June 2014 Case Notes & Comments

“You have to show up in the World Cup, …
in the World Cup anything can happen. ~ Lionel Messi, Argentine footballer.”

Leahy, Eisenberg & Fraenkel, Ltd. cares about its clients and appreciates the many opportunities our firm has had to earn your business. One way we can continue to earn your business is to keep you informed. Leahy, Eisenberg & Fraenkel, Ltd. has designed Case Notes & Comments with this aim in mind.

MONTHLY QUIZ: General Contractor (GC) is the named insured on its own commercial general liability (CGL) policy and as an additional insured on a Subcontractor’s (Sub) CGL policy, which was obtained from Insurer. When third-party Employee is injured onsite, GC’s insurance company disagrees with Insurer as to which company is the primary insurer and which is the excess insurer. Subcontractor’s CGL policy states that Insurer is an excess insurer unless the contract requires it to be primary. The subcontract agreement between GC and Sub is silent as to whether the required additional coverage on Sub’s policy is primary or excess. However, the certificate of insurance provided by Sub indicates that “[GC] is named as an additional insured as respects General Liability, as required by written contract.” In light of the above, which policy is primary? You be the judge. (Answer below).

CONDOMINIUM LAW / NEGLIGENCE: While in acommon areaof the condominium property, Plaintiffs and their dog were attacked byUnit Owner’s unleashed Dog. Plaintiffs sued, among others, the Condominium Association under a negligence theory, but not pursuant to the Illinois Animal Control Act. Plaintiffs alleged that the Association knew, based on an alleged prior attack and nuisance complaints, that the Dog’s “presence in the building… [was a] violation of the [Association’s] rules and regulations” and that Dog was “violent or had a propensity for violence.” Plaintiffs alleged that Association acted negligently “by failing to take steps to remove the [D]og and by failing to warn others of [Dog’s] dangerous nature.” Association argued that it owed Plaintiffs no such duty and the Trial Court agreed, dismissing the claim against Association for failure to state a claim. In affirming the dismissal, the Appellate Court reviewed the allegations, found that Dog Owner’s alleged rule violations and the general nuisance complaints revealed nothing about Dog’s alleged potential propensity for violence. Since Plaintiffs’ complaint failed to alleged any of the circumstances regarding the alleged prior attack, or the incident in question (e.g. provocation, injuries, leashed, etc.), Complaint did not sufficiently plead that Association had a duty to use reasonable care in preventing attack by Dog. Tyrka v. Glenview Ridge Condominium Association, 2014 IL App (1st) 132762 (June 20, 2014)

CONDOMINIUM ASSOCIATION LAW: Unit Owner filed an action against Condominium Association, its Board of Directors and the Board President for, among other things, violations of Association’s declaration and bylaws and the Illinois Condominium Property Act. In affirming the Trial Court’s grant of partial summary judgment in favor of Unit Owner on several issues, the Appellate Court held that, except for three exceptions (i.e. 1) discussion of litigation; 2) appointment, employment or dismissal of an employee; or, 3) rules and regulations violations, including unpaid assessments) all “board business”, which includes board discussions of any association business and workshop activities, must occur at open meetings open to all owners. Palm v. 2800 Lake Shore Drive Condominium Association, 2014 IL App (1st) 111290 (May 2, 2014)

SELF-INSURED LIABILITY BY IL VEHICLE CODE: Plaintiff was operating his vehicle when Driver, who was operating a rental car owned by self-insured Rental Agency, collided with Plaintiff’s vehicle. Plaintiff filed suit and a $600,000 default judgment was entered against Driver. During the citations proceedings, Rental Agency, filed an answer asserting that it bore a total financial responsibility of $100,000 per occurrence under the Illinois Vehicle Code (Code) (625 ILCS 5/1-100 et seq. (West 2006)) and that Rental Agency was only required to pay Plaintiff $25,000 of that total because $75,000 had already been expended in payments to the other occupants of Plaintiff’s vehicle. However, in interpreting the Code, the Appellate Court concluded that self-insured rental car companies’ minimum responsibility to pay judgments is not limited to the same minimum amounts that are required of an insurance policy, to $100,000 per occurrence or any other amount. Decision reversed.  Rental Agency is liable for $600,000.  Nelson v. Artley, 2014 IL App (1st) 121681 (Jun. 17, 2014) NOTE: Case refuses to follow Fourth District decision in Fellhauer v. Alhorn, 361 Ill. App.3d 792 (4th Dist. 2005), which reaches opposite conclusion. 

ANSWER TO QUIZ: Insurer wins, Sub’s policy is excess. Because there was no contract dictating that the additional insurance was primary, the additional coverage defaulted to being excess only. Further, the certificate of liability insurance that identified GC as an additional insured gave no indication as to whether that coverage was primary or excess. Decision affirmed. Certain Underwriters at Lloyd's, London v. Central Mut. Ins. Co., 2014 IL App (1st) 133145 (May 23, 2014)

Case Notes & Comments is intended for general information purposes and is not intended to serve as legal advice. For legal questions, or if you would like additional information as to how applicable law may relate to specific facts or circumstances, please contact the Leahy, Eisenberg & Fraenkel, Ltd. attorney with whom you regularly work, or Roland Keske at rsk@lefltd.com or at (312) 368-4554.

Past Publications

2024

March 2024
January 2024

2023

December 2023
October 2023
September 2023
August 2023
May 2023
March 2023
February 2023

2022

December 2022
October 2022
August 2022
July 2022
April 2022
March 2022
January 2022

2021

December 2021
October 2021
August 2021
July 2021
May 2021
April 2021
March 2021
January 2021

2020

December 2020
November 2020
October 2020
September 2020
August 2020
February 2020
January 2020

2019

December 2019
October 2019
September 2019
July 2019
May 2019
March 2019
February 2019
January 2019

2018

December 2018
October 2018
August 2018
June 2018
May 2018
April 2018
March 2018
February 2018

2017

December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
March 2017
February 2017

2016

December 2016
October 2016
September 2016
August 2016
July 2016
June 2016
March 2016
January 2016

2015

December 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015

2014

December 2014
October 2014
September 2014
July 2014
June 2014
April 2014
April 2014
March 2014
February 2014
January 2014

2013

December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
January 2013

2012

December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012

2011

December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011

2010

December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010

2009

December 2009