August 2010 Case Notes & Comments

“The larger the island of knowledge, the longer the shoreline of wonder.” ~ Ralph W. Sockman

MONTHLY QUIZ: TORT LAW- PREMISES LIABILITY/COMMON CARRIER: Elderly Passenger fell and sustained injuries when she stepped off her train at elevated Chicago Transit Authority (“CTA”) platform under slippery conditions. At trial, witnesses testified that a small canopy covered a portion of the platform. CTA moves for directed finding pursuant to “natural accumulation” rule, under which property owners have no duty to remove natural accumulations of ice, snow or water. Passenger argues: 1) “natural accumulation” rule does not apply; and, 2) that even if “natural accumulation” rule applies, the CTA should have let her off under the canopy, but instead, violated traditional rule that common carriers must provide passengers with “a safe place to alight” when it stopped train in front of the natural accumulation of ice and snow. Who wins? You be the judge. (Answer below).

INSURANCE COVERAGE:ANTI-STACKING LANGUAGE DOES NOT PREVENT RECOVERY OF COMBINED LIMITS: Plaintiff injured when his ATV collided with motorcycle being driven by his brother. Both vehicles and others were listed separately, each with a $100k limit, on the same policy. Declarations page stated that “policy limits shown for a vehicle may not be combined with the limits for the same coverage on another vehicle” and the “Limits of Liability” section provided that “the limit of liability shown on the Declarations Page is the most [Insurer] will pay regardless of the number of: … covered vehicles; insured persons; vehicles involved in an accident; or premiums paid.” When Plaintiff sought to recover $200k based upon the combined limit of the ATV and motorcycle, Insurer sought declaration that its liability was limited to $100k. TheKocher Court found, based in large part on the layout of the declarations, the anti-stacking provisions ambiguous and “reasonably” interpreted the language to prohibit only true anti-stacking (i.e. combining limits with vehicles not involved in accident). Progressive Premier Ins. Co. v. Kocher,--N.E.2d--, 2010 WL 2780672, Case NO.5-07-0468 (5th Dist. July 13, 2010) NOTE: Decision contradicts result in Progressive Premier Ins. Co. v. Cannon, 382 Ill.App.3d 526 (3rd Dist. 2008). 

WORKERS’ COMPENSATION: Employer filed petition for modification of a permanent total disability (PTD) award and sought an order requiring Employee to produce post-award income tax and earnings records. The Illinois Workers’ Compensation Commission, trial and appellate courts agreed that Illinois Workers' Compensation Act does not permit the Employer to receive income tax records after a permanent total award to seek to modify the award. Boyd Electric v. Workers’ Compensation Commission, --N.E.2d--, 2010 WL 2991069, Case No.1-09-0766W (1st Dist. July 13, 2010)

INSURANCE LAW: INSURERS MUST NOTIFY ILLINOIS SEC’Y OF STATE OF POLICY CANCELLATION COVERING MEDICAL VEHICLES. Pro Med Paramedic Services (Pro Med) procured coverage for its vehicles through Finance Company, who also had power of attorney to cancel the policy if Pro Med failed to timely make payments. Though it received a pre-cancellation notice from Finance Company, Pro Med failed to make payment and Finance Company cancelled the policy. Pro Med continued to operate on Illinois roads and one of its medical transport vans collided with Driver. In resulting coverage dispute, Driver’s insurer sought a judgment declaring that Pro Med’s policy remained in force because neither Finance Company nor Pro Med’s insurer complied with the IL Insurance (215 ILCS 5/1 et seq.(West 2006)) and IL Vehicle Codes (625 ILCS 5/8-110(West 2006)) since they did not notify the IL Sec’y of State of the cancellation. Pro Med’s insurer argued the cancellation notice requirements only applied where the insurer, not a third-party finance company with power of attorney, cancels the policy. The appellate court disagreed, holding that the cancellation was not effectuated because the IL Insurance Code expressly requires finance companies to give at least 10-days notice to the IL Sec’y of State. American Home Assurance Company v. Taylor, -- N.E.2d --, 2010 WL 2347000, Case No. 1-08-3169 (1st Dist. June 10, 2010)

LEF WINS APPEAL – RENTAL INSURANCE PURCHASED BY CUSTOMER FOUND PRIMARY TO INSURED’S BUSINESS AUTO POLICY – On a motion for summary judgment, LEF successfully argued that its client’s business auto policy was excess and secondary to a supplemental liability policy purchased by the insured from a truck rental company. Though the accident occurred while the insured was driving the rental company’s truck, the rental company and its insurer argued that LEF’s client was not covered by the supplemental liability policy because the client had “waived” the supplemental liability insurance after the accident. The Appellate Court affirmed, holding that under the plain language of the rental contracts and insurance policies, the supplemental liability policy was in effect at the time of the accident and was primary to the client’s business auto policy. Central Mutual Insurance Company v. Old Republic Insurance Company, et al., Case No. 1-09-1758 (1st Dist. July 21, 2010). 

ANSWER TO QUIZ: CTA wins. The Illinois Supreme Court held that the natural accumulation rule applied and that CTA had no duty to remove, or warn of, natural accumulations of snow and ice on its platforms. Krywin Court also concluded that having CTA train conductors determine which portion of the platform has the least snow, ice or water every time they pull into the station would be an impractical burden and “overwhelmingly detrimental to the efficient performance of the transit system.” Krywin v. Chicago Transit Authority, 2010 WL 2780319 (Ill.S.Ct., July 15, 2010) NOTE:(Dissent argued that Tort Immunity Act abrogates the common law natural accumulation rule)