Articles Posted in Appellate Procedure

Matthew Schaefer’s employer, Brand Energy, was putting in place a scaffold at the Dynegy Power Plant. Brand Energy had complete control over the scaffold construction and had acquired the scaffold components from Universal Scaffolding & Equipment LLC. Dynegy paid for the scaffolding and owned it.

Brand Energy workers had difficulty with the Universal Scaffolding components because faulty components would not lock. While working on the assembly, a bar popped loose and struck Schaefer on the head.

Schaefer suffered serious injuries. In addition to bringing an Illinois workers’ compensation claim against Brand Energy, his employer, Schaefer also brought a lawsuit against Universal Scaffolding. Schaefer’s wife joined the lawsuit with a claim for loss of consortium.

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In the opinion written by the Illinois Appellate Court for the 4th District, the appellate court upheld the right of an injured plaintiff to recover the full amount of medical expenses if that amount had been written off by the medical provider.

In the underlying case, a Coles County jury entered a verdict in favor of the plaintiff Harold Miller for $133,347 for medical expenses in his July 2015 medical-malpractice trial. The 5th Judicial Circuit Court judge reduced the verdict by $91,724 when the defendant hospital and doctor argued that such a number represented an amount of money that neither Miller nor his health-care provider had a right to recover since it was written off in his medical bills.

The defendants brought their motion to reduce the medical expenses award under Section 2-1205 of the Illinois Code of Civil Procedure. The statute provides that recovery amounts can be reduced by up to 100% of the benefits provided for medical, hospital, nursing or care-taking charges that have either already been paid or become payable to the injured party.

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In 1981, two doctors entered into a partnership agreement to buy an office building in which they would house their separate medical practices. Each partner contributed an equal sum of money to buy the building and agreed to share equally the cost of maintaining and operating it. In spite of this agreement, one doctor, Dr. V.S. Vedam, often paid more than his half of the expenses.

The other doctor, Dr. C.U. Reddi, and Dr. Vedam ran their separate medical practices in the building until 1991. At that place and time, Dr. Reddi moved his practice to another location and stopped paying any costs related to the building.  Communications between the doctors ended and the state of silence existed between them until around 2003 when the building was sold and the proceeds placed in escrow.

In 2004, Dr. Vedam sued to recover his share of the proceeds of the sale of the real estate, plus the expenses he had paid in excess of his shares. Reddi disputed some of Vedam’s claims and filed a counterclaim to recover rent for the years that Vedam occupied the building by himself.

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In a lawsuit and jury trial in which the defendant, Mel Richard Krumske, admitted liability causing injury to the plaintiff, Kevin Burkhamer, Burkhamer’s attorney asked on direct examination whether the defendant ever called the plaintiff to “apologize” for causing the crash. Krumske’s attorney then immediately objected and requested a mistrial. The trial judge sustained the objection and acknowledged at a sidebar that an instruction to the jury to disregard what might be an inadequate remedy for the unfair prejudice likely caused by the improper questioning would be given. However, the judge postponed ruling on the request for a mistrial and did not rule on the motion to render a mistrial until after the jury’s verdict.

At the end of the jury trial on damages, the verdict for the plaintiff Burkhamer was $175,000. The jury was discharged. But before the judgment was entered, the defendant’s attorney reminded the judge about the lingering motion for a mistrial. Concluding the verdict might have been “inflated by passion” the judge said she was granting “the motion for a new trial,” although Krumske, the defendant never filed a posttrial motion.

The Illinois Appellate Court accepted an immediate appeal by the plaintiff under Illinois Supreme Court Rule 306.

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In the majority opinion given in a substitution of judge denial and subsequent appeal, the Illinois Appellate Court held that the denial of a motion for substitution of judge for cause is not a final order. The court cited the case of In re Marriage of Nettleton, 348 Ill.App.3d 961 (2004). Instead the court stated that it is an interlocutory order that is appealable on review from a final order.

In this case, the HOB I Holding Corp. and the Eva Buziecki Trust appealed to the Illinois Appellate Court when its request for a substitution of judge as a matter of right under Section 2-1001(a)(2) of the Illinois Code of Civil Procedure was denied. The moving parties relied on Rule 304(a) finding that there was no just reason to delay enforcement or appeal of that March 27, 2014 order denying the request for substitution of judge.

The majority opinion – noting “it is well-settled law that the mere inclusion of a Rule 304(a) finding in a non-final order does not make the order appealable under the Supreme Court rules and concluded that Rule 304(a) did not provide this court with jurisdiction because the March 27, 2014, order denying a substitution of judge did not ‘become’ a final order simply by including the statutory language.”

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The U.S. Court of Appeals for the 7th Circuit in Chicago has found an Illinois resident did not establish the minimum state contacts for a case to be heard in the U.S. District Court for the Northern District of Illinois in Chicago.

William Kipp purchased a ski ticket at Devil’s Head Ski Resort in Merrimac, Wis., on Jan. 6, 2012. As Kipp was attempting to board the ski lift, the speed of the lift caused him to be thrown from the chair. He suffered a left clavicle, collar bone fracture.

Kipp sued Ski Enterprise, the lift operator, claiming that the lift’s operating speed was the too fast and that the operator was negligent, causing his injuries.

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It has long been law in Illinois that, “a judgment against two or more defendants, whether in contract or tort, was indivisible, and could neither be vacated by a trial court or reversed by a reviewing court as to one defendant alone, even though it was not erroneous as to the others, “ Chmielewski v. Marich, 2 Ill.2d 568 (1954).

In this wrongful death case, Carolina Casualty Insurance Co. (CCIC) argued it was justified in dropping the estate of Joseph Sperl and Thomas Sanders as defendants in a Will County interpleader case.

CCIC covered $1 million in liability coverage to Dragon Fly Express and DeAn Henry, who were claimed to have caused the car crash that killed Sperl and Sanders, seriously injured William Taluc and injured several others. There was also a significant amount of property damage as a result of this collision.

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A federal judge has denied Wisconsin Supreme Court Justice Shirley Abrahamson an injunction that would have restored her to the chief justice post she lost after a referendum in April 2015.

U.S. District Judge James Peterson ruled that there was no irreparable harm in keeping Justice Patience Roggensack in the chief justice post while Abrahamson’s legal challenge in federal court continues. He added that he sees no signs of Roggensack making any wholesale changes to the court’s functions as chief justice.

Abrahamson had requested a temporary restraining order that would have blocked a constitutional amendment leading to her demotion.

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Cynthia DeCornmier suffered serious injuries when she fell from her motorcycle on a motorcycle training course. Before the beginning of the training course, DeCornmier signed a release of all claims that may have resulted from or arising out of her participation in the training course. The release document stated in bold letters that it covered all claims she may have, including without limitation, all claims resulting from the negligence of those involved in the course.

In spite of the release that was signed in advance of the motorcycle training course, she filed a lawsuit against Harley-Davidson and Gateway Harvey-Davidson alleging that they were negligent and reckless by directing her to perform motorcycle maneuvers on a range that was icy and slippery. In the lawsuit, DeCornmier maintained that the liability release document that she signed in advance was unenforceable against claims of gross negligence or recklessness.

The defendants Harley Davidson and Gateway Harley-Davidson, filed motions for summary judgment, which the trial judge granted dismissing DeCornmier’s case.

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The Illinois Supreme Court has reversed the Illinois Appellate Court in a case centering on an application for legal malpractice insurance. In this case, one of the partners of the law firm of Tuzzolino and Terpinas (T&T) filled out a renewal form for legal malpractice with ISBA Mutual for himself and for the firm. In the application, he was asked whether there were any circumstances that would give rise to an unreported legal malpractice claim. The attorney who filled out the form answered “no.” In fact, a legal malpractice claim had already been brought against one of the firm’s attorneys, Mr. Tuzzolino, but was not yet reported to the firm’s

insurer.

The attorney who filled out the form, Mr. Terpinas, did not sign his name to the form. He claimed to have become aware of the claim against Mr. Tuzzolino about a month later and then reported the claim to ISBA Mutual.

As ISBA was then on notice of the claim and the errant application form, it filed a lawsuit for rescission of the insurance policy in March 2009. There were cross-motions for summary judgment filed and the trial court granted ISBA’s motion for summary judgment. The trial judge found that ISBA was entitled to rescission of the policy in its entirety and that it had no duty to defend Terpinas or the law firm because of the errantly completed form.

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