A Chicago couple claimed negligence. Turns out, they were the negligent ones

December 1, 2015 by Levinson and Stefani Leave a Comment

Annolino v. The City of Chicago, 2015 IL App (1st) 141934-U

Land owners have a duty to warn and protect invitees from defects that may cause injury, unless the defect is considered open and obvious. For a defect to be open and obvious the invitee has to prove that she was distracted and the landowner could reasonably anticipate that distraction. Generally speaking, we are considered invitees when we are on land owned by the City of Chicago. Therefore, Chicago has a duty to warn and protect us from dangerous conditions on city sidewalks and to take reasonable care that city land is safe and not likely to cause harm.

Imagine a clear August day in Chicago. Debra and Joe Annolino are walking from their daughter’s apartment on East Scott Street at around 8:45am. They are in front of an apartment complex when, suddenly, Debra trips and falls on a slab of sidewalk that’s raised 2.5 inches. She broke her right index finger and fractured her left kneecap, and sued the City of Chicago. Debra testified that she was not distracted, other than talking to her husband and looking around; fairly normal and expected behaviors. But, Debra also stated that if she had been looking down at the condition of the sidewalk, she would have seen the defect. The manager of the complex provided evidence that she sent letters to the prior and current alderman to fix the sidewalk where Debra fell.

Debra and Joe sued the City of Chicago for negligence, alleging that Chicago failed to maintain and repair the elevated sidewalk, failed to warn the public, and ignored specific complaints about the sidewalk. Debra further alleged that if Chicago exercised ordinary care then it should have known about the state of the sidewalk. The attorneys for the City disagreed, arguing that Debra’s fall and subsequent injuries were due to her own negligence and her failure to keep a proper lookout.

Chicago moved for judgement, arguing, using Debra’s deposition as support, that it owed no duty to Debra because the condition of the sidewalk was open and obvious. Debra responded that the condition was not open and obvious and, even if the court found that it was, the distraction exception applies. Debra reasoned that the condition could not be open and obvious because so many other people have tripped or fallen on that same condition before her. The Honorable John H. Ehrlich, circuit court judge, found Debra’s argument contrary to her own testimony and ruled in favor of Chicago. Without establishing that the city owed her a duty, Debra could not maintain her cause of action for negligence.

Debra asked the court to reconsider, arguing that Chicago owed her a duty of care because the alderman was on notice and the city had the funds to fix the defect. The court denied the motion and Debra appealed. The Appellate Court affirmed Judge Ehrlich’s decision, finding that the condition was open and obvious. Debra appealed to the Supreme Court. The Court then considered the distraction exception. Previously, the Court found that the distraction exception can only apply when there is evidence from which a court can infer that the plaintiff was actually distracted; whereas the mere fact of a plaintiff looking elsewhere does not constitute a distraction.

Here, the Court also found Debra’s testimony to be damning, the distractions that she alleged or testified were only speaking with her husband and looking around. An argument specifically rejected by our Supreme Court in a 2014 decision. That decision, which is the subject of another article, found that a distraction exception must be one that is not solely the plaintiff’s own creation. Looking around and holding a conversation were in Debra’s own creation and therefore did not qualify as a distraction under the exception.

Click here to read the full case note

Rewind: Ken speaks at the 2015 Meadowlands Seminar

November 30, 2015 by Levinson and Stefani Leave a Comment

Levinson and Stefani founding partner Ken Levinson recently traveled to the Garden State to be an invited faculty member in the New Jersey Association for Justice 2015 Meadowlands Seminar, providing insight into two specific areas: child injury cases and the benefits of conducting focus groups.

The first session, titled “Maximizing Damages in Child Injury Cases,” concentrated on liability and trial strategies and three categories of injuries: brains, bones and burns. Levinson touched on the process of dealing with traumatic injuries by consulting with appropriate physicians and conducting extensive interviews with family members, among other things.

Levinson also led a session titled “Learn from Legends,” giving advice and explaining the benefits of using focus groups to better understand potential jurors. Levinson talked about the “blind spots” that lawyers frequently overlook, and how the use of a focus group can minimize dangers and maximize chances of winning the case by employing already-tested strategies.

Other topics during the three-day event included discussions regarding criminal law, tort law, proving standard of care and others.

The Meadowlands program featured 19 seminars, where speakers covered a broad range of legal areas as requested by current and former attendees. More than 600 people have attended since the seminar’s inception.

The NJAJ is headquartered in Trenton, New Jersey, a statewide association of over 2,500 members in private practice and public service, paralegals, law clerks, law students and law school graduates.

Levinson’s next speaking engagement takes place this Thursday at the Florida Association for Justice in St. Augustine, FL. He will lead the “Hell on the Highways: Motorcycles, Trucks and Roads” seminar, teaching fellow trial lawyers how to represent their clients more effectively.

An insurance representative called. What do I do?

November 30, 2015 by Levinson and Stefani Leave a Comment

In many cases, insurance reps are looking to do one thing. And it’s usually not in your best interests. Ken explains.

VIDEO: An insurance representative called. What do I do?

November 23, 2015 by Levinson and Stefani Leave a Comment

In this edition of “60 seconds with Levinson and Stefani,” Ken talks the importance of contacting a lawyer before speaking to an insurance company representative. As we’ve talked about before, insurance companies are loath to part with their money. One of the ways they can avoid doling out settlement checks is by taking advantage of what you may not necessarily know.

In the days after a crash, odds are you’re going to receive a phone call from an insurance rep, and it’s probably not a call you’re prepared to take. Why? Because no matter how nice the rep sounds on the other line, they’re banking on innocent missteps to protect their company from further liability. It’s a tactic as old as time. Unfortunately, it’s a tactic that keeps working.

How do they do it? There are any number of ways insurance companies may try to employ said tactics, the end goal of which is to lock you in a statement that could come back to haunt you during a potential trial. They may ask tricky questions about your driving habits, or if you were on the phone while you were driving, for example. They could ask about your health history and what types of medication you take. If you’re willing to answer, they’re willing to put it on the record.

As Ken states, a lawyer should be one of your first calls in the aftermath of a crash to help you avoid these types of situations. A lawyer can also advise you on the proper course of action and protect your legal rights. Contacting a lawyer immediately will save you time, money and, ultimately, lots of anxiety.

Specificity may specifically save insurance coverage disputes

November 19, 2015 by Levinson and Stefani Leave a Comment

Skaperdas v. Country Casualty Insurance Co., 2015 IL 117021

As a general rule, everyone has a duty to exercise ordinary care. When we fail to do so and someone else gets injured, we may be liable for the damages. This is true for businesses as well, and, in the case of Steven Skaperdas, his insurance agent. Skaperdas bought auto insurance from Country Casualty Insurance Company. His fiancée was subsequently involved in an accident while driving one of Skaperdas’s covered vehicles. Country covered the loss, but instructed Skaperdas to add his fiancée to the policy.

Skaperdas met with a Country insurance agent and requested that his fiancée, Valerie Day, be added to the policy. The agent added “female, 30-64” onto the declarations page. Later, Valerie’s son was riding his bike when he was hit by a car and severely injured. The driver’s insurance coverage did not cover the medical costs. Skaperdas and Day sought coverage from Country under their underinsured policy. Country denied the claim, reasoning that neither Day nor her son was listed on the policy.

Skaperdas and Day sued Country and the insurance agent. The circuit court dismissed the claim and the appellate court reversed. The agent and Country appealed to the Illinois Supreme Court. The Court’s decision looked closely at whether an insurance agent has a duty to exercise ordinary care and skill in selecting the insurance coverage requested by a customer. The Illinois Supreme Court said that an insurance agent does have a duty in certain situations.

The Court found that when a customer asks an insurance agent for a specific coverage—in this case, Skaperdas asked for coverage for his fiancée—then the agent has a duty to procure specified coverage. If the agent fails to do so, the agent is responsible for the injuries that follow. The Court noted that this duty only arises when the customer asks for specific coverage.

The Court relied on Melrose Park Sundries, Inc. v. Carlini, a case detailing a business owner asking her insurance agent to ensure that, “all requirements for insurance [were] taken out, including the building, *** the liquor, any type of liability policy.” 399 Ill. App. 3d 915, 917-18 (2010). The business owner did not specifically request or receive workers’ compensation insurance, as required by law. The business owner sued, arguing that the agent did not exercise ordinary care when procuring insurance. The Court found that because she did not specifically ask for workers’ compensation insurance, that the relevant insurance statute did not apply. Therefore the agent did not owe duty of ordinary care.

Additionally, the Court found that pursuant to the doctrine of respondeat superior, Country could be held liable for the tortuous actions of its agent, even if Country did not engage in tortuous activity.

The lesson: It’s important to ask for specific coverage when buying or renewing your insurance. Make sure to ask your agent about all policies and endorsements available, so that you can determine what to ask for, specifically.

Click here to read the full case note

Think twice before waiving rental insurance

November 12, 2015 by Levinson and Stefani Leave a Comment

Founders Ins. Co. v. Walker, 2015 IL App (1st) 141301

Car Rental Insurance: Waiving coverage could leave you waving goodbye to your bank account.

Insurance companies are pushing the “pick-your-own-plan” or “you-pick-the-price, we-pick-the-coverage” idea to consumers as a smart and simple way to lower insurance costs. They reduce their premium in exchange for dropping certain coverages. Alternatively, comprehensive plans provide much wider coverage by charging a higher premium. The discounted non-comprehensive plans are certainly viable options to consider to cut rising insurance premiums for some, but in the case of Sybil Morrison, it ended up leaving her without coverage.

Sybil rented a car from Enterprise and, like many of us often do, waived the insurance offered by Enterprise. Sybil had a non-comprehensive insurance plan with Founders. She bought, among other things, liability insurance that covered bodily injury and property damage, but contained an exclusion provision for rentals. She did not purchase the physical damage coverage, which would have included collision coverage.

On May 6, 2012, the car Sybil rented was damaged in a hit-and-run accident. She made a claim with Founders, which was denied because Sybil’s plan did not include collision insurance. Sybil and Enterprise argued that the claim should be covered under the liability coverage. Founders disagreed, reasoning that liability coverage protects the insured against injury and loss to others whereas collision insurance protects loss or injury to the insured’s own vehicles. Because Sybil did not purchase collision insurance she was not entitled to coverage. Additionally, even if Sybil’s claim falls under liability coverage, the section contains a rental property exclusion provision.

The Court held that Sybil’s claim should have been covered under the liability coverage, but that the exclusion provision precluded insurance coverage for damages to rental cars. The Court explained that liability coverage typically includes damage to other’s property and not damage to the insured’s own car. In other words, liability coverage should cover the insured in instances when she can be sued for damages (i.e. held liable). One cannot sue themselves for damages, so typical liability coverage does not apply to damages to one’s own car.

This instance being atypical in that the damaged car was not the insured’s own car but belonged to Enterprise. Enterprise could, and in-fact did, sue Sybil for damages to that car. Sybil could be held liable for damages and therefore this claim should have been covered by the liability insurance. However, the exclusion provision still applied and coverage was properly denied.

The Court, additionally, pointed out that exclusion provisions’ purpose is to allow for lower insurance premiums in exchange for minimal liability coverage. They continued that Sybil could have avoided this loss simply by either purchasing a more comprehensive insurance plan from Founders or purchasing insurance from Enterprise.

Before waiving rental car insurance, make sure you have coverage. Otherwise, you could end up with the repair bill for the car.

Click here to read the full case note