August 2013 Case Notes & Comments

“The first step toward success is taken when you refuse to be a captive of the environment in which you first find yourself.” ~ Mark Caine

At Leahy, Eisenberg & Fraenkel, Ltd., we believe that client satisfaction is paramount and that results matter.  It is reassuring to see our firm’s trend of success continue. This Special Edition of Case Notes & Comments highlights some of the firm’s achievements this year. 

LEF WINS FIRST-PARTY FIRE DAMAGE CASE: In July 2013, Thomas J. Finn prevailed on behalf of Economy Premier Assurance Company (“Economy”).  Plaintiffs claimed that Economy breached its insurance contract by failing to pay Plaintiffs for the cost to demolish and rebuild a detached garage, attended driveway and sidewalk after an accidental fire damaged Plaintiffs’ rental property. Plaintiffs also alleged Economy breached the policy by failing to pay the depreciated hold back for the dwelling damage and additional replacement cost expenses. Further, Plaintiffs also sought statutory damages and attorney’s fees for the company’s alleged vexatious and unreasonable conduct. Defendant alleged that the fire was confined to the dwelling, that the detached garage did not sustain damage, and any alleged smoke and soot impingement on the garage did not trigger ordinance and law coverage. The jury returned a verdict in favor of the Defendant, finding no breach and awarded Plaintiffs no damages. The case was tried before the Honorable Judge Bonnie Wheaton in DuPage. Walksler et al. v. Economy Premier Assurance Company, et al., 2010 MR 00947 (Circuit Court of DuPage County, July 26, 2013)

LEF WINS 4-WEEK UCC WARRANTY AND FRAUD TRIAL: In July 2013, Daniel J. Offenbach and Kevin C. Carlson prevailed on behalf of a construction products manufacturer in a UCC Implied Warranty and Consumer Fraud Act suit filed in the Circuit Court of Cook County, Illinois. Plaintiffs sought $3.9m in damages. The Court ruled that the product manufacturer owed no warranty obligations to a building developer and general contractor for the construction of a building alleged to contain defective products. The Court reasoned that Plaintiffs failed to establish that the failure to meet code was as a result of the product’s use versus a design defect and ruled that Plaintiffs failed to establish privity. The Court also ruled that the product’s marketing literature and specifications did not constitute consumer fraud because the product’s performance claims were supported by NVLAP-certified laboratory data introduced at trial. BTC Residential & New England Builders, Inc. v. Keene Building Products, Inc., et al., 07 L 1033 (Circuit Court of Cook County, Illinois, July 24, 2013).

LEF OBTAINS JURY VERDICT IN FAVOR OF CLIENT IN DISPUTE BETWEEN FORMER NEIGHBORS: In June 2013, Roland S. Keske prevailed on behalf of a homeowner in a five-count lawsuit brought by the homeowner’s former neighbors. A Cook County, Illinois jury ruled in favor of the homeowner and against Plaintiffs on all counts. Plaintiffs contended that certain driveway work commissioned by the client encroached Plaintiffs’ property, created dust and flying debris and caused flooding and property damage. When Plaintiffs impeded the completion of the work, a verbal altercation ensued. Plaintiffs claimed that the homeowner’s conduct during and after the verbal altercation was so extreme and outrageous that it caused one of the Plaintiffs emotional distress. Plaintiffs sought to introduce evidence that the incident caused, aggravated and/or exacerbated Plaintiff’s diabetes. However, Plaintiff’s treating physician was barred from testifying as to Plaintiff’s diabetes and evidence concerning Plaintiff’s diabetes was precluded. Andrei Ilies, et al. v. Hermanet al., 11 L 3317 (Circuit Court of Cook County, Illinois, June 19, 2013)

LEF WINS PROPERTY DEMOLITION TRIAL REPRESENTING THE CITY OF CHICAGO: In March 2013, Stephen B. Frew and John J. McInerney prevailed on behalf of the City of Chicago following a 3-week jury trial. Plaintiffs claimed that a negligent demolition following a fire caused approximately $3 million in property damage to adjacent property and businesses. The defense prevailed, arguing that 65 ILCS 5/1-4-7 (Damage to Property By Demolition of Unsafe Building) was not a strict liability statute and that the walls presented an imminent collapse danger. Great American Ins. Co., et al. v. Phillips, et al., 06 L 12285, consolidated with 07 L 11991 and 07 L 3598 (Circuit Court of Cook County, Illinois, March 13, 2013).

LEF WINS ANIMAL CONTROL ACT ARBITRATION: In August 2013, Bart Zimmer prevailed on behalf of a homeowner in an Animal Control Act case. Plaintiff claimed that the homeowner was an owner, for purpose of the Animal Control Act, of a dog that had been at his house, which would make him liable for Plaintiff’s injuries when the dog knocked her off her bicycle. The defense argued that the homeowner was not an owner because he had not cared for or controlled the dog, and an award was entered in favor of the homeowner. Julie VanderLinde. v. Ralph Woerheide, et al., 2012 L 002970 (Circuit Court of Cook County, Illinois).

LEF OBTAINS A VERDICT OF NO ACCIDENT IN WORKERS’ COMP CLAIM: In July 2013, James P. Toomey prevailed on behalf of Respondent on an accident dispute before the Illinois Workers’ Compensation Commission. Petitioner claimed that he struck his knee, which he alleged rendered him unable to work and necessitate a future knee replacement.  Petitioner’s testimony and the testimony of Petitioner’s two witnesses’ were deemed unreliable. The arbitrator found that Petitioner’s one eyewitness observed no such accident because he described a completely different mechanism of accident to the insurer. Petitioner’s second eyewitness’ testimony was not found to be credible because he received workers’ compensation benefits while apparently working. The arbitrator found that Petitioner had not proven a compensable accident by the preponderance of the evidence. Kevin Garrett v. Dellco Transport, 11 WC 46777 (Currently on review before the Illinois Workers’ Compensation Commission).

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