Articles Posted in Illinois Civil Procedure

This case was brought as a declaratory judgment action filed by the plaintiff, Pekin Insurance Co., seeking a declaration that it owed the defendant Lexington Station LLC no duty to defend it in a personal injury lawsuit filed by Marcos Botello against Lexington.

Pekin had issued a commercial general liability (CGL) policy to ACC Inc. The defendant, Marcos Botello, was injured during the effective policy period while working as an employee of ACC on a development project owned by Lexington. Botello filed a personal injury lawsuit against Lexington. Lexington in turn tendered the defense of the case to Pekin, which refused to tender and then filed this declaratory judgment action. Pekin argued that it had no duty to defend Lexington as an additional insured under the policy issued to ACC.

Westfield Insurance Co., as Lexington’s own CGL insurer, intervened in the declaratory action and argued, along with Lexington, that Pekin did owe a duty to defendant. The circuit court denied Pekin’s motion for summary judgment and granted Lexington and Westfield’s cross-motion for judgment on the pleadings, finding that Pekin had a duty to defend Lexington. Pekin appealed.  It argued that the court’s entry of judgment in favor of Lexington and Westfield was in error because (1) Botello’s complaint did not contain allegations that created a potential for a claim of vicarious liability against Lexington; and (2) the circuit court improperly considered a third-party complaint in coming to its conclusion.

Continue reading

The Illinois Appellate Court for the First District modified and answered the certified questions in addition to remanding a lawsuit back to the Circuit Court of Cook County. On Oct. 4, 2013, Drew Williams, who played on the Lane Tech High School’s football team, “violently collided” with a teammate during a game. The collision came during the first quarter of the game. Drew, although shaken, was not assessed with concussive brain trauma and continued to play. During the fourth quarter, he showed signs of a concussion. It was later diagnosed that the blows to the head resulted in numerous brain bleeds, which rendered him disabled.

The parents of Drew — Jodine and Christopher Williams — filed a lawsuit against Athletico Ltd. Athletico is a private company that was under contract with the Chicago Public Schools to assign and maintain an adequate staff of competent personnel who were “fully equipped, licensed . . . and qualified to provide on-site injury care and evaluation in all matters pertaining to the health and well-being of the athletes.”

The Williams family claimed that Athletico was negligent in failing to assess their son.  The head trauma or the concussion was the gist of their lawsuit.  The Williamses also named Accelerated Rehabilitation Centers Ltd., the predecessor to Athletico, a company also under contract to provide athletic training of trainer services to Lane Tech students during football games and to evaluate and treat injuries during football games. The trainer assigned to the game was also named as a party defendant.

Continue reading

Illinois lawyers sometimes struggle with discovery requests to produce incident reports. The defendant in a case where someone was injured may as a matter of business have a rule about preparing incident reports by employees or managers of these facilities.

Suppose a customer at an automotive repair company is injured while waiting to receive the person’s vehicle when the customer falls down a stairwell and is injured. The manager of the auto repair shop by rule prepares an incident report. The customer who was injured hires an attorney who now seeks a copy of that incident report, but the auto repair shop attorney claims that the report is privileged.

Illinois’ Rule of Evidence 801(d)(2)(A) is the operative law on why the auto repair shop must turn over the incident report.  Illinois Rule of Evidence 801(d)(2)(A) is an admission by a party opponent that states: “That the statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity.” IRE 801(d)(2)(A).

Continue reading

In 2006, Kipling Development Corp. was building a home in Will County, Ill. Kipling was the general contractor on the job.  The firm hired subcontractors to handle specific pieces of the job, including Speed-Drywall and United Floor Covering.

A service technician, Brian Harwell, entered the worksite to replace a furnace filter, using the stairs leading to the first floor to the basement. In the process, the stairs collapsed beneath Harwell, sending him falling into the basement. He sustained serious injuries and filed a lawsuit against Kipling as the general contractor of the building site.

In the lawsuit, it was alleged that Kipling was negligent in choosing not to properly supervise and direct construction and failing to furnish Harwell with a safe workplace and a safe stairway. In addition, Harwell also sued Speed-Drywall and United Floor Covering, claiming that they had modified or failed to secure the stairwell.

Continue reading

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.

Continue reading

In a new piece of legislation, 735 ILCS 35/1, et seq., Illinois joins more than three dozen other states in enacting some form of the Uniform Interstate Deposition and Discovery Act. The act creates a simpler means in which to conduct discovery out of state. This will make it easier for lawyers in Illinois to issue subpoenas for out-of-state discovery in a pending local case.

The limitation of the new statute will allow Illinois lawyers to conduct discovery outside of Illinois in those states that have adopted the same or similar act.

The act requires minimal judicial oversight and eliminates the need for obtaining a commission, local counsel and filing a miscellaneous action in the state in which the discovery is being done. Gov. Bruce Rauner signed SB45, enacting the law in Illinois on July 20, 2015. The law applies to actions that were pending as of Jan. 1, 2016.

Continue reading

The Illinois Appellate Court has affirmed the dismissal of a 42-count fourth amended complaint for damages arising from an automobile accident in December 2009. The case involved injuries to the wife and son of Nicholas Skridla — Margaret and Maxamillian. The appeal pertains only to the claim of spoliation of evidence against defendant Auto Owners Insurance Co. (Auto Owners). The claims against Auto Owners were added in the fourth amended complaint when Auto Owners was joined as a defendant. The other counts of this product-liability and personal-injury action remained pending in the trial court in Winnebago County, Ill.

The plaintiff alleges that the trial court was wrong in dismissing the spoliation counts with prejudice pursuant to Section 2-615 of the Illinois Code of Civil Procedure on the grounds that plaintiff did not plead sufficient facts to establish that Auto Owners owed plaintiff a duty to preserve the evidence at issue.

Auto Owners argued that the dismissal was proper under Section 2-615 and also maintains that the spoliation count should have been dismissed pursuant to Section 2-619 of the Code (735 ILCS 5/2-619) for the additional reason that they were untimely, as Auto Owners argued in its combined Section 2-619.1 motion. Auto Owners argued that the spoliation counts were statutorily time-barred.

Continue reading

The Rev. Timothy O’Malley and William O’Malley were two of Eileen O’Malley’s sons. In 1996, Eileen O’Malley experienced the first signs of dementia. The same year, Eileen and Timothy opened a joint checking account with First Midwest Bank Corp.

Eileen instructed that the account statements be sent to the Palos Country Club, a family asset managed by William O’Malley. Timothy never saw the account statements and so had no way of knowing that it contained almost $5 million in February 2004 and that by February 2009, there was less than $100,000 in the account. William had withdrawn the rest.

William, with two of his siblings, developed a plan “to defraud their 8 siblings and Eileen so that [they] would control Eileen’s assets.” To accomplish that, they had Eileen sign documents, including “wills, trust agreements and checks which did not reflect Eileen’s wishes.”

Continue reading

On June 20, 2010, Delores Franklin and Todd Gryczewski were in an automobile crash. Slightly more than two years later, on June 12, 2012, Gryczewski sued Franklin for injuries he suffered in that crash. Franklin died on Nov. 24, 2011. Gryczewski had no knowledge of his death at the time of the filing.

About two weeks later, a law firm appeared on Franklin’s behalf and filed a motion to appoint a special administrator. Bob Phillip was appointed special administrator on July 17, 2012.

On June 23, 2014, Phillip filed a motion to dismiss the lawsuit. Phillip argued that the court lacked subject-matter jurisdiction because the named defendant, Franklin, was dead. Phillip also argued that the suit had fallen beyond the statute of limitations because it failed to satisfy the requirements needed to file a lawsuit against a deceased person. The court agreed and dismissed the case with prejudice. Gryczewski appealed.

Continue reading

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.”

Continue reading