Illinois Appellate Lawyer Blog

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 12, 2009

Summary Judgment On One Of Two Counts Final And Appealable As To Entire Complaint

by Steven R. Merican

When George Smith was a police officer in Chicago, he contributed to the Police Pension Fund. When Smith resigned from the police force, the Police Pension Fund refunded his $18,000 contribution. A few years later, Smith became a state court judge in the Circuit Court of Cook County, Illinois. He made salary contributions to the Judicial Pension Fund during the seven years he was on the bench.

After he retired as a judge, Smith returned the $18,000 to the Police Fund and asked for the money to be transferred to the Judicial Pension Fund. He also asked for his police service credits to be applied to his judicial pension. The Police Fund complied, but the Judicial Fund refused the money and to apply the police service credits. The Judicial Fund stated it was prohibited from complying with Smith’s request because he was not an “active member,” as defined in the governing statute.

Smith sued both pension funds. His complaint had two counts: C0unt I against the Police Fund alleged denial of due process; Count II against the Judicial Fund asked for an order requiring the Judicial Pension Fund to accept the money. Smith argued that he was an “active member” because he had not withdrawn his money from the Judicial Fund.

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.

August 4, 2009

Order On Partial Fee Petition Not Appealable. Merits Panel Dismissal Trumps Motion Panel.

by Steven R. Merican

Michael Gagliardo died in a racing-car accident. Paulette (sister) and Margaret (wife) administered Michael’s estate. They hired Quinlan & Carroll to investigate whether the estate could sue for wrongful death. Paulette later hired Duane Morris, another law firm, to open an estate in court. Duane Morris was on the job only for a few months, after which Paulette hired Mayer Brown Rowe & Maw.

Paulette asked the trial court to determine how much attorney fees were owed to which law firms. Quinlan, an “interested party” to the estate proceeding, asked for a substitution of judge to determine its right to fees. Quinlan’s request was granted.

Duane Morris filed its fee petition covering the entire time it represented the estate. Mayer Brown filed its fee petition for a part of the time it represented the estate. The trial court granted some of the law firms’ claims for fees.

July 25, 2009

Trial Court Lacks Power To Allow Intervention After Appeal Is Filed

by Steven R. Merican

Leonard Kulisek went to Walgreen pharmacy intending to purchase allopurinol for his gout. The pharmacist gave Leonard a bottle marked “allopurinol,” but it really contained glipizide, a diabetes medication that lowers blood sugar. Thinking he was taking allopurinol, Leonard ingested the glipizide. Leonard suffered severe kidney and brain problems that ultimately caused his death.

Leonard’s estate sued Walgreen. After trial, a jury awarded the estate a multi-million dollar verdict, including punitive damages. Walgreen appealed. Ten days later, Mia Crickman and Charles Kulisek, Loenard’s family members, asked the trial court for an order allowing them to intervene in the case. They apparently were unhappy with the distribution of the punitive damage award, and wanted to contest it in the appellate court. The trial court allowed Mia and Charles to intervene, after which they cross-appealed.

The estate contended that the Mia-Charles appeal should be dismissed. Because they asked to come into the case after Walgreens appealed, the estate argued, the trial court did not have the power to allow Mia and Charles to intervene in the lawsuit.

July 22, 2009

Pending Appeal Deprives Trial Court Of Power To Reinstate Dismissed Case

by Steven R. Merican

Magdalena Wierzbicki claimed her doctors failed to make a proper diagnosis of her medical problem. So she sued Drs. Gleason and Danczkewycz for medical malpractice. The case was more than two and a half years old when she dismissed it voluntarily. A year later she re-filed it. Then the procedural fun began.

Two status conferences were set for different times on the same day. Magdalena missed the first, so the trial court dismissed the case for want of prosecution. Her lawyer appeared for the second status, at which a discovery extension was ordered.

When the trial court judge realized competing orders were entered, she ordered the parties to return about a week later. But Magdalena missed that status conference, too. The trial court then vacated the discovery extension and let the order that dismissed the case stand.

July 18, 2009

Illinois Supreme Court Refuses To Consider Forfeiture Argument Because Appellate Court Briefs Not In The Record

by Steven R. Merican

Michael Ready was killed at a work site when a wooden truss that was being rigged for scaffolding fell eight floors and struck him. Michael’s widow, Terry, as administrator of Michael’s estate, sued the contractor, BMW Constructors, and United/Goedecke Services, the scaffolding subcontractor. After BMW and United filed third-party complaints for contribution against Michael’s employer, Midwest Generation, Terry also sued Midwest.

Terry settled with BMW and United for more than $1.1 million. She went to trial against United. After subtracting offsets for Michael’s comparative negligence and the settlement, Terry was awarded $8.137 million.

An appellate court affirmed the judgment and ruled that United forfeited the right to challenge the amount of the award. United forfeited the issue, the appellate court stated, because the company mentioned it only in a “concluding remarks” section of its brief. Violating Illinois Supreme Court Rule 341(h)(7), United “failed to set forth in its brief ‘specific reasons or argument as to why the damage award was excessive or unreasonable’ and failed to ‘specifically argue that the damage award was improper.’”

July 4, 2009

No Appellate Jurisdiction In Environmental Clean-Up Case When Trial Court Still Must Decide Who Gets Insurance Proceeds

by Steven R. Merican

Kerr-McGee Chemical and Lefton Iron & Metal were fighting out a 15-year dispute over the cost of cleaning up an environmentally contaminated industrial site. The first time the case was in the Seventh Circuit Court of Appeals, the court ruled that Kerr-McGee was entitled to the clean-up costs from Lefton.

After the case was remanded, the trial court ruled that Kerr-McGee should receive $9.5 million. Lefton was ordered to be liquidated to satisfy the judgment. Lefton disputed the amount because: (1) Kerr-McGee had not proven its expenses were reasonable, and (2) amounts paid to Kerr-McGee by its insurers should be deducted from the judgment. The trial court ruled that if Lefton wanted to fight about whether the insurance payments should be deducted, it should do so in a separate motion in Kerr-McGee’s proceedings to execute the judgment.

But instead of filing the motion, Lefton appealed. The first — and as it turned out, only — question for the appellate court was whether there was a final order from which to appeal. The appellate court ruled there was not a final order because the trial judge still had to decide whether the insurance payments should be deducted from Kerr-McGee’s judgment. This is how the court explained it:

June 27, 2009

No Discretion For Bank’s Post-Trial Appeal Over Dishonored Cashier’s Check

by Steven R. Merican

MidAmerica Bank sued Charter One Bank for failing to honor a $50,000 cashier’s check purchased at Charter. The check was payable to Essential Technologies of Illinois. David Hernandez was president of Essential. Mary Christelle, David’s mother, purchased the cashier’s check with money from her account at Charter.

Essential deposited the check into its account at MidAmerica. Four days later, Mary instructed Charter to stop payment on the check. Charter issued a stop-payment order, and refused to honor the check when MidAmerica presented it for payment. When the check was returned to MidAmerica with a “stop payment” stamp, MidAmerica sent it back to Essential and deducted $50,000 from MidAmerica’s account.

The opinion does not state what happened between MidAmerica and Essential, except that the bank did not discover a fraudulent scheme involving Essential. But MidAmerica sued Charter for $50,000 plus attorney fees and interest for dishonoring the check.

June 21, 2009

Public Defender Cannot Appeal Partial Dismissal But Wins Certified Interlocutory Appeal

by Steven R. Merican

Edwin Burnette, the Public Defender of Cook County, sued Todd Stroger, President of the Cook County Board of Commissioners. Burnette was angry because Stroger selected personnel in the Public Defender’s Office to be laid off and imposed unpaid furlough days on other employees in the office. Burnette claimed he was not consulted in the process.

Relying on the Illinois Public Defender Act [actually Sections 3-4000 through 3-4011 of the Counties Code, 55 ILCS 5/3-4008.1 – 4011], Burnette’s lawsuit contested Stroger’s authority to take those actions. Stroger in turn asked the trial court to dismiss the case. He argued he acted within his authority and Burnette did not have standing to sue. Stroger’s request was granted and denied in part.

Burnette did two things: (1) He sought to amend his complaint to work around the aspects the trial court dismissed; (2) He asked for an interlocutory appeal. [Illinois Supreme Court Rule 308(a) allows interlocutory appeals when “the trial court … finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation … The Appellate Court may thereupon in its discretion allow an appeal from the order.”]