January 2024 Case Notes & Comments

A process cannot be understood by stopping it. Understanding must move with the flow of the process, must join it and flow with it. ~ Frank Herbert, Dune

MONTHLY QUIZ: Plaintiff-Insured, who is a 17-year old passenger on a motorcycle, is struck by Tortfeasor’ vehicle and sustains injuries. Insured settles with Tortfeasor’s liability insurer for the $25,000 policy limit and seeks additional underinsured motorist (UIM) benefits from her Father’s three separate auto policies, all of which are issued by Insurer and have $500,000 limits. The policies’ include an “antistacking” provision which provides that if the UIM coverage in the “subject policy and one or more other vehicle policies was issued to you or any resident relative by Insurer ….then the UIM limits of such policies will not be added together to determine the most that may be paid…. The maximum that may be paid from all such policies is the single highest applicable limit.” Insurer sends Insured a check for $500,000, representing the maximum coverage available. Insured sues Insurer alleging that the she is entitled to “stack” the policies for up to $1.425 million in coverage (i.e. the $1,500,000 in total UIM Coverage, limit less the $25,000 settlement amount, per policy). According to Insured, the policies and declarations, read together, are ambiguous because they each list a different vehicles and include separate UIM coverage limits with separate premiums, which creates an creates an inherent ambiguity in relation to the antistacking provision, that must be resolved in Insured’s favor. Are UIM provisions ambiguous given the separate limits listed on the declarations pages? Are antistacking provisions enforceable in Illinois? Is Insured entitled to more than the $500,000 limit? You be the judge. (Answer below).

PREMISES LIABILITY – CUBS STRIKE OUT OVER AN UNENFORCEABLE ARBITRATION PROVISION: The Associated Press assigns Plaintiff-Photographer to cover the Chicago Cubs’ home games. In order to gain access to Wrigley Field, members of the media must carry a Cubs’ media pass. Photographer accessed the field and placed his media pass on his neck, hanging from a lanyard. While snapping photos in the “well” outside of first base, Photographer tripped over a pile of pallets and sustained serious injuries. Photographer sued the Cubs and related organizations, alleging that the defendants were negligent in allowing pallets to be stacked in the photo well. Hoping to avoid litigation in the Cook County Court system, the Cubs filed a motion to dismiss and compel arbitration, based upon an arbitration clause that was indirectly referenced on the reverse side of the media pass. The trial court granted the motion and dismissed the action in favor of arbitration. Photographer appealed, arguing that the arbitration clause was unfair and unenforceable. On appeal, the court agreed with Photographer and reversed, finding that the arbitration clause was both procedurally and substantively unconscionable. Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it. In this case, the appellate court determined that the provision was procedurally unconscionable because the reverse side of the media pass did not expressly mention the arbitration clause, but stated, among other things, that the media pass bearer acknowledged and agreed “to be bound by certain terms and contained on the website of the Office of the Commissioner of Baseball at MLBPressbox.com.” Further, the URL referenced on the media pass did not directly link to the terms and conditions, but required Photographer to find a specific hyperlink entitled “Credential Terms & Conditions,” amongst multiple other hyperlinks. Next, once the correct hyperlink was located, the terms and conditions comprised 25-paragraphs of what the court ultimately characterized as “boilerplate contract,” with “the arbitration provision buried at paragraph 22.” Substantive unconscionability arises when the contract terms are “so one-sided as to oppress or unfairly surprise an innocent party” or there is “an overall imbalance in the obligations and rights imposed by the bargain.” Ultimately finding substantive unconscionability, the court highlighted certain terms, such as a seven-day opt-out period, which would not have practically allowed a hospitalized patient (as was the case here) sufficient time to opt out of arbitration. Case reversed and remanded. Arbogast v. Chicago Cubs Baseball Club, LLC, et al., 2024 IL App (1st) 230361-U (Jan. 16, 2024).

WORKERS' COMPENSATION - TURBULENT TESTIMONY RESULTS IN A NOSE DIVE FOR AIRPLANE PILOT'S CLAIM: Appellant-Employee (Petitioner), an Airline Pilot, appealed the Circuit Court’s determination that a compensable accident did not occur against Appellee-Employer (Respondent, and Airline Company. Petitioner testified that she slipped and fell on de-icing fluid while inspecting an aircraft, causing injuries to her elbows, knees and back. Despite the requirement that she report all accidents the same day as the occurrence, Employee failed to report the accident to her employer until she first treated for the alleged accident, nineteen days later. Employee testified that she did not treat immediately because it was a Sunday and nearby medical providers were closed. Petitioner testified that she did not report the accident immediately because the “chief pilot” was not on-site. Though Petitioner testified that she did not work following the alleged accident, Respondent produced Petitioner's time sheet, which showed that Petitioner worked the two days following the claimed accident, but was then then off the following seventeen days, due to the Christmas Holiday. Petitioner was eventually diagnosed with a fractured patella. The Arbitrator found Petitioner’s testimony credible and awarded the Petitioner benefits. Upon review, the Commission reversed the Arbitrator’s decision based on multiple inconsistencies in Petitioner’s testimony. The circuit court affirmed the Commission’s decision and the appellate court affirmed the circuit court’s decision. On appeal, Petitioner argued that employees often attempt to work through injuries. However, Petitioner failed to cite such evidence at the arbitration hearing as to why she failed to report the alleged injury. Petitioner also argued that Respondent did not offer any rebuttal evidence that Petitioner’s accident did not occur as she initially testified. However, the inconsistent testimony was sufficient to find Petitioner’s version of the accident incredible. Specifically, the appellate court noted that Petitioner was able to traverse stairs the two days she worked after the alleged accident with a fractured patella, that she was unable to receive medical treatment at a surrounding hospital on a Sunday, and that she was able to travel for the Christmas holiday with such an alleged "severe" injury. Thus, the appellate court found that the Commissions’ decision was not against the manifest weight of the evidence. Masters v. I.W.C.C., 2023 IL App (1st) 230984WC-U.

ROBERT OSTOJIC NAMED 2024 ILLINOIS SUPER LAWYER. Leahy, Eisenberg & Fraenkel is pleased to announce that once again, Robert Ostojic, Chairman of the Firm's Large Loss Subrogation Department, has been included on the 2024 Illinois Super Lawyers® list. For more than a decade, Robert has been repeatedly selected as one of Illinois’ Super Lawyers (2012 - 2024). Super Lawyers® is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Super Lawyers® selects attorneys using a rigorous, multiphase rating process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. Congratulations to Robert and all of the attorneys named to a 2024 Super Lawyers list.

ANSWER TO QUIZ: Insurer wins, Insured loses. In Illinois, antistacking provisions in insurance policies are expressly allowed under the Illinois Insurance Code. 215 ILCS 5/143a-2(5). Upon review, the appellate court noted that the policies were all issued to a “resident relative” (i.e. Insured’s Father) and that Insured was seeking coverage for the “same bodily injury.” Under such facts, the appellate court found that the UIM provision was susceptible of only one reasonable interpretation – namely, that the policies “will not be added together” and the “maximum amount that may be paid from all such policies combined is the single highest applicable limit provided by any one of the policies.” Insured was only entitled to $500,000. Judgment affirmed. Miecinski v. State Farm Auto. Ins. Co, 2024 IL App (1st) 230193 (Jan. 17, 2024).

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