Civil Trial & Appeal Notes Illinois Supreme Court May 2013

Monthly Civil Trial & Appeal Notes by Retired Judge, Terrence J. BradyMay 2013

Illinois Supreme Court

Personal Jurisdiction, Minimum Contacts, Foreign Company Russell v. SNFA, 2013 IL 113909 (April 18, 2013) Cook Co. (KILBRIDE) Appellate court affirmed.
Suit filed for fatal crash of air ambulance helicopter in Chicago area. Suit filed against various entities, including a French company that manufactured a custom tail-rotor bearing. Multiple sales occurred over several years, with regular business dealings with a company that processed payments in Illinois, to whom the French company sells aerospace bearings. Illinois’ exercise of specific personal jurisdiction over French company defendant comports with federal and Illinois due process, as the company has requisite minimum contacts with Illinois per long-arm statute. Litigating in Illinois is reasonable, as the deceased pilot lived and worked in Illinois for an Illinois-based employer, and the crash occurred in Illinois. (FREEMAN, KIARMEIER, BURKE, and THEIS, concurring; GARMAN, dissenting.)

Illinois Appellate Court

Medical Malpractice, Standard of Care, Proximate Cause, Reduction of Judgment 2d Dist.
Perkey v. Portes-Jorol, 2013 IL App (2d) 120470 (April 17, 2013) Lake Co. (SPENCE) Affirmed in part and reversed in part; remanded.
Jury returned verdict of $600,000, which $310,000 of that amount for medical expenses, in wrongful death/survival action for medical malpractice. Court erred in denying Defendants’ motion to reduce judgment under Section 2-1205 of Code of Civil Procedure. Purpose of Section 2-1205 is to reduce the costs of medical malpractice actions by eliminating duplicative recoveries, yet preventing a plaintiff from being subjected to an uncompensated loss should an insurer assert its right to recover medical payments, as it limits the reduction by only the extent of, or amount of, the right to recoupment. It is the right of recoupment that controls, rather than the perfection of that right. Defendants’ reduction is limited to $310,000 less the amount that insurer paid for medical expenses. Case presents long discussion of reduction of judgment amount under Sec 2-1205. (HUTCHINSON and BIRKETT, concurring.) (38 pgs)

Attorney’s Fees, Enhanced Fees in Medical Malpractice Action, CCP Sec 5/2-1114 1st Dist.
Wells v. St. Bernard Hospital, 2013 IL App (1st) 113512 (March 29, 2013) Cook Co., 6th Div. (GORDON) Affirmed.
A party’s inability to give consent to enhanced attorney’s fees is not a factor material to determine whether an attorney performed the extraordinary services necessary to receive enhanced fees. Court properly considered attorneys’ evidence relevant to time and labor required, novelty and difficulty of questions involved, amount involved and results obtained, and nature and length of professional relationship with client; and connection between fees charged and the litigation. (HALL and REYES, concurring.)

Consumer Fraud Act, Individual Liability for Attorney Fees 4th Dist.
Clayton v. Planet Travel Holdings, 2013 IL App (4th) 120717 (May 9, 2013) Sangamon Co. (POPE) Affirmed.
Plaintiffs filed suit for fraud in payment and refund for group travel arrangements. After bench trial, court awarded judgment for Plaintiffs for $5,994, and ten months later entered judgment of attorneys fees of $32,306 and costs of $680, for violating Consumer Fraud Act. Court properly found individual Defendant, who was common owner of three versions of travel agency, individually liable for Plaintiffs’ attorney fees. Much of conduct giving rise to litigation occurred after one travel company was dissolved and owner was conducting business as a sole proprietor. (STEIGMANN and HOLDER WHITE, concurring.)

Damages, Rule 222(b) Affidavit Reqirements 1st Dist.
Dovalina v. Conley, 2013 IL App (1st) 103127 (May 3, 2013) Cook Co., 5th Div. (PALMER) Reversed and remanded with instructions.
Although Rule 222(b) requires that every plaintiff attach affidavit to original complaint stating whether damages sought exceed $50,000, failure to attach affidavit is not grounds to bar plaintiff from recovering judgment in excess of $50,000. Purpose of rule is to determine whether simplified discovery rules should apply, not to limit damages. Section 2-1401 petition to vacate must be filed within two years of judgment, including voidable judgments, but void judgment can be attached at any time. (McBRIDE and HOWSE, concurring.)

Appeals, Failure to Properly Serve Notice of Appeal—-1st Dist
Wells Fargo Bank, N.A. v. Zwolinski, 2013 IL App (1st) 120612 (May 6, 2013) Cook Co.,1st Div. (CUNNINGHAM) Appeal dismissed.
Defendant in mortgage foreclosure action who later filed notice of appeal failed to serve any of the parties with the notice of appeal as required by Rule 303(c). Other parties were significantly prejudiced by appellant’s failure to serve notice of appeal upon them, as they were unable to file briefs on appeal or argue orally and thus were unable to protect their interests through participation in appeal. (ROCHFORD and DELORT, concurring.)

Wrongful Death, No Connection to Trauma—-3dDist.
Lough v. BNSF Railway Company, 2013 IL App (3d) 120305 (May 3, 2013) Bureau Co. (SCHMIDT) Affirmed and Remanded.
Defendant drove a vehicle in course of his employment, which collided with vehicle driven by man who died 22 months after accident. Court granted Defendants’ joint motion for summary judgment dismissing wrongful death counts. Treating physician testified that it was probably more true than not true that car accident and death were not connected. No evidence in record supporting conclusion that accident more probably than not contributed to decedent’s death. Decedent had suffered from COPD, and causes of death on death certificate were congestive heart failure or COPD/emphysema. (LYTTON and McDADE, concurring.

Wrongful Death, Decedent Not An “Intended User” 1st Dist.
Dunet v. Simmons, 2013 IL App (1st) 120603 (April 23, 2013) Cook Co., 2d Div. (HARRIS) Affirmed.
Wrongful death action, which included allegations against village of Oak Lawn, for pedestrian struck and killed as she crossed street at or near intersection. Decedent was not an “intended user” at that intersection, as curb bordering street was painted yellow, and not cut out or sloped for pedestrian access. Decedent being a permitted user of unmarked crosswalk does not automatically make her an intended user. Thus, Plaintiff failed to show that Village owed a duty to Decedent. (CONNORS and SIMON, concurring.)

Wrongful Death, Open and Obvious Danger 1st Dist.
McDonald v. Northeast Illinois Regional Commuter Railroad Corporation, 2013 IL App (1st) 102766-B (April 16, 2013) Cook Co., 2d Div. (SIMON) Reversed.
Wrongful death action for train passenger who was struck and killed by express train as he crossed tracks at pedestrian crosswalk. Judgment n.o.v should have been granted as Decedent could have seen train approaching station and had time to stop and step back away from track before train arrived. Danger posed by oncoming train was open and obvious and Decedent should have realized risk of trying to hurry across tracks. Deliberate encounter exception inapplicable. (QUINN and BEVILLE, concurring.)

Prejudgment Interest, Additur, Calculation of Damages, Fraud, Amendment of Pleadings— 1st Dist.
Sheth v. SAB Tool Supply Company, 2013 IL App (1st) 110156 (April 10, 2013) Cook Co., 2d Div. (HYMAN) Affirmed in part and reversed in part; remanded.
Contract dispute between parties in trade of used manufacturing machines. Court properly denied Defendants’ motion for an additur, as Defendants’ damages for their counterclaim for fraud and breach of fiduciary duty are not easily calculable. Defendants did not present at trial alternative basis for computing damages, for their counterclaim, which they would have sustained absent fraud. Prejudgment interest is a matter of right where a party is liable for obtaining funds through fraudulent misrepresentation. Amendments should be liberally permitted, absent prejudice established by party opposing amendments. This is a fact intensive business dispute, contract, and fraud case with a host of issues. Discussion of additur and prejudgment interest is informative. (STERBA and PIERCE, concurring.) (38 pages)

Motions to Dismiss, Negligent Supervision and Negligent Training 4th Dist.
Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139 (April 2, 2013) Sangamon Co. (KNECHT) Affirmed in part and reversed in part; remanded.
Plaintiff sued restaurant franchise for injuries from accident when delivery driver failed to yield when exiting commercial driveway and collided with Plaintiff’s motorcycle. Plaintiff adequately pleaded negligent supervision and negligent training, sufficient to withstand Section 2-615 motion to dismiss. Plaintiff pleaded sufficient facts, taken as true, to raise a question under Illinois negligence principles whether Defendant engaged in a course of action creating foreseeable risk of injury to the public, thus creating a duty to ameliorate that risk by training its employees. A Section 2-615 motion to dismiss does not require a plaintiff to prove his case at that juncture, and allegations are sufficient to show that liability may attach. Plaintiff alleged sufficient facts, taken as true, under general negligence principles to indicate Defendant owed a duty to properly train its employees. (STEIGMANN, concurring; TURNER, dissenting.)

Negligence, Absence of Safety Provisions 1st Dist.
Martinelli v. City of Chicago, 2013 IL App (1st) 113040 (April 25, 2013) Cook Co., 4th Div. (LAVIN) Affirmed.
(Court opinion corrected 5/1/13.)Telecommunications employee, working with City workers on water department job, suffered amputation of leg when motorist pinned employee to bumper of truck. Accident occurred during City workers’ extended lunch break, when safety provisions (such as barricading large vehicles and flagmen) were absent. Employee sued City for negligence in manner and method of conducting its construction work. City removed several layers of safety which would have prevented the accident, given eminently foreseeable inattentive conduct of motorists. Question of proximate cause is for the jury, and there is no requirement in the law that the defendant anticipate the specific acts of a driver. (EPSTEIN and PUCINSKI, concurring.)

Insurer’s Duty to Defend, To Properly Defend 1st Dist.
Delatorre v. Safeway Insurance Company, 2013 IL App (1st) 120852 (April 17, 2013) Cook Co., 3d Div. (HYMAN) Affirmed and remanded.
Passenger in vehicle of insured was injured in accident, In 1991. Passenger sued driver, whose insurer agreed to defend him under reservation of rights. Insurer breached its duty to defend, as it had nominal, passive, and one-way communication with attorney ostensibly retained to defend insured, and default judgment in excess of policy limits was entered. Entry of default judgment in PI case directly flows from insurer’s breach of contract. Insured, who did not learn of default until years later, should not be subjected to judgment as insurer caused judgment to be entered. Recommended reading on the issue of Insurer’s duty to properly defend. (NEVILLE, concurring; STERBA, concurring in part and dissenting in part.) (18 pgs)

Insurance, Duty to Defend, Exclusions for Intentional Acts, Absence of “Occurrence” 1st Dist.
West American Co. v. Midwest Open MRI, Inc., 2013 IL App (1st) 121034 (April 16, 2013) Cook Co., 2d Div. (CONNORS) Affirmed.
Trial court properly held that insurer owed its insured no duty to defend or indemnify in suit filed against insured by a competitor, alleging violations of Consumer Fraud Act, in that Midwest was engaged in schemes of kickbacks and deceptive billings with various physicians. Complaint did not allege accidental conduct or consequences and thus did not allege an “occurrence” as defined by policy, and policy excluded coverage for acts done intentionally by or at direction of insured. Where insurer has no duty to defend because no coverage or potential for coverage under the policy, estoppel doctrine does not apply. This case may be critically read as a difficult decision on the issue of coverage, despite the absence of a concurring or dissenting opinion. (HARRIS and QUINN, concurring.)

Malicious Prosecution, Prosecutor’s Absolute Immunity 5th Dist.
Frank v. Garnati, 2013 IL App (5th) 120321 (May 17, 2013) Williamson Co. (WELCH) Affirmed.
Prosecutors acting in the course of their duties have absolute immunity from all acts, including malicious acts. This immunity is not lessened by Tort Immunity Act, and Tort Immunity Act does not create liability for prosecutors. Court properly dismissed complaint for malicious prosecution against State’s Attorney which alleged that criminal charge was filed for improper motive. This case presents comprehensive discussion of the prosecutor’s absolute immunity. (STEWART and CATES, concurring.)

Injunctions, Permanency of Relationship 1st Dist.
Gastroentrology Consultants of the North Shore, S.C. v. Meiselman, 2013 IL App (1st) 123692 (April 15, 2013) Cook Co.,1st Div. (HOFFMAN) Affirmed and remanded.
Court properly entered order denying medical clinic’s motion for preliminary injunction to restrain a physician from soliciting its patients and from treating its patients except in emergencies. Court properly concluded that there was no evidence that Plaintiff ever established a near-permanent relationship with patients treated by physician, and failed to show that it had a legitimate business interest in need of protection. (CUNNINGHAM and DELORT, concurring.)

Conversion, Action Against Bank 1st Dist.
Parkway Bank and Trust Company v. State Farm Fire and Casualty Company, 2013 IL App (1st) 122387 (May 20, 2013) Cook Co.,1st Div. (ROCHFORD) Affirmed.
Bank filed declaratory judgment alleging that insurer refused to tender policy proceeds for fire loss on property on which bank was named as mortgagee under policy. Contractor forged bank’s endorsement on check insurer issued for fire loss. Bank’s only remedy is conversion action against the bank which cashed the check based on forged endorsement, under Section 3-420 of UCC. Thus, court properly granted summary judgment for insurer.(HOFFMAN and CUNNINGHAM, concurring.)

Declaratory Actions, Homeowner’s Association’s Rules 3d Dist.
Ripsch v. Goose Lake Association, 2013 IL App (3d) 120319 (May 14, 2013) Grundy Co. (HOLDRIDGE) Affirmed.
A homeowners association has implied or inherent authority to regulate use of common areas, through making and enforcing reasonable rules, even where recorded covenants do not expressly grant the authority to regulate common areas. (McDADE and SCHMIDT, concurring.)

Defamation, Innocent Consruction 2d Dist.
Pompa v. Swanson, 2013 IL App (2d) 120911 (May 6, 2013) Kane Co. (SCHOSTOK) Affirmed.
Court properly dismissed with prejudice complaint for defamation per se and intentional interference with expected retirement gift. Defendant made statements of his position that Plaintiff did not deserve a retirement gift, was overpaid, and performed his job unsatisfactorily, were made for limited purpose of providing information to union’s executive board on narrow issues. No indication that Defendant clearly intended and unmistakably conveyed statements to defame Plaintiff, and statements are capable of an innocent construction and are expression of opinion. Illinois law has not extended tort of intentional interference with prospective economic advantage to retirement gifts. (HUDSON and BIRKETT, concurring.)