September 2010 Case Notes & Comments

“If you cannot answer a man’s argument, all is not lost;
you can still call him vile names.” ~ Elbert Hubbard

MONTHLY QUIZ: Plaintiff, employee of moving company, tripped and fell on sidewalk located on City-owned parkway while carrying belongings from moving van to Defendant-Homeowner’s house. Homeowners admitted to cutting the grass and raking leaves on the City-owned parkway. Homeowners argue that they owe Plaintiff no duty to maintain walkway because area was City owned. Plaintiff argues that Homeowners owe duty because they assumed control over and appropriated the parkway by mowing the grass, raking leaves and crossing it daily. Who wins? You be the judge. (Answer below).


INSURANCE COVERAGE: 7th CIRCUIT COMPLAINT VAGUE AS TO DAMAGES – DID NOT TRIGGER DUTY TO DEFEND: Manufacturer’s Commercial General Liability (CGL) policies are typically intended to cover bodily injury and property damage caused by defective products, but not costs to replace or repair defective products themselves. In underlying suit, Buyer sued Insured-Manufacturer making only general allegations for costs incurred as a result of allegedly defective products and did not specify elements of its damages claims. Also, Buyer’s claims did not explicitly disavow damage claims to property other than defective products. In affirming grant of summary judgment in ensuing declaratory judgment suit, 7th Circuit held that Insurer was not obligated to defend Manufacturer-Insured, reasoning that the underlying suit did not trigger a duty to defend because it did not specifically allege “property damage” or “bodily injury” under the policy, nor did it indicate that products caused injury or damage other than to the defective products themselves. While Insured-Manufacturer argued that coverage was triggered since general allegations did not logically foreclose the theoretical possibility of damage to property beyond the defective products, 7th Circuit rejected the argument and clarified a limit on the duty to defend. The Amerisure Court held that the duty to defend is only triggered by explicitly alleged facts, not hypothetical versions and possibilities raised by a pleading. Amerisure Mutual Insurance Company v. Microplastics Inc, -- F.3d --, 2010 WL 3619785, No. 09-3764 (C.A.7 Sept. 20, 2010)


CIVIL PROCEDURE: REQUESTS TO ADMIT – “DEFENDANT NEITHER ADMITS NOR DENIES” IS FATALLY DEFICIENT RESPONSE: In an apparent mistake, City towed, impounded and destroyed Insured’s leased vehicle. Insurer responded by paying $15,118 to bank that held lien on Insured’s vehicle. Later, Insured reached a $21,000 settlement with the City, stating that no other party had an interest in the claim. Insurer sued insured for breach of contract (i.e. for not letting Insurer recover from City) and unjust enrichment. Prior to trial, Insurer filed request for admission as to genuineness of electronic record of payment Insurer made to the bank. Insured responded asserting he could neither admit nor deny the accuracy of the record. Citing IL S.Ct. Rule 216(c), 1st Dist. Appellate Court held that by failing to either object or deny its accuracy, the Insured confirmed the accuracy of the electronic payment. Gov’t Employees Ins. Company v. James T. Ball,No. 10-0018 (Unpublished)


DRAMSHOP ACT - ACT DOES NOT PREEMPT INDEPENDENT NEGLIGENCE CLAIMS:Employer held an initial dinner to entertain company’s general manager, which was immediately followed by a spontaneous farewell dinner for a transferred employee. At some point, Employee became intoxicated, drove away and hit Plaintiff’s car, killing both Plaintiff and Employee. Plaintiff’s estate sued Employer and Employee’s estate. One of Plaintiff’s claims alleged that Employee was acting within scope of her employment and that Employer was liable for Employee’s negligent and intoxicated driving. Another count alleged that Employer was liable under the IL Dramshop Act (235 ILCS 5/6-21) for supplying and serving Employee alcohol. Trial court granted summary judgment on both counts, finding that Dramshop Act preempted “the entire field of alcohol-related liability,” but the Appellate Court reversed. Citing a recent IL Sup.Ct. decision, Simmons v. Homatas, 236 Ill.2d 459 (2010), the Appellate Court pointed out that “there is a difference between claims arising from … defendant’s provision of alcohol and claims based on other theories,” like negligence. Reasoning that Employee’s alleged negligence (i.e. and thus Employer’s vicarious liability) was independent of the entity who supplied alcohol, the Appellate Court held that the IL Dramshop Act did not preempt claims based upon legal theories independent from the actual provision of alcohol. Hicks v. Korean Airlines, -- N.E.2d --, 2010 WL 3290997 (1st Dist. Aug. 18, 2010)


WORKER'S COMPENSATION: POLICE RECRUITS TRAINING INJURIES COMPENSABLE: Workers' Compensation Act’s (820 ILCS 305/1(b)1), definition of “employee” excludes “any duly appointed member of a police department in …city whose population exceeds 200,000 [people].” Claimant, injured while training to become a Chicago police officer was denied benefits. Citing differences between officers and “recruits” or “probationary …officers,” Dorado Courtfound that Claimant was not a “duly appointed member” of Chicago’s Police Dept. and therefore, her injuries were compensable. Dodaro v. IL Workers' Comp. Com’n, --N.E.2d--, 2010 WL 3035744, No. 1-09-0447WC (1st Dist. Aug. 3, 2010)


ANSWER TO QUIZ: Homeowner wins. Rejecting 4th District Appellate Court’s holding in Smith v. Rengel, 97 Ill.App.3d 204 (1981), Powers Court held that mere acts of use and maintenance such as cutting the grass and raking leaves, or shoveling and salting in the winter, were “insufficient to show appropriation.” Powers Court clarified that assumption of control “must consist of affirmative conduct, such as blocking the sidewalk, parking on it or using the land to display goods, which prevents the public from using the land in an ordinary manner.” Powers Court also found it significant that the walkway did not immediately abut the entrance to the house and was not the sole means of ingress or egress. Gilmore v. Powers -- N.E.2d --, 2010 WL 3221904 (1st Dist, Aug. 13, 2010)

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