December 2022 Case Notes & Comments

“Winter, a lingering season, is a time to gather golden moments, embark upon a sentimental journey, and enjoy every idle hour.” ~ John Boswell

MONTHLY QUIZ: At all relevant times, Santa and Mrs. Clause live together within the limits of Santa's Village. For many years up until 2013, Mrs. Clause served as the Village’s animal control officer. In 2014, Jack Frost and the Village Board enacted an ordinance, making it unlawful to keep more than 3 dogs, cats or reindeer over the age of 6 in any premises within the Village, except a licensed kennel or veterinarian clinic. In 2014, the Board voted to allow the Claus' to keep their dog and cat. Though it is disputed as to whether the Board actually voted on the reindeer, the Board meeting minutes state that "the Claus' may keep all nine reindeer for their natural lives, with the stipulation that as the reindeer pass, the Village Code be honored." In 2017, a new Village Board, now chaired by the Grinch, files suit against Santa and Mrs. Claus for an ordinance violation. Santa and Mrs. Claus file a motion to dismiss which admits the legal sufficiency of the Village’s complaint (i.e. admits to allegedly housing more animals than allowed under the ordinance), but claims that the Board’s 2014 meeting minutes allowed them to keep all 9 reindeer. The Village, on the other hand, submits the Grinch’s affidavit, attesting that since the Board did not vote, no action was taken to authorize the housing of the reindeer. Given the apparent dispute, can the trial court dismiss the Village's Complaint? Will Santa be able to stable his reindeer within Village limits? You be the Judge. (Answer below).

FIRST TRIAL ALLEGING VIOLATION OF ILLINOIS BIOMETRIC-INFORMATION PRIVACY ACT (BIPA) RESULTS IN $228 MILLION DOLLAR JUDGMENT: The Illinois BIPA generally prohibits private companies from collecting a person's "biometric identifiers" (i.e. certain body measurements or calculations related to human characteristics, such as fingerprints, voiceprints or iris scans), unless the company advises that person, in writing, that the data was collected, sets forth the purpose and timeline for the data storage and the person consents. The Illinois BIPA statute includes a $5,000 per violation liquidated damages provision. BNSF Railway required truck drivers and those wishing to access four Illinois railyards to register and use an automated gate system (AGS), which recorded the user's fingerprints each time the entrant accessed the yard. In 2019, Trucker sued BNSF after he was required to register and use the railway's AGS, but was neither informed nor gave consent as to the purpose, storage or retention of his fingerprint data. Thereafter, the court certified a class of similarly situated plaintiffs, who collectively alleged tens of thousands of additional violations. Throughout the pretrial and trial stages, BSNF contended that it had not violated BIPA because the fingerprints were collected by a third-party vendor. The court and the jury found the defense unavailing. Following a five-day trial, the jury determined that BNSF violated BIPA 45,600 times and assessed a $228 million verdict in favor of the Plaintiff-Trucker and the class. Post-trial motions remain pending. Rogers v. BNSF Ry. Co., Case No.19 C 3083 (N. Dist. Ill., October 12, 2022).

LEAHY, EISENBERG & FRANEKEL WELCOMES PROMINENT INSURANCE COVERAGE PARTNER, MICHELLE BRACKE, TO THE FIRM: Leahy, Eisenberg & Fraenkel is pleased to welcome Michelle Bracke as a Partner in the Firm’s Insurance Coverage Practice Group. Michelle joins the Firm after more than twenty-five years at large, national law firms, where she practiced in the area of insurance coverage, counseling and litigation.Michelle’s practice focuses on advising insurers and litigating coverage matters in cases involving most types of policies and coverages, including professional liability, errors and omissions, first party coverages, fine art, general liability, automobile coverages, and policyholder misrepresentation and fraud. Michelle has litigated myriad coverage issues, in both federal and state venues countrywide, and has developed a wide-ranging catalogue of favorable decisions for insurers. Over her career, Michelle has developed strong industry relationships, not only from her work as an attorney, but also as an insurance company claim representative and broker, both in the United States and at Lloyds of London, London, England. Ms. Bracke is also a certified mediator. Michelle serves as a volunteer mediator at the Center for Conflict Resolution, where she mediates Cook County cases and handles private mediations. Michelle’s hire is the latest in a series of prominent hires for the Firm. We look forward to building our future with Michelle.

UM PROVISION WHICH TIED COVERAGE TO OCCUPANCY IN A COVERED AUTO VOID AS AGAINST ILLINOIS PUBLIC POLICY: Direct Auto’s policy provided uninsured motorist coverage (“UM”) to insureds while an occupant in an “insured automobile”. Insureds included the Named Insured and “relatives” defined as a resident related person. Named Insured’s minor son was struck by a hit and run driver while riding his bicycle. Named Insured sought UM coverage for son’s injuries. Direct Auto denied coverage based upon the provision which limited the coverage to where the insured was occupying a covered auto. The trial court’s ruling in favor of Direct Auto was reversed on appeal on the basis that the occupancy requirement violated Illinois public policy. According to the court, the Insurance Code requires UM coverage for any individual which qualifies as an insured for purposes of the policy’s liability coverage. The court rejected Direct Auto’s argument that a pedestrian would not qualify as an insured for purposes of the liability coverage on the basis that it was contrary to the language of the Insurance Code and Illinois public policy which are intended to broadly mandate UM coverage for persons injured by an uninsured motorist. According to the court, the coverage may not be “‘whittled away’ by unduly restrictive language.” The fact that the Illinois Department of Insurance approved the Direct Auto form did not preclude the insured from challenging its validity. Direct Auto Ins. Co. v. Guiracocha, 2022 IL App (1st) 211595 (Sept. 30, 2022).

ANSWER TO QUIZ: Sadly, Santa’s motion to dismiss must be denied. The trial court cannot dismiss the Village’s lawsuit against Santa and Mrs. Claus because there is a dispute of fact as to the Board’s 2014 actions. Here, the Claus’ presentation of the Board’s 2014 minutes is merely their “version of events.” To refute the meeting minutes, the Grinch and the Village Board submitted testimony that the Claus’ were not allowed to keep and stable Rudolph and his colleagues within Village limits. Unfortunately for Santa and Mrs. Claus, where there exists even one genuine, disputed, material fact, a motions to dismiss should not be granted as it would otherwise allow the parties to improperly conduct a “mini-trial” on the allegations of the complaint. Motion to dismiss, denied. Village of Orion v. Hardi and Larsen, 2022 IL App (4th) 220186 (Nov. 23, 2022).

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