January 2013 Case Notes & Comments

“Every day you put this jersey on, it’s a privilege.” ~ Stan Musial,1920 – 2013

MONTHLY QUIZ: Contractor builds retaining wall in 1990 without a guardrail. In 1994, Contractor repairs a portion of the wall after it collapses due to heavy rains. After being repaired, the wall is identical in every respect to the original wall. While on patrol in 2001, more than 10 years after the original completion, Plaintiff-Police Officer falls off a section of the wall at the opposite end from the repairs, and sues Contractor alleging that the wall should have had a guardrail or other barrier to prevent people from falling. Contractor argues Plaintiff’s claims are time-barred by the 10-year construction statute of repose set forth in Section 735 ILCS 5/13-214 (“Section 214”) since its repairs were not “construction of an improvement to real property” under Section 214? Were Contractor’s wall repairs an improvement to real property? Are Plaintiff’s claims time-barred? You be the judge.  (Answer below)


NAMED-DRIVER EXCLUSION FOUND VOID, UNENFORCEABLE: In 2007, Insurer issued an automobile Policy to Defendant-Insured. However, Policy’s section identifying the “operators” of the vehicle listed two people: (1) Defendant, with the notation “EXCLUDED” instead of a driver’s license number; and (2) Defendant’s friend. Policy also included an endorsement providing that Insurer would not afford any coverage for claims or suit that occurred as the result of Defendant operating any vehicle. Finally, the Policy contained a provision excluding bodily injury and property-damage liability coverage for “any automobile while in control of an excluded operator.” One month after Policy took effect, Defendant drove her car and struck two Pedestrians, killing one and seriously injuring the other. Insurer filed a declaratory action, alleging that Policy provided no coverage for and no duty to defend. Pedestrians’ insurance company (who apparently provided uninsured motorist coverage to Pedestrians) answered Insurer’s complaint and filed a counter complaint, asking that Insurer be estopped from excluding coverage on the grounds that Insurer’s attempt to specifically exclude Defendant was contrary to the law, public policy and was unenforceable. The appellate court relied upon statute 625 ILCS 5/7-317(b)(2), which mandates that Illinois liability insurance policies insure the named insured and permissive users. Here, the Policy exclusion operated to deny liability coverage to Defendant, the solenamed insured, which is contrary to Section 7-317(b)(2) and, thus, Illinois public policy. Pedestrians won. American Access Casualty Co. v. Reyes, 2012 IL App (2nd)  120296 (Dec. 28, 2012)  COMPARE / CONTRAST: Dungeyv. Haines & Britton, Ltd., 155 Ill. 2d 329 at 336 (1993) (named-driver exclusion enforced wherein a husband was excluded from coverage under wife’s policy)


MEDICAL NEGLIGENCE - TRIAL COURTS HAVE DISCRETION TO GRANT EXTENSION OF INITIAL 90-DAY PERIOD TO FILE REPORT & ATTORNEY AFFIDAVIT: Plaintiff sued for medical malpractice. Plaintiff’s attorney did not file an attorney affidavit as required by Section 2-622 of the Code (735 ILCS 5/2-622) and Defendant moved to dismiss. Plaintiff argued that she attempted in good faith to comply with the requirements of section 2-622 of the Code, that her attorney’s signature on the complaint satisfied the attorney affidavit requirement, and that, if an attorney signature on the complaint was not sufficient, then the court should allow her to file an attorney affidavit. The plain language of Section 2-622(a)(2), which contains the 90-day provision, says nothing about whether the court can grant a plaintiff additional time to file the necessary documents. The appellate court held that trial courts do have the discretion to grant a plaintiff additional time to file the attorney affidavit. HELD: Case remanded to trial court for determination of whether Plaintiff established good cause for not filing the attorney affidavit within 90 days of filing the complaint.


3-STORY PORCH COLLAPSE CONSTITUTES SINGLE OCCURRENCE: In June 2003, a three-story porch in Chicago, Illinois collapsed during a party, resulting in the deaths of 12 people and injuries to 29 more. Plaintiffs settled their claims with building owner and others in the underlying tort action and obtained an assignment of rights against Insurer. Insurer’s Policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Plaintiffs argued that the porch collapse constituted more than one occurrence and that Insurer was liable to Plaintiffs for the $2 million aggregate limit of the Policy rather than the $1 million per occurrence limit Insurer had already paid. HELD: Summary judgment in favor of Insurer, finding a single occurrence, affirmed. Ware v. First Specialty Insurance Corporation, 2012 IL App (1st) 113340 (Jan. 11, 2013)


LEAHY, EISENBERG & FRAENKEL ATTORNEYS DESIGNATED ILLINOIS SUPER LAWYERS:Leahy, Eisenberg & Fraenkel is pleased to announce that four of its attorneys, Kevin Carlson, Roland S. Keske, Robert Ostojic and Scott Wing, were recently included on the 2013 Illinois Super Lawyers® list.


ANSWER TO QUIZ: Plaintiff loses, Contractor wins. Illinois courts have made clear that an improvement to real property is “an addition to real property amounting to more than a mere repair or replacement and which substantially enhances the value of the property.” The mere repair of an existing wall neither improved the value of the property nor enhanced its use and simply returned the property to the condition it had been in prior to the heavy rain damage. Furthermore, the portion from which Plaintiff fell was a different section than what was repaired in 1994. Schott v. Halloran Construction Company, Inc.  2013 IL App (5th) 110428 (Jan. 18, 2013)