November 2010 Case Notes & Comments

I have never let my schooling interfere with my education. ~ Mark Twain

MONTHLY QUIZ: Plaintiff trips over 3/4-inch rise in concrete in Defendants’ parking garage. Though she describes lighting as low and dark, Plaintiff admits she had been through garage before without incident and probably “would have seen” the condition. Plaintiff also admits she “probably would have seen ... raised concrete... had [she] been looking.” Defendant argues “open and obvious” doctrine, which provides that possessors of land are not liable for injuries caused by known or obvious conditions, unless the possessor should still expect harm despite such knowledge or obviousness, applies. Plaintiff’s expert opines that lack of contrast paint “disguised” condition and that the condition is “not obvious.” Trial court dismisses suit and Plaintiff appeals. Who wins? You be the judge. (Answer below).

IL SUPREME COURT: INSURER STILL HAS DUTY TO DEFEND DESPITE 27-MONTH DELAY IN WRITTEN NOTICE: Plaintiff files defamation lawsuit against Bank and its Vice-President (VP). Bank allegedly gives Insurer oral notice of defamation suit to Insurer’s Agent within 4-6 months, but does not submit written notice for roughly 27 months. Insurer files declaratory action denying coverage and asserting Policy’s notice provision, which states that insureds “must... notify us as soon as practicable.... You must see to it that we receive written notice of the claim or ‘suit’ as soon as practicable.” Bank contended that the oral notices constituted “actual notice,” triggering Insurer’s duty to provide coverage. The trial court found for Bank and VP on the issue on coverage and the appellate court reversed. The IL Supreme Court held that oral notice of defamation suit was given within a reasonable time and did not violate notice provision; that Insured’s diligence in ascertaining whether coverage was available weighed in favor of finding that delay in sending written notice of suit to insurer was reasonable; and that since Insurer had actual notice of defamation suit, it did not suffer prejudice as a result of delay in receiving written notice. West American Ins. Co. v. Yorkville Nat’l Bank, et al., -- N.E.2d -- 2010 WL 3704985 (IL S.Ct,September 23, 2010)

COVERAGE: INSURER NEED NOT SPECIFICALLY WARN INSURED TO JUSTIFY INVOCATION OF COOPERATION CLAUSE: Insured’s vehicle collided with Plaintiff’s vehicle. Plaintiff demanded the $20k policy limit and Insurer countered with $2k. Plaintiff rejected counteroffer and filed Lawsuit. Insured initially cooperated and forwarded Lawsuit to Insurer. Attorney hired by Insurer sent Insured documents, which were returned, undeliverable. To find Insured, Insurer conducted database and record searches, hired multiple investigators, attempted to hand-deliver and mail letters and other documents, interviewed former neighbors and followed multiple leads. Ultimately, an $11k award was entered against Insured and Insurer filed declaratory action, asserting breach of the Policy’s cooperation clause. Trial Court agreed, finding Insurer was relieved of any duty to defend or indemnify Insured. On appeal, Plaintiff argued that Insured should have been specifically warned that his noncooperation could result in a judgment against him personally. Appellate Court disagreed, finding it sufficient that Insured was served with Lawsuit naming him as the sole defendant. Court invoked cooperation clause upon finding that: 1) Insurer made reasonable and diligent efforts to serve Insured; and, 2) Insurer was plainly and substantially prejudiced in presenting a defense due to Insured’s absence. Appellate Court also found Insurer’s “good-faith duty to settle” analysis irrelevant. Founders Ins. Co. v. Shaikh, -- N.E.2d --, 2010 WL 4227791 (1st Dist. Oct. 22, 2010) 

SPOLIATION: PRIOR NOTICE OF POSSIBLE DESTRUCTION NO DEFENSE TO SPOLIATION CLAIM: Plaintiff Driver and Passengers of a rental van were involved in a single-vehicle accident when the rental van rolled over, allegedly due to vehicle defect. Before filing of suit, Rental Company sent Driver and one Passenger a letter advising that vehicle would be “released” unless the recipients responded. Due to the serious injuries sustained by various family members in the accident, the recipients of the letter were unable to respond. Rental Company sold vehicle, and it was later destroyed.  Driver and Passengers filed suit against Manufacturer and Rental Company, including a count for spoliation of evidence for disposing of the van.  The trial court dismissed the spoliation count, due to the Plaintiffs’ failure to respond to the notice advising them of the impending “release.”  The appellate court reversed, finding that preservation of evidence is a legal duty, not a voluntary undertaking.  As such, it is not subject to unilateral limitation, and Rental Company could not alleviate itself of the duty simply by sending notice to the Plaintiffs before destroying the evidence. Brobbey v. Enterprise Leasing Co. of Chicago, -- N.E.2d --, 2010 WL 3398899 (1st Dist. Aug. 27, 2010).

MEDICAL NEGLIGENCE - TORTFEASOR LIABILITY: DIVISIBLE & INDIVISIBLE INJURIES ANALYZED: Plaintiff suffered fractured forearm and dislocated finger in automobile collision. In treating Plaintiff, Doctors failed to diagnose dislocation. Though jury found for Plaintiff, damages award did not differentiate between the injuries caused solely by Driver (i.e. fractured forearm) and dislocation injuries, for which Driver and Doctors were liable. On Appeal, Doctors claimed error and Court agreed. Where injury is indivisible, defendants are joint tortfeasors and  jointly and severally liable.  Where injuries are divisible or the injury is caused by one but aggravated by another, injuries are separate and parties are not joint tortfeasors. Apportionment of damages also discussed. Auten v. Franklin, -- N.E.2d --, 2010 WL 3970377 (4th Dist. Oct. 6, 2010)

ANSWER TO QUIZ: Plaintiff wins. Plaintiff’s expert’s testimony created dispute as to condition’s physical nature, such as visibility. Thus, a jury must decide whether the condition was open and obvious. De minimus rule also examined.Alqadhi v. Standard Parking,-- N.E.2d --, 2010 WL 4517204 (1st Dist., Nov. 05, 2010) COMPARE/CONTRAST: Lake v. Related Management Co.,2010 WL 3450068 (4th Dist, Aug. 30, 2010)(No liability where plaintiff tripped on “obvious” condition of which she saw though she claimed to be distracted by her groceries).

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