December 19, 2010

Appellate Court Considers Question Not Raised By Either Insurer In Automobile Coverage Dispute

While driving his Chevy, Brian Berry hit Lisa Villarreal. Founders Insurance had issued automobile insurance that covered Berry ‘s Chevy. Berry also had an insurance policy with Mid-Century Insurance. Berry thought the Mid-Century policy covered his Dodge. But the policy listed the Chevy as the covered vehicle.

Villareal, who was injured in the accident, sued Berry. Founders settled that case on Berry’s behalf, and paid Villareal $100,000. Founders then found itself in a lawsuit with Mid-Century over which company had to pay the $100,000. Both Founders and Mid-Century asked the trial court for summary judgment. The trial court gave Founders summary judgment, and ruled that Mid-Century owed half the settlement paid to Villareal as equitable contribution.

Mid-Century appealed the ruling. Mid-Century raised two issues in the appellate court that focused on whether there was compliance the Mid-Century policy. Founders responded to those arguments. But the First District Illinois Appellate Court ruled there was a threshold issue that neither insurer raised in the trial or appellate courts: whether the Mid-Century policy even covered the Chevy.

So the initial question was whether the appellate court could or should consider that basic question, which neither insurer briefed or argued. Relying on the general powers the appellate court has under Illinois Supreme Court Rule 366, the appellate court ruled that it could consider the question to reach a fair result. This is how the court explained it:

Although the parties did not address this threshold issue of coverage in the trial court and both parties proceed before us under the assumption that the two policies provided overlapping insurance coverage, it is within our discretion to address this possibly dispositive issue …

While generally issues not raised at the circuit court level are considered waived, "a reviewing court does not lack authority to address unbriefed issues and may do so * * * when a clear and obvious error exists in the trial court proceedings."… " '[U]nder [Illinois Supreme Court] Rule 366 … a reviewing court may, in the exercise of its responsibility for a just result, ignore consideration of waiver and decide a case on grounds not properly raised or not raised at all by the parties.' " … In choosing to address an unbriefed issue, we recognize that as a reviewing court, we must refrain from doing so if the effect would be to transform us from jurist to advocate … That is not our intention here.

In the end, the appellate court ruled that Mid-Century’s policy did not insure the Chevy, so Founder’s summary judgment was reversed, and Mid-Century did not owe anything toward Berry’s settlement with Villareal. Read the whole opinion, Mid-Century Insurance v. Founders Insurance, No. 1-09-1858 (9/24/10), by clicking here.

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December 12, 2010

Recent Opinions On Standards Of Review In Illinois Appellate Courts: Substantial Compliance With Statute; New Trial; Damages; Mistrial

Writing an appellate brief? Here are some helpful excerpts from recently published opinions regarding standards of review in the Illinois appellate courts.

(1) Figueroa v. Deacon, No. 1-09-1844, First District Illinois Appellate Court (8/25/10). Re substantial compliance with a statute: “Whether there is substantial compliance with a statutory provision is a question of law and our standard of review is de novo.”

(2) Union Planters Bank v. Thompson Coburn, No. 5-08-0497, Fifth District Illinois Appellate Court (6/3/19). Re appeal of an order for a new trial and damages assessed a jury:

"It is well established that, in an appeal from a jury verdict, a reviewing court may not simply reweigh the evidence and substitute its judgment for that of the jury." … "Indeed, a reviewing court may reverse a jury verdict only if it is against the manifest weight of the evidence." … "A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary, and not based upon any of the evidence."
"The determination of whether a new trial should be granted rests within the sound discretion of the trial court, whose ruling will not be reversed unless it reflects an abuse of that discretion." … " 'If the trial judge, in the exercise of his discretion, finds that the verdict is against the manifest weight of the evidence, he should grant a new trial; on the other hand, where there is sufficient evidence to support the verdict of the jury, it constitutes an abuse of discretion for the trial court to grant a motion for a new trial.' " … "In determining whether the trial court abused its discretion, the reviewing court should consider whether the jury's verdict was supported by the evidence and whether the losing party was denied a fair trial." … "Verdicts are to be liberally construed, however, and may be amended to conform to the pleadings and evidence contained in the record whenever the intention of the jury is clear."
"Illinois courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury to determine … and that great weight must be given to the jury's decision.” … "Indeed, a court reviewing a jury's assessment of damages should not interfere unless a proven element of damages was ignored, the verdict resulted from passion or prejudice, or the award bears no reasonable relationship to the loss suffered." … "If a jury's award falls within the flexible range of conclusions reasonably supported by the evidence, it must stand." … "Illinois has long recognized the applicability, in questions of damages, of the doctrine of avoidable consequences, which prevents a party from recovering damages for consequences which that party could reasonably have avoided." … In making this determination, we consider the record as a whole.


(3) Jackson v. Reid, No. 3-09-0512, Third District Illinois Appellate Court (6/29/10). Standard of review for an order re mistrial:

"The decision to deny a motion for a mistrial is committed to the sound discretion of a circuit court … " 'A mistrial should be declared only as the result of some occurrence of such character and magnitude that a party is deprived of its right to a fair trial, and the moving party must demonstrate actual prejudice as a result of the ruling or occurrence.' " … This court has previously ruled that in order for a "violation of an order in limine to be the basis of a new trial, the order must be specific and the violation clear. Where the likelihood of prejudice is great, the violation is reversible error."

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December 5, 2010

Dismissal Of Election Law Complaint Remanded To Board For Lack Of Fact Findings

Mark Thompson filed a complaint in the Illinois State Board of Elections against Elizabeth Gorman. Thompson claimed Gorman filed false reports concerning loans and financing of a campaign for elected office.

After a closed preliminary hearing, the Board examiner “recommended that petitioner’s [Thompson] complaint be found not to have been filed upon justifiable grounds and that the matter not proceed to a public hearing.” The Board adopted the examiner’s recommendation and dismissed Thompson’s complaint.

The examiner issued a written report. But the Board did not make findings of fact in support of its ruling. The Board stated only that its ruling was based on a reading of the examiner’s report and the recommendation of the Board’s general counsel. (The general counsel’s report was not in the record on appeal.)

That was not sufficient to dismiss the complaint. The First District Illinois Appellate Court ruled that “[a] decision of an administrative agency must contain findings so as to make judicial review of that decision possible … [T]he Board did not enter any findings from the evidence to support its conclusion that petitioner’s [Thompson] complaint was not filed on justifiable grounds, and we therefore remand the matter to the Board for a statement of reasons as to why it reached that conclusion.”

Read the whole case, Thompson v. Gorman, 1-10-0885 (11/18/10), by clicking here.

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