed a motion to dismiss arguing the ATV accident was not in the scope of harm addressed by the Running at Large Act. The defendants also argued that the ATV statute in the Illinois Motor Vehicle code exempts property owners from negligence for ATV accidents occurring on their property. The motion to dismiss was denied and the trial court certified two questions to the Illinois Appellate Court.

First, the trial court asked if the ATV statute barred the plaintiff’s negligence claim. The appellate court held that it did not because the statute exempts “owner[s] lessee[s], or occupant[s] from the negligence claims of “others.” 625 ILCS 5/11-1427(g). Mr. Allendorf not fall within the meaning of “others” and was more like an owner, occupier, or agent because he resided on the property and was an employee of the defendant. In addition the Court looked at the fact that he was driving the ATV with permission in exchange for valuable consideration and as such fell within another exception to the statute.

The second certified question asked if the plaintiff could bring a claim under the Running at Large Act. The appellate court held that the plaintiff could not and held the trial court’s denial of the motion to dismiss was proper. “All owners” of livestock shall refrain and prevent livestock from running at large and “shall be liable for all damages occasioned by such animals running at large.” 510 ILCS 55/1. The court concluded that the plaintiff status was within the scope of “owner” because the plaintiff stood in a special relationship to the animal as an employee of the farm and because the plaintiff was attempting to exercise dominion and control over the bull at the time of the accident. 
The court ruled that the plaintiff's relationship with the animal would put him on notice of the dangers of this animal and thus he could not recover under the statute. 

Allendorf v. Redfearn, 2011 WL 3105714

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    Jerry Maggie, a 46 year old bricklayer died after a fall while working at a construction project. Maggie v. RAS Development, 949 N.E.2d 731 (Ill. App. 1st 2011). His estate brought a negligence lawsuit against RAS Wolfgram, one of the entities named in the complaint. Wolfgram’s answer volunteered that it was the general contractor (GC). However, a year later Wolfgram stated in an interrogatory answer that it actually hired RAS Development as the GC. 

    After the contract between RAS Wolfgram and RAS Development surfaced 4 years after the accident and outside of the limitation period, the plaintiff voluntarily dismissed RAS Wolfgram and added RAS Development as the general contractor to the complaint. The case proceeded to trial, and the jury returned a $3.2 million dollar verdict againt RAS Development. RAS Development appealed and argued that trail court erred in denying its motion to dismiss on the grounds that the amended complaint was beyond the statute of limitations and that it did not relate back to the original complaint. 

    The First District Illinois Appellate Court affirmed and held that the relation back doctrine applied. In a case of misnomer or mistaken identity, the relation back doctrine would automatically apply. Relation back depends on what the added party knew or should have known, not on the amending party’s knowledge or its timeliness.   Citing Krupskie v. Costa Crociere, 130 S. Ct. 2485 (2010). If a complaint intends to sue a liable party not named, and the unnamed party knows or should know that it was not named because of the plaintiff’s misunderstanding, then it is case of mistaken identity.   Here, like Krupskie, the complaint intended to sue the entities that “owned or were in charge of the erection, construction, repairs, alteration, removal and/or brick laying…,” and RAS Development knew or should have known of the plaintiff’s mistake. 

    Once mistaken identity is established, a complaint amended outside the statute of limitations relates back if three conditions are met. The court found all three satisfied. First, the court found the original complaint was filed within the applicable limitation period. Second, the amended complaint grew out of the same occurrence stated in the original complaint. Third, the court held that RAS Development received timely notice of the commencement of the action. It was aware at least 15 months prior to the expiration of the limitations period that the plaintiff intended to sue the general contactor and was, therefore, not prejudiced in maintaining its defense. 

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In the case of Thompson v. Memorial Hosp. of Carbondale, 2011 WL 1642594S.D.Ill. (2011), the question presented to the Appellate Court was - When does post-judgment interest start to run once remittitur has been ordered and the plaintiff accepts the proposed reduction? In this case, the  remittitur lowered the original verdict of $500,000 to $250,000. The defendant hospital argued that post-conviction interest should begin to accrue at the time of the remittitur and not from the original judgment date. 

The court disagreed and distinguished cases where a first judgment is vacated and remanded because the original judgment lacked an evidentiary or legal basis. Coredero v. De Jesus-Mendez, 922 F. 2d 11, 16 (1st Cir. 1990). In these types of cases, because damages have not been originally ascertained in a meaningful way, post-judgment interest accrues from the date of the second judgment.   Id. However if the original judgment is basically legally sound but merely modified on remand, post-interest judgment accrues from the date of the original first judgment. Id. 

The  court further explained that  in cases in which a remittitur of damages had been ordered the rule is: “Where damages were sufficiently ascertained at the time of the district court judgment and a remittitur order only merely reduced the damages by a distinct amount easily determined from the facts of the case, post-judgment interest accrues from the date of the district court’s original judgment, rather than from the date the plaintiff consents to remittitur.” Coal Res., Inc. v. Gulf & W. Indus., Inc., 954 F.2d 1263 (6^th Cir.1992).

In this case, the Seventh Circuit found that the jury’s judgment in favor of Thompson was basically sound and supported by the evidence but was excessive under the facts. It was also not in line with awards in similar cases. Therefore, because there was only a reduction in damages, the district held that post-judgment interest ran from the date of the original judgment. 

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