Articles Posted in Illinois Civil Procedure

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In September 2008, Erica Perkins was involved in a car crash while driving a car owned by Beverly Perkins. LaTonya Reese and Kionna Griffin sued Erica Perkins for the injuries they suffered in the crash.

American Access Casualty Co. issued a non-owner’s insurance policy to Erica Perkins and provided a defense to Erica against each of the complaints filed against her. However, the insurance company required Erica to cooperate with American Access and to answer all questions and provide any written proofs that American Access required.

American Access charged that Beverly Perkins regularly let Erica drive without adding her as a primary insured. American Access alleged that the Perkinses have been uncooperative, choosing not to answer questions or cooperate with American Access’s investigation. As a result, American Access filed for a declaratory judgment against Erica, Reese and Griffin seeking a judicial declaration that American Access owed no duty to defend Erica because the car was not a “non-owned automobile.”

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The federal court rules are different than those in Illinois. Lawyers who may be used to operating under the Illinois Code of Civil Procedure need to be aware of Federal Rule of Civil Procedure 59(a), which says, “A motion to alter or amend a judgment must be filed no later than 28 days after entry of the judgment.” Under the Illinois Code of Civil Procedure, 735 ILCS 5/2-1202(c) and 5/2-1203(a), one is allowed 30 days to ask a state court judge to reconsider a judgment.

Unfortunately for Patricia Banks and her lawyer, she may have been following the Illinois Code of Civil Procedure rather than Federal Rule 59 when she asked the federal district court judge to reconsider the summary judgment it entered against her and in favor of the defendants.

Banks sued her former employer, the Chicago Board of Education, and her former supervisor, Florence Gonzalez, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and related violations of federal and state law. The case was filed in the U.S. District Court for the Northern District of Illinois.

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Attorneys should be aware that corporations can be deposed by authority of Illinois Supreme Court Rule 206. In Illinois, a deposition notice pursuant to that Supreme Court rule would require the corporate party or government entity to designate and produce for deposition a witness to give testimony at a discovery deposition on behalf of the corporation with respect to the facts set out in the notice of deposition. This would be the person most knowledgeable about the corporation and those relevant facts. The corporation would be obliged to produce one or more of its officers, directors, agents, employees or other persons who have knowledge on the subject matter of the inquiry.

The Illinois Supreme Court rule is similar to the Federal Rule 30(b)(6). A designated representative who gives testimony under Illinois Supreme Court Rule 206(a) may not be contradicted by any other corporate representative at trial. SCR 206(a)(1) also grants subpoena power to depose a corporate representative who is a non-party to the case. In the subpoena it should be explained what the subject matter of the deposition would be; what matters known are reasonably available to the corporation should be made available at the deposition.

The corporate representative’s testimony is binding on the company. Testimony given at a deposition may be considered a party admission that precludes the corporation or a party in the lawsuit from contesting the essential elements of its claims or defenses later on in the litigation. In some cases, the corporate representative with the most knowledge may be a former employee of the corporation, partnership or entity.

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On Dec. 17, 2007, Rico Industries entered into an agreement with TLC Group Inc., in which TLC would serve as Rico’s exclusive sales representative to Wal-Mart.

Rico, an Illinois corporation that specializes in production of novelty and sports-affiliated merchandise, entered into the agreement, specifying that any change, cancellation or termination of the agreement must be mutually agreed by both TLC and Rico in writing.

Rico claimed that it was not represented by an attorney during the negotiations and drafting of the contract.  Further, Rico claimed that in the drafting of the contract, the entire length of which was under one page,  there were no other conditions in which the contract could be terminated.

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In November 2006, Jose Lopez lent Jesus Quintana $20,570.  The purpose of the loan was for Quintana to purchase a car.  There was no written agreement for the loan, just an oral contract. 

According to Lopez’s lawsuit, Quintana defaulted on the loan by choosing not to make his payments in November 2009.  Lopez filed a lawsuit to collect the balance of the loan.  Quintana responded by moving to dismiss.

Quintana raised the statute of frauds, seeking to bar Lopez’s suit because he wanted enforcement of an oral agreement that would not be completed within a year of the date agreed upon in violation of the statute of frauds.  The statute of frauds is a legal principle that requires certain contracts to be reduced to writing.

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The Illinois Appellate Court affirmed a decision of a Cook County judge barring testimony of the plaintiff, Bettie Payton-White, because she was more than 15 minutes late to a court-mandated arbitration session.

In November 2010, a car crash occurred between the motor vehicle driven by Bettie Payton-White and one driven by the defendant, Anthony Weir.  In August 2011, Payton-White filed a personal injury lawsuit against Weir claiming that the collision was caused by Weir’s negligent driving.  Weir denied that he was negligent, and the court assigned the lawsuit to mandatory arbitration scheduled for 8:30 a.m. on May 29, 2012.

At the arbitration session, neither Payton-White nor her representative was present.  At 8:45 a.m., after allowing a 15-minute grace period, the arbitrator entered a decision in Weir’s favor and awarded $436 in costs to Weir because of Payton-White’s failure to appear. 

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Liam O’Neill bought a 2000 GMC Jimmy SUV.  On July 3, 2001, his wife, Mary, was driving home in the SUV when the vehicle suddenly stopped.  She was in the eastbound lane of a 2-lane street.  Mary attempted to restart the SUV several times but it would not start.

She called a tow truck and her husband came out to help her push the SUV off the road. Mary then turned on her hazard lights and Liam pushed the car on the driver’s side, while steering. Mary pushed from behind.

While the O’Neills were trying to move the SUV, a car driven by Raymond Martin struck the rear of the SUV.  Liam was knocked to the ground and Mary’s legs were pinned between the two vehicles, which led to her legs being amputated above the knee.  Other cars had passed the O’Neills’ SUV while it was stopped without incident. The weather was clear and there were no visual obstructions or obstacles that hindered a view of the O’Neills’ stalled vehicle. 

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On Dec. 1, 2008, Sarah Conway, Kathleen O’Toole and Mary Heidkamp were passengers in Joan Steenveld’s car when it was broadsided by the defendant, Lynnard McCullough, who was driving a tractor-trailer. All but Steenveld perished in the crash. Both of the vehicles skidded off a snowy, icy road.  Steenveld’s southbound car skidded over the center line in front of McCullough’s northbound truck; he was trying to avoid a head-on collision.  Steenveld steered to the right, driving into an empty field, but her car also went off the road again winding up in the truck’s path. 

The attorney for the estates of the deceased plaintiffs asked the Cook County judge to instruct the jurors that one or more of the defendants was liable to the plaintiffs.  It was alleged that either Steenveld or McCullough or both must have been driving too fast for conditions and thus, were liable for the deaths of the decedents.  The speed limit at the place of the crashes was 55 mph, although Steenveld testified she was going 35 mph. 

Two witnesses testified that McCullough’s speed was 40-45 mph.  In addition, there was an expert who testified that McCullough’s evasive maneuver was appropriate.  Without an objection, the Cook County trial judge granted a motion in limine that requested an order barring “any argument, evidence, reference or suggestion that anything other than the alleged negligence of the defendants caused or contributed to cause plaintiffs’ injuries.”

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Ana Reyes was the owner of a motor vehicle and was the sole named insured.  She purchased auto insurance from American Access Casualty Co., and  the policy specifically said there would be no liability coverage for any accident in which she was operating a motor vehicle.

On Oct. 30, 2007, Reyes allegedly drove the Chrysler sedan she owned and hit two pedestrians, killing a 4-year-old boy and injuring his mother.

The Jasso family, who were the injured mother and fatally injured child, had uninsured motorist coverage with State Farm Insurance Co.  The question for the Illinois Supreme Court in this case was the dispute between American Access and State Farm as to whether public policy as established under §7-317(b)(2) of the Illinois Vehicle Code serves to block insurance companies from excluding coverage for a policy’s sole named insured. With Justice Thomas Kilbride dissenting, the Illinois Supreme Court concluded “an automobile liability insurance policy cannot exclude the sole named insured since such an exclusion conflicts with the plain language of Section 7-317(b)(2) and, therefore, violates public policy.”

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Keith Kreinik was injured in a motorcycle accident.  The statute of limitations for his injuries would have run two years from the date of his accident, Sept. 2, 2007 to Sept. 2, 2009.  In the meantime, on Aug. 29, 2009, Karen Kreinik was allowed guardianship of Keith and filed a lawsuit against Ali Hosseini and Magnum Motors, the company that Keith was working for at the time of his motorcycle accident. 

It took more than 15 months for Karen to secure service on Hosseini, during which time Keith died.  Kreinik finally obtained service on Nov. 22, 2010.  Exactly a year later, the trial court granted Hosseini’s motion to quash service, stating that it was improper because the process server appointed by the court was not the one who actually served Hosseini. 

On Dec. 1, 2011, Kreinik served Hosseini.  On Jan. 3, 2012, Hosseini moved to dismiss the complaint with prejudice since Kreinik “failed to exercise reasonable diligence.”

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