June 2015 Case Notes & Comments

"O Captain! My Captain! Our fearful trip is done; The ship is weather'd every rack, the prize we sought is won." ~ Excerpt from a Walt Whitman poem, written to honor Abraham Lincoln

MONTHLY QUIZ: Guest falls in a backyard pool area at property Owner's home and claims that Owner breached her duty to maintain her property in a safe condition. Although Guest files a negligence complaint within the statute of limitations period that correctly lists Owner's address, the initial summons issues with the wrong address. Six weeks later, Guest causes an alias summons to issue to same incorrect address. Sheriff returns the alias summons unserved with a note indicating "no such address". Guest does nothing for six months, but then causes a second alias summons to be issued to the same, non-existent address. The second alias summons is also returned "no such address". When her attorney fails to appear for a court appearance, Guest's case is dismissed for want of prosecution. Guest's attorney subsequently vacates the dismissal and is given leave to appoint a special process server. Guest does nothing for seven more months, but then causes a third alias summons to issue with the correct address. Owner is served the same day. Owner files a motion arguing that Guest's case, which is now beyond the statute of limitations, should be dismissed because Guest failed to exercise reasonable diligence to obtain service on Owner. Guest's attorney explains that the gaps in attempted service were because he was "simply waiting 'an appropriate amount of time' after issuance of the summons to check on service". Can Guest's case be dismissed simply based upon a lack of diligence in service on Owner? If yes, should the Court dismiss Guest's case even though Guest's complaint was filed within the statute of limitations period. You be the judge. (Answer below)

ILLINOIS HEALTH CARE SERVICES LIEN ACT: Plaintiff filed a personal injury lawsuit against defendant for injuries sustained when defendant's employee-waitress dropped a tray of drinks on Plaintiff's foot. After settling the case for $7,500, Plaintiff filed a petition to adjudicate her treating hospital's lien of $2,891.64. Plaintiff incurred litigation costs of $846.66 in securing the settlement. Applying Section 10 of the Health Care Services Lien Act (770 ILCS 23/10), the trial court ordered that the hospital was entitled to one-third of the total settlement ($2,500), and that attorney fees and costs were not to be deducted prior to calculating the amount available to the hospital. The appellate court reversed, holding that section 10 of the Act requires calculations for health care liens to begin after the settlement is reduced by attorney fees and costs. On review, the Supreme Court agreed with the circuit court, and reversed the appellate decision. The Supreme Court's rationale was that no language in the Act allows a health care lien to be calculated from the net amount of a plaintiff's recovery after costs and attorney fees are deducted. This would improperly shift some of the attorney fees and litigation costs to the hospital. The Court held that the statutory language in section 10 of the Act is unambiguous and does not permit the deduction of attorney fees and costs prior to calculating the amount to be paid to any health care lienholder. Accordingly, Illinois law is now clear on the procedure for lien adjudication following a settlement or verdict: Courts must not deduct court costs and attorneys' fees before calculating the medical treatment providers' liens. McVey v. M.L.K. Enterprises, LLC, 2015 IL 118143 (May 21, 2015)

DUTY TO DEFEND / GENERAL CONTRACTOR QUALIFIED AS ADDITIONAL INSURED PURSUANT TO BLANKET ADDT'L INSURED ENDORSEMENT: Claimant was injured while working on the construction of a commercial building and filed suit for negligence, naming Developer, General Contractor (GC) and Subcontractor (Sub) as defendants. GC tendered its defense to the Sub's Insurer as a purported additional insured on Sub's policy. Insurer refused the tender and filed a declaratory action. GC counter-claimed, citing the blanket additional insured endorsement in Sub's policy, which conferred additional insured status on any entity that Sub was required to add as an additional insured pursuant to a written contract or agreement which was executed prior to the subject occurrence. As evidence of a written contract or agreement, GC produced a signed Proposal, which stated simply that Sub would procure general liability insurance, and an unsigned Agreement, which incorporated the Proposal and stated that GC was to be named as an additional insured on Sub's liability insurance. In reviewing the parties' cross motions for summary judgment, the appellate court rejected Insurer's position that the Agreement was not "executed" at the time of the injury because it was unsigned, ruling that the signed Proposal and the unsigned Agreement, collectively, comprised the written contract of the parties for purposes of the application of the endorsement. In addition, the court held that Insurer's policy provided primary coverage despite that the Agreement did not specifically state that coverage for GC was to be on a primary basis. The court reasoned that because the Agreement required Sub to obtain both general liability and umbrella excess coverage, the general liability coverage was intended to be primary. West Bend Mut. Ins. Co. v. DJW-Ridgeway Building Consultants. Inc., 2015 Ill App (2nd) 140441 (May 19, 2015).

MEDICAL MALPRACTICE / STATUTE OF LIMITATIONS TIED TO DISCOVERY INJURY, NOT DISCOVERY OF DEFENDANT'S NEGLIGENCE:  Plaintiff was hospitalized and treated in 2009, at which time she underwent surgery and was given the medication, Lovenox. Thereafter, Plaintiff suffered a hemorrhage and other injuries and complications in the area of her surgery, which had also become infected. In December 2010, Plaintiff filed a malpractice action against two Radiologists and their employers concerning their involvement in the surgery and subsequent monitoring and care. In January 2012, one of the defendant doctors testified that the hemorrhage coincided with the administration of Lovenox, and that the administration of Lovenox, in combination with other medications, was the cause of her injuries. In April 2013, Plaintiff filed a second malpractice action against two Hematologists and their employers concerning their involvement in the post-surgical care, including the administration of Lovenox. Plaintiff's second action was consolidated into the first.  Hematologists moved to dismiss the 2013 claims on the basis that they were filed beyond the statute of limitations, which they claimed began to run, at the latest, in December 2010 when the initial complaint was filed. Plaintiff argued that she could not have known of Hematologists' negligence until the January 2012 deposition, and therefore the second action was timely. The Trial Court granted Hematologists' motion to dismiss. In affirming the dismissal, the Appellate Court pointed out that the two-year medical malpractice statute of limitations period begins to run when the party knows or reasonably should have known both that an injury occurred and that it was wrongfully caused. At that point, the burden shifts to the plaintiff to inquire further as to the existence of a cause of action.  The Court rejected the argument that knowledge that an injury was wrongfully caused requires knowledge of a specific defendant's negligent conduct.  Because the expert's report attached to the original 2010 complaint informed Plaintiff that the injury had been wrongfully caused, the statute of limitations began running, at the latest, at that time, rendering the 2013 action time-barred.  Heredia v. O'Brien, 2015 IL App (1st) 141952 (May 21, 2015); COMPARE: Randall W. Moon v. Clarissa F. Rhode, M.D., et al., 2015 IL App (3d) 130613 (Apr. 10, 2015). 

WRONGFUL DEATH ACT / SUICIDE: Husband and Wife rented an apartment from the property Owner's Management Agent, tendered the required security deposit and rent and moved in. Ten days into the lease, Husband received a letter from Owner purporting to be "an official 30 days notice" of eviction. The letter advised that "[c]onstruction begins [soon]." Three additional letters followed. Next, Couple received a fourth letter stating that demolition work would soon begin, as well as two telephone calls from Agent pressuring them to move. Couple's next month rent was then refused. Demolition of the building began thereafter, despite the fact that Couple and their two children were still in the apartment. Husband allegedly told Wife that he could not tolerate the situation any longer, but did not know what to do. The following day, Husband committed suicide in the apartment. Wife filed claims against Agent for emotional distress (count I), wrongful eviction (count II), breach of contract (count III); and later, amended the complaint seeking damages under the Wrongful Death Act (740 ILCS 180/.01 et seq.), and under the Survival Statute (755 ILCS 5/27-6)(counts VI and V, respectively). Though Wife pointed to a trend in other jurisdictions to permit such claims where a plaintiff can demonstrate that a defendant's intentionally tortious conduct is a substantial factor in bringing about the emotional distress and suicide, the Trial Court granted Agent's motion to dismiss the wrongful death and survivorship counts on the grounds that Husband's suicide was a reasonably unforeseeable, independent intervening act. The Appellate Court reversed, holding that while an injured party's voluntary act of suicide is an unforeseeable, independent intervening act which breaks the chain of causation from a tortfeasor's negligent conduct as a matter of law, there was no per se bar to wrongful death actions based on a defendant's intentionally tortious conduct. In reversing the Appellate Court and affirming the dismissal of the wrongful death and survivorship counts, the Illinois Supreme Court held that in order to succeed on a claim for intentional infliction of emotional distress, an Illinois plaintiff must show the defendant's conduct proximately caused (i.e. prove both the "cause in fact" and "legal cause") such distress. While not foreclosing the possibility of a different result under different facts, the Illinois Supreme Court, relied upon the "general rule" in Illinois, that "suicide is unforeseeable as a matter of law," to find that Wife would not be able to prove "legal" causation. Turcios v. The DeBruler Co., 2015 IL 117962 (May 21, 2015).

ANSWER TO QUIZ: Owner wins, Guest loses. Under Illinois Supreme Court Rule 103(b), a lawsuit may be dismissed solely due to Plaintiff's failure to exercise reasonable diligence in obtaining service.Though no exact time period is specified in Rule 103(b), Illinois courts look at a variety of factors - such as the length of time it took to serve the defendant, the plaintiff's efforts to effect service, the plaintiff's knowledge of defendant's location, whether information regarding defendant's whereabouts could have been easily obtained, defendant's knowledge of the lawsuit and the actual service on the defendant. When weighing these factors, the Court found that Guest was not reasonably diligent in obtaining service on Owner and dismissed her case, with prejudice. Mular v. Ingram, 2015 IL App (1st) 142439 (May 20, 2015).