On December 15, 2016, Gerard A. Fosco of Leahy, Eisenberg & Fraenkel, Ltd. appeared before the Illinois Supreme Court on behalf of his client, a home inspector and repairman, in the case Schweihs v. Chase Home Finance, LLC, et al., arguing the continued viability of the "impact rule", which is a requirement for alleged victims of emotional distress. Illinois' high court agreed with Mr. Fosco and affirmed the dismissal of the plaintiff's claims. The defendants timely filed a petition for rehearing, which is presently under consideration in the Illinois Supreme Court.
SIGNIFICANT CHANGES IN SNOW REMOVAL LIABILITY: The Snow Removal Service Liability Limitation Act (P.A.099-0889) changes the relationship between snow removal contractors (“service providers”) and those who contract with them (“service receivers”). In the past, snow removal contracts shifted liability one way or the other - typically requiring the service provider to assume the risk - and enabled a property owner/operator to contract away its liability and defense costs for injuries related to winter weather problems on property. This new Act renders these absolute liability-shifting provisions “void”. Specifically, the Act voids snow removal / ice control services contracts that require the service provider to indemnify, defend, or hold harmless the service receiver from damages resulting from the acts or omissions of the service receiver. Likewise, the Act voids those contracts that require the service receiver to indemnify, defend, or hold harmless the service provider from damages resulting from the acts or omissions of the service provider. The Act applies to snow removal and ice control services contracts entered into on or after 8/25/16, but does not apply to contracts concerning public roads, public bodies, and public utilities. EDITORS NOTE: This Act does not prohibit additional insured contract requirements. The Act is similar to the Construction Contract Indemnification for Negligence Act, which voids construction contract provisions purporting to indemnify or hold harmless another person from their own negligence. Consultation with counsel familiar with this Act is imperative to ensure that contracts entered into after the Act’s effective date are not rendered void.
LEF WINS SUMMARY JUDGMENT: Congratulations to Roland S. Keske who obtained summary judgment in favor of the insurer in a first party / breach of contract suit filed in the Circuit Court of Cook County arising from an alleged holdup and jewelry theft. The Court agreed that no coverage was owed due to several misrepresentations in the insured's application for insurance regarding the insured's residence, roommates, alarm system, safe and travel habits. The insured, who incidentally claimed to be a trainer to several current and former NBA players, argued that coverage was owed because the misrepresentations were not significant and were wholly unrelated to the loss. However, Mr. Keske convinced the Court that a dismissal was warranted because the insured's misrepresentations materially affected the insurer's acceptance of the risk. No appeal was filed. McCray v. Jeweler's Mutual Insurance Company, Case No. No. 13 CH 15238 (Cook County)
PETER A. SINK JOINS LEAHY, EISENBERG & FRAENKEL, LTD. : Leahy, Eisenberg & Fraenkel, Ltd. welcomes partner Peter A. Sink to the Firm to chair the Firm's Workers' Compensation department. Peter joins Leahy, Eisenberg & Fraenkel, Ltd. from an established Chicago firm, where he represented insureds and self-insureds before the Illinois Workers' Compensation Commission, Illinois Circuit Courts, Illinois Appellate District Courts and the Illinois Supreme Court. Peter brings over twenty-five years of experience defending work-related injuries. We look forward to our shared future, as Peter significant experience and established reputation for excellence and enthusiasm will serve the firm and our clients well.
LEF WINS SUMMARY JUDGMENT WITH REGARD TO INSURER'S DUTY TO INDEMNIFYCongratulations to Howard Randell and Scott Wing who were recently awarded summary judgment with regard to an insurer's duty to indemnify its insured in a matter arising out of the theft of a shipment of cellular phones valued at more than $2 million. The insured, a motor carrier and logistics provider, was initially hired to transport the shipment from Illinois to Pennsylvania; however, due to a shortage of equipment, the insured retained a separate motor carrier to actually perform the transit. After accepting the load for delivery, the driver parked his truck near his home to take a brief rest, at which point the load was stolen, along with the cargo inside. Suit was filed by the owner of the cargo against its logistics provider which, in turn filed suit against the insured to recover the value of the stolen cargo. The insured tendered its defense and indemnity to its motor truck cargo insurer, which accepted the tender, subject to a reservation of its rights. LEF filed suit for declaratory judgment and, during the early stages of litigation, secured a summary judgment with regard to the insurer's duty to defend, with the court acknowledging that the subject policy extended the insurer a right, but not a duty to defend, at which point the insurer was able to withdraw its defense of the underlying case prior to extensive discovery and motion practice. The underlying case ultimately settled on the eve of trial, at which point LEF moved for summary judgment with regard to the insurer's duty to indemnify, citing the policy provision requiring that covered property be within the insured's "care, custody, and control" and a policy exclusion for the insured's liability as a "transportation broker." Following lengthy briefing and oral argument, the court agreed with LEF's position on both the "care, custody, and control" and transportation broker issues, ruling that the insurer had no duty to indemnify its insured for the underlying settlement. Hartford v. Atlas SN, Inc. et al., Case No. 12 CH 1633 (Cook).
LEF OPENS INDIANA OFFICE - Leahy, Eisenberg & Fraenkel, Ltd. is pleased to announce the opening of our newest office at 1112 U.S. Route 41, Suite 101, Schererville, Indiana 46375. We are excited for the opportunities this expansion will create, and look forward to providing cost-effective and creative legal representation to our valued clients. As we have in Illinois for more than 40 years, we will offer services in all our insurance practice groups.