July 2010 Case Notes & Comments

I have always struggled to achieve excellence.
One thing that cycling has taught me is that if you can achieve something without a struggle it's not going to be satisfying. ~ Greg LeMond

MONTHLY QUIZ: PEDESTRIAN VERSUS SCOUTMASTER - Girl Scouts finished their cookie sale in front of grocery store, loaded the minivan, and all piled in for trip to restaurant for lunch as a reward. Scoutmaster driving van to exit parking lot was distracted by calling wife on cell phone to ask where to take girls to lunch, and struck pedestrian. Pedestrian sues Girl Scouts, alleging Scoutmaster was agent and was acting in scope of agency. Girl Scouts move for summary judgment, arguing: (1) Scoutmaster was not agent; and (2) even if he was, he was not acting within scope of agency. Who wins (1) and (2)? You be the judge. (Answer below).


INSURANCE COVERAGE: NO DUTY TO DEFEND GENERAL CONTRACTOR UNDER ADDITIONAL INSURED ENDORSEMENT – Subcontractor’s employee was injured on construction site and sued the General Contractor (GC), alleging: “That as a direct and proximate result of the negligence of [GC], [Employee] was [injured.]” The contract between Subcontractor and GC required GC to be made additional insured on Sub’s general liability policy. Policy endorsement provided coverage to “additional insured[s],” but only for “liability incurred solely as a result of some act or omission of … [Subcontractor] and not for [their] own negligence.” GC tendered its defense to Subcontractor’s insurance company, which filed a declaratory judgment, claiming it had no duty to defend. In reversing the Trial Court, the 1st District held: “We continue to agree with our earlier decisions finding that direct allegations of negligence against an additional insured do not fall within coverage granted “‘only with respect to liability incurred solely as a result of some act or omission of the named insured and not for [the additional insured's] own independent negligence or statutory violation.’” Pekin Ins. Co. v. Roszak/ADC, -- N.E.2d ---, 2010 WL 2571815 (1st Dist. No. 1-09-1709, June 25, 2010).


WORKERS’ COMPENSATION: CLAIMANT ENTITLED TO WAGE DIFFERENTIAL AWARD EVEN IF UNEMPLOYED - Claimant, a mill operator, injured his elbow doing the heavy work his job required. As a result, he could only work as a security guard. Claimant found work as a security guard, but quit after 2 ½ months when his wife found a better job. An arbitrator awarded a wage differential for the difference between Claimant’s wages as a mill operator and as a security guard. Upon review, the Court reasoned that even though unemployed, Claimant was still entitled to a wage differential award, since he had established his current earning capacity. Copperweld Tubing Prod. v. Illinois Workers' Comp. Comm’n,--- N.E.2d ----, 2010 WL 2521020(1st Dist. No. 1-09-1422WC, June 22, 2010)


NEGLIGENCE: RESCUER CANNOT RECOVER FROM RESCUED PARTY WHO DID NOT CREATE DANGEROUS SITUATION - Patient had a medical emergency and called Neighbor for help. Although Neighbor wanted to call an ambulance, Patient insisted that Neighbor drive her to the hospital. Neighbor injured her shoulder while helping Patient to car, and sued Patient for her injuries. The court dismissed Neighbor’s claim because Patient did not place herself in a dangerous situation “where she knew others might or could attempt to rescue her….[but rather] asked or insisted that [Neighbor] drive her to the hospital.” The mere request for assistance and/or demand for help did not create any duty on the part of Patient. Furthermore, the injury to Neighbor was not foreseeable and that placing the burden of guarding against such injury on Patient was impracticable. Tannehill v. Costello, --- N.E.2d ----, 2010 WL 1875791 (1st Dist. No. 1-09-0868 May 10, 2010) COMPARE - Strickland v. Kotecki, 392 Ill.App.3d 1099, 913 N.E.2d 80 (3rd Dist. 2009) (Holding that Rescue Doctrine allows a rescuer to recover from a rescued party if the rescuer is injured in the course of a rescue.)


INSURER COULD NOT DISCHARGE DUTY TO DEFEND BY TENDERING POLICY LIMITS TO COURT – After a multivehicle accident that caused the deaths of eight people and injuries to many others, twelve consolidated lawsuits were filed against Truck Driver, Carrier, and Trailer Owner, all of whom were insured under Carrier’s $1,000,000 policy. The policy provided that Insurer would “not defend any suit after it has paid the applicable limit of its liability.” Insurer deposited the $1,000,000 policy limit with the Court and filed an interpleader, seeking a declaration that the deposit relieved Insurer of any further duty to defend or indemnify. The trial and appellate courts held that Insurer “could not discharge its duty to defend simply by depositing policy limits with the court” because no settlements or judgments had been reached. The Court also noted a “‘strong public policy… against allowing insurers to discharge their duty to defend by paying policy limits and then leaving the insured to fend for himself.” American Service Ins. Co. v. China Ocean Shipping Co.,--- N.E.2d ----, 2010 WL 2487945(1st Dist. No. 1-08-1821, June 16, 2010)


ANSWER TO QUIZ: Girl Scouts win both (1) and (2). Numerous cases from around the country hold that national organizations and local councils do not retain control over the actions of their scout leaders and, therefore, are not liable for the negligence of the scout leaders under the doctrine of respondeat superior. Even if Scoutmaster were an agent, he was not acting within the scope of that agency when he drove his minivan to lunch after the cookie sale. Krickl v. Girl Scouts, Ill. Crossroads Council, Inc., --- N.E.2d ----, 2010 WL 2465441 (1st Dist. No 1-09-2454, June 16, 2010)