Articles Posted in Appellate Procedure

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Carolyn Catchot slipped and fell at a shopping mall called the Shops at North Bridge in December 2008. She claimed that she had not noticed water on the floor before she fell, but as she lay there she found her hands and pants were damp with water and noticed a maintenance worker holding a mop and a bucket nearby.

A housekeeper for UNNICO, Sead Hodzic, was responsible for patrolling the area of the mall where Catchot fell. Hodzic’s rounds would have taken him through the area about 10 minutes before the fall and again about 2 minutes before it. As was his practice, after he passed through the area, he walked about 60 feet farther to the end and then returned and noticed Catchot on the floor.

Catchot filed a lawsuit against UNNICO, which was the maintenance and janitorial service for the mall. She also named as a defendant Macerich Management Co., which manages the mall. Catchot claimed in her lawsuit that both defendants were negligent in their maintenance of the premises and that their negligence was the cause of her injuries.

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Deshaw Nelson fractured his right femur in a car crash in 2007. The defendant in the case, Donald Artley, was driving an Enterprise Rent-A-Car vehicle. In January 2010, Nelson filed a lawsuit in the Circuit Court of Cook County alleging his injuries were caused by the negligence of the defendant Artley. On May 4, 2010, after Artley defaulted, a default judgment was entered against him in the amount of $600,000. Nelson then initiated citation proceedings against Enterprise Rent-A-Car in June 2010.

A month later, Enterprise answered and asserted that it was only responsible for $100,000 per occurrence for the liability for its cars’ drivers under the rental agreement and the Illinois Vehicle Code. Enterprise had already paid $75,000 to two other people injured in the same car accident. Enterprise argued that it was only required to pay Nelson the remaining $25,000.

In September 2011, Nelson filed a petition with the court against Enterprise for turnover order for the entire $600,000, plus interest and costs. Nelson argued that when Enterprise applied for a certificate of self-insurance with the state, it said it retained a risk of loss for third-party liability up to $2 million per occurrence.

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An Illinois Appellate Court has affirmed a decision by a Cook County Circuit Court judge relating to a guaranty. In 2001, Paul Steiner and Ricky Nelson, representatives from Superior Wine Selections, submitted a credit application to a wine distributor, Morand. With the application, Steiner and Nelson each tendered a personal guaranty. The guaranty required Steiner and Nelson to pay fully and promptly for any amount due the wine distributor. The agreement stated that “the guaranty shall be continuing, absolute and unconditional and shall remain in full force and effect until written notice of its discontinuance shall be actually received . . . and also until any and all indebtedness existing before receipt of such a notice shall be fully paid.”

In addition, Steiner and Nelson waived notice and stated that the guaranty “shall be binding on the undersigned jointly and severally, and upon their legal heirs, legal representatives, successors and assigns of the undersigned and each of them.”

In 2002, Southern Wine and Spirits of Illinois purchased Morand — the wine distributor that received Steiner’s and Nelson’s personal guaranties. In May 2003, Superior began using Southern as a wholesale distributor — unaware that it had purchased Morand.

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The Illinois Appellate Court has affirmed in part and reversed and remanded in part a decision of a Cook County Circuit Court judge. In this case, Osep Armagan filed a lawsuit against Michael, Kathy and Stephen Pesha, individually and as agents for Gold Dust Coins. Armagan claimed that he gave Gold Dust 253 gold coins for safekeeping. When he later demanded that the coins be returned to him, the defendants refused to do so.

Gold Dust denied all of the material facts alleged in the plaintiff’s complaint, and then the plaintiff served Michael Pesha with a request to admit facts. The request was sent on Nov. 18, 2010. Pesha filed his response with the Clerk of the Circuit Court and mailed his response to Armagan on Dec. 17, 2010. On Dec. 30, 2010, Armagan moved to deem all requested admissions of fact admitted because of the late receipt of the response. Armagan argued that the response was not served on him within 28 days as required by Illinois Supreme Court Rule 12. According to that rule, service by mail is considered completed after 4 days after mailing, meaning that the Gold Dust notice was completed on Nov. 22 and service to Armagan was completed on Dec. 21, one day past the 28-day deadline.

Pesha argued that he served his response in a timely fashion by filing it on Dec. 17. The court granted Armagan’s motion and ordered all requested facts admitted.

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The ruling by a Cook County trial judge mistakenly applying the collateral source rule against a jury verdict has been reversed. Hector Romero was alleged to have caused an automobile accident with the plaintiff, Sylvia Segovia. In that lawsuit, it was claimed that Segovia was injured while a passenger in her husband’s car caused by the negligence of the defendant Romero. Segovia’s husband, Rodolfo, was insured by State Farm, which paid for his vehicle repairs and reimbursed Sylvia $5,000 in medical bills under the “medpay” provision of the State Farm Insurance policy.

The medpay included $3,711 for treatment at Advocate Lutheran General Hospital in Park Ridge, Ill.  State Farm filed a subrogation lawsuit against Romero seeking $10,766 for the medical care for Sylvia. Romero’s insurance carrier, American Heartland Insurance Co., settled with State Farm for a total of $5,383.

Later, when Sylvia brought a lawsuit against Romero, she listed her damages as including $4,560 as a hospital bill from Lutheran General Hospital. The jury returned a verdict in her favor for $5,395, which was the medical expenses, but offered nothing for her loss of normal life or her pain and suffering.

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In February 2009, Valerie Mobley’s Subaru developed transmission problems. Mobley found Best Transmissions, which acted as a broker and referred auto repair jobs to various repair shops. Mobley called the number listed on the website that she found and spoke to a salesman who told her that a neighborhood shop would do the repair work and that no work would be done without a prior estimate and customer authorization. Mobley was told that no charges would be assessed unless she decided to go elsewhere for the work.

Mobley received an e-mail that contained an agreement for authorization for the work on her car. The agreement listed the price not involving “hard parts” as $1,397. The next day a tow truck came and took the Subaru without telling her where the vehicle was being taken.

Mobley called Best Transmissions again and an employee there gave her the number of the repair shop. The repair shop was called Tramco and was located nearly 30 miles from her home. When Mobley called Tramco she was directed back to Best Transmissions. Mobley was told that Best Transmissions was the customer of Tramco, not Mobley.

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F. Gary Kovac, the plaintiff in this matter, sued the estate of Kenneth L. Barron Jr. for compensatory damages and exemplary or punitive damages. In the majority of jurisdictions, punitive damages are not allowed after the death of the defendant tortfeasor.

Kovac and Barron owned 50% of three different corporations. In his original lawsuit, Kovac accused Barron of a pattern of serious misconduct, which included diverting millions of dollars from the businesses. Kovac sued Barron in Kane County, Ill. When Barron died, Kovac continued the lawsuit against the administrator of Barron’s estate who was his widow, Sandra Barron.

At the end of the bench trial, the trial judge ordered Barron’s estate to pay $3,220,702 for fraud and an additional $450,000 in punitive damages.

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In a case that involved a “duty to settle” claim, the Illinois Appellate Court affirmed a decision dismissing a claim made by the insured, Randy Powell against his auto insurance company, American Service Insurance Co. (ASI).  It was alleged in the lawsuit by Randy Powell that Katie Linares broadsided his van when he stopped in front of her vehicle and started turning left to make a U-turn.  Powell demanded the $20,000 limit of the auto policy that Linares had purchased from ASI.

ASI rejected the demand and Powell continued on to a jury trial, which returned a verdict of $47,951.  Linares assigned her rights against the insurer to Powell who then sued for breach of duty to settle against ASI.

According to paragraph 6 of the complaint, “Linares was operating her vehicle on northbound Medline Drive, a private street or corporate driveway, in Mundelein, Illinois, behind the van being operated by Powell, saw him make a left turn attempting to make a U-turn and stopping in front of the Linares vehicle either perpendicular or at a northwest angle to the northbound roadway, and, rather than apply her brakes or attempt to veer behind the van driven by Powell, veered directly into the van striking it broadside with a strong impact.”

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In a case lawyers usually refer to as a slip and fall matter, Virginia Bruns sued the City of Centralia when she fell on a raised section of a public sidewalk while going to an eye clinic.  The city’s records showed that the roots of a nearby tree caused the sidewalk to crack and another person had tripped at the same place. 

The eye clinic also had reported the condition to the City of Centralia and offered to remove the tree on its own.  The city’s tree committee refused the clinic’s offer due to the historic significance of the tree, even though the danger was open and obvious.  It was reasonably foreseeable that a patron of the clinic might be distracted while walking to the clinic. 

Under the circumstances, the question for the Illinois Supreme Court is whether the city’s alleged breach of its duty of reasonable care should have been a fact question to be determined by a jury. 

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Craig Yale was a limited liability member of Wolcott LLC, a real estate development operation.  The two plaintiffs, Dr.Biplob Dass and Brett Garry, brought a lawsuit against Wolcott LLC, claiming they were duped when purchasing a garden condominium unit from Wolcott.

In the complaint it was alleged that the unit flooded several times;   they also discovered that the promised inspection and repair work that would have eliminated the water hazard had not been done by Wolcott.  At first, Dass and Garry did not know that Craig Yale was a member of the limited liability company. 

When Wolcott filed for bankruptcy protection and its debts were discharged, Dass and Garry sued Yale. The trial judge in the case dismissed the fraud claim against Yale based on §10-10 of the Illinois Limited Liability Company Act.  On appeal, the Illinois Appellate Court affirmed by stating that Dass and Garry “do not argue that Yale defrauded them in his individual capacity and do not argue that Yale should be liable through the doctrine of piercing the corporate veil.”

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