December 2012 Case Notes & Comments

“Nothing says holidays, like a cheese log.” ~ Ellen DeGeneres

MONTHLY QUIZ: Santa hires Grinch as distribution superintendent of one of his toy factories. Since Grinch’s job includes dispatching elf crews to handle emergencies, Santa requires Grinch to reside within 15-minutes drive of the factory. Grinch accepts Santa’s offer to rent a house that Santa owns on the factory’s premises. Grinch shares the house with his dog, Max, who he allows to freely roam. Just prior to Christmas, Max approaches Hanukkah Harry, the factory manager, and begins snarling and growling. Harry reports the incident to Santa, who tells Grinch that Max requires supervision when outside the house. After two more incidents, Santa warns Grinch that any further incidents will require either Max or the Grinch to move. Shortly after Christmas, Grinch invites several people over for cards, including Rudolph, Frosty the Snowman and Frosty’s dog, Snowflake. During the game, Max and Snowflake begin to fight. Later, when Rudolph is saying goodbye to Grinch, Snowflake bites him on the cheek. Rudolph sues Santa, the landowner, under the Illinois Animal Control Act (Act) and for common-law negligence. Does Santa owe a duty to Rudolph because he owns the property? Is Santa potentially liable? You be the Judge. (Answer below) 


CASE OF FIRST IMPRESSION - VOLUNTARY PAYMENTS PROVISION: Attorney made a mistake in drafting Client’s will and sent letter to all Beneficiaries admitting that his mistake resulted in several Beneficiaries receiving less money than they otherwise would have. Beneficiaries sued and Attorney submitted claim to Insurer, who declined to defend Attorney on the grounds that sending the letter to Beneficiaries without prior to notice to Insurer violated the “Voluntary Payments” provision of his insurance Policy, which provides that “except at its own cost,[the insured] will not admit any liability… without [Insurer’s] prior written consent.” Insurer filed a declaratory action that did not mention coverage, but sought an order that it had no duty to defend Attorney as a result of his admission. The Trial Court granted summary judgment in Attorney’s favor, finding that Insurer had a duty to defend since he admitted to a mistake, not to liability, and since Insurer was not prejudiced. In affirming judgment in favor of Attorney, Appellate Court found that the “admission of fault did not amount to an assumption of liability, since it amounted only to an admission of the truth of the fact from which liability might flow.” Further, the Appellate Court found the provision contrary to public policy since it may have operated to limit Attorney’s disclosure of the error and its consequences to his client’s Beneficiaries. Illinois State Bar Ass’n Mut. Ins. Co. v. Frank M. Greenfield & Assoc, 2012 IL App (1st) 110337 (Nov. 9, 2012)


COMMUNICATIONS BETWEEN PLAINTIFF & ADJUSTER FOUND ADMISSIBLE:Plaintiff sued Defendant-Insured for negligence following a motor-vehicle accident. At trial, Defendant filed a motion in limine barring evidence relating to conversations between Plaintiff and Adjuster, an employee of Defendant’s liability Insurer. Attached to the motion was Adjuster’s claims activity log, which reflected the fact that she “spoke with [Plaintiff] and he states that he continues to have problems with neck and may seek chiro[pratic] treatment at this time[.] [E]xplain[ed] that we will hold bills that we have and we will follow up in 30-45 days to find out status of injury claim[.]” At trial, Plaintiff argued the motion to bar should be denied because the communication was relevant to show that Plaintiff continued to experience neck problems between the accident and the date he sought chiropractic treatment; and the evidence could be introduced without indicating that Adjuster worked for Insurer. The trial court barred any reference to the communication but the appellate court reversed. According to the appellate court, any reference to insurance, or Adjuster’s role as an employee of Insurer, “could easily [have been] avoided by [a] stipulation” and Adjuster would need only testify that she communicated with Plaintiff, who complained that he was continuing to have neck problems and was considering seeking chiropractic treatment. Of note, the appellate court found it important that the communication was not an offer of settlement, or to pay Plaintiff’s medical bills, which conversations are generally inadmissible. Cundiff v. Patel, 2012 IL App (4th) 120031 (Nov. 19, 2012)


PRIVACY PROTECTION IN FEDERAL FILINGS: Rule 5.2 of the Federal Rules of Civil Procedure provides general privacy protections for filings made in Federal Courts. Under Rule 5.2, unless otherwise ordered by the court or otherwise excepted, Federal filings should not include social-security numbers, taxpayer-identification numbers, birth dates, names of minor children, or financial-account numbers. In addition, individual Federal Courts, through their respective local court rules, may provide additional privacy protections that require redaction of further personal information, such as drivers’ license numbers and complete home addresses. See e.g., S.D. Ill. L.R. 5.1(d) and E.D. Mo L.R 5 - 2.17. 
ANSWER TO QUIZ: Santa is not liable because Snowflake was not under Santa’s care, custody, and control. In order to be liable under the Act, one must be an “owner” - which includes not only the animal’s actual owner, but those persons who “[h]arbor or keep” the animal. The Illinois Supreme Court has, however, interpreted the term “owner” to mean those who people who have “some measure of care, custody, [and] control” over the animal. Knowingly permitting a dog to be on rental property is, by itself, insufficient to establish ownership under the Act. Likewise, Rudolph’s negligence claim fails since Santa exerted no control over the animals in the home he rented to Grinch and had no prior knowledge of Snowflake’s alleged propensities to bite. Although Santa owed Rudolph no money, he did permit Rudolph to guide his sleigh that night. Howle v. Aqua Illinois, Inc., 2012 IL App (4th) 120207 (Oct. 31, 2012)

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