Liability Disclaimer

PENDING

ADMINISTRATIVE LAW

Appeal, 4th Dist., No. 86878. Citizens Organizing Project v. Department of Natural Resources.

This case presents question of whether decision of trial court, sitting in judicial review of administrative decision of defendant-Department, constituted invalidation of Department's rule entitling plaintiff, which otherwise lost on merits of underlying claim, to attorney fees. Appellate Court, in affirming denial of attorney fee request, held that trial court's decision in favor of Department was not based on finding that Department's burden of proof rule was invalid, and that any invalidity of said rule could not have been controlling factor in trial court's decision. (Rule 23 Order.)

ESG Watts, Inc. v. Pollution Control Board. Appeal, 4th Dist., No. 87158.

This case presents question of whether party seeking administrative review of imposition of penalty for violation of Illinois Environmental Protection Act must separately name State of Illinois in petition for review? App. Ct. found that failure to name State deprived it of jurisdiction to consider petition for review. (Dissent filed.) (Rule 23 Order.)

ATTORNEY-CLIENT PRIVILEGE

Appeal, 1st Dist., No. 86831. Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc.

This case presents question of whether defendant, who filed legal malpractice counterclaim against plaintiff law firm, waived attorney-client and work product privileges concerning documents generated by successor law firm. Appellate Court found that waiver of both privileges occurred when counterclaim filed, and that certain documents were discoverable because they were crucial to defense of malpractice action.

COLLATERAL ESTOPPEL

Appeal, 1st Dist., No. 88116. DuPage Forklift Service, Inc. v. Material Handling Services, Inc. This case presents question of whether trial ct. properly granted defendant's motion for summary judgment on tortious interference with contractual and business relations claims due to existence of ruling in prior federal ct. proceeding that distributorship agreement at issue did not contain exclusivity provision and that Illinois Franchise Disclosure Act did not create private right of action? App. Ct., in reversing trial ct., concluded that doctrine of collateral estoppel did not apply because federal ct's rulings were on issues of law and not on issues of fact. (Rule 23 Order.)

DISCOVERY RULE

Appeal, 2nd Dist., Nos. 86938 and 86941 Cons. Ferrer v. Kuhl.

This case presents question of whether common law discovery rule applied to childhood sexual abuse cases to toll limitations period where victim had repressed memories of abuse. Appellate Court found that discovery rule applied, and that both claims against Catholic Brother were timely in that they were filed within 2 years of first realization of abuse.

DISSOLUTION OF MARRIAGE

Appeal, 1st Dist, No. 86974. Burgess v. Burgess.

This case presents question of whether plenary guardian of disabled adult may continue dissolution of marriage action originally filed by disabled adult prior to filing petition for guardianship. Appellate Court found guardian could not continue action.

ELECTION CONTESTS

Appeal, 5th Dist., No. 88383. DeFabio v. Gummersheimer.

This case presents question of whether trial ct. properly threw out ballots from entire precinct under sections 17-9, 19-8 and 20-9 of Election Code (10 ILCS 5/17-9, 19-8 and 20-9) where election judges from precinct failed to initial each and every ballot cast in precinct? App. Ct. majority affirmed trial ct's ruling.

EVIDENCE

Appeal, 2nd Dist., No. 88227. Voykin v. Estate of DeBoer.

This Case presents question of whether, in personal injury action, trial court may properly admit evidence of plaintiff's prior injuries without evidence of causal link between prior and present injuries? App. Ct., in reversing trial ct., found that defendant must lay foundation of medical testimony or other competent evidence establishing causal link between plaintiff's prior injuries and his present complaints of ill-being.

HMO LIABILITY

Appeal, 1st Dist., No. 86830. Jones v. Chicago HMO Ltd. Of Illinois.

This case presents question of whether patient -subscriber to HMO has standing to sue HMO for injuries stemming from contract physician's failure to diagnose condition. Trial court granted summary judgment in favor of HMO on counts alleging corporate negligence in part of HMO and contract liability, and Appellate Court affirmed.

HOSPITALS

Garibaldi v. Applebaum. Appeal, 1st Dist., Nos. 86952 & 87120 Cons.

1. This case present question of whether plaintiff, physician discharged from hospital staff due to existence of exclusive contract to which plaintiff not covered physician, could seek money damages under breach of contract theory where hospital failed to give plaintiff hearing prior to dismissal? App. Ct held that hospital's by-laws constituted contract even though by-laws contained non-contract disclaimer, and that plaintiff could seek damages for period of time between date of hospital's original exclusive contract when no hearing was held and date plaintiff was eventually given hearing.

2. This case presents additional question of whether section 10.2 of Hospital licensing Act precluded plaintiff from maintaining breach of hospital by-laws action against hospital's medical staff.? App. Ct. found that section 10.2 did not provide hospital staff with immunity since plaintiff's termination of staff privileges was not pursuant to action by peer review committee.

ILLINOIS NATURAL AREAS PRESERVATION ACT

Pierce Downer's Heritage Alliance v. Village of Downers Grove. Appeal, 2nd Dist., Nos. 86899 & 86920 Cons.

This case presents question of whether section 17 of Illinois Natural Areas Preservation Act, 525 ILCS 30/17, required Defendants Village and Illinois Health Facilities Planning Board to consult with Ill. Department of Natural Resources when considering requests by private entities to develop land adjacent to Illinois Natural Areas Inventory site? App. Ct. found that: (1) consultation obligations under section 17 only arise in instances where govt. plays direct role in either planning, design, funding construction or carrying out of proposed action; and (2) Bd's role in issuing certificate of need for subject project and Village's approval of amendment to planned unit development were insufficient to trigger consultation requirements. (Partial dissent filed.)

Appeal, 1st Dist. No. 85541. Ziencina v. Cook Co.

Ruling below: App. Ct. aff'd judgment of Cir. Ct. Question presented: Whether 745 ILCS 10/3-105 immunizes local govts. from liability for piles of snow created through snow removal efforts?

INSURANCE

Appeal, 1st Dist., Nos. 88407 & 88410 Cons. Travelers Indemnity Co. et al. v. Eljer Manufacturing Inc. et al. This case presents question of whether and when coverage afforded under insurance companies' excess general insurance policies is triggered on defective plumbing system? Trial ct. held that under language of certain policies, "property damage" for purposes of triggering coverage did not occur until plumbing system actually leaked, instead of when system was installed. App. Ct. affirmed this aspect of trial ct's ruling. Unposted opinion.

Appeal, 3rd Dist. No. 85490. McKinney v. Am. Standard Ins. Co.

Ruling below: App. Ct. rev'd and rem'd judgment of Rock Island Co. Cir. Ct. Question presented: Whether underinsured motorist endorsement allows recovery where insured recovered less than damages he was legally entitled to recover from tortfeasor's insurer, but more than limits of recovery under his underinsured motorist endorsement?

Appeal, 5th Dist. No. 83432. Estate of Sinn v. Mid-Century Ins. Co.

Ruling below: App. Ct. rev’d and rem’d judgment of Madison Co. Cir. Ct. Question presented: What is extent, if any, of D’s responsibility to provide underinsured motorist coverage to Ps? Whether exclusion contained in D’s policy violates public policy?

John Burns Construction Co. v. Indiana Insurance Co. Appeal, 1st Dist., No. 86552.

This case presents question of whether insurance company could seek equitable contribution from second insurance company pursuant to "other insurance" clause in policy with insured where insured initially tendered defense of personal injury lawsuit to first insurance company. App. Ct. found first insurance company could seek contribution for defense once insured tendered defense of lawsuit.

JUDGMENTS

Appeal, 1st Dist., No. 88179. Figueroa v. Star Charters. This case presents question of whether trial ct. was within its authority to enter order of set-off where defendant's request was filed more than 30 days after final judgment had been entered on underlying claim? App. Ct., in affirming set-off, concluded that set-off did not arise as result of trial, and thus may be raised at any time. (Rule 23 Order.)

MEDICAL MALPRACTICE

Appeal, 1st Dist., No. 88286. Michigan Avenue National Bank v. County of Cook.

This case presents question of whether sections 6-105 and 6-106 of Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/6-105, 6-106) provide immunity to Cook County Hospital and its employee physicians and nurses when complaint alleges that same employees failed to treat medical condition of plaintiff? Trial ct. granted summary judgment in favor of defendants, and Appellate Ct. majority affirmed, finding that defendants were immune under both 6-105 and 6-106, and that special relationship exception to Act did not apply.

NEGLIGENCE

McDonnell v. McPartlin. Appeal, 1st Dist., No. 87309.

This case presents question of whether trial ct. properly permitted defendants-physicians, sued in medical malpractice action, to assert defense that negligence of non-party physician was sole proximate cause of plaintiff's injuries? Plaintiff argued that use of sole proximate cause defense was improper since record failed to contain evidence from competent expert to support defense. App. Ct., though, found that although no expert testified that conduct of non-party physician was professionally negligent, use of said defense, as well as trial court's giving of second paragraph of IPI 12.04 jury instruction on said defense, did not constitute error where there was sufficient evidence from which jury could have concluded non-party physician was negligent.

PENSION FUNDS

Appeal, 3rd Dist., No. 88352. Smithberg v. Illinois Municipal Retirement Fund.

This case presents question of whether trial ct. properly found that widow, as opposed to ex-wife of deceased worker, was beneficiary of Illinois Municipal Retirement Fund pension benefits where deceased had complied with some, but not all IMRF procedures in naming ex-wife as beneficiary of pension funds as directed to do so by prior divorce decree? App. Ct., in reversing trial ct., found that principles of equity required that trial ct. consider deceased's designation of ex-wife as beneficiary an accomplished fact, and that ex-wife's equitable right to death benefits was superior to widow's claim.

PEREMPTORY CHALLENGES

McDonnell v. McPartlin. Appeal, 1st Dist., No. 87309.

This case presents additional question of whether trial ct. properly denied plaintiff's motion alleging that defendants' counsel used 5 peremptory challenges in racial manner. While App. Ct. criticized trial ct. for not first determining whether plaintiffs established prima facie case of discrimination, App. Ct. agreed that reasons given by defendants' counsel for use of challenges, i.e., hostility of juror, manner of answering questions, and relative having similar health problems of plaintiff, did not establish plaintiffs' claim of racial discrimination.

PROTECTIVE ORDERS

Skolnick v. Altheimer & Gray. Appeal, 1st Dist., Nos. 87320 & 87324 Cons.

1. This case presents question of whether trial ct. properly denied defendants' motion to modify agreed protective order to permit defendants, who had obtained documents from plaintiff-attorney pursuant to protective order, to disclose to ARDC documents that, according to defendants, demonstrated plaintiff's violation of Rules 4(a)(3) and (a)(4) of Illinois Rules of Professional Conduct? App. Ct. found that trial ct. erred in denying motion because order prevented defendants from fulfilling ethical duties under Himmel.

2. This case present additional question of whether trial ct's partial modification of protective order to permit defendants to use documents obtained pursuant to said protective order to file counterclaim, but only under seal violated defendants' First Amendment rights and right of public access to judicial proceedings. App. Ct. found that defendants voluntarily relinquished right to publish confidential information contained in counterclaim by their agreement with plaintiffs, and that defendants lacked standing to raise any claim arising out of public's right of access to judicial proceedings.(Unpublished decision.)

RAILROADS

Appeal, 5th Dist., No. 88306. Callis, Papa, Jackstadt & Halloran v. Norfolk & Western Railway Co. This case presents question of whether law firm retained by railway employee, seeking recovery against employer for alleged personal injuries under FELA, 45 USC §51, may seek preliminary injunction relief against employer to prevent employer from conducting investigation into assertion that employee made false statements concerning extent of employee's physical condition at issue in FELA action? Trial ct., in granting preliminary injunction, found that investigation would interfere with law firm's contractual relationship with employee by forcing employee to either submit himself to questioning about FELA action without assistance of law firm or face immediate termination for failure to participate in investigation. App. Ct. affirmed. (Rule 23 Order.)

SETTLEMENTS

Guerino v. Depot Place Partnership. Appeal, 2nd Dist., No. 87189.

This case presents question of whether trial ct. properly dismissed certain defendants based upon finding of plaintiff's good faith settlement with said defendants where both defendants were insured under same liability policies issued by same insurance company? While non-settling defendants argued that there was no actual adversity concerning allocation of settlement, App. Ct., in affirming trial ct's dismissal order, concluded that non-settling defendants failed to show by clear and convincing evidence that settlement agreement resulted from collusion. (Rule 23 Order.)

TAX LEVIES

Appeal, 3rd Dist., No. 88110. Commonwealth Edison Co. v. Will County Collector.

This case presents question of whether trial ct. properly sustained taxpayer's objections to Will County's 1995 tort immunity and worker's compensation levies on basis that they exceeded .25 maximum corporate rate authorized in Counties Code (55 ILCS 5/5-1024) and were adopted prior to effective date of amendment to said Code? App. Ct., in reversing trial ct., found that instant tax levies were subject to amendment to Counties Code, which provided that tort immunity levy was to be exclusive of and in addition to corporate rate limit as well as validated levies adopted in reliance on said amendment, and that said levies were lawful because they did not exceed maximum statutory rate.

Appeal, 2nd Dist., No. 88267. In re Consolidated Objections to Tax Levies of School District No. 205 for the Years 1991 through 1996.

This case presents question of whether Rockford School District was authorized by Ill. Local Govt. Employees Tort Immunity Act to levy taxes to fund school desegregation remedies agreed to by District and ordered by federal ct? App. Ct., in finding that District was not authorized to make said tax levies, held that said remedies did not constitute "compensatory damages" for tort judgment within meaning of sec. 9-102 of Act.

WORKER'S COMPENSATION

King v. Industrial Commission. Appeal, 1st Dist., No. 87099.

This case presents question of whether section 12 of Workers' Compensation Act, 820 ILCS 305/12, may be applied so as to require claimant, for whom Commission made previous award of permanent total disability, to attend medical examination scheduled by employer even though no petition pursuant to section 8(f) or 19(h) of Act was pending at time of request? Claimant refused to submit to medical examination, but App. Ct. affirmed Commission's order requiring claimant to submit to said examination. (Dissent filed.)

Appeal, 2nd Dist., No. 86969. (link not available) Saunders v. Industrial Commission of Illinois.

This case presents question of whether claim of employee injured in incident arising out of violation of known company rule against riding double on forklift is barred under Workers' Compensation Act. Appellate Court found violation of safety rule barred said recovery under circumstances of case.

WRONGFUL DEATH ACT

Morris v. William L. Dawson Nursing Center. Appeal, 1st Dist., No. 86708.

This case presents question of whether adult siblings of decedent can recover as "next of kin" under Wrongful Death Act where decedent died leaving no surviving spouse, but 2 surviving grandchildren. App. Ct. held that: (1) siblings could not be considered "next of kin" where direct lineal heirs existed; and (2) grandchildren were thus entitled to recover all wrongful death proceeds to exclusion of all others.

ZONING

City of Chicago Heights v. Living Word Outreach Full Gospel Church and Ministries, Inc. Appeal, 1st Dist., No. 87101.

This case presents question of whether plaintiff-City properly denied defendant-Church's request for special use permit for property that had previously been used as Masonic temple? Trial ct., in denying city's request for injunctive relief to prevent defendant from using property as church, found that City improperly denied special use permit. App. Ct., though, found that denial of request for special use permit not improper where City's zoning plan was designed to re-invigorate commercial corridor where subject property located and to create strong property tax base.