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Caselaw Update

I spoke at the Illinois Trial Lawyers seminar in September 2014. I gave an update on tort law.  Below is a breakdown of the cases that I discussed.  There were a few already on this blog that I did not include.  Enjoy.  Feel free to contact me at Ackerman Law Office if you have questions or want to hire me.  217-789-1977.

Sharbono v Hilborn

 In Sharborno v Hilborn a woman went in for a mammogram in November 2004.  The defendant Dr. concluded that the lesion was benign. He did not order a biopsy. Two years later she went to her family doctor complaining of cramping her left breast and pain in her shoulder and requested a second mammogram. In August plaintiff had another mammogram and an ultrasound of her breast. The ultrasound indicated the lesion was probably malignant. It was in fact malignant. Plaintiff filed suit against Dr. and the hospital. The hospital settled out. There was extensive testimony by doctors about the lesion and its interpretation. Many doctors thought the 2004 ultrasound should have been classified as at least BI RADS 3 probably benign, rather than BI RADS 2 benign.

Defense sought to use a PowerPoint presentation, which consisted of several screens of drawings or images were taken from a learned treatise.  It also sought to introduce copies of plaintiff’s own images from the 2004 mammograms and ultrasound and from 2006. Plaintiff objected because the defendant had not disclose the exhibits. Defense claimed it had emailed the presentation to the plaintiffs at the start of the trial. Plaintiff claimed it he had never received the exhibit was unknown aware of it until defendants using it at trial. The trial court allowed the defendant to use the PowerPoint over objection.

The jury returned a verdict for the defendant.

The plaintiff’s objection to the ultrasound images was that

  • no information had been provided as to who made the diagnosis
  • there was no information as to what the images indicated
  • there was no information or indication as to what other images may have been shown with the images to allow the person who made the diagnosis conclude the images represent a cancerous or benign lesions.

The case has a pretty good discussion of the difference tween demonstrative and real evidence. The court concluded that much of the information in the PowerPoint was real evidence, as opposed to demonstrative. It also found that the defense did not lay a proper foundation. The court concluded that defendant had never establish that the learned treatise was a “reliable authority” as required under Wilson vs Clark.  Accordingly, the appellate court remanded for a new trial.

Whittin v Luck

In Whittin v Luck people began renting house in May 2009. The lease specifically said that there were no pets allowed in the house. Only pets outside. The landlord had permitted the tenants to keep their Labrador in the barn even though she still on the farm. The barn was not part of the lease. Tenant’s provided for all care for the dog. The landlord apparently went to the property regularly to check on the barn, but it did not exert any control over the Labrador. One day the Labrador’s snuck out of the barn ran into the road where a motorcyclist got in an accident because the dog. The plaintiff filed suit alleging common-law negligence liability pursuant to the Animal Control Act.  510 ILCS 5/1-35.

The court ruled that the owner of the property is not responsible for the actions of the dog. The act defines owner as “any person having a right of property in an animal, or who keeps or harbors an animal, or who has in his care, or acts as its custodian, or who knowingly permits a dog to remain on any premises occupied by him or her.” In this case, the court felt that allowing the tenant to use the barn did not arise to the level sought by the act.  There was a fairly strong dissent because the landlord decided where the dog should be kept and was responsible for maintaining the barn.

O’Leary v American Online

 In O’Leary v American Online  the court was faced with the appropriate attorney fee for referring attorney. The lawyers involved in the case in a class-action. The referring attorney and the class counsel had an oral contract some sort, however nothing was rigid reduced to writing. The referring attorney sent a check for $50,000 in the case. The case does not indicate how big the class-action fee was. The trial court found $50,000 to be reasonable given that there was no evidence of any agreement regarding the division of fees for the any evidence that the referring attorney had done any work entitling pain. Accordingly the appellate court affirmed the trial court’s decision.

Evanston Insurance v Riseborough

In Evanston Insurance v Riseborough an interesting situation arises concerning such limitations necessary files suit against a lawyer.  In 1997 an insurance company filed a declaratory judgment action seeking a declaration that have no coverage policy. Eventually, this parties reached a settlement agreement for $4.8 million. On October 23, 2000 the parties and entered into a settlement agreement. Two insurance companies would each contribute 1 million and CNA would contribute the remaining 2.8 million. This was called a Fund and Fight Agreement.  One of the parties to the agreement went into liquidation in the settlement check was drawn on.  The parties reach an agreement to settle the coverage action. On December 23, 2003, the circuit court entered an agreed order of dismissal pursuant to this settlement.  The circuit court found that one of the insurance companies had not given proper authority to sign the Fund and Fight Agreement on its behalf.  While the insurance coverage proceedings were still pending, on December 22, 2025 plaintiff filed a complaint against the lawyers based on the defendant’s execution of the fund and fight agreement without the principal’s authority. The Circuit Court dismissed both complaints without prejudice because their premature because at the time plaintiff filed complaints the litigation still pending. On December 23, 2009 plays filed a second amended complaint reasserting its claims against the lawyer.

The appellate court construed be statute of repose, six years. It held that non-clients are barred by the statute repose, because the plaintiff in this case was a non-client of the attorney.

Interestingly, the lawyers had originally filed the complaint within the six-year period.  The court ruled is premature. Plaintiffs apparently did not appeal. Once they filed an amended complaint the plaintiffs did not take a position before the trial court that the amendment was related back to the original complaint. The court ruled that plaintiff had waived this argument. Just Kilbride dissented.

Lorenz v Pledge

 This case involves a line of sight video that defense in a personal injury car accident case submitted. On September 3, 2004 McDonough County Sheriff’s office got a call regarding a radically driven SUV. The deputy saw the SUV, saw its swerve several times and effectuated a traffic stop. The SUV sped away and the defendant pursued the vehicle reaching speeds as high as hundred and 10 miles an hour. The SUV turned off its headlights as it near the intersection.  As the squad car was following the bad driver plaintiffs came around a corner lawfully. Plaintiff sustained injuries and death.

The defense tried to introduce into evidence a videotape showing the visibility or line of sight study. The court held that the foundational requirements for this is whether the “essential conditions or essential elements” of the experiment are substantially similar to conditions at the time of the accident.” In order to satisfy these requirements the defense need to establish the essential conditions were substantially similar to those that existed when the accident occurred.

The court found that it was undisputed that the essential conditions were not substantially similar. In the actual pursuit speeds were in excess of 100 miles an hour, while the SUV and squad car in the video were driving about 40 miles an hour. The vehicles in the experiment were in a different plane than the SUV. There was standing traffic visible in the video submitted, but not when the accident occurred. SUVs of lights were on in the video contrary to the pursued SUV.

The defense admitted there were differences, but argued that they should go to the weight. The court rejected that conclusion the appellate court held that the trial court had abused its discretion in allowing the video to be admitted into evidence. It allowed plaintiff new trial.

The dissent claimed that there was not enough evidence of willful and wanton misconduct, which is necessary to find the defense liable.

Segovia v. Romero

In Segovia v. Romero, 2014 IL App (1st) 122392, the first district appellate court clarified what money a defendant may set off against a judgement. The case is somewhat unusual procedurally. The plaintiff in this case was the wife of a State Farm insured.  The defendant in the case had driven his car into the rear end of the plaintiff’s vehicle. State Farm paid for her loss pursuant to her husband’s policy in the amount of $10,766.20, itemized as follows:

$5,000Med Pay
$5,516Property Damage
$10,766.20Total Payment by State Farm

The defendant had an insurance policy through American Heartland Insurance Company. State Farm sued the defendant as a subrogee.  It settled the case for one half the payments it made, $5,383.10.  It settled the med pay portion for $2,500 and the property damage portion for $2,883.10

Not only did State Farm sue the defendant, Plaintiff sued defendant too. After a trial a jury returned a verdict for $5,395 for medical expenses, $0 for pain and suffering, and $0 for loss of normal life. Defendant sought an offset of the verdict for $5,000, the med pay portion of the claim that State Farm paid. The trial court denied the motion for set off partly because the plaintiff had no contractual, statutory, or common-law obligation to repay the money to State Farm. She had not sign a release and did not have her own policy through State Farm.  The trial court noted that State Farm could have made her sign a release. However, it failed to do so.

The appellate court disagreed with the trial court. It discussed the application of the collateral source rule. The collateral source rule has both evidentiary and substantive components. As a rule of evidence, it prevents the jury from learning anything about the collateral source. From substantive standpoint it means the payments made to the injured party from other sources does not diminish damages otherwise recoverable. Collateral payments do not reduce defendants’ liability, even though they reduce plaintiffs’ loss.  The court noted that the defendant was not seeking a set off for the medical payments State Farm made to plaintiff. Instead, he sought set off for what American Heartland paid to settle State Farm’s subrogation action against him for the benefits State Farm paid. The defendant sought a $5000 settle set off, despite the fact that State Farm settled the med pay portion for $2,500 in the subrogation action.

The appellate court held that defendant is entitled to set off for the entire amount that State Farm paid in medical payment.  The appellate court considered the married couple as a single economic unit, because the financial interests of a husband and wife are closely intertwined, if not actually blended. The court felt that plaintiff should not be allowed a double recovery, which would have occurred had she received medical payments from the defendant and from State Farm. The defense got an entire $5000 set off, rather than the $2,500 Heartland paid State Farm for the medical.

Fraser v Jackson

 In Fraser v Jackson the defense acted badly. It refused stipulate to the admission of medical bills. The plaintiff had two open a case in Wisconsin pursuant to Wisconsin statute to enlist the services of was Wisconsin law firm to get the bills and evidence. The defense refused to produce certain documents of its hired gun expert witness including copies of records provided by attorneys to the Dr. concerning a prior case in which he was involved as an expert witness. At the last minute the defense tried to turn over that information. The court barred the testimony of the expert. There was a verdict for the plaintiff for 61,000 dollars which represent a medical expenses of 31,000 and 30,000 for pain and suffering. The defense then appealed.

On appeal the appellate court not only upheld the verdict, but impose sanctions on the defendant. The court found the appeal frivolous, and ordered the plaintiff to submit an affidavit of attorneys fees.

Alstate v Trujilo

 In Alstate v Trujilo the court distinguished between uninsured and underinsured coverage in a case with multiple tortfeasors. Allstate had issued a policy to Delgado. It provided 100/300 coverage per occurrence. Trujillo was a passenger in Allstate insured vehicle driven by Delgado. Car was involved in an accident with a vehicle insured by American access insurance. Trujillo (Passenger) settled her claim against

American access$20,000
Delgado100K in liability coverage limit of the Allstate policy.
Allstate policy said it could set offAll amounts paid by or on behalf of the owner of operator or anyone else responsible, including amounts paid on BI coverage.

Trujillo also identified the American Access insured as Marta Zawadska. Trujillo asserted a set off in the Allstate policy. The Circuit Court granted judgment on the pleadings in favor of Allstate.

The policy read that the limits of UDIM coverage are reduced by “sums paid under the bodily injury liability coverage of this policy.” Trujillo did not contend this language it was ambiguous. However Trujillo contended this reduction violated public policy.

The appellate court held that UDIM coverage is a statutory creation. The statute provides that

“the limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured vehicle.”

The court discussed several cases involving multiple tortfeasors and uninsured and underinsured policies. Trujillo sought to recover under the Allstate policy issued to Delgado because of Marta Zawadska’s  status as an underinsured driver.  Accordingly, the court concluded that Allstate is entitled set off under the underinsured motorist provision only for the $20,000 paid by Marta Zawadska’s policy.

Insurance Code allows reduction for:

“amounts actually recovered under the applicable BI insurancse policies, bonds, or other security maintained on the underinsured motor vehicle.”

The court concluded that there would have to be remanded to determine the amount of Trujillo’s damage. In other words, was it over 120,000.

Ferris v Esposito

In Ferris v Esposito there was an issue about how much a lawyer was old on referral fee on workers compensation claim. The two attorneys had a detailed agreements. The referring attorney would keep 45% of the attorneys fees recovered under the claim. After the case settled, because counsel had not filed a motion for attorneys fees and Worker’s Compensation commission, the lawyer who referred the case filed suit in Circuit Court. The defense argued that all attorney fee issues in a workers compensation claim should be resolved by the Worker’s Compensation commission. The circuit the appellate court affirmed the ruling that the circuit court had jurisdiction to determine the issue.

William s v Rosner

 In William s v Rosner plaintiffs went to the Dr. for a sterilization procedure. Both of them had sickle cell anemia trait, which made their children 25% likely that they would be born with sickle cell anemia. The child also have 50% chance that they would be a carrier of the sickle cell trait.  Plaintiff had a mini laparotomy and a tubal ligation procedure for sterilization purposes. A year and a half later she learned she was pregnant. When she did she learned that her left fallopian tube and over he had not been removed during the surgery. The child was diagnosed with sickle cell anemia.

Plaintiffs filed suit against the Dr. for the wrongful pregnancy. The question was whether the parents could recover for the extraordinary expenses associated with raising a child born with a genetic defect following an unsuccessful sterilization procedure. Circuit Court ruled that plaintiffs could prevail. It certify the question on an interlocutor repeal.

The appellate court reviewed case law from Illinois and from other states, also the restatement of torts. A case entitled Williams versus University of Chicago hospitals 179 Ill.2d. 80 (1997) was the closest in Williams plaintiffs were parents of a child diagnosed with ADHD who was born following and negligently performed to tubal ligation procedure. The court distinguished this because in Williams there were no allegations, like the one in the present case, that defendants knew plaintiffs sought the sterilization procedures a method of avoiding the conception of a child with particular defect involved here. The court held that Williams did not create a per se ban on damages available to wrongful pregnancy plaintiffs.

Turcouis v Ortiz

In Turcouis v Ortiz  court considered whether a person can get damages for a self-inflicted suicide as a result of intentional infliction of emotional distress.  On April 20, 2011, plaintiffs signed a one-year lease for an apartment. About 20 days later they received a notice from the defendant stating that they were being evicted and had 30 days to vacate department. The complaint further alleges that nothing in the lease allow the defendant to unilaterally terminate the lease. The plaintiff’s check with lawyers who said that the lease was valid. The defendant continued to claim the lease was not valid and could be revoked at any time. The defendant continued to pressure the plaintiffs to move. On may 20th Pl. received a letter indicating the building they were living in would be demolished on June 10, 2011. On may 31st they received another notice stating that the last day that could be in the apartment was June 9. It also stated that the washers and dryers would be removed on may 31st. On June 1 plaintiffs tried to pay the rent, but the defendant declined to accept it. On June 7, plaintiffs received another notice indicating that the building would be demolished.

After June 10 despite the fact that the plaintiffs are still living there the defendant allowed the demolition to proceed around plaintiffs units. The demolition company tore into the outside walls of the building in which plaintiff’s buildings located and then began to demolish the units surrounding it. Five days later, on June 15, one of the plaintiffs committed suicide. Defendant can’t contact the remaining plaintiffs on June 21 and, despite the recent death, informed plaintiff should remove all of her belongings from the apartment is demolition of the department would commence on June 22.  On June 22 demolition crew began to demolish the apartment. She and her children pack their belongings began to move out that day even though stairs to the floor had been demolished. As they were moving an enormous rain storm occurred and ruined most of the family belongings.

Question becomes whether or not this the self-inflicted suicide was something that is appropriate to collect four. The court held that was. The court reviewed the other state law as well as Illinois law. It also cited the restatement of torts.

The court rejected the defendants argument on causation. Normally in tort there is only liability for things that are limited by proximate cause.  The court distinguished cases involving fraud or breach of fiduciary duty and held that so long as defendant’s conduct proximately caused the plaintiff’s emotional distress that there is no break in the chain of causation. The court found that the fact that the victim commits suicide in no way limits of defendants liability for its actions where the emotional distress is a substantial factor in causing the suicide.

Ramirez v FCL Builders, Inc.

The Appellate Court recently decided a case involving the interplay between the Workers’ Compensation Act and joint liability in Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663.

According to the Illinois Worker’s Compensation Act an employee cannot sue his or her employer for an injury. Instead, the employee must file a workers compensation claim. The Act says that there is no right to recover damages from the employer, so it is broadly drafted.  820 ILCS 3055.  However, courts have allowed suits by workers against third parties. Often, the third party will then sue the employer for negligence. Courts have allowed this.

According to Illinois law, under the joint liability statute, the jury assesses fault against anyone whose fault is 25% or greater of the total fault which is attributable to the following people, the plaintiff, “the defendants sued by the plaintiff, and any third party defendants except plaintiff’s employer.” 735 ILCS 1117.  The Supreme Court has decided that only defendants were sued by the plaintiff are to be included in the assessment.  Ready v United/Goedecke Services, Inc., 232 Ill.2d 369 (2008)

In Ramirez v. FCL Buildings, Inc., the Plaintiff was hurt when he was trying to roll membranes manually. His employer did not allow him to use ATVs to push rolls of rubber.  He hurt his back when he was pushing the roll.  The worker said the metal was slippery.  When plaintiff tried to hold the roll he felt his back crack. Plaintiff had two back surgeries after the incident. He sued the general contractor, FCL Builders Inc.  His employer, the roofing company on the job, was not a party to the suit.  The jury found for the Plaintiff and determined the proportionate fault under the joint tort liability statute to be:

Ramirez20%Plaintiff (comparative fault)
FCL Builders, Inc.40%General (Defendant)
Sullivan Roofing40%Plaintiff’s Employer (subcontractor and not a party to suit).

The defendant claimed that Sullivan Roofing, the plaintiff’s employer, should not have been included in the verdict form, because they were not a party. The trial court had allowed Sullivan Roofing to be on the verdict, over defendant FCL Builder’s Inc.’s objection. The appellate court agreed with defense that the court’s decision to allowing the entity who had not been sued to be on the verdict form is error. It held that only defendants “sued by the plaintiff” maybe on the verdict form.

The court based its decision on Ready.  The Ready case holds that any defendant who settles prior to the verdict is not allowed to appear on the verdict. Accordingly, the plaintiff’s employer should not have been mentioned the jury verdict form.

The court, however, concluded that the error was not reversible. As FCL was the general, it would be responsible for any negligence of Sullivan, the plaintiff’s employer.   Accordingly, a new trial was not needed. Instead, FCL Builders Inc. is responsible for all of the conduct less plaintiff’s comparative fault.