On April 10, 2014, Scott D. Pfeiffer presented at the CLM Annual Conference in Boca Raton, Florida on the topic entitled “Increasing Recoveries through Simple Identification of Additional Sources of Monies for Claimants.” The Conference featured more than 80 collaborative educational sessions and keynote presentations designed by industry professionals to help attendees gain the knowledge they need to be on the forefront of the industry. Attendance at the Annual Conference is limited to 1,300 individuals and is balanced among CLM Members and Fellows.
Author Archives: agatha
Aimee K. Lipkis attended the Illinois Trial Lawyers Association presentation entitled “Communicate>Persuade>Win” in Las Vegas, Nevada on March 14-15.
Anthony M. Sam was a coach for the National Animal Law Closing Argument Competition at Northwestern University School of Law February 22-23, 2014. His teams from The John Marshall Law School finished in second place and fourth place in the competition. The competition was sponsored by the Animal Legal Defense Fund.
Anthony M. Sam was invited to judge an undergraduate mock trial competition by the American Mock Trial Association at the Joliet Regional Competition. The competition took place February 22-23, 2014 at the Will County Courthouse in Joliet. There were undergraduates from 19 schools that competed in the competition.
Anthony M. Sam was a presenter for the St. John Baptist de La Salle Scholarship Program on February 9, 2014 at Lewis University. The presentation was entitled “Lewis University, Alumni Perspective.” Each year, Lewis University awards at least one St. John Baptist de La Salle Scholarship, a full-tuition award, to an incoming freshman student that demonstrates excellence in the areas of academics, leadership, and community involvement. All students are selected based on their high school grade point average, ACT/SAT score, and a personal interview.
Daniel K. Cray attended the Mid-Year Meeting of the International Association of Defense Counsel in Carlsbad, CA February 7-13. At the meeting, Mr. Cray was appointed Chair of the Centennial Planning Committee by the Executive Committee of the IADC.
Zachary G. Shook attended an Illinois State Bar Association Seminar entitled “Successor Liability in Business Transactions: The Risk of Selling Assets but Retaining Liability” on February 11, 2014. Zachary recently won a motion to dismiss on behalf of a successor corporation sued for the liability of its predecessor.
A Federal Court Construes Illinois, as Well as Federal, Statutes and Regulations Governing Motor Carrier Leases in Favor of the Lessor’s Insurer
A federal court sitting in Illinois recently held that neither a motor carrier which leased a tractor and driver to haul its customer’s property, nor the carrier’s lessor were entitled to insurance coverage under the lessor’s trucking policy for injuries occurring during use of the leased equipment. In Northland Ins. Co. v. Barnhart Crane & Rigging Co., 2013 WL 685979 (N.D. Ill), the court considered federal and Illinois trucking statutes and regulations as well as case law, in rejecting all claims for coverage under the policy and under the federally-required MCS-90 endorsement on the policy.
Barnhart Crane & Rigging Co (“BCR”), the lessee, entered into a long-term lease with Diamond Ring Specialized, LLC, (“Diamond”), the lessor, for BCR’s use of Diamond’s tractor and driver. Diamond promptly removed the truck as a scheduled vehicle from its trucking policy issued by Northland Ins. Co (“NIC”), while BCR added the truck and its driver to BCR’s policy issued by Amerisure. Kern, an independent contractor for BCR, was injured during BCR’s use of the tractor and driver, under its operating authority, to haul a customer’s crane girder which was mounted on BCR’s dolly/transport system and attached to the leased tractor. Kern filed an action for damages against BCR and Diamond. NIC filed an action seeking a declaration that it had no duty to defend BCR or Diamond in connection with Kern’s suit.
BCR claimed that under Illinois law and the terms of the lease which stated that the driver remained Diamond’s employee, Diamond had “borrowed” BCR’s dolly such that BCR was entitled to coverage under NIC’s policy. The court rejected this argument stating that all of federal and Illinois law as well as the lease itself require BCR to maintain “exclusive possession” and “control” over the leased vehicle and its driver, such that Diamond could not have controlled or possessed the dolly. The court rejected BCR’s reciprocal coverage argument because even though Diamond had agreed in the lease to indemnify BCR, such indemnity agreements are void and unenforceable under Illinois law. The court further held that BCR was not entitled to notice of the deletion of the tractor from NIC’s policy under Illinois’ motor carrier insurance regulations or case law. In a supplemental order, the court further rejected BCR’s and Diamond’s claims under the federally-required MCS-90 endorsement.
(The prevailing insurer, Northland, was represented by Cray Huber attorneys Jeanne Zeiger and James Horstman.)
The Board of Directors of the Illinois Association of Defense Trial Counsel has requested input from defense counsel with regard to the proposed changes to the Federal Rules of Civil Procedure. As chair of the IDC Civil Practice Committee, Adam C. Carter presented the Committee’s comments on the proposed changes to the Board of Directors at their meeting on January 31, 2014.
Third District Appellate Court Addresses Lost Chance Theory
In January 2014, the Appellate Court for the Third Judicial District, Illinois, took up the question of just how much the plaintiff’s causation expert needs to say in order to survive a directed verdict in a medical malpractice case alleging loss of chance of survival following a failure to diagnose cancer. In overturning a directed verdict in favor of the defendant physicians, the appellate court ruled that a plaintiff can survive a directed verdict by having an expert combine survival data from the American Cancer Society, with an opinion that the negligent failure to diagnose the decedent’s cancer caused the decedent’s chances for survival to decrease from the difference between the average age of survival for a less advanced stage and the average age of survival for the stage determined at the time of diagnosis. The expert needs to give an opinion to a reasonable degree of certainty as to the stage of the cancer at the time of the negligent failure to diagnose. The plaintiff’s expert need not opine that the negligence deprived the patient of a better outcome or that the patient would likely have survived with a proper diagnosis. This was found to be true even when the proffered expert admits that the statistics cannot predict what will happen in any particular case. The fact that the “expert” was not an oncologist and had only seen a few cases of (cervical) cancer in her career was held to go only to the weight of the opinion.