Waiver and Forfeiture

April 24, 2014

Insurer’s Arguments First Raised On Reconsideration Forfeited For Appeal

General contractor Kiferbaum Construction was sued by a subcontractor’s employee who was injured at the work site. Kiferbaum was represented by Jacobson & Riseborough. Kiferbaum got excess insurance from Evanston Insurance.

Kiferbaum’s insurers, including Evanston, settled with the employee. The insurers were left to fight about the amounts each would pay the employee. Jacobson & Riseborough committed Kiferbaum to participate in the settlement agreement, which required Kiferbaum to reimburse Evanston for $1 million the insurer put into the settlement pot. But Kiferbaum argued it did not give J&R authority to make the commitment. The trial court agreed and gave Kiferbaum summary judgment against Evanston’s claim for the money.

Unhappy about being saddled with the $1 million payment, Evanston sued J&R. Evanston’s first two complaints were dismissed {because they were premature; i.e., Evanston hadn’t been injured yet], but the trial court gave Evanston a chance to file another complaint that would meet legal standards. Evanston filed a second amended complaint, but the trial court, finding the complaint was filed too late under the statute of repose [six years from the offending act], dismisssed that one too. The trial court then denied Evanston’s request for reconsideration.

January 21, 2012

Debtors’ Victory Affirmed; Creditor Forfeits Procedural Argument

by Steven R. Merican

Mutual Management Services took an assignment of debts Richard and Kimberly Swalve allegedly owed to three medical providers. Mutual sued the Swalves for the money. But the Swalves asked the court to dismiss because, they asserted, facts existed that undercut Mutual’s complaint as a matter of law. The trial court agreed, and dismissed because Mutual did not give proper notice of the assignments.

Mutual appealed. There are two appellate lessons in this case.

(1) The Swalves asked for dismissal because the facts showed Mutual did not give proper notice of the assignment of debt. But when they got to the appellate court, the Swalves argued their factual motion should be characterized as asking for dismissal as a matter of law, irrespective of facts outside the complaint. The Second District Illinois Appellate Court disagreed, and ruled it would consider the Swalves’ request on the same basis as the trial court. Here is the appellate court’s reasoning:

January 9, 2012

Medical Malpractice Appeal Forfeited For Lack Of Complete Record

by Steven R. Merican

Gerald Morisch claimed his Veteran’s Administration Hospital doctors were negligent because they did not determine Gerald was on the verge of having a stroke, and so did not take action to minimize his injury. Gerald sued for medical malpractice under the Federal Tort Claims Act. The government got a judgment in its favor after a trial. So Gerald appealed.

The Seventh Circuit Appellate Court ruled that Gerald forfeited his appeal because he did not submit enough of the trial transcript for the court to assess Gerald’s arguments. Here is what the court said:

An overarching procedural problem with Gerald’s appeal limits our ability to address his claim. The only transcript from the bench trial that Gerald ordered and included in the record on appeal was the testimony of government expert witness Dr. Terrence Riley. This incomplete appellate record hinders our ability to conduct a meaningful review of the district court’s findings. As such, we find that Gerald forfeited his appeal.

August 24, 2011

Interest On Taxpayers’ Property Valuation Judgment Appealable After Earlier-Filed Notice Of Appeal

by Steven R. Merican

Three corporate taxpayers disputed the amount of property taxes they owed Cook County, Illinois. So they sued the county collector for refunds plus interest. The taxpayers settled the property valuation part of their disputes, but left the interest issues (power to award, rate, and period the interest accumulated) for the trial court to decide. The trial court awarded the taxpayers interest at a favorable rate and period.

The Collector appealed before the trial court decided the interest rate to be applied to two of the property valuation judgments. The first question was whether the trial court had jurisdiction to award interest even though the Collector already appealed.

The general rule is that a trial court loses jurisdiction over a case as soon as a notice of appeal is filed. The chief exception to the rule is that a trial court still can issue orders that are collateral to the judgment. In this case, the Illinois Supreme Court ruled that the interest awards were collateral to the valuation judgments, so the trial court kept jurisdiction to award interest. Here’s how the supreme court explained it:

May 5, 2011

Failure To Object At Trial Dooms Appeal In Car-Cow Crash Case

by Steven R. Merican

Benjamin Juday’s pickup truck was damaged when it crashed into a cow owned by David Albers. The truck was insured by American Family Mutual Insurance. American Family, as subrogee of Juday [stood in Juday’s shoes], sued Albers under the Illinois Domestic Animals Running At Large Act to get compensation for the damage to the truck.

During the trial, American’s lawyer argued that Albers did not show he acted reasonably to restrain the cow. Albers argued just the opposite. A jury returned a verdict in favor of Albers. American Family asked the trial court for judgment notwithstanding the verdict. The trial court denied American’s request, so the insurer appealed.

In the appellate court, American Family argued that Albers could not argue he acted reasonably because (1) Albers’s reasonableness was an affirmative defense to American’s claim under the Animals Running At Large Act, and (2) Albers had not submitted a written affirmative defense.

April 23, 2011

Father Forfeits Appeal Of Negligence Dismissal For Failure To Reallege It In Amended Complaint

by Steven R. Merican

While warming up his son for a baseball game, Thomas Vilardo threw batting practice from behind a pitching screen provided by the Barrington Community School District. Vilardo’s son hit a pitch that Vilardo claimed went through a hole in the screen and hit him in the eye, causing injury.

Vilardo sued, claiming the School District was guilty of negligence and of willful and wanton conduct. The School District asked the trial court to dismiss Vilardo’s claims. The trial court dismissed Vilardo’s negligence claim because the School District was statutorily immune from a plain negligence claim.

The trial court dismissed the negligence count with prejudice (can’t re-plead it), and dismissed the willful and wanton claim without prejudice (can re-plead it). Vilardo filed an amended complaint that alleged only willful and wanton conduct against the School District. The amended complaint did not re-allege or refer to the plain negligence claim that had been dismissed.

March 19, 2011

Injured Officer’s Claim For Uninsured Motorist Coverage Waived And Too Late To Confer Appellate Jurisdiction

by Steven R. Merican

Timothy Cooper stole Terry Williams’s car. When Cooper tried to get away, he ran the car into Nikola Pritza’s car. Pritza, a police officer with the Village of Lansing, Illinois, injured his neck in the crash. He filed for and received Workers’ Compensation benefits.

A series of lawsuits and letters followed. Among them, Pritza sued IMLRMA, Lansing’s insurer, for a declaratory judgment, seeking uninsured motorist coverage and damages for vexatiously withholding insurance policy benefits. The trial court dismissed Pritza’s case because the car Cooper stole and ran into Pritza was insured ― so there could not be a proper uninsured motorist claim.

The trial court gave Pritza a chance to file an amended complaint. He did, this time asking that IMLRMA’s policy be reformed to include coverage for underinsured motorist insurance coverage. The amended complaint did not repeat the request for uninsured coverage, and Pritza did not then appeal from the dismissal of his declaratory judgment action. Two months after the first dismissal, the trial court gave IMLRMA summary judgment, ruling that the IMLRMA policy did not have to include underinsured motorist coverage.

March 5, 2011

Failure To File Written Opposition Not A Basis For Waiver

by Steven R. Merican

Parkway Bank and Trust filed a lawsuit to foreclose on a construction mortgage. Beta Electric, one of the defendants, counterclaimed and argued its mechanic’s lien had priority over Parkway’s mortgage.

Parkway asked the trial court for judgment on Beta’s counterclaim. Beta’s brief in opposition to the motion was late by one day, so the court struck it. The trial court then granted Parkway judgment on the pleadings on Beta’s counterclaim.

Beta appealed, but Parkway argued that Beta waived an objection to Parkway’s request for judgment. Parkway’s theory was that the waiver resulted from Beta’s failure to file a written objection.

January 3, 2011

Citizen Participation Act Defense Can’t Be Raised For The First Time On Appeal.

by Steven R. Merican

A.J. Bos got approval from the Department of Agriculture to build a “megadairy” in Nora, Illinois. A few citizens in the area did not want the dairy to be constructed because they felt the location was susceptible to groundwater contamination by seepage of animal waste. They formed an organization, Helping Others Maintain Environmental Standards, referred to as HOMES, to oppose the dairy.

HOMES sued Bos, and asked the trial court for a preliminary injunction to prevent the dairy from being built. The trial court enjoined Bos from operating a livestock management facility at that location. Bos felt the injunction was improperly entered because HOMES greatly overstated its case and withheld evidence favorable to Bos. Bos asked the trial court to dissolve the injunction, and to award him damages for HOMES’s conduct, but the court denied Bos’s requests. So Bos appealed.

After a full hearing, the trial court refused HOMES’s request for a permanent injunction against Bos’s proposed dairy farm. The court ruled that HOMES had not proven its case by a preponderance of the evidence. So HOMES appealed.

November 15, 2010

Objections Sufficient To Preserve Evidence Issue For Appeal

by Steven R. Merican

The opinion in this medical malpractice case addresses a question trial lawyers often ask me about preserving evidence issues for appeal. If you

believe an entire subject should not be allowed into evidence, but the trial court permits it, do you have to object to all the questions to assure you preserve the entire issue for appeal?

Charles Cetera sued one of his doctors, Mary DiFilippo, for failing to diagnose and treat an infection Charles developed after surgery. Charles’s expert witness, Dr. Carl Bakken, testified that Dr. DiFilippo’s diagnosis and treatment did not meet the appropriate standard of care.