October 2021 Case Notes & Comments

"Just hold on loosely, but don't let go. If you cling too tightly, you're going to lose control" ~ 38 Special

MONTHLY QUIZ: Neighbor’s minor Daughter walks over to visit Landowner’s minor Son on Landowner’s property. While the two are watering plants, Son allegedly yanks the hose, causing Neighbor’s Daughter to fall and break her ankle. Neighbor submits a request to Landowner’s Insurer for coverage, which prompts Landowner to send an email to Neighbor’s former Employer and colleagues. Landowner’s email asks to be removed from Employer’s communications, mailing lists and advertisements, stating that “[d]ue to a personal issue with one of your agents, [Neighbor], we will no longer be dealing with [Employer]. It is my opinion that [Neighbor’s] pursuit for financial gain at the expense of friends and neighbors makes him, as well as anyone he represents, person[s] with whom we choose not to interact or be exposed to.” Neighbor files suit against Landowner for defamation, contending that,among other things, Landowner’s email to his former Employer and colleagues is false and defamatory per se in that it imputes misconduct and a want of integrity to Neighbor, both personally and professionally, and portrays Neighbor in a false and misleading light. Landowner moves to dismiss the defamation claim for two reasons: 1) the statement is true (e.g. Neighbor is seeking “financial gain” from Landowner through the lawsuit); and, 2) because the email is a statement of opinion that does not assert or imply false information, it is protected free speech. Was Neighbor defamed? Is Landowner’s statement protected? Who is right? You be the judge. (Answer below).

ILLINOIS SUPREME COURT AFFIRMS FINDING THAT INSURER CANNOT DEPRECIATE LABOR IN DETERMINING ACTUAL CASH VALUE PAYMENT: Insured filed a putative class action against her homeowner's insurer, asserting that it had wrongfully withheld depreciation on the cost of labor in determining the actual cash value ("ACV") of losses throughout Illinois. After the trial and appellate courts found in favor of the insured, the Supreme Court accepted the case as one of first impression in Illinois. In deciding the issue, the court noted that the parties did not dispute that, where the term was not defined in the policy, Illinois insurance regulations provide that ACV is to be determined as the replacement cost value for the damaged property, less depreciation. By that definition, Court acknowledged that states are split on the issue, with some states allowing depreciation of labor as a component of the total value of the property as a whole, and others holding that, because labor is not a tangible part of the property, the concept of depreciation is misplaced and applies only to the materials themselves. While the Court disagreed with the appellate court's finding that the regulations expressly prohibited depreciation of labor, it held that, because the policy did not define the term and both potential approaches were reasonable, the policy was ambiguous and should be interpreted in favor of the insured. As such, the Court confirmed that, as a matter of Illinois law, depreciation does not apply to the cost of labor, unless expressly allowed by the policy terms. In that regard, the Court noted that its ruling was limited to policies which did not define ACV, indicating that policy terms which provide for the depreciation of labor would likely be enforced. Sproull v. State Farm Fire & Cas. Co., 2021 IL 126446, ¶ 13 (Sep. 23, 2021).

LEF PREVAILS ON MORTGAGOR’S APPEAL OF TRESPASS AND ASSAULT ACTION DISMISSALS: Gerard Fosco and Jeff Pavlovich successfully defended a property preservation corporation hired by Chase Home Finance, and two independent property preservation contractors, in an action brought by a Chase mortgagor alleging intentional and negligent trespass, assault and negligence. The plaintiff/mortgagor contended she experienced extreme, debilitating emotional distress resulting in years of mental health treatment, and demanded a mid-seven-figure settlement. After obtaining a successful result before the Illinois Supreme Court on plaintiff’s prior interlocutory appeal as to plaintiff’s negligent and intentional infliction of emotional distress actions (Schweihs v. Chase Home Fin., LLC, 2016 IL 120041), the lawsuit was remanded to the trial court for proceedings on plaintiff’s intentional and negligent trespass actions, which had been held in abeyance. After remand, plaintiff added actions alleging assault and negligence. Following extensive discovery, plaintiff voluntarily dismissed her negligence action, and plaintiff’s assault action was dismissed on res judicata grounds. The parties appeared for trial of plaintiff’s trespass actions. Prior to jury selection, the trial judge denied plaintiff’s motion to request punitive damages and granted defendants’ motion in limine to bar admissibility of defendants’ internal procedures as evidence of trespass because the source of defendants’ right to enter plaintiff’s property was the mortgage contract plaintiff signed, and defendants’ internal procedures were not part of that contract. Based on the pre-trial rulings and related proceedings, the trial judge dismissed plaintiff’s intentional and negligent trespass actions, and plaintiff appealed the trial judge’s rulings and prior dismissal of plaintiff’s assault action. The appellate court affirmed the trial judge’s rulings regarding punitive damages and inadmissibility of defendants’ internal procedures. Although the appellate court disagreed with dismissal of plaintiff’s assault action on res judicata grounds, the court held that motions for summary judgment as to plaintiff’s assault action that were denied by the trial court should have been granted. The summary judgment motions asserted the absence of evidence of an essential element of an assault action, i.e., intent on the part of defendants to cause plaintiff to apprehend an immediate battery.   Accordingly, the appellate court disposed of all remaining actions against the defendants. Schweihs v. Chase Home Fin., LLC, 2021 IL App (1st) 191779 (Jun. 29, 2021).

WORKERS’ COMPENSATION – LAST NECESSARY ACT DETERMINED TO BE IN INDIANA: Appellant-Employee (Petitioner), an electrician and Illinois resident hired by Appellee-Employer (Respondent), an Indiana-based electrical contractor, sustained a compensable injury while working as an apprentice electrician at Respondent’s Indiana facility. At trial, the arbitrator considered the issue of which jurisdiction applied to the employment contract. The arbitrator determined that Illinois had proper jurisdiction over this claim because Respondent placed a call to the Brotherhood of Electrical Workers' (IBEW) union hall in Illinois, which was Petitioner’s union hall. The Appellate Court reversed the Commission's decision based upon “last act necessary”, as set forth in Construction Co. v. Industrial Comm’n, 307 Ill. App. 3d 636 (1999). In determining that Indiana had jurisdiction, the court looked to the testimony and terms of IBEW's labor contracts with Petitioner and Respondent. Though Respondent placed a call to an Illinois union hall, the labor agreement between Petitioner and the IBEW provided that apprentices maintained their applicant status upon arrival at a job site and could be rejected by an employer for “any legitimate reason”. Likewise, the labor agreement between Respondent and IBEW also provided that “the union [had] the sole and exclusive source of referral of applicants for the employer”, as well as the right to reject a referred apprentice for any legitimate reason. Moreover, Respondent testified that Petitioner was not an employee at the time of phone referral because Petitioner had yet to complete a series of preliminary requirements at the job site in order to gain employee status. Under these facts, the Appellate Court held that the “last act necessary” for contract formation was Respondent’s decision to hire Petitioner at the jobsite, which in this case, was in Indiana. Held: Commission’s decision contrary to the manifest weight of the evidence and reversed. Industrial Contractors Skanska v. The Illinois Worker’s Compensation Commission et al., 2021 IL App 4th 210003WC-U (Sep. 21, 2021).

INJURED POSTMAN GETS ‘BITTEN’ BY THE COURT ON “PROVOCATION”: Plaintiff, a U.S. Postal Service carrier, was delivering mail at defendants’ home. The front door had a mail slot, consisting of two flaps--an outer flap, and an inner flap with a strong spring-loaded hinge. Aware of the presence of dogs inside, the plaintiff used his hands to open the dual flaps of the mail slot to slide the letters through without damaging them. While his hand was in the mail slot, defendants’ dog bit and pulled on his hand, resulting in injuries. Plaintiff filed suit pursuant to the Animal Control Act, 510 ILCS 5/16. At trial, a jury found for the defendants, concluding that plaintiff had provoked the dog, precluding liability. Plaintiff appealed. Noting that the term “provocation” is not defined by statute, the First District distinguished this case from those in which an innocent child or a bald-headed man passing by were attacked by a dog, noting that, here, plaintiff engaged in the deliberate act of pushing open the mail slot’s interior flap, “breach[ing] the enclosure that otherwise separated and protected him from the…dogs”. Acknowledging that contributory/comparative negligence is not an available defense under the Animal Control Act, the Court noted that it could be relevant to the extent it relates to the element of provocation. Ultimately, because provocation is generally a question of fact, the Court held that it was properly left to the trier of fact (jury) to decide, and the jury’s finding of provocation was not against the manifest weight of the evidence. Claffey v. Huntley, 2021 IL App (1st) 191938 (6-17-21).

ANSWER TO QUIZ: Landowner wins, Neighbor loses. To state a legally cognizable claim for defamation, a plaintiff must present facts showing that the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages. However, a statement of opinion is constitutionally protected if it “does not contain an assertion that is ‘sufficiently factual to be susceptible to being proven true or false.’” Here, while the preface of Landowner’s email claimed it was “[Landowner’s] opinion,” the Court was obliged to continue its analysis. The Court found Landowner’s claim that Neighbor was in “pursuit of financial gain at the expense of friends and neighbors,” was so vague and precise, it could mean any number of things. In dismissing the claim, the Court reasoned that the email was not capable of being proven either true or false. Additionally, the email was clearly an opinion that did not contain any verifiably false information. The fact that it cast a bad light on Neighbor with regard to his integrity and possibly his job performance, did not make the statement actionable. Claim dismissed. Hutson v. Pate, 2021 IL App (4th) 200589-U (Aug. 17, 2021).

 

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