August 15, 2009

Insurer’s Failure To Supplement Deficient Damages Evidence Not Invited Error

Michael Carey and James Fann owned a mixed-use building (residential and dental office) in Chicago, Illinois. The building was substantially damaged in a fire. Carey and Fann made a claim to their insurer, American Family Insurance, but the company denied coverage. Carey and Fann sued American Family. After a bench trial, Carey and Fann were awarded more than $427,000.

American Family appealed. At trial, Carey’s and Fann’s damages expert neglected to put in evidence of depreciation of the building, a required element under Illinois law. Carey and Fann argued that American Family waived the argument that the damages evidence was deficient. Their argument relied on the “invited error” doctrine − American Family’s acceptance of the damages calculation and the company’s failure to put in its own evidence of depreciation.

The First District Illinois Appellate Court rejected Carey’s and Fann’s position. The court ruled there had been no “invited error” or waiver: American Family sufficiently reserved the right to dispute damages and it was not the insurer’s responsibility to assure the building owners’ damages evidence was appropriate. Here is the court’s rationale:

It is true that defendant [American Family] agreed to waive all foundational requirements regarding the admission of Spoerlein's [Carey’s and Fann’s damages expert] testimony and report. However, defendant specifically reserved objection to the testimony and report on all other bases. Further, defendant subjected Spoerlein to cross-examination regarding her estimate and in particular the lack of a calculation considering depreciation. During closing argument, defendant specifically argued that plaintiffs [Carey and Fann] failed to sustain their burden of proving damages to the subject building under the policy because the only evidence submitted concerning damage to the subject building was Spoerlein's testimony of replacement cost rather than actual cash value called for by the policy.

Plaintiffs' [Carey and Fann] argument regarding defendant's American Family] failure to produce evidence of depreciation is similarly unpersuasive. As noted, it is a plaintiff's burden to prove damages to a reasonable degree of certainty … Defendant had no burden of proof and was not required to prove plaintiffs' case.

Even though the damages evidence was inadequate, instead of an outright reversal the appellate court sent the case back to the trial court for a new trial on damages. Read the whole case, Carey v. American Family Brokerage, No. 1-07-3261 (5/11/09), by clicking here.

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August 9, 2009

Failure To Cite To Record Ruins Invited Error and Judicial Estoppel Defenses To Appeal

Gloria Sakellariadis had an automobile accident with Steven Campbell. Three months later Gloria was in another accident, that time with Bruce Walters. Gloria injured her neck, shoulders, and back in both accidents. There was one trial against both Campbell and Walters. While the jury was deliberating, Gloria settled with Campbell for $150,000. The jury returned a verdict for Gloria of $518,000, and found Campbell and Walters each liable for 50 percent.

The court awarded Gloria $259,000 from Walters − his 50 percent of the full $518,000 award. Gloria thought Campbell and Walters were jointly and severally liable for the whole verdict, so she appealed and asked for an award of $368,000 from Walters ($518,000 minus the $150,000 settlement).

Certain of the medical providers held liens against Gloria’s judgment. There was a hearing in the trial court to adjudicate those liens. Walters argued that Gloria’s appeal was barred because she “represented to [the] lienholders that she would accept the judgment.” Walters argued that the doctrines of invited error (“a party cannot complain of error which that party induced the court to make or to which that party consented’”), and judicial estoppel (“a party who assumes a particular position in a legal proceeding is estopped from assuming a contrary position in a subsequent legal proceeding”) doomed Gloria’s appeal.

But the First District Illinois Appellate Court disagreed. The appellate court ruled that Walters had not supported his factual assertion about Gloria’s representation to the lienholders with citation to the record on appeal. Here’s what the appellate court stated:

Walters has not provided in his brief specific citations to the record showing plaintiffs affirmative representation in the lien proceedings that she would not challenge the judgment on appeal. To the contrary, the record contains plaintiffs memorandum of law dated more than three months before the adjudication of the liens, arguing that the judgment should have been calculated based on joint and several liability. The trial court was on notice when the liens were adjudicated that plaintiff intended to challenge the judgment. We do not believe the doctrine of invited error, waiver or estoppel bar this appeal. Plaintiff did not affirmatively take a position in the lien proceedings that conflicts with her position on appeal.

In the end, the appellate court affirmed and ruled that joint and several liability did not apply to Gloria’s judgment. Read the whole case, Sakellariadis v. Campbell, No. 1-07-2845 (5/29/09), by clicking here.

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June 15, 2009

American Access Casualty Appeal Waived By Invited Error

Christine Siwek had an accident when she was driving Jerrold Erickson’s car. Christine told the Illinois Department of Transportation about the accident, and identified American Access Casualty Company as her insurer.
American told the Department that Christine’s policy had been canceled.

Christine claimed she never received a policy cancellation, so she sued American Access. She asked the trial court for a declaration that her policy with American Access covered her for the accident.

American Access raised affirmative defenses, claiming essentially that Christine hadn’t paid for the policy. Christine asked the court to dismiss American’s defenses, which it did four times.

When American filed its fourth amended affirmative defenses, Christine made a motion to dismiss the defenses. She also asked the trial court for summary judgment and for an award of attorney fees under Section 155 of the Illinois Insurance Code.

On the day of the hearing on Christine’s requests, American Access presented a letter conceding that Christine’s policy was in effect at the time of the accident. The trial court then entered judgment against American Access, and awarded Christine her attorney fees.

American Access appealed. The company claimed the trial court should not have dismissed the affirmative defenses, should not have awarded summary judgment, and should not have awarded attorney fees to Christine.

Pointing to the doctrine of “invited error,” the First District Illinois Appellate Court ruled that American waived its arguments concerning its affirmative defenses and Christine’s summary judgment. So the appellate court refused to consider them. Here is the court’s analysis:

[T]he doctrine of invited error prohibits any party from complaining of an error on appeal "'which that party induced the court to make or to which that party consented.'"

It is quite clear that American made the strategic decision not to appeal from the dismissal of its affirmative defense, not to further challenge the plaintiffs' contention that they were entitled to insurance coverage for Siwek's accident, and to affirmatively certify to the Secretary of State that such insurance was indeed in effect. It was only after American took these actions that the trial court granted the plaintiffs' summary judgment motion, and only then did the plaintiffs and the Secretary of State seek an agreed order from the trial court dismissing the remaining count of the complaint. Under such circumstances, we refuse to further consider American's assertions that the trial court committed any error in dismissing its affirmative defenses or in ultimately granting summary judgment to the plaintiffs.

Read the whole opinion, Siwek v. White, No. 1-07-2600 (2/27/09), by clicking here.

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November 6, 2008

“Invited Error” Prevents Med Mal Plaintiff’s Appeal Of Evidentiary Ruling

David Mount had a cardiac arrest that caused brain damage and other injuries. David’s guardians sued his doctors for medical malpractice. A jury concluded that the doctors were not guilty. David’s guardians appealed to the First District Illinois Appellate Court. The appellate court affirmed the judgment in favor of the doctors.

On appeal, David’s lawyer argued that the trial court should have allowed certain statements by one of the doctors to be used as substantive evidence. Instead, the trial judge limited the doctor’s statements for impeachment purposes only − i.e., “solely for purposes of assessing the weight to be given to the testimony of the witness in the courtroom." But David’s lawyer did not object when the trial court placed limits on how the doctor’s testimony could be used.

The appellate court rejected David’s arguments that the doctor’s testimony should have been admitted for their full, substantive value. The court invoked the “invited error doctrine,” which prevents a party from appealing an evidentiary ruling that he procured or invited, or in which he acquiesced. Here’s the court’s rationale:

In the case at bar, plaintiffs invited, or at the very least acquiesced to, the trial court's ruling to admit the two statements for impeachment purposes only. With respect to the first statement, plaintiffs asked the trial court to admit it for impeachment purposes, and the trial court did exactly that. With respect to the second statement, when the trial court ruled it admissible for impeachment purposes only, plaintiffs thanked the court for its ruling. While defense counsel objected to preserve the issue for appeal, plaintiffs stood by and voiced no objection. Plaintiffs' lack of an objection was not surprising since they thought they were "winning." After inviting and acquiescing to the trial court's rulings, plaintiffs cannot now complain about these same rulings on appeal.

Get the whole case, LaSalle Bank v. The Chicago Trust Company, No. 1-06-1859 (8/4/08), by clicking here.

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May 31, 2008

Invited Error Rule Knocks Out Broker-Dealer Appeal Against Computer Programmers

In this messy lawsuit, a broker-dealer sued its computer programmers and their firm on a theory of civil conspiracy. The programmers moved for summary judgment. The broker-dealer argued that the programmers engaged in tortious acts in furtherance of the conspiracy. But the programmers were granted summary judgment.

The broker-dealer appealed, and argued for the first time that “unlawful,” but not necessarily “tortious,” acts were all it had to show for its civil conspiracy claim. The First District Illinois Appellate Court rejected the broker-dealer’s argument because it violated the “invited error” rule.

The Illinois Supreme Court has held, under “the doctrine of invited error,” that a party “may not request to proceed in one manner and then later contend on appeal that the course of action was in error." … To permit a party to use, as a vehicle for reversal, the exact action which it procured in the trial court “would offend all notions of fair play" and encourage duplicity by litigants … Thus, plaintiffs cannot raise on appeal the question of whether they could show an unlawful, as opposed to a tortious, act in furtherance of the conspiracy.

The whole case, Lozman v. Putnam, No. 1-06-0861 (2/19/08), is available by clicking here.

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