Articles Posted in Illinois Civil Procedure

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On March 25, 2011, Lance Wright, a 50-year-old bicyclist, was on a public sidewalk heading southbound past a Walgreens store at its parking lot at 5431 S. Harlem Ave. in Chicago, Ill. The bike he was riding collided with the defendant’s car as it was leaving the parking lot. Wright argued that he was riding along the lot’s driveway when the defendant, John Holcomb, drove his car into the left side of Wright’s bike. 

The impact of the bike and the car threw Wright into the hood of Holcomb’s car, injuring Wright’s back and shoulder.

Holcomb drove Lance Wright to the hospital. Lance sustained a herniated disc at L3-4 and L4-5 and underwent two series of lumbar injections to help with his pain.  Surgery was recommended at a cost of $51,847. 

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Illinois law provides for losses suffered when an Illinois insurance company goes bankrupt, is liquidated or cannot meets its obligations.  The Illinois Insurance Guarantee Fund is available to step in when an insurance company fails.

In this case, the Illinois Supreme Court reversed and remanded a decision written by the Fifth District Appellate Court in the case of Roy Dean Rogers II. Rogers, age 18, was struck by a car driven by John Winterrowd in 2009.  Roy died as a result of this incident and his injuries.

Winterrowd was intoxicated at the time.  Rogers’s parents received in settlement two insurance payouts.  One was for $26,550 from Winterrowd’s insurance company and another $80,000 was received from the Rogers’s own automobile insurance company.

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The Illinois Appellate Court has affirmed a decision made by a Cook County Circuit Court judge regarding a twice-filed injury case.

Michael Fiorito and Joseph Bellocchio were involved in a traffic collision on Oct. 19, 2001. Fiorito was injured and hired a lawyer to sue Bellocchio. 

In August 2003, the attorney for Fiorito filed a complaint against Bellocchio in the Circuit Court of Cook County but never told Fiorito about it.  A year later, Fiorito fired his first lawyer and hired a new one.  The second attorney was unable to determine if the first attorney had filed a lawsuit and so filed a second one on his own in October 2003. 

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Recently two Cook County Circuit Court judges, Judge Lynn M. Egan (Law Division) and Judge Mary Ellen Coghlan (Probate Division), developed an instructive PowerPoint program for Illinois lawyers, in an effort to clearly define the differences between wrongful death actions and survival actions in Illinois.

In a wrongful death act claim, the recovery would be for the exclusive benefit of the decedent’s surviving spouse and next-of-kin.  If the wrongful death was immediate with no pain and suffering associated with it, a special administrator could be appointed as the case is being filed. No probate estate would be necessary.

However, the confusion begins when a wrongful death act claim and a survival statute claim are both present. When a survival action is available to a plaintiff, the judges concur that a probate estate must be set up for the benefit of the decedent’s estate.  A survival action is like many personal injury cases in which there may be pain and suffering element to the case associated with the injury that later resulted in death. Where there is a portion of the recovery for damages related to pain and suffering by settlement or verdict, the sum associated with the survival action goes to the decedent’s estate, not to the next-of-kin or surviving spouse as it would if for the wrongful death action. 

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For as long as I have been practicing law, now 37 years, the question an expert must always be asked is whether his or her opinion is to a reasonable degree of certainty. Once that question is answered in the affirmative, the burden for the offering expert is whether the opinion that is about to be given improving the strength of the expert witness’s opinion is more probably true than not. That second question must be answered affirmatively as well. 

In a recent deposition of one of my experts, one of the defendants’ lawyers spent a great deal of time badgering the witness about what she believed the term reasonable degree of medical certainty means since it was stated in that fashion in her written opinions. The answer went something like this:  “I have never been asked this before.” The defense counsel argued with the witness, saying that she did not correctly state what he said was the “test in Illinois,” for reasonable certainty.  I am not aware of any law that requires an expert to define what reasonable certainty means before answering, since it is a set of words that are understandable on their face. This witness testified that she believed it was more probably true than not that the injury suffered by the plaintiff was caused by the negligence of the defendants.

To dig deeper in this, “reasonable certainty” is a statement that the opinion is not a guess or speculation, but the product of some scientific method or from the education, background and experience of the expert. 

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Jack Taylor was a motocross enthusiast from the downstate Illinois town of Lewistown. Taylor replaced a tire for his motocross bike on July 9, 2009 with a new one he purchased from a store in Peoria, Ill.  On July 11, 2009, Taylor went to the Sunset Ridge MX MotoCross Course in Walton, which is near Lewistown.

While using the course, Taylor attempted to jump. When he landed on the front tire, the one he had only recently replaced, it blew out and caused him to be injured. Taylor was taken to a nearby hospital and then transferred to another hospital in Peoria. 

On June 21, 2012, Taylor filed a lawsuit against Lemans Corp., Moose Racing, Parts Unlimited and Gibbs Motor Corp., alleging strict liability for a defective product, negligence and breach of implied warranties. The lawsuit that Taylor filed was in Cook County. The defendants moved to transfer the case to Bureau County, where the motocross course was located. The motion was brought under the doctrine of forum non conveniens.

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In April 2009, the plaintiffs brought a lawsuit against James W. Hall, Cassandra McCord, JWH Management Inc. and JWH Family Partnership Ltd. Right after the lawsuit was brought, another group of plaintiffs filed a separate lawsuit naming some of the same defendants and then others. 

In the first litigation — the Bernstein litigation — the defendants were sued for breach of four promissory notes in the amount of $450,000. 

In the second lawsuit, the BMD litigation, Heiman and Sussex were defendants in the second lawsuit, but not in the Bernstein litigation. The defendants in the BMD litigation moved to consolidate the two cases pointing out that in both, James W. Hall and the JWH Family Partnership were being sued for failing to honor promissory notes;  in both cases, these defendants were moving for dismissal, claiming lack of personal jurisdiction. 

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In January 2003, Michael Henderson, the defendant, wanted to rehabilitate real estate he owned. He submitted a loan application to the plaintiff, National Lending Services Inc. National Lending approved Henderson’s loan. The loan provided for an adjustable rate interest in which the interest only was paid until the loan matured on June 1, 2004. 

Henderson signed a trust agreement providing that National Lending would distribute the loan funds as necessary to Chicago Title & Trust, which would then pay the construction companies that were doing the rehab work on the property.

Every month, Henderson would pay $185.83 as the interest payment required on the note. When the note matured in June 2004, rather than paying the remainder of the $322,983.41 that was due, he continued to make monthly interest payments. Finally, on Dec. 2, 2010, National Lending filed a lawsuit against Henderson for the unpaid balance of the note, plus per diem additional charges. Henderson appeared pro se in the case. 

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Archon Construction Co. was hired by the defendant U.S. Shelter to install a sewer system for a development, which was a small residential subdivision in Elgin. The contract between the parties was signed on June 5, 2005 and specified the types and quantities of material to be used by Archon. 

For example, PVC piping was specified. Any additional work beyond the original scope was, according to the contract, to be completed at an agreed upon price, time and materials. The City of Elgin was to review the work done by Archon within a year after completion of the work. U.S. Shelter hired a civil engineering firm to oversee Archon’s installation of the sewer system.  This was to make sure that it met with both the contract’s specifications and the City of Elgin’s legal requirements.

After Archon completed the installation, the engineering company reported that the work was done satisfactorily and complied with the contract and Elgin’s requirements.

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Cathy Stackhouse obtained a $4.5 million jury verdict against Lakemoor Golf Course and Royce Realty for an accident that took place on Lakemoor’s golf course. The golf course and Royce Realty were insured by Indiana Insurance Co.

Royce Realty was the manager of several golf courses, shopping centers and apartment buildings. Because of the need for protection, it purchased a commercial general liability policy from Indiana Insurance Co. But Indiana Insurance Co. attempted to severely restrict its own liability by attaching an endorsement that limited the policy’s coverage to claims “arising out of the ownership, maintenance or use of Royce’s headquarters in Oak Brook and operations necessary or incidental to those premises.”  After the Stackhouse verdict against Lakemoor and Royce, Indiana Insurance sued in the Chancery court for a declaratory judgment that the Stackhouse judgment was not covered. 

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