PLEADINGS/AGENCY/EVIDENCE
Requirements to Establish Agency as Opposed to Independent Contractor
A Jury verdict was entered against the Defendant company for $23.775 million for the death of two people and the severe injuries of one person in multi-car collision with tractor-trailer driven by the Defendant’s employee. Court properly found that principal-agent relationship existed between the Defendant company and the driver, as company owned the load of potatoes driver was hauling, and controlled the method of payment and manner of driver's work performance, including the imposition of fines if driver did not arrive at the warehouse within certain time. In determining whether a person is an agent or an independent contractor, the court's cardinal consideration is the right to control the manner of work performance, regardless of whether that right was actually exercised. Another significant factor is the nature of work performed in relation to the general business of the employer. Other factors to consider are: (1) the right to discharge; (2) the method of payment; (3) the provision of necessary tools, materials, and equipment; (4) whether taxes are deducted from the payment; and (5) the level of skill required.
Sperl v. C.H. Robinson Worldwide , No. 3-09-0830 Will Co. (3d Dist. March 30, 2011)
AGENCY/EVIDENCE/JURY INSTRUCTIONS
Agency Eliminates Need to Apportion Fault
Where it has been found that an agency relationship exists, Section 2-1117, which apportions fault among multiple tortfeasors, becomes irrelevant. An agency relationship establishes that the employer is liable for the actions of their agent; therefore, there is no need to apportion fault between them. Sperl v. C.H. Robinson Worldwide , No. 3-09-0830 Will Co. (3d Dist. March 30, 2011)
JURISDICTION/PRODUCT/LIABILITY
Personal Jurisdiction Over International Defendants in Products Can
Plaintiff filed suit against a French company which made an defective helicopter part, for the death of his brother who was piloting the helicopter in Illinois at the time of the crash. The trial court dismissed case for lack of personal jurisdiction. The Appellate Court reversed, finding that there was specific jurisdiction under the long-arm statute. The issue of minimum contacts was resolved, where it was found that the company had custom made the part for use in helicopters that it knew would be sold in a U.S. forum. The Court also held that the reasonableness requirement established by Ashai was also met, because the tort occurred in Illinois, Illinois has an interest in resolving a dispute over a crash and death in Illinois, and the concern with safety standards for the public good. The due-process requirement of the statute was fulfilled where the Court held that the Defendant could reasonably expect to be defending itself in a U.S. forum given the fact that they had previously done so and were making custom parts for U.S. aircrafts.
Russell v. SNFA , No. 1-09-3012 Cook Co., 6th Div. (1st Dist. March 31, 2011)
IMMUNITY/GOVERNMENT/PREMISES
Tort Immunity Act Extends to Willful and Wanton Conduct Unless There is a Specific Exception
Plaintiff sued the City, alleging willful and wanton conduct by city building inspectors, and the owners and managers of an apartment building, for injuries from a fall from a second-floor, rear staircase, in an area where a portion of the rear staircase handrail had been removed and marked with yellow caution tape. The Appellate Court affirmed the lower court’s grant of summary judgment for the city. The Court found that Illinois continues to recognize the common law public duty rule that a governmental entity generally owes no duty to provide an individual citizen with specific municipal services and it recognizes a special duty exception to the public duty rule, but this exception applies only in cases where the legislature has not provided a specific governmental immunity. Furthermore, statutory immunities provided by the Tort Immunity Act also extend to allegations of willful and wanton conduct unless the legislature has specifically indicated otherwise. Finally, section 2–202 does not provide an exception to the immunities provided in other sections of the Tort Immunity Act.
Hess v. Flores, No. 1-08-1653 Cook Co., 1st Div. (1st Dist. March 31, 2011)
CAUSATION
Causation When There is Assumption of Risk
Plaintiff filed suit for negligence against the trucking company, the repair garage, and the truck service company, for injuries he sustained when the brakes failed on truck he was driving. Court properly granted the trucking company's motion for summary judgment. The Court found that the Plaintiff did not reasonably rely on the company's alleged promise to ensure that the Defendant garage inspected the truck, because Plaintiff also spoke to the mechanic personally. The Plaintiff knew that no repairs had been made, as the garage could not find anything wrong with truck. Plaintiff failed to show that the company's breach of duty to convey to the garage that the driver wanted the brakes to be inspected, rather than actual failure of brakes, was proximate cause of Plaintiff's injury. The Plaintiff made the decision to drive the truck knowing that there was an unresolved issue with the brakes. Lewis v. Chica Trucking , No. 1-10-0540 Cook Co., 6th Div. (1st Dist. March 31, 2011)
Legal Malpractice 1st Dist.
Proof of Actual Innocence Needed In Order to State a Cause of Action for Legal Malpractice
Herrera-Corral v. Hyman, No. 1-09-2923 (March 31, 2011) Cook Co., 1st Div. (HALL) Affirmed.
- In this legal malpractice case, the plaintiff had been charged and prosecuted on drug charges. He accepted the advice of his attorney to accept a plea of guilt while he appealed a motion to suppress which had been denied. The charges were ultimately dismissed on appeal, and the criminal defendant then sued his attorney for having agreed to the guilty plea, alleging the attorney's ineffective assistance of counsel as his basis for recovery. The complaint was dismissed pursuant to Section 2-615 of the Code of Civil Procedure, as plaintiff had not sufficiently plead "actual innocence" for purpose of his legal malpractice claim. The Appellate Court affirmed the dismissal, reiterating Illinois' long-standing requirement of proof of actual innocence in order to state a cause of action for legal malpractice against a criminal defense attorney, and an acquittal based on exclusion of evidence is not related to innocence.
Agency / Motor Vehicles
Principal - Agent Relationships Established Despite Contract Which Indicated Independent Contractor
Sperl v. C.H. Robinson Worldwide, No. 3-09-0830 (March 30, 2011) Will Co. (LYTTON) Affirmed.
- Jury verdict against Defendant company for $23.775 million for death of two people and severe injuries of one person in multi-car collision with tractor-trailer. Court properly found that principal-agent relationship existed between Defendant company and independent contractor truck driver, as company owned the load of potatoes driver was hauling, and controlled method of payment and manner of driver's work performance, including imposition of fines if driver did not arrive at company's warehouse within certain time. Importantly, however, defendant company was not a licensed motor carrier, did not own tractor trailers and did not employ drivers. Given agency relationship, company was entirely liable for driver's negligent conduct. This case provides a good discussion and analysis of those situations dealing with the agency of a non-employee where a contract is involved that claims independent contractor status. The label given by parties in a contract is not dispositive of employment/agency status. The right to control the manner of work performance is the most important factor.
LIENS / INSURANCE
The Common Fund Doctrine is inapplicable to health care liens asserted pursuant to the Health Care Services Lien Act.
Wendling v. Southern Illinois Hospital Services, Nos. 110199, 110200 Cons. (Ill. Sup. Ct., March 24, 2011)
-Pursuant to the Health Care Services Lien Act ("Act"), a Hospital filed liens against Plaintiffs' personal injury suits for treatment it rendered to the Plaintiffs. Following Maynard v. Parker, 54 Ill. App. 3d 141 (1977), the Illinois Supreme Court reversed the lower courts and held that the common fund doctrine is not applicable to health care liens under the Act. As such, the Act does not allow attorneys to recover their fees from the hospital liens. The Illinois Supreme Court reasoned that although the hospital benefits from the attorney's efforts in pursuing cases, unlike a subrogor, the hospitals are not unjustly enriched because their claims are not contingent on the plaintiffs' rights against a third party or creation of a fund. In other words, a plaintiff owes the hospital bill regardless of the outcome of any personal injury action. Further, unlike a subrogor, hospitals do not have standing to participate in plaintiffs' personal injury suits, they do not have an opportunity to chose their own attorney, and they do not have an opportunity to negotiate plaintiffs' settlements on their own terms. Lastly, in a typical common fund case, the fund has been created for the benefit of the entire class. In cases such as this, the attorneys did not recover the settlements for the benefit of the class, but, rather, for the benefit of their clients. As such, Plaintiffs and hospitals do not share the same interests in the fund as they are not similarly situated as to the fund.
NURSING HOME CARE ACT / DAMAGES
The right to seek punitive damages under the Nursing Home Care Act does not survive the death of the Plaintiff.
Vincent v. Alden-Park, No. 110406 (Ill. Sup. Ct., March 24, 2011)
-In this interlocutory appeal, the single question to be answered was, "Does a claim for punitive damages based on allegations of willful and wanton violation of the Nursing Home Care Act ("Act") survive the death of the nursing home resident on whose behalf the cause of actions was brought?" The Illinois Supreme Court affirmed the lower courts and answered the question in the negative. It is well settled that common law punitive damages are available for willful and wanton violations of the Act (see Dardeen v. Heartland Manor, Inc. 186 Ill. 2d 291, 300 (1999) and Eads v. Heritage Enterprises, Inc. 204 Ill. 2d 92, 104 (2003)). It is also well settled that causes of action based on the Act survive the death of a nursing home resident alleged to have been injured as a result of a violation of the Act. (See Myers v. Heritage Enterprises, Inc., 332 Ill. App. 3d 514, 517 (2002) and Pietrzyk v. Oak Lawn Pavilion, Inc., 329 Ill. App. 3d 1043, 1044, 1049 (2002)). It is equally settled that the right to seek punitive damages does not survive the death of the party unless the punitive damages are expressly statutorily authorized under some act. In this case, the Act does not expressly authorize punitive damages. As such, any right to common law punitive damages is lost once the injured party has died.
Premises
Pothole Open and Obvious Defect and Exceptions Do Not Apply
Garcia v. Young, No. 4-10-0776 (4th Dist., March 23, 2011) Champaign Co. (POPE) Affirmed. The court relied on Sandoval v. City of Chicago, 357 Ill.App. 3d 1023 (1st Dist. 2005) (Defendant must create distraction for distraction exception to apply), but see Clifford v. Wharton Business Group LLC, 353 Ill.App.3d 34 (1st Dist. 2004) (Defendant need not create distraction for distraction exception to apply).
- Plaintiff, who resided in a rental property owned by Defendant, sued for injuries he suffered after falling in a pothole on a private street owned by Defendant. Court properly granted summary judgment for Defendant. The pothole was clearly an open and obvious condition as a matter of law, and neither the deliberate encounter exception nor the distraction exception applied. Under deliberate encounter exception, the open and obvious rule is inapplicable if landowner has reason to expect invitee will proceed to encounter condition because advantages outweigh risks. Under distraction exception, if landowner has reason to expect invitee will be distracted and will forget about condition and fail to protect self, the open and obvious rule is inapplicable. Plaintiff did not deliberately encounter the pothole (street not relevant) and the record does not reflect that Defendant was responsible for, contributed to, or created the situation which allegedly distracted Plaintiff. Pothole was 2 feet in diameter and eight inches deep. Defendant was aware of potholes on street but not this pothole. Plaintiffs conceded that condition was open and obvious for purpose of motion.
Res Judicata / Medical Malpractice
Plaintiff Did Not Abandon, for Purposes of Res Judicata, Her Claims for Intentional and Negligent Spoliation of Evidence As to Fetal Monitor Strips, When Those Claims Had Been Dismissed Without Prejudice and Plaintiff Did Not Re-Plead Them Prior to Voluntarily Dismissal
Williams v. Ingalls Memorial Hospital, No. 1-10-0334 (February 17, 2011) Cook Co., 4th Div. (PUCINSKI) Certified questions answered; remanded. 1st Dist. (Court opinion corrected 3/15/11)
- There were 2 certified questions in this case: (1) whether plaintiffs abandoned their spoliation claims for purposes of res judicata where those claims are dismissed with leave to replead but the claims are never repled prior to plaintiff's voluntary dismissal of the entire cause of action; and (2) whether a grant of summary judgment in favor of the hospital defendant on a claim forrespondeat superior based on the apparent agency of a doctor, with a subsequent voluntary dismissal of the remainder of the case, operates as a res judicata bar against refiling the action against both the hospital and the doctor.
Plaintiff filed medical malpractice action for infant's brachial plexus injury during birth. The Court held that Plaintiff did not abandon, for purposes of res judicata, her claims for intentional and negligent spoliation of evidence as to fetal monitor strips, when those claims had been dismissed without prejudice and Plaintiff did not re-plead them prior to voluntarily dismissing case on morning of trial.
Grant of summary judgment for hospital on respondeat superior claim based on apparent agency of a doctor, with a subsequent voluntary dismissal of the remainder of case, does operate as a res judicata bar against re-filing the action against the hospital, but is not a bar as to the physician and the other defendants.
Wrongful Death
When Decedent Dies Pursuant to a Wrongful Death, Proceeds From Underinsured-Motorist Policy Should Be Distributed to Beneficiaries Under Wrongful Death Act
In re Estate of Anderson, No. 1-10-1240 (March 15, 2011) Cook Co., 2d Div. (CONNORS) Certified question answered. 1st Dist.
- In the case of the wrongful death of an insured, proceeds recovered from an underinsured-motorist policy represent wrongful death damages to be distributed to those beneficiaries legally entitled to recover under the terms of the Wrongful Death Act.
Personal Jurisdiction / Experts
Illinois Court Had Personal Jurisdiction Over Expert Physician Sued By Plaintiff in Med Mal Case and His Attorneys After Changing His Written Opinions At His Deposition
McNally v. Morrison, No. 1-09-2643 (March 15, 2011) Cook Co., 2d Div. (HARRIS) Reversed and remanded. 1st Dist.
- Plaintiff and his attorneys filed suit against their Ohio-based controlled expert physician, referred through TASA, who completely contradicted his expert report at deposition, and testified that Defendant physician did not breach standard of care, resulting in dismissal of Cook County medical malpractice suit related to liposuction procedure.
Illinois has personal jurisdiction over expert because he entered into agreement with Illinois attorneys to serve as expert witness in an Illinois lawsuit, and expert's services were intended to produce a result in Illinois. Even though all of expert's work was performed in Ohio, his services were purposefully directed at Illinois residents, and Illinois has a substantial interest in adjudicating dispute as it concerns an expert in an Illinois tort case. Thus, sufficient minimum contacts (International Shoe case) between Illinois and expert so that expert should reasonably anticipate being brought into court in Illinois.
Statute of Limitations / Pleadings / Amendment of Pleadings
Under Federal Rule 15(c), the Factors in Determining Whether an Amended Complaint Can Relate Back to the Time of the Original Filing Are A) Whether the New Defendant Should Have Known That Plaintiff, Had It Not Been Mistaken, Would Have Sued It Instead of Suing the Named Defendant, and B) Whether the Delay in Plaintiff's Discovering Mistake Impaired the New Defendant's Ability to Defend Itself
Joseph v. Elan Motorsports Technologies Racing Corp., No. 10-1420 (March 14, 2011) S.D. Ind., Indianapolis Div. Reversed and remanded
- In this case, the plaintiff brought suit against a company he thought was his employer, Elan Corp. In fact, the employer was another subsidiary, called Elan, Inc. After the statute of limitations, and several years into the litigation, the defendant disclosed the error, and Plaintiff sought to file an amended complaint which corrected the error and also added additional claims. The Seventh Circuit determined that the District Court had erred in denying plaintiff's motion to amend complaint by substituting corporate affiliate of named defendant even though the substitution motion was filed after expiration of statute of limitations period. The District Court had relied on the fact that the proposed amendment could not relate back to date of original complaint because plaintiff had failed to identify proper defendant prior to expiration of statute of limitations. However, the only relevant inquiry under Krupski, 130 SCt 2485, is a) whether the new defendant should have known that Plaintiff, had it not been mistaken, would have sued it instead of suing the named defendant, and b) whether the delay in Plaintiff's discovering mistake impaired the new defendant's ability to defend itself. Here, the new defendant was aware of the lawsuit, as it shared corporate offices with the defendant who had been sued, and was aware that it should have been named in original lawsuit because of Plaintiff's employment relationship to that new defendant. The fact that the motion to amend was filed six years after the original complaint did not require a different result where the new defendant was aware of the mistake shortly after original complaint was filed, but did nothing to alert plaintiff of mistake. In other words, if the defendant was prejudiced in its ability to defend the case, it had caused the prejudice by its own delay in clarifying the mistaken identity in a timely manner.
Animal Control Act
Dog Bite Case Brought Pursuant to Village Ordinance Was Properly Dismissed Because Proper Causes of Action Were Included in the Animal Control Act and Under Common Law
Janis v. Graham, No. 2-09-0814 (March 10, 2011) Kane Co. (McLAREN) Affirmed. 2d Dist.
- Plaintiff filed a Complaint with a count under Animal Control Act and another count under a Village Ordinance for injuries sustained when knocked to the ground by dogs owned by Defendants. The trial court dismissed the count under the Ordinance because the Act covered the liability of the owner and there was a common law cause of action. The Appellate Court held that the Ordinance count was properly dismissed with prejudice which prohibited dogs from being allowed to run at large, as said count was merely a reiteration of Animal Control Act. Use of Ordinance would impose liability under negligence standard in area in which state has determined that negligence shall not apply, and Animal Control Act does not contemplate strict liability or negligence (it's statutory liability).
Negligence / Jury Instructions / Premises Liability
Instruction of Jury on Wrong Standard of Liability is Abuse of Discretion and Requires Reversal
Snow Removal Contractor Liable for Negligent Removal of Snow That Causes Injury
Williams v. Sebert Landscape Company, No. 1-10-1794 (March 8, 2011) Cook Co., 2d Div. (HARRIS) Reversed and remanded.
- In this case, the Plaintiff sued a snow removal contractor (She had also sued the property owner, but settled before trial.) for injuries she sustained from slip and fall on a patch of ice in the parking lot of the building where she worked. The defendant argued that it stood in the place of the owner, and that Plaintiff was required to prove an unnatural accumulation and that Defendant had notice of the condition and its risk in order to establish liability. The Appellate Court disagreed: "The law in Illinois is that in order for a defendant to be an owner-occupier or possessor of land, he must occupy or possess the land with the intent to control it. Esser, 169 Ill. 2d at 302; Madden v. F.H. Paschen, S.N. Nielson, Inc., 395 Ill. App. 3d 362, 375 (2009). The concept of "control" is closely tied with the ability to exclude people from the use of a piece of property or to direct how that property is to be used. Madden, 395 Ill. App. 3d at 376." No such evidence of control was presented at trial. Plaintiff argued, and the Appellate Court agreed, that she only had to satisfy an ordinary negligence standard: "...Williams only had to establish ordinary negligence. Madeo v. Tri-Land Properties, Inc., 239 Ill. App. 3d 288, 290 (1992) (a contractor responsible for removing snow or ice from a property owes a duty of reasonable care to those people on the property). The scope of a snow removal contractor's duty of care is delineated by the terms of its contract with the property owner. Flight v. American Community Management, Inc., 384 Ill. App. 3d 540, 544 (2008). And where the contractor has such a duty, the duty is only to not negligently remove the snow. Flight, 384 Ill. App. 3d at 544; McBride v. Taxman Corp., 327 Ill. App. 3d 992, 996 (2002); Madeo, 239 Ill. App. 3d at 290; Crane v. Triangle Plaza, Inc., 228 Ill. App. 3d 325, 330 (1992); Wells v. Great Atlantic & Pacific Tea Co., 171 Ill. App. 3d 1012, 1019 (1988); Burke v.City of Chicago, 160 Ill. App. 3d 953, 957 (1987)."
The Appellate Court agreed with Plaintiff's objection, that the trial judge had improperly instructed jury as to Defendant's standard of care, in instructing the jury from the IPI Civil 125 series instructions designated for owner-occupiers, that Plaintiff had a burden of showing that snow removal contractor had notice of unnatural accumulation of snow or ice. The jury should have been instructed pursuant to the IPI Series 20 instruction for contractors, that Plaintiff need only have shown ordinary negligence, and that the contractor's negligence was the proximate cause of her injury. "In making such a decision, a trial court abuses its discretion if it gives instructions that do not form a clear and correct picture of the applicable law and relevant principles. Bulger v. Chicago Transit Authority, 345 Ill. App. 3d 103, 122 (2003). If a trial court's use of improper jury instructions seriously prejudices a party's right to a fair trial, then we shall grant that party a new trial. Bulger, 345 Ill. App. 3d at 121; see also Esser v. McIntyre, 169 Ill. 2d 292, 302-03 (1996) ("Since the jury was instructed on the wrong standard of care, the decision of the circuit court must be reversed and the cause remanded."). In instructing the jury as it did, the trial court had forced the plaintiff to establish two additional elements that she should never have had to prove,i.e., the existence of an unnatural accumulation of ice on the property, and notice of the condition and the risk it imposed. The comments to IPI Civil (2006) No. 125.02 make clear that if, as in the case of a snow removal contractor, the defendant had a duty to remove snow, then this instruction should not be used. IPI Civil (2006) No. 125.02 cmt ("If a duty to remove or protect against natural accumulations of snow or ice is created by conduct or contract, then the plaintiff need not prove the existence of an 'unnatural accumulation' and this instruction is inapplicable."). Thus, by using IPI Civil (2006) No. 125.02, the trial court substantially changed Williams' burden of proof at trial by requiring her to establish an unnatural accumulation and notice, which is part of the liability of an owner-occupier, not for a defendant snow removal contractor to whom those elements in the burden of proof do not apply. (NOTE: Plaintiff is still required to prove unnatural accumulation that resulted from the negligence!)
Evidence / Product Liability
Theory of Case Which Had Proceeded Through Discovery on Basis of a Defective Product Component Could Not Be Changed at Trial to be Based on Defect of Entire Product
Aldridge v. Forest River, Inc., No. 10-2193 (March 7, 2011) N.D. Ill., E. Div. Affirmed
- In this action, alleging strict liability arising out of injuries sustained while the plaintiff was descending the steps of her recreational vehicle, the District Court did not err in granting the defendant's motion in limine barring plaintiff from arguing to jury that the recreational vehicle itself was a defective product in the litigation, as opposed to just the component step controller that had been installed on said vehicle. Throughout the litigation, Plaintiff had identified the step controller as the defective product and the proximate cause of her injuries. Moreover, Defendant's in limine request was appropriate to prevent the plaintiff from surprising defendant by changing the nature of litigation at last minute. The trial court was also affirmed in denying plaintiff's request to amend her complaint to add allegations with respect to recreational vehicle where amendment would have required reopening discovery and postponing trial. It should be noted that this case was decided using an abuse of discretion standard, with the reviewing court holding that the trial judge had not abused the discretion that was his to exercise.
FORUM NON CONVENIENS
Where the balancing of public and private interest factors does not strongly favor transfer, Plaintiffs' chosen forum should not be disturbed.
Erwin v. Motorola, No. 1-09-2847 (Ill. App. 1st Dist. March 4, 2011)
-Minor Plaintiffs, through their parents, filed suit against Motorola in Cook County, Illinois for injuries sustained from their parents' exposure to hazardous chemicals at Motorola plants in Texas and Arizona, which allegedly caused them birth defects. Motorola moved to dismiss based on the doctrine of forum non conveniens in favor of a trial in Texas. The trial court denied the motion and the Appellate Court affirmed. The trial court properly balanced the public and private interest factors. Despite the fact that the Plaintiffs have never resided, worked, or received medical treatment in Illinois, Cook County is nonetheless an appropriate and convenient venue because Motorola's headquarters in located in Cook County, and its entire legal department and many current and former employee witnesses reside in Cook County. In addition, other witness are scattered throughout the United States. Moreover, it is not inconvenient to transfer any evidentiary documentation to Cook County. Finally, Illinois has a direct interest in deciding this controversy and it would not be an unfair burden on Cook County jurors. As such, the public and private interest factors did not "strong favor" transfer to Texas.
ARBITRATION / INSURANCE
In order to "commence" arbitration in relation to uninsured motorist coverage, the insured must make an unequivocal demand for arbitration and name his or her arbitrator.
Rein v. State Farm Automobile Insurance Company, No. 1-10-0764 (1st. Dist., March 4, 2011)
-The Plaintiff filed a declaratory judgment action for uninsured motorist coverage after she was injured by a hit-and-run driver. Her insurance policy stated, "Under the uninsured motor vehicles coverage, any arbitration or suit against us will be barred unless commenced within two years after the date of the accident." It further required, "If the insured requests arbitration, each party to the dispute shall select an arbitrator." Several days before the two-year mark, Plaintiff's counsel wrote the following letter to State Farm, "YOU ARE HEARBY NOTIFIED that it is our intention to pursue an Uninsured/Underinsured Motorist Claim against State Farm Insurance under the above-captioned policy on behalf of [Plaintiff]. Please open a claim on this matter. Upon receipt of this letter, please contact the undersigned so we may discuss the matter in greater detail." The appellate court affirmed the trial court's granting of summary judgment in favor of State Farm on the basis that arbitration was not "commenced" within two years. Following the first district cases of Buchalo v. Country Mutual Insurance Co., 83 Ill. App. 3d 1040 (1st Dist. 1980) and Shelton v. Country Mutual Insurance Co., 161 Ill. App. 3d 652 (1st Dist. 1987) and declining to follow the fifth district case of Hale v. County Mutual Insurance Co. 334 Ill. App. 3d 751 (5th Dist. 2002), the Appellate Court in this case reasoned that in order commence arbitration, an insured must make an "unequivocal demand for arbitration" and "name the [insured]'s arbitrator." In this case, the insured did neither.
Expert Witnesses / Appeals
Physician Expert Permitted to Rely On Police Report Showing No Injury and Photos Showing Minimal Vehicle Damage for Opinion That Significant Injury Was Unlikely
In the Absence of a Complete Record, the Trial Court is Presumed to Have Made Correct Decisions
Han v. Holloway, No. 1-10-0568 (March 1, 2011) Cook Co., 2d Div. (HARRIS) Affirmed.
- In this case, Plaintiff appealed a defense verdict in her suit for injuries and damages that were allegedly sustained as a result of a rear-ender car accident. The impact was a minor one, with Defendant claiming that the only vehicular damage was a scratch on Plaintiff's bumper caused by impact with Defendant's license plate. Two treating physicians testified that Plaintiff had suffered a bulging disk caused by accident; and lumbar sprain/strain which was resolved within two months after the accident; and Defendant's expert disagreed with treater's opinion that annular tear in spine was caused by accident. The defense expert, a neurologist, was held to have properly relied on a part of the police report, which was marked "no injury" in his testimony, under IPI 2.04 (allowing witnesses to testify as to records not in evidence), and on photos of vehicles to opine that due to minimal vehicle damage and minimal force, significant injury was unlikely. The Court also affirmed the trial court in refusing to allow an auto mechanic to testify as a rebuttal expert, as he could have been brought in Plaintiff's direct case, but his name was not identified as a potential witness.
It should be noted that, throughout the decision, there are multiple notes by the Appellate Court that Plaintiff had failed to provide trial transcripts, Plaintiff's testimony, arguments, hearings, etc., and further noted that, in the absence of a complete record, the trial court is presumed to have made correct decisions. "The appellant has the burden to present a sufficiently complete record to support a claim of error on appeal. Webster v. Hartman, 195 Ill. 2d 426, 432 (2001) (citing Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984)). Indeed, "[f]rom the very nature of an appeal it is evident that the court of review must have before it the record to review in order to determine whether there was the error claimed by the appellant." Foutch, 99 Ill. 2d at 391. Where the issue on appeal relates to the conduct of a hearing or proceeding, this issue is not subject to review absent a report or record of the proceeding. Webster, 195 Ill. 2d at 432. Without such a record, it is presumed that the order entered by the trial court is in conformity with the law and has a sufficient factual basis. Foutch, 99 Ill. 2d at 392; Webster, 195 Ill. 2d at 432. "Any doubts which may arise from the incompleteness of the record will be resolved against the appellant." Foutch, 99 Ill. 2d at 392. (CUNNINGHAM and KARNEZIS, concurring.)
Office Location
