Articles Posted in Civil Procedure

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In the opinion written by the Illinois Appellate Court for the 4th District, the appellate court upheld the right of an injured plaintiff to recover the full amount of medical expenses if that amount had been written off by the medical provider.

In the underlying case, a Coles County jury entered a verdict in favor of the plaintiff Harold Miller for $133,347 for medical expenses in his July 2015 medical-malpractice trial. The 5th Judicial Circuit Court judge reduced the verdict by $91,724 when the defendant hospital and doctor argued that such a number represented an amount of money that neither Miller nor his health-care provider had a right to recover since it was written off in his medical bills.

The defendants brought their motion to reduce the medical expenses award under Section 2-1205 of the Illinois Code of Civil Procedure. The statute provides that recovery amounts can be reduced by up to 100% of the benefits provided for medical, hospital, nursing or care-taking charges that have either already been paid or become payable to the injured party.

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The 7th Circuit Court of Appeals in Chicago has affirmed a district court decision where sanctions were allowed in the form of attorney fees. The court of appeals stated that under Federal Rule 37, sanctions may include an order to pay the amount of reasonable expenses incurred in preparing the motion for sanctions, including attorney fees.

In March 2012, Angel Houston sued Hyatt Corp. and the Hyatt Regency Inn for breach of contract, intentional misconduct and negligence. The lawsuit arose out of injuries Houston suffered after falling at the downtown Indianapolis Hyatt Hotel during a hotel-sponsored New Year’s Eve party on Dec. 31, 2010.

Houston claimed that Hyatt chose not to provide a safe and secure environment for the party and that this failure was the proximate cause of her injuries. Damages were sought in excess of $1 million.

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The Illinois Supreme Court case of Kotecki v. Cyclops Welding, 146 Ill.2d 155 (1991) is the decision by the court that stands for the law that an employer may avoid contribution liability by waiving its lien under Section 5(b) of the Workers’ Compensation Act. This is in reference to the so-called “Kotecki cap” and affirmative defense that an employer has pleaded and then proved at trial. The question is: Can the employer invoke Kotecki with a post-judgment motion supported by affidavits specifying the amount of benefits it paid to the injured employee?

This is the issue that was taken up by the Illinois Appellate Court for the 3rd District in this Illinois case. Nacin Burhmester was injured while he was working for L.J. Keefe Co. Burhmester prevailed in a trial and received a verdict of $534,608 against Steve Spiess Construction Co.

Spiess in turn sued Keefe for contribution in a third-party action. The answer to the contribution claim by Keefe included an affirmative defense based on Kotecki.  Although Keefe paid benefits to Burhmester totaling $95,487 under the workers’ compensation policy of insurance, it did not present any evidence on this defense during the contribution trial.

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In 1983, Alma and Israel Zivin executed a mutual last will and testament. The will stated that upon either the death of Alma or Israel, all property would go to the other. The will further stated that in the event that they both died or upon the death of their survivor, 50% of their estate should go to the specified family and friends and the remainder would pass to the Hebrew University of Jerusalem in New York City.

The Zivins had no children. Israel passed away in 1984 and his estate was bequeathed in accordance with the terms of the will to Alma.

In 2004, Alma signed her own will, which expressly revoked any and all prior wills. Her new will made specific bequests of personal items and gave the remainder of her estate to a “pour over trust” with no provision made to Hebrew University.

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Two questions were certified for immediate appeal to the Illinois Appellate Court in a case against a school bus company, First Student Inc.  The case was brought on behalf of a student who alleged that the misconduct of a driver accused of sexually abusing a student could put the corporation owner at a heightened duty of care to the child.

“A private contractor providing student transportation services owes the students it transports the same duty of care imposed on a common carrier – that is, the highest standard of care,” the Second District Illinois Court of Appeals concluded.

The court considered this other question: “Does this quasi-common carrier standard of care necessarily require that common carriers be held vicariously liable for their employee’s intentional torts, such as sexual assaults, that are committed outside the scope of their employment, without regard to whether they have any knowledge of any such propensity?”

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In 1981, two doctors entered into a partnership agreement to buy an office building in which they would house their separate medical practices. Each partner contributed an equal sum of money to buy the building and agreed to share equally the cost of maintaining and operating it. In spite of this agreement, one doctor, Dr. V.S. Vedam, often paid more than his half of the expenses.

The other doctor, Dr. C.U. Reddi, and Dr. Vedam ran their separate medical practices in the building until 1991. At that place and time, Dr. Reddi moved his practice to another location and stopped paying any costs related to the building.  Communications between the doctors ended and the state of silence existed between them until around 2003 when the building was sold and the proceeds placed in escrow.

In 2004, Dr. Vedam sued to recover his share of the proceeds of the sale of the real estate, plus the expenses he had paid in excess of his shares. Reddi disputed some of Vedam’s claims and filed a counterclaim to recover rent for the years that Vedam occupied the building by himself.

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In 2007, Christopher Lindroth suffered a traumatic brain injury when he was thrown from a motorized cart that swerved to avoid an oncoming car. This incident took place at McCormick Place in Chicago.

Lindroth was standing on the back of the motorized cart as it traveled down one of the ramps at the convention center when a McCormick Place employee directed a car around a closed security gate, which came into the cart’s path. With no working brakes, the driver of the cart quickly turned the motor off and attempted to slow the vehicle with his feet, veering to the right curb in an attempt to stop. Lindroth was thrown from the cart as a result of that maneuver and suffered a serious head injury.

Because of his traumatic brain injury, Lindroth now requires 24-hour care. Lindroth’s mother, Marcia Dempe, filed a lawsuit on behalf of her son against The Metropolitan Pier and Exposition Authority (MPEA) and the event-planning company, Global Experienced Specialists (GES). The lawsuit was filed in the Circuit Court of Cook County in July 2008.  Dempe alleged the two entities were negligent in allowing contractors like Lindroth’s employer to use the cart in an unsafe manner.

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In a divided opinion, Illinois law on negligence still requires proof of physical impact in “direct victim” emotional distress cases. There was a strong dissent written by Justice Sheldon A. Harris.

In this case, Melinda Schweihs lost her mortgage foreclosure case and was packing to move out of her Northbrook home when two subcontractors of Safeguard Properties Inc. mistakenly concluded that the property had been abandoned. Her car was parked in the driveway. The men broke into the house to implement an “initial secure order.”

The unexpected confrontation with the intruders supposedly scared Schweihs. She brought a lawsuit against Chase Home Finance, Safeguard and the subcontractors, alleging negligent infliction of emotional distress.

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On Sept. 10, 2011, Stefan Zlatev was involved in a fight that started in an apartment building and spilled out to the street. During the fight, Zlatev was hit on the head with a brick. He suffered several broken bones to his face.

The big issue in this case was the fact that Zlatev could not identify who hit him. A police report prepared on Nov. 8, 2011 identified Mariyana Lechova as the witness who saw a man walking away from the fight and carrying a brick.

The man was described as “male, white, 22 years old, 5 feet 7 inches to 5 feet 8 inches, 170 pounds, short blond hair and wearing a red shirt.”

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Richard Yanni appealed from the trial court’s order that imposed a constructive trust on property he owned and awarded attorney fees and punitive damages against him. The appellate court ruled that the trial court was wrong in denying his motion to dismiss. Accordingly, the Illinois Appellate Court vacated the trial judge’s judgment in favor of the petitioner Diana Law, the Kane County Public Guardian, and reversed the trial judge’s denial of Yanni’s motion to dismiss.

In March 2013, an emergency temporary guardianship brought by the daughter of Patricia Yanni ordered that Patricia was a disabled person. In the petition brought by Patricia’s daughter, Kristin Davison, it was alleged that Patricia Yanni was unable to handle personal and financial affairs due to her dementia and physical illnesses.

Davison alleged that Patricia’s son, Richard, who lived with Patricia, “was found to be neglecting his mother.” Patricia had been removed from her home and placed in a skilled nursing facility. Davison wanted to have the public guardian appointed as guardian of her mother’s estate and to have herself appointed as guardian of her mother. The trial judge granted that petition appointing Davison as temporary guardian with leave to place her mother in an appropriate facility. The court appointed Law, the Kane County Public Guardian, as temporary guardian of Patricia Yanni’s estate. The court also appointed a guardian ad litem (GAL).

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