November 2012

Illinois Supreme Court Civil Trial & Appeal Notes Nov 2012

Monthly Civil Trial & Appeal Notes by Retired Judge, Terrence J. Brady NOVEMBER 2012

Punitive Damages 1st Dist.

Lawlor v. North American Corporation of Illinois, 2012 IL 112530 (October 18, 2012)
Cook Co. (THEIS) Appellate court affirmed in part and reversed in part; circuit court
affirmed in part, reversed in part, and modified in part.

Plaintiff filed action for intrusion upon seclusion, alleging that her former employer hired
investigators to obtain her private phone records without her permission, Supreme Court
recognizes the tort of intrusion upon seclusion. Evidence was sufficient to support jury’s
determination to award punitive damages for employer’s wrongful conduct, but punitive
award of ten times ($650,000) compensatory damages of $65,000 was not warranted
where trial court found that conduct was de minimus on all criteria. Highest award
evidence of record may support is equal to award of compensatory damages. Case
presents thorough discussion of punitive damage awards. (FREEMAN, THOMAS,
GARMAN, KARMEIER, and BURKE, concurring; KILBRIDE, concurring in part and
dissenting in part.)

Spoliation of Evidence 5th Dist.

Martin v. Keeley & Sons, Inc., 2012 IL 113270 (October 18, 2012) St. Clair Co.
(BURKE) Appellate court reversed; circuit court affirmed.
General contractor had no duty, based on voluntary undertaking or other special
circumstance, to preserve concrete I-beam supporting bridge deck on which employees
were standing; I-beam collapsed and employees fell into creek and were injured.
Spoliation of evidence claims cannot stand in absence of duty to preserve evidence. Case
presents full discussion of rules of spoliation of evidence; somewhat of an eye-opener
here. (FREEMAN, THOMAS, GARMAN, KARMEIER, and THIS, concurring;
KILBRIDE, dissenting.)

Tort Immunity Act, Condition of Public Property 1st Dist.

Moore v. Chicago Park District, 2012 IL 112788 (October 18, 2012) Cook Co.
(KARMEIER) Appellate court reversed; remanded.
Wrongful death action filed for woman attending water aerobics class at Park District
fieldhouse; decedent slipped and fell while trying to step over snowpile at edge of
parking lot which had been plowed. Snow and ice constitutes a condition of any public
property, within meaning of Section 3-106 of Tort Immunity Act, so that local government entity is immunized for injuries. Whether accumulation was unnatural is
irrelevant to question of Section 3-106 immunity. (THOMAS, GARMAN, BURKE, and
THEIS, concurring; KILBRIDE and FREEMAN, dissenting.)

Insurance. Two Year Filing for UIM Claim 3d Dist.

Country Preferred Insurance Company v. Whitehead, 2012 IL 113365 (October 18, 2012)
Will Co. (KARMEIER) Appellate court reversed; circuit court affirmed; remanded.
Car accident was in July, 2007; insured filed claim in Oct, 2009. Two-year limitation
which insured and her auto insurer agreed for dispute resolution procedures is reasonable
and consistent with Illinois public policy, as it allowed insured sufficient amount of time
to ascertain basis for, and dimensions of, her uninsured-motorist claim and, if needed, to
initiate dispute resolution procedures. Irrelevant that accident occurred in Wisconsin,
which has 3-year statute of limitations for filing personal injury actions. Insured could
have filed suit in Wisconsin against other driver, but chose to file claim for uninsuredmotorist benefits under her policy. (FREEMAN, THOMAS, GARMAN, BURKE. and THEIS, concurring.)

Contracts, Survival Provisions of Business Corp Act, Novation 2d Dist.

Pielet v. Pielet, 2012 IL 112064 (October 18, 2012) Lake Co. (KARMEIER) Affirmed in
part and reversed in part; remanded.
Company co-founder sold his interest to his sons through agreement for lifetime payment
to him of consulting fee and, on his death, for lifetime fee payment to his wife; agreement
binding on successors and assigns. Widow’s claim for breach of contract against
successor corporation fails as a matter of law as it is not subject to survival provisions of
Business Corporation Act. Material questions of fact preclude summary judgment on
issue of whether there was a novation. Case presents lengthy discussion of tricky business
issues where original owner had provided for continued payments of consulting fees.
(KILBRIDE, THOMAS, GARMAN, and THEIS, concurring.)

Statute of Limitations, Discovery Rule 4th Dist

Khan v. Deutsche Bank AG, 2012 IL 112219 (October 18, 2012) Champaign Co.
(GARMAN) Appellate court affirmed.
Plaintiffs participated in series of “investment strategies”, and filed suit alleging that
Defendants defrauded them by marketing and selling investment strategies to them
knowing that investments would yield no profit, and would not minimize their tax
liability. Five-year limitations period began running when Plaintiffs received a deficiency notice from IRS and thus knew of their injury and its wrongful cause. Case presents
lengthy discussion of discovery rule in context of injury and cause arising from failed
investment scheme, and IRS notice of deficiency. (FREEMAN, THOMAS,
KARMEIER, and BURKE, concurring; THEIS and KILBRIDE, concurring in part and
dissenting in part.)

Administrative Review, Complaint filed by Corportation Non-Attorney 1st Dist.

Downtown Disposal Services, Inc. v. The City of Chicago, 2012 IL 112040 (November
1, 2012) Cook Co. (BURKE) Appellate court affirmed.
A complaint for administrative review filed by a corporation’s non-attorney president, on
behalf of the corporation, is not a nullity because of the president’s status as a nonattorney. The lack of an attorney’s signature on a complaint for administrative review filed on behalf of a corporation is not jurisdictional, and does not render the complaint
null and void or mandate dismissal in all instances. (FREEMAN, GARMAN, and THEIS,

Illinois Appellate Court

Citizen Participation Act 1st Dist.
Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 120005 (October 23, 2012)
Cook Co., 2d Div. (CONNORS) Affirmed.
Local TV news station aired investigative report on working hours of Cook County
judges, one of whom later filed suit against station and reporters, alleging defamation and
invasion of privacy. Defendant moved to dismiss Complaint, arguing that suit is a
“SLAPP” suit barred by Citizen Participation Act. Court properly denied motion to
dismiss. Given timing of complaint and speed with which it was filed, high damages
demand, and type of relief requested, Defendants did show evidence of retaliatory intent,
but failed to show evidence that Plaintiff’s claims lack merit. Decision presents an
interesting reading of facts showing allegations of judges shirking duties as well as an
incisive analysis of SLAPP suits. (HARRIS and QUINN, concurring.)

Consumer Fraud Act, Conduct of Attorneys 5th Dist.

Kosydor v. American Express Centurion Services Corporation, 2012 IL App (5th)
120110 (November 13, 2012) Union Co. (WELCH) Affirmed.
Plaintiff filed suit against credit card company and its law firm, alleging malicious and
fraudulent collection practices in violation of Consumer Fraud Act. No objective
manifestations of creditor’s intent to name and serve someone other than the Plaintiff, or
to sue anyone other than the Plaintiff, in prior action in which default judgment was
entered, and thus res judicata applies. Consumer Fraud Act does not apply to conduct of
attorneys when representing any client in the practice of law, even against a third party.
(CHAPMAN and WEXSTTEN, concurring.)

Consumer Fraud Act, Insurance Claims 1st Dist.

Burress-Taylor v. American Security Insurance Company, 2012 IL App (1st) 110554
(October 26, 2012) Cook Co., 5th Div. (PALMER) Reversed.
Insured, whose home was damaged by fire, filed action under Consumer Fraud Act, and alleging breach of contract, to recover insurance proceeds for her claim. Consumer Fraud
Act claim was separate and independent of breach of contract claim, and thus claim was
not preempted by Section 155 of Insurance Code. Plaintiff properly raised three elements
of a fraud claim. (GARCIA and GORDON, concurring.)

Collections, Defective Assignments 1st Dist.

Cavalry Portfolio Services v. Rocha, 2012 IL App (1st) 111690 (October 22, 2012) Cook
Co.,1st Div. (CUNNINGHAM) Reversed and remanded.
Defendant filed Section 2-1401 petition to vacate judgment entered against him without
having appeared at trial, well within 2 years after entry of judgment. As Defendant
presented lack of standing argument at first opportunity of which he was aware, he did not forfeit his standing argument, and it would be unjust to enforce judgment in light of
his meritorious defense that none of Plaintiff’s assignments complied with Section 8b of
Collection Agency Act. (HOFFMAN and KARNEZIS, concurring.)

Forum Non Conveniens, Medical Malpractice, Contribution Claims 5th Dist.

Shaw v. St. John’s Hospital, 2012 IL App (5th) 110088 (October 26, 2012) Madison Co.
(SPOMER) Affirmed in part and reversed in part; remanded.
Reasonable trial judge could find, based on review of all private and public interest
factors, that balance of all factors does not strongly favor transfer of plaintiff’s medical
malpractice claims from Madison County to Jersey County. Contribution claims against
Jersey Community Hospital are required to be venued in Jersey County, where Jersey
Hospital has its principal offices and where its agents were alleged to have rendered a
negligent diagnosis and treatment; thus, claims must be severed and transferred to Jersey
County. Illinois law does not require third-party claim and underlying claim to be tried
together. (WELCH and CHAPMAN, concurring.)

Liens, Pl Shall Receive 30% of the Judgment, Health Care Services Lien Act 5th

Stanton v. Rea , 2012 IL App (5th) 110187 (November 2, 2012) Union Co.
(GoLDENHERSH) Reversed and remanded.
Jury verdict of $13,506 plus $3,919.79 in costs awarded for motor vehicle accident. Court
improperly failed to divide costs of suit, and ordered that costs be paid solely by Plaintiff,
meaning that Plaintiff received nothing, after 30% attorney’s lien and 40% of verdict
went to pay medical liens. To ensure that a plaintiff receives 30% of the judgment, as
intended by the Health Care Services Lien Act, computation of the 40% to pay medical
liens must not begin until costs of bringing case to trial and securing payment of
judgment have been deducted from amount of original verdict. (DONOVAN and
WELCH, concurring.)

Insurance 1st Dist.

Pekin Insurance Company v. Equilon Enterprises LLC, 2012 IL App (1st) 111529
(November 9, 2012) Cook Co.,6th Div. (GARCIA) Affirmed.
Underlying personal injury suit filed for explosion at gas station which occurred when
Plaintiff lit a cigarette behind station while truck delivered gasoline to underground tanks
of the station. Two endorsements in policy, when read together, are ambiguous,
especially endorsement purporting to limit coverage to vicarious liability. Thus, insurer
did not demonstrate that allegations of underlying complaint do not bring case potentially
within policy coverage. (HALL, concurring; GORDON, specially concurring.)

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