August 2012 Case Notes & Comments

I refuse answer to that question on the basis that I don't have the answer. ~ unknown

MONTHLY QUIZ: Almost two years after her vehicle is rear-ended, Plaintiff sues for negligence, seeking among other things, past and future pain and suffering, disability, loss of a normal life, and loss of earning capacity. Defendant admits negligence, but case proceeds to trial on the issue of damages. At trial, Plaintiff admits under Defense Attorney’s cross-examination that she has not been to the doctor for the entire three-year period her case has been pending. On redirect, the Plaintiff’s Counsel asks her if she had health insurance, either at the time of the wreck or presently. Plaintiff answers “no.” Court orders a mistrial on the basis that counsel’s “health insurance” question was improper. On retrial, the Court allows Defense Attorney to ask Plaintiff when the last time she visited the doctor, but no further questions. Also, Judge does not allow Plaintiff to explain that she did not have insurance or the ability to pay. Is Plaintiff’s testimony regarding insurance and her ability to pay relevant to her damages claims? Even assuming it is relevant, should it be allowed by the Court?  You be the judge. (Answer below)


INSURANCE - PROFESSIONAL SERVICES EXCLUSION DOES NOT BAR COVERAGE AS ADDITIONAL INSURED: Utility entered into Contract whereby Company agreed to provide professional engineering/design services for the relocation of utility poles. Per the Contract, Company procured a commercial general liability Policy from Insurer naming Utility as an additional insured (AI). While relocating poles, Utility damaged Municipality’s sewers. Municipality sued for negligence and Utility tendered its defense and indemnity to Insurer and Company. While Insurer accepted that Utility was an AI, it denied coverage on the grounds that Company provided only professional services and thus, Policy’s professional-services exclusion applied. Company filed an action seeking a declaration that the Policy required Insurer to defend and indemnify Utility. Company and Utility contended that the Policy’s separation-of-insureds clause required that the applicability of the professional-services exclusion to Utility be determined separately. Appellate Court found that since Utility provided no professional services and given the possibility of multiple causes, lawsuit potentially fell within the terms of the policy. HELD: Utility entitled to coverage.Patrick Eng’r v. Old Republic Ins., 2012 IL App (2nd) 111111 (July 20, 2012)


GOVERNMENTAL TORT IMMUNITY: Following a motor vehicle accident allegedly caused by Ambulance Driver of county Hospital District, Motorist sued Ambulance Driver and Hospital District for negligence. Hospital District argues that the Tort and Governmental Immunity Act bars claims for negligence against public employees. The Illinois Supreme Court held that while the Motor Vehicle Act generally prohibits negligence by emergency drivers (not all of whom are public employees), the Tort Immunity Act specifically protects public employees against negligence claims. Therefore, the Tort Immunity Act should have been applied to bar the negligence claims against the Hospital District and its employee, Ambulance Driver. Harris v. Thompsonet al,2012 IL 112525 (June 21, 2012)


LATE NOTICE: Insured sought $2.5 million from excess/umbrella Insurer to help satisfy a $3.5 million tort settlement. Insurer denied claim since Insured violated notice provision in the Policy by failing to give Insurer notice of suit for more than two years, until just before settlement. Insured claimed delay was excusable, as it did not think excess insurance would be required until notice was given. Though agreeing that an insured’s reasonable expectations can sometimes excuse late notice, Court found that Insured did not act with diligence, as a reasonable insured would have given notice to its excess carrier when faced with the large damages sought in the complaint and that Insurer was prejudiced by not being able to participate in the defense.  MHM Services, Inc. v. Assurance, 2012 IL App (1st) 112171 (Aug. 3, 2012)


WORKERS COMPENSATION / BORROWED SERVANT: Chevy Dealer and Toyota Dealer had same owner, but were separately incorporated.  Worker was hired and paid by Chevy Dealer, but did maintenance for both dealerships. Worker was killed while repairing an overhead door for the Toyota Dealer.   Plaintiff filed wrongful death and survival actions against Toyota. Toyota moved for summary judgment, contending that the Worker was a borrowed employee from Chevy, and therefore was barred from a direct action against Toyota under the exclusivity doctrine of the Workers’ Compensation Act.  Toyota won summary judgment in its favor because:  (1) Toyota personnel had the right to control the manner in which Worker performed his work on Toyota’s premises; and, 2) Worker  knew that Toyota, the borrowing employer, controlled the work generally,  and Worker had accepted the borrowing employer’s direction.  The facts that Chevy paid Worker’s salary and made payments for the workers’ compensation policy covering Worker were irrelevant to the issue of the right to control.  Prodanic v. Grossinger City Autocorp, 2012 IL App (1st) 110993 (July 19, 2012)


ANSWER TO QUIZ: Plaintiff wins. Though evidence as to existence of insurance is generally inadmissible to prove liability, such evidence may be admitted to prove relevant issues raised in a case. Here, Plaintiff’s testimony was relevant to rebut the defense theory that she no longer had pain and suffering. Further, given that it was a “close case” and the contested testimony related directly to the central controversy in the case - namely, the extent of Plaintiff’s damages and whether she was entitled to damages for future pain and suffering, medical expenses, and loss of normal life - it was error to exclude her testimony. Vanoosting v. Sellars, 2012 IL App (5th) 110365 (June 14, 2012)