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).