Invited Error

August 15, 2009

Insurer’s Failure To Supplement Deficient Damages Evidence Not Invited Error

Michael Carey and James Fann owned a mixed-use building (residential and dental office) in Chicago, Illinois. The building was substantially damaged in a fire. Carey and Fann made a claim to their insurer, American Family Insurance, but the company denied coverage. Carey and Fann sued American Family. After a bench trial, Carey and Fann were awarded more than $427,000.

American Family appealed. At trial, Carey’s and Fann’s damages expert neglected to put in evidence of depreciation of the building, a required element under Illinois law. Carey and Fann argued that American Family waived the argument that the damages evidence was deficient. Their argument relied on the “invited error” doctrine − American Family’s acceptance of the damages calculation and the company’s failure to put in its own evidence of depreciation.

The First District Illinois Appellate Court rejected Carey’s and Fann’s position. The court ruled there had been no “invited error” or waiver: American Family sufficiently reserved the right to dispute damages and it was not the insurer’s responsibility to assure the building owners’ damages evidence was appropriate. Here is the court’s rationale:

August 9, 2009

Failure To Cite To Record Ruins Invited Error and Judicial Estoppel Defenses To Appeal

by Steven R. Merican

Gloria Sakellariadis had an automobile accident with Steven Campbell. Three months later Gloria was in another accident, that time with Bruce Walters. Gloria injured her neck, shoulders, and back in both accidents. There was one trial against both Campbell and Walters. While the jury was deliberating, Gloria settled with Campbell for $150,000. The jury returned a verdict for Gloria of $518,000, and found Campbell and Walters each liable for 50 percent.

The court awarded Gloria $259,000 from Walters − his 50 percent of the full $518,000 award. Gloria thought Campbell and Walters were jointly and severally liable for the whole verdict, so she appealed and asked for an award of $368,000 from Walters ($518,000 minus the $150,000 settlement).

Certain of the medical providers held liens against Gloria’s judgment. There was a hearing in the trial court to adjudicate those liens. Walters argued that Gloria’s appeal was barred because she “represented to [the] lienholders that she would accept the judgment.” Walters argued that the doctrines of invited error (“a party cannot complain of error which that party induced the court to make or to which that party consented’”), and judicial estoppel (“a party who assumes a particular position in a legal proceeding is estopped from assuming a contrary position in a subsequent legal proceeding”) doomed Gloria’s appeal.

June 15, 2009

American Access Casualty Appeal Waived By Invited Error

by Steven R. Merican

Christine Siwek had an accident when she was driving Jerrold Erickson’s car. Christine told the Illinois Department of Transportation about the accident, and identified American Access Casualty Company as her insurer.

American told the Department that Christine’s policy had been canceled.

Christine claimed she never received a policy cancellation, so she sued American Access. She asked the trial court for a declaration that her policy with American Access covered her for the accident.

November 6, 2008

“Invited Error” Prevents Med Mal Plaintiff’s Appeal Of Evidentiary Ruling

by Steven R. Merican

David Mount had a cardiac arrest that caused brain damage and other injuries. David’s guardians sued his doctors for medical malpractice. A jury concluded that the doctors were not guilty. David’s guardians appealed to the First District Illinois Appellate Court. The appellate court affirmed the judgment in favor of the doctors.

On appeal, David’s lawyer argued that the trial court should have allowed certain statements by one of the doctors to be used as substantive evidence. Instead, the trial judge limited the doctor’s statements for impeachment purposes only − i.e., “solely for purposes of assessing the weight to be given to the testimony of the witness in the courtroom.” But David’s lawyer did not object when the trial court placed limits on how the doctor’s testimony could be used.

The appellate court rejected David’s arguments that the doctor’s testimony should have been admitted for their full, substantive value. The court invoked the “invited error doctrine,” which prevents a party from appealing an evidentiary ruling that he procured or invited, or in which he acquiesced. Here’s the court’s rationale:

May 31, 2008

Invited Error Rule Knocks Out Broker-Dealer Appeal Against Computer Programmers

by Steven R. Merican

In this messy lawsuit, a broker-dealer sued its computer programmers and their firm on a theory of civil conspiracy. The programmers moved for summary judgment. The broker-dealer argued that the programmers engaged in tortious acts in furtherance of the conspiracy. But the programmers were granted summary judgment.

The broker-dealer appealed, and argued for the first time that “unlawful,” but not necessarily “tortious,” acts were all it had to show for its civil conspiracy claim. The First District Illinois Appellate Court rejected the broker-dealer’s argument because it violated the “invited error” rule.

The Illinois Supreme Court has held, under “the doctrine of invited error,” that a party “may not request to proceed in one manner and then later contend on appeal that the course of action was in error.” … To permit a party to use, as a vehicle for reversal, the exact action which it procured in the trial court “would offend all notions of fair play” and encourage duplicity by litigants … Thus, plaintiffs cannot raise on appeal the question of whether they could show an unlawful, as opposed to a tortious, act in furtherance of the conspiracy.