June 2013 Case Notes & Comments

“Be yourself; everyone else is already taken” ~ Oscar Wilde

MONTHLY QUIZ: Plaintiff parks her car at the curb in front of her home.  There are no parking meters, stalls, or lined spaces.  On the other hand, there are no signs prohibiting parking.  Plaintiff returns to her car later, steps in a pothole, and is injured.  She sues the City for negligent maintenance of the pavement.  The City moves to dismiss, arguing that plaintiff as a pedestrian accessing her parked vehicle was not an "intended user" of the roadway under the Tort Immunity Act, 745 ILCS 10/3-102(a). Who wins on the motion to dismiss?  You be the judge. (Answer below)


INSURANCE COVERAGE – EXCLUSION APPLIED:  Insurer A covered Driver and his truck. The policy contained an exclusion that barred coverage if Driver was operating, maintaining or using the truck for anyone else.  Driver leased his truck to SSTS.  SSTS was insured by Insurer B.  SSTS gave Driver door placards for the truck and told him to have it inspected by a mechanic.  Driver did not put the door placards on the truck.  Driver was on his way to have the truck inspected by the mechanic when he had an accident that injured Plaintiff.  Insurer A defended Driver under a reservation of rights and settled the case for $400,000.  Insurer A filed a declaratory judgment action against Driver, SSTS, and Insurer B. The court ruled that Insurer A's exclusion applied and its policy did not cover the loss. As to Insurer B's policy covering SSTS, the court found that Driver was an "Insured" and his truck was a "Covered Auto".  Editorial Comment: Insurer A did all the right things, and won the case. Progressive Premier Insurance Company v. Janowicz, et.al., 2013 IL App. (1st) 113664 (May 28, 2013).


DEATH OF CHILD LIVING WITH MOTHER IN MOTHER'S PARAMOUR'S PARENTS' HOME: NO DUTY WAS OWED BY PARAMOUR'S PARENTS:   Mother of three-year-old boy has paramour.  Paramour poses danger to child.  Court holds temporary custody hearing, and a diligent search is conducted for the child's natural father, who cannot be found.  The paramour is ordered to stay away from the child.  The mother is given custody of the child. The mother and child move in with the paramour's parents.  The paramour shows up and beats the child with a belt, resulting in the child's death.  The child's natural father now surfaces, and sues the paramour's parents for negligently failing to protect the child, and the Illinois Department of Children and Family Services for violating the child's civil rights by failing to protect him.  Both defendants move to dismiss for lack of duty.  The court agrees, and dismisses both defendants.  The paramour's parents did not have a special relationship with the child that is required by law to create a duty. The child was at all times under the care of his mother.  The State of Illinois did not create the danger nor make the child more vulnerable to the danger.  Editorial Comment: No way the natural father was going to win.  When the court looked for him to help his child while the child was still alive, he could not be found.  Wells v. Endicott, 2013 IL App (5th) 110570 (May 13, 2013).


INSURANCE - BLAST FAXES - TELEPHONE CONSUMER PROTECTION ACT'S $500 PER VIOLATION IS NOT UNINSURABLE PUNITIVE DAMAGES:  Insured corporation was sued for sending blast faxes at $500 per violation as set forth in the Telephone Consumer Protection Act ("TCPA").  Insurer defended its insured subject to a reservation of rights, and offered the insured its choice of counsel at the insurer's expense.  Insured selected counsel, who settled with plaintiff for $1.75 million, and assigned the insured's rights against the insurer over to the plaintiff.  The insurer filed a declaratory judgment action which asserted numerous grounds for non-coverage, including the argument that the TCPA's $500 provision constituted uninsurable punitive damages.  The appellate court ruled for the insurer on this issue.  But the Illinois Supreme Court reversed, specifically finding that the TCPA's $500 is remedial, not punitive, and is insurable.  The Supreme Court remanded the case back to the appellate court for consideration of the insurer's other policy defenses.  Standard Mutual Insurance Company v. Lay, 2013 IL 114617 (May 23, 2013).

ANSWER TO QUIZ: Plaintiff wins.  Unless otherwise indicated, [ e.g. with a "No Parking" sign], the area near the curb is for parking, and for pedestrians who are entering or exiting their vehicles. Plaintiff was an intended user of the roadway.  DeMambro v. The City of Springfield, 2013 IL App. (4th) 1209597 (June 6, 2013)

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