October 2010
Insurance / Motor Vehicles
Insurance Company No Duty to Defend or Indemnify Insured Who Fails to Cooperate After Reasonable Efforts By Insurance Company to Obtain Insured's Cooperation.
Founders Insurance Company v. Shaikh, No. 1-09-1130 (October 22, 2010) Cook Co., 6th Div. (McBRIDE) Affirmed.
- Court properly granted summary judgment to insurer on its claim that its insured driver, who was in a two-car collision, breached assistance and cooperation clause of his policy. Therefore, insurer was relieved of any duty to defend or indemnify driver from litigation and $11,000 judgment. Insurer used reasonable efforts and diligence in its search for insured. It had sent letter inquiry to his son who denied contact with him for more than a decade and speculated that he might be in jail. Insurer used sources likely to disclose his whereabouts, its search was sufficiently broad and produced leads which it then pursued and exhausted. Insurer's defense was substantially prejudiced by the absence of insured, who was the only known witness to the collision. (CAHILL and R. GORDON, concurring.)
Substitution of Judge
Motion for Substitution of Judge For Cause Must Be Verified By Affidavit and Contain Adequate Allegations for Cause. If These Threshold Requirements Are Not Met, the Judge At Issue Does Not Have to Refer Motion to Another Judge for Hearing. Further, Motion for Substitution for Cause Should Be Asserted at the Earliest Practical Moment.
In re Estate of Wilson, No. 108487 (October 21, 2010) Cook Co. (KARMEIER) Appellate court reversed. 1st Dist.
- Complex Guardianship/Power of Attorney case where the alleged Power of Attorney was seeking to substitute Judge for hearing on revoking the Power of Attorney due to statements and questions asked of the Power of Attorney by the Judge at a previous hearing 4 months before revocation hearing. Power of Attorney filed Motion to Substitute without attached Affidavit and citing in Motion the Judge's prior statements/questions as cause. The Power of Attorney also sought immediate transfer of the Motion to another Judge for hearing. 735 ILCS 5/2-1001(a)(3) The Court refused to transfer the Motion for hearing and denied the Motion. The Appellate Court reversed.
The Supreme Court upheld the Trial Court's rulings. The Court was not required to transfer the petition for substitution of judge to another judge for hearing because the Power of Attorney's motion failed to meet threshold requirements for such a motion. The Motion must be verified by Affidavit contain adequate allegation of cause for substitution. Neither occurred here. Also, the Motion did not meet requirement that motions for cause be asserted at the "earliest practical moment," as it was not filed until four months after hearing at which time judge's bias was alleged to have been evident.
Verdicts / Causation / Jury Instructions
Verdict Form Was Improper For Not Differentiating Divisible Injuries Between Auto Accident Defendant and Medical Malpractice Defendant
Auten v. Franklin, No. 4-09-0541 (October 6, 2010) Sangamon Co. (POPE) Reversed and remanded. 4th Dist.
- Plaintiff was passenger in auto accident. She suffered a broken arm and, possibly, a dislocated finger. She filed a lawsuit against the driver defendant and the orthopedic surgeon that performed surgery on her arm. She sued the surgeon for failing to timely diagnose the dislocated finger, which she alleged led to several surgeries. The jury reached a verdict in favor of Plaintiff. The total amount did apportion fault between the driver and doctor (75%/25%). However, it did not separate the damages for the arm and finger injuries.
The Appellate Court reversed because the damages to the arm and finger were divisible and the doctor was not responsible for the arm at all. Under the 75/25 apportionment of fault, the verdict against the doctor would be joint and severable, which would make the doctor liable for all of the arm injury damages.
Additionally, the Court found that in medical malpractice case IPI 3.08 (weight to be given expert testimony on any topic) and 105.01 (dealing generally with standard of care in professional negligence cases) are neither incompatible nor contradictory and the jury was properly instructed.
Opening Statement / Closing Argument
Irrelevant Comments In Opening and Closing That Prejudiced Defendant Were Error
Auten v. Franklin, No. 4-09-0541 (October 6, 2010) Sangamon Co. (POPE) Reversed and remanded. 4th Dist.
- Plaintiff's counsel mentioning in opening statement post-accident miscarriage, which was not part of the claim, was error. Also, auto defendant's counsel questioning in closing argument doctor defendant doing surgery on plaintiff's finger was error because no expert opinion introduced to support the argument.
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