March 2019 Case Notes & Comments

"The only place where success comes before work is in the dictionary." ~Vidal Sassoon

MONTHLY QUIZ: Insured-Pedestrian is hit by uninsured Driver and Pedestrian makes an uninsured motorist (UIM) claim. The policy requires "full compliance" with all policy conditions, including a "[p]roof of claim" in the manner and form requested by Insurer. Following submission of the claim, Insurer requests proof that Driver was uninsured and specifically, certification from IDOT as to Driver's uninsured status. Instead of providing IDOT certification, Pedestrian's Attorney sends Insurer a letter from Driver's insurance company, stating that Driver's policy had been canceled before the accident due to non-payment of premiums. In response, Insurer points out that although one policy had been canceled, Driver could have procured insurance elsewhere and thus, IDOT certification was necessary. Insurer requests IDOT certification at least three more times. Following a demand for arbitration, Insurer files a declaratory action seeking to stay the arbitration and a declaration that no coverage is owed for failure to comply with the policy's conditions. Insurer moves for summary judgment arguing Pedestrian's failure to comply with policy conditions. Pedestrian responds with an affidavit from her Attorney, which includes not only improper and inadmissible opinions, but also a statement that Pedestrian could not obtain a certified letter from IDOT proving Driver's uninsured status because Driver reportedly lied to IDOT about her insured status. Attorney's affidavit also attests to a conversation in which Insurer purportedly stated that "nothing would be done" without proof from IDOT. Insurer moves to strike Attorney's affidavit. Should the Court strike the entire affidavit, or just portions? Should the statements regarding IDOT and Driver's insured status be allowed? If yes, is there a question of fact that would preclude summary judgment. You be the judge. (Answer below).  

LEF ADDS TOP CASUALTY AND COMMERCIAL CIVIL LITIGATOR: Susan Chae Corcoran has joined the firm's Commercial, Liability and Transportation Practice groups as a Partner, bringing more than twenty-five years of experience litigating and resolving casualty and commercial civil matters. For more than two decades, Susan has served as trusted defense counsel to a wide-range of clients, from Fortune 500 companies to individuals. Ms. Corcoran has served as a member of numerous professional organizations, including the Korean-American Bar Association, Korean-American Womens' Association, Asian-American Bar Association, National Asian Pacific, American Bar Association, Illinois State Bar Association and Chicago Bar Association. Susan got off to a quick start at the firm, trying a premises liability case last month in the Circuit Court of Cook County. Susan obtained a not guilty verdict for our client in a slip and fall case, where plaintiff was seeking in excess of $500,000. Look for more case details on our website and in our future Case Notes & Comments editions. We look forward to our shared future, as Susan's significant experience and established reputation for excellence and enthusiasm will serve our clients well.

WORKERS' COMPENSATION MAINTENANCE BENEFITS AWARDED ONLY "IF APPROPRIATE": Petitioner-Employee testified at arbitration that he experienced a lumbar strain while at work. Approximately 6 months later, Respondent-Employer terminated Employee on the grounds that his restrictions could not be accommodated. Over the 5-month period after termination, Employee received temporary total disability (TTD) benefits. After 5 months, Employee's provider released Employee to work, with restrictions, and Employer ceased paying further TTD benefits. Employee did not seek or gain employment after termination, but applied for Federal disability benefits (SSD) and made several requests for vocational rehabilitation. While vocational rehab is a prerequisite to receiving maintenance benefits, Employer refused to provide either rehab or benefits. In Illinois, there is a discrepancy between §8(a) of the Workers' Compensation Act (Act) and the Commission Rule 7110.10(a), regarding whether employers are required to provide vocational rehab and maintenance benefits. Per §8(a) of the Act, employers "shall" pay for an employee's vocational rehab; while, under Commission Rule 7110.10(a), employer are to provide rehab only if "appropriate." On review, the Second District Appellate Court determined after comparing the Act and the Commission Rules in view of the facts, Employer was not required to provide Employee with rehab or maintenance benefits. The appellate court found that where an Employee's actions demonstrate an intent not to return to work, even though capable, it would not be "appropriate" to require Employer to provide vocational rehab. Euclid Bev. v. Ill. Workers' Comp. Comm'n, 2019 IL App (2d) 180090WC (February 25, 2019). EDITORS NOTE: The Commission Rules have since been re-codified.

MULTIPLE "SOLE" PROXIMATE CAUSES WARRANT "SOLE PROXIMATE CAUSE" JURY INSTRUCTION: Professional jockey was paralyzed after falling from his horse during a race.  He filed suit against the racetrack alleging that the racetrack negligently maintained its Polytrack surface to create an unsafe dynamic shear angle.  At trial, the defendant argued that the proximate cause of plaintiff's fall and damages was another jockey's course "clipping" plaintiff's horse, or the Polytrack manufacturer's failure to apprise defendant as to the proper maintenance of the track.  Defendant requested a "sole proximate cause" instruction, which provides, in part: "If you decide that the sole proximate cause of injury to the plaintiff was the conduct of some other person other than the defendant, then your verdict should be for the defendant."  Verdict was entered for the defendant, but the trial court ordered a new trial on post-trial motion, finding that it was error to give the "sole proximate cause" instruction because defendant introduced evidence of two alternative proximate causes.  The First District Appellate Court reversed on appeal, holding that the sole proximate cause theory is just as viable with two or more non-party actors as it is with a single non-party; the critical point is that defendant's level of contribution to plaintiff's injuries is 0%.  Douglas v. Arlington Park Racecourse, LLC, 2018 IL App (1st) 162962 (Jun. 29, 2018).

ENFORCEMENT OF A CONTRACTUAL ASSUMPTION OF A DUTY TO REMOVE 'NATURAL' ACCUMULATIONS REQUIRES PROOF OF 'RELIANCE' ON THE CONTRACT:  Plaintiff slipped on black ice on an access ramp near a grocery store entrance, sustaining injury.  She subsequently asserted negligence claims against the grocery store and a snow removal company which had contracted with the grocery store to provide snow and ice removal. Conceding that the subject ice was a natural accumulation, Plaintiff argued that by entering into a snow and ice removal contract, the defendants had assumed a duty to third parties to remove natural accumulations from the premises, and were therefore liable in tort for negligently failing to fulfill that duty. The trial court granted summary judgment for defendants, and Plaintiff appealed.  Relying on the Restatement (Second) of Torts §324A, the First District Appellate Court held that where a property owner contracts with a snow removal company to remove natural accumulations of snow and ice, the mere existence of the contract does not create a duty to third parties to protect them from such natural accumulation unless the third party can establish that they relied on that contract.  In this case, because Plaintiff admitted that she was not aware of the snow removal contract (and therefore could not have relied on it), she could not establish liability against the defendants. In its ruling, the Court acknowledged that Illinois courts are split as to whether a party who contracts to remove snow and ice, and then fails to do so, can be liable under §324A to injured third parties. However, the Court emphasized that Illinois courts have repeatedly rejected the argument that the existence of a snow removal contract overrides strong policy considerations underlying the natural accumulation rule.Jordan v. The Kroger Co., 2018 IL App (1st) 180582 (Dec. 18, 2018).  

ANSWER TO QUIZ: Insurer loses. Under Illinois law, portions of an affidavit can be accepted "if from the document as a whole it appears the affidavit is based on the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents." Here, Attorney's affidavit is purportedly based upon Attorney's personal knowledge. If believed, such statements could demonstrate that the policy "condition" would have been difficult, if not impossible, to comply with and may support a finding of estoppel. Safeway Insurance Co. v. Ebijimi, 2018IL App (1st) 170862 (Feb. 25, 2019).

Past Publications

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