Analysis of appellate court decision reversing defense verdict based on prejudicial closing argument comments
Illinois Appellate Court says place of injury is most significant factor in weighing public interest factors for venue transfers
In the Seventh Circuit it has long been acceptable to file a Motion to Dismiss in order to enforce a forum selection clause. See Auto. Mechanics Local 701 Welfare & Pension Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740, 746 (7th Cir. 2007).
But a just-published case out of the Northern District of Illinois reflects a different practice: that a forum-selection clause, if it permits federal jurisdiction, should now be enforced via a motion to transfer, not a motion to dismiss. The history of this change can help inform practitioners when deciding how to enforce forum selection ...
We hear that as many as 95% of all civil cases settle or are otherwise resolved without a trial. A civil trial lawyer’s job is to be ready, willing, and able to handle the 5% of cases that do go to trial. We read appellate cases that decide issues in those cases that go to trial. We sell our legal abilities by emphasizing our trial experience. But our ability to negotiate a favorable settlement for our clients can be just as valuable.
We negotiate settlements all of the time. We each approach a particular settlement differently. We negotiate in our own way. Our negotiation styles reflect our ...
The Madison County Circuit Court recently held that a distributor has a duty of care/duty to warn a secondary exposure plaintiff in the matter of Iben v. A.W. Chesterton Company, et al. In reaching this conclusion, the Court denied defendant Graybar Electric Company’s Motion for Summary Judgment. Iben is a wrongful-death claim arising from allegations that Mrs. Iben developed and died from mesothelioma caused by her exposure to asbestos fibers carried home on the clothing or persons of her husband. A pivitol issue is whether Graybar Electric Company, as a distributor of ...
Illinois courts have long made clear that when a conflict of interest exists between an insured and its insurer, the insured is entitled to independent counsel of the insured’s own choosing and at the insurer’s reasonable expense. See Maryland Cas. Co. v. Peppers, 64 Ill.2d 187, 193 (1976). What is less clear, however, is when exactly a conflict of this nature arises.
We know that a conflict giving rise to independent counsel does not exist simply because the insurer provides a defense under reservation of rights. We also know that certain types of cases, such as those involving ...
Independent insurance producers often are thought to be, well, independent from the insurance companies for which they sell policies. Independent producers typically sell insurance policies for a number of carriers, and often work with intermediaries to sell policies for even more carriers, so that they can offer their policyholder clients the insurance product most suitable to their needs.
A recent unpublished decision from the Illinois Appellate Court, Fifth District, in Founders Insurance Company v. Flores, 2018 IL App (5th) 160404-U, however, shows that in some ...
In a recent decision, the Northern District of Illinois held the U.S. Supreme Court’s seminal decision in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017) applied to jurisdiction determinations in class actions. In so holding, the court in DeBernardis v. NBTY, Inc. No. 1:17-cv-06125 (N.D. Ill. Jan. 18, 2018) placed itself squarely on one side of a circuit split that should have forum-shopping plaintiffs concerned.
In August 2017, DeBernardis, an Illinois resident, filed his putative class action against two New York dietary supplement companies ...
Today the U.S. Supreme Court denied a cert petition in a matter aimed at resolving whether a plaintiff who alleges a substantial risk of harm in the future has standing under Article III of the Constitution. A ruling in the case, CareFirst v. Attias, would have had major implications for data-breach litigation and in class actions generally.
A quick refresher on standing. To satisfy Article III’s standing requirements, a plaintiff must show (1) he has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or ...
In the seminal case outlining the contours of permissible civil liability against religious organizations, the Missouri Supreme Court in Gibson v. Brewer made clear that civil courts must not be in the business of analyzing or interpreting religious doctrine and administration. Any such “excessive entanglement” between church and state has the effect of inhibiting religion, which of course would violate the First Amendment. For this reason, Missouri courts are precluded from reviewing questions of hiring, ordaining, and retention of clergy in religious organizations ...
As we have learned in recent days, we all need to be careful with the things we say, for sometimes those things we say can be used against us. But the life lessons do not end there. We also need to read things carefully, for the things we fail to read can be used against us as well, especially holders of insurance policies.
A recent opinion from the Illinois Appellate Court, Third District, in Laurent v. Johnson, 2017 IL App (3d) 160627, shows just how far an insured’s duty to read his or her insurance policy can reach. The Laurent plaintiff sued the lawyer of her deceased husband’s estate for ...
The Missouri Court of Appeals, Southern District, issued an opinion on Jan. 31, 2018, in Shelter Mutual Insurance Company v. Lester that allowed stacking of full auto liability coverage policy limits on four separate policies. The underlying matter involved bodily injury claims brought by multiple claimants. Each of the auto insurer’s liability policies had applicable bodily injury limits of $50,000 per person / $100,000 per accident. Each policy also had the following anti-stacking provision:
If more than one policy issued by Shelter Mutual Insurance Company or Shelter ...
It is commonplace in construction projects for a contractor to require its subcontractors to purchase liability insurance that protects against certain claims and that includes the contractor as an additional insured. The problem is that many times the policy that the subcontractor purchases does not on its face meet the requirements set forth in the written agreement between the contractor and subcontractor. For example, the construction agreement may require liability insurance with higher limits of liability than that actually provided by the subcontractor’s policy, or ...
Background
Virtually all property policies provide an insurer with the right to rescind coverage when there’s evidence that the insured intentionally concealed or misrepresented material facts in their application for insurance. For a misrepresentation to be deemed material, it must have been an untrue fact that would have, if the truth was known, caused the insurer to reject the application. In other words, an insurer is entitled to truthful responses so that it can determine whether the applicant meets its underwriting criteria.
Under that backdrop, the U. S. Court of Appeals ...
The Madison County Circuit Court recently granted defendant U.S. Steel Corporation’s Motion for Summary Judgment, in the matter of Taylor v. Air & Liquid Systems Corp., a/k/a Buffalo Pumps, Inc., et al., Case No. 15 L 652. This was a wrongful-death case arising from alleged exposure to asbestos on U.S. Steel’s premises. A key question was whether U.S. Steel, as the premises owner, owed a duty under negligence law in Illinois to the spouse of an employee of an independent contractor who had worked at its facilities.
The decedent, Cheryl Taylor, developed and died from mesothelioma ...
Recently, in the matter of Tate v. Pecora Corp., Case No. 16-L-1399, the Madison County Circuit Court has dismissed a Plaintiff’s asbestos complaint for lack of personal jurisdiction pursuant to M.M. ex rel. Meyers v. GlaxoSmithKline LLC, 61 N.E. 3d 1026 (Ill. App. 2016). In GlaxoSmithKline, the Chicago-based Illinois First Appellate District ruled that plaintiffs had made a prima facie showing that their claims arose directly from, or were related to, GlaxoSmithKline’s (GSK) “purposeful activities” in Illinois, that GSK failed to rebut this prima facie showing, and ...
Judicial estoppel, also known as estoppel by inconsistent positions of law, precludes a party from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings. Often, it is asserted as an affirmative defense in a personal injury lawsuit where the plaintiff failed to disclose the existence of the personal injury lawsuit as an asset in a prior bankruptcy. A plaintiff’s failure to disclose a personal injury cause of action in the bankruptcy proceeding deprives the trustee, and by proxy, the plaintiff’s creditors, of an asset that the creditors ...
Southern Illinois was recently in the national spotlight as the path of a total solar eclipse passed across the state. This rare occurrence brought hundreds of thousands of people to a thin path of the state to experience a natural phenomenon that, if not experienced correctly, could cause serious and permanent eye injuries. It also created opportunities for some to profit from this influx of celestially motivated travelers. This event provided a reminder of the potential uses of exculpatory language in contract; namely to limit or eliminate liability by an express assumption of ...
As of August 28, 2017, the Daubert standard will now govern the admissibility of expert witness testimony in certain cases in Missouri.[1] This is the result of House Bill 153, one of the first bills signed by Governor Eric Greitens, which effectively changes the language in Missouri Revised Statute Section 490.065 moving the standard for admissibility of expert testimony from a broad to more stringent standard requiring the Court to assess the basis of a proposed expert’s testimony before allowing the expert to testify at trial.
The new language in the statute makes it clear that in ...
Three recent successful Cook County defense verdicts in medical and dental malpractice cases show that the age old theory of teamwork and a united defense go a long way to winning cases. In all three trials, there were potential issues that could have split the defense camps, and efforts by opposing counsel in each case to divide and conquer the defendants. Despite those efforts, all defense counsel and clients alike worked together in the discovery phase, and through the course of lengthy trials, to achieve excellent defense outcomes.
In the first case, plaintiff claimed dental ...
The Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq.—commonly known as the Tort Immunity Act—provides certain statutory immunities to local public entities. These protected entities include, but are not limited to, counties, townships, municipalities, school districts, park districts, and other local governmental bodies. See 745 ILCS 10/1-206. The Act sets forth those circumstances in which an entity is entitled to immunity, but many of the Act’s provisions expressly except immunity when an entity’s conduct is ...
In insurance coverage litigation, does an insurance company have to identify and produce documents regarding the company’s handling of prior unrelated claims?
Insurance companies often object to such requests on the grounds that they are irrelevant, overly broad, unduly burdensome, and even protected by a privilege. In the Illinois Appellate Court Fifth District’s recent decision in Zagorski v. Allstate Ins. Co., 2016 IL App (5th) 140056, however, the appellate court rather emphatically held that the insured could seek such discovery, at least under the facts and ...
I remember in drivers’ education class being shown the obligatory scary movie on railroad crossing accidents. After the wreck, one salty old train engineer says to another, looking at the demolished car, “Why don’t they learn, Slim?” “I don’t know, Jim,” the other fellow says, scratching his furrowed brow.
In the information security world, we are past the need for scare tactics. Only an ostrich might be oblivious to the heightened cyber risks these days and their increasing frequency. Nevertheless, periodically you see cautionary reminders of mistakes that are ...
Out with the old, in with the new. It’s time to scrap “reasonably calculated” in favor of “proportionality.” This is because the amended Rule 26 has deleted the directive that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Instead, the scope of discovery—and thus, your responses and objections—are now defined by what is “proportional to the needs of the case”. This change, as well as other amendments to Rules 26 and 34, are outlined and discussed in ...
Panera Bread Company is, quite obviously, in the bread business. But when Mark Boswell and others filed a class action against the company for breach of contract and fraud, the case was about a different kind of dough.
Boswell and the other named plaintiffs had served as Joint Venture General Managers for Panera, managing the daily operations of company-owned cafés. Boswell v. Panera Bread Company, No. 4:14-CV-01833 AGF, 2015 WL 6445396, at *1 (E.D. Mo. Oct. 23, 2015). Panera entered into a standard Employment Agreement with Boswell and other Joint Venture GMs. Id. Under the ...