March 2011 Case Notes & Comments

“Getting your players to focus at the most important time … [is no accident]. It means you've got your team playing at a higher level because everybody is going to play at another level against you.” ~ Dick Vitale

MONTHLY QUIZ: Defendants’ dogs are running loose and, without provocation, knock Plaintiff to the ground. In addition to a count brought under the Animal Control Act (Act), Plaintiff files negligence claim alleging that Defendant violated a Village ordinance, which prohibits dogs from “run[ning] at large in the village [at] any time.” Defendant moves to dismiss negligence claim. Plaintiff responds, arguing that the Village ordinance imposes a sufficient duty on Defendant for purposes of a negligence claim. Who wins? You be the judge. (Answer below).


NEXT OF KIN ENTITLED TO SHARE OF UIM INSURANCE PROCEEDS UNDER WRONGFUL DEATH ACT: Husband Insured killed in auto accident caused by underinsured driver. Insurer settled with Insured’s estate under the policy’s underinsured motorist coverage, which paid for damages “an insured is legally entitled to collect” from the underinsured driver. Wife insured sought to keep all proceeds as the only other named insured. Sons who were not named insureds sought their share of the proceeds as part of the estate. Under the Illinois Wrongful Death Act (Act), next of kin, who include children of the decedent, are allowed to bring wrongful death actions. Therefore, Sons were legally entitled to collect under the Act.  Reading the policy in conjunction with the Act, Court held that sons were also entitled to their share of the insurance proceeds.  In re Estate of Anderson,--N.E.2d--, 2011 WL 947126 (1st Dist. Mar. 15, 2011)

INSURANCE/CONSTRUCTION LAW - ADDITIONAL INSURED ENDORSEMENT REQUIRES DIRECT CONTRACTUAL RELATIONSHIP:  General Contractor (GC) contracted with Steel Subcontractor (Sub#1) on construction project. Contract between GC and Sub#1 (Master Contract) required Sub#1 and any of its subcontractors to obtain general liability insurance that would cover GC on the project. Sub#1 contracted a portion of its work to a second-tier Subcontractor (Sub#2). Contract between Sub#1 and Sub#2 incorporated by reference the insurance requirements of Master Contract. Sub#2 procured a general liability policy (Policy) with an additional insured endorsement, defining additional insureds as “any such person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person be added as an additional insured.” Sub#2’s employee was injured and GC tendered defense and indemnity to Sub#2’s insurer. In declaratory action and on appeal, GC argued that it was an additional insured on the Policy. Trial and appellate courts disagreed, finding that Policy unambiguously required a direct, written contract in order to qualify as an additional insured. Westfield Ins. Co. v. FCL Builders, Inc., -- N.E.2d--, 2011 WL 855397 (1st Dist. Mar 8, 2011)


SUIT LIMITATIONS PROVISIONS - IMPLICIT DEMAND TO ARBITRATE INSUFFICIENT: In April 2007, Driver was injured in hit-and-run. Though Driver was insured under Policy providing coverage for such accidents, Policy included a suit limitation provision providing that “any arbitration or suit against us will be barred unless commenced within two years after the date of the accident.” Policy also required Driver to select her arbitrator within the same time. In March 2009, Driver’s counsel sent Insurer a letter by fax and certified mail stating that he represented Driver and requested that Insurer open a claim file. Counsel’s letter made no mention of arbitration and no prior contact between Driver and Insurer had been made. Insurer denied the claim. In July 2009, Driver sued and moved to compel Insurer to arbitrate her UM claim. On summary judgment, Insurer argued that Driver was barred from seeking arbitration by express 2-year suit limitation provision. Driver argued that the implied intent of the March 2009 letter was sufficient to commence arbitration. In dismissing Driver’s claim, Court held that an insured’s letter to commence the arbitration process must satisfy the express terms of the policy, which in this case, required Driver to expressly demand arbitration and name an arbitrator within a two-year period. Issues of IL public policy with regard to suit-limitations also discussed.  Rein v. State Farm Mut. Auto. Ins. Co.,-- N.E.2d--, 2011 WL 855652 (1st Dist. Mar. 04, 2011) COMPARE/CONTRAST: Hale v. Country Mut. Ins. Co. 778 N.E.2d 721 (5th Dist. 2002)(Letter by insured’s attorney notifying insurer of UIM claim was timely demand for arbitration. Though “language utilized [by the insured's] attorney was not perfect…[, letter] served the purpose of notifying [the insurer] of the underinsured-motorist claim.”)


WORKERS COMPENSATION: To result in compensation under the Illinois Workers’ Compensation Act, a claimant’s employment need only be a causative factor in his condition of ill-being; it need not be the sole cause or even the primary cause.  “[A] preexisting condition does not prevent recovery under the Act if that condition was aggravated or accelerated by the claimant's employment.” Tower Automotive v. IL Workers’ Comp. Com’n,-- N.E.2d--, 2011 WL 341234 (1st Dist. Jan. 31, 2011)


LEF WINS SUMMARY JUDGMENT: In March of 2011, LEF obtained summary judgment for its client, a logistics company providing services to a motor carrier, in a wrongful death action. Relying on cases from both Illinois and other jurisdictions, it was argued that the company’s dispatch of a truck driver was not sufficient to establish control over the driver, tractor owner or the motor carrier. It was also contended that since the logistics company did not meet the definition of “motor carrier,” client had no liability under either Federal or Illinois motor carrier safety statutes. The Circuit Court of Cook County, Illinois, granted summary judgment, denying Plaintiff’s estate’s vicarious liability theory, or any duty owed to Plaintiff’s decedent. Additional liability contentions based upon alleged employment relationships, corporate pierce/alter-ego liability theories were also rejected by the Court.


ANSWER TO QUIZ: Defendant wins. While not negligence based, the Act already provides a cause of action for animal attacks that occur without provocation. To allow Plaintiff to use a local ordinance to impose a negligence standard would contravene the Act and violate IL lawJanis v. Graham, --N.E.2d--, 2011 WL 901904 (2nd Dist. Mar. 10, 2010)