Insurer’s Arguments First Raised On Reconsideration Forfeited For Appeal

General contractor Kiferbaum Construction was sued by a subcontractor’s employee who was injured at the work site. Kiferbaum was represented by Jacobson & Riseborough. Kiferbaum got excess insurance from Evanston Insurance.

Kiferbaum’s insurers, including Evanston, settled with the employee. The insurers were left to fight about the amounts each would pay the employee. Jacobson & Riseborough committed Kiferbaum to participate in the settlement agreement, which required Kiferbaum to reimburse Evanston for $1 million the insurer put into the settlement pot. But Kiferbaum argued it did not give J&R authority to make the commitment. The trial court agreed and gave Kiferbaum summary judgment against Evanston’s claim for the money.

Unhappy about being saddled with the $1 million payment, Evanston sued J&R. Evanston’s first two complaints were dismissed {because they were premature; i.e., Evanston hadn’t been injured yet], but the trial court gave Evanston a chance to file another complaint that would meet legal standards. Evanston filed a second amended complaint, but the trial court, finding the complaint was filed too late under the statute of repose [six years from the offending act], dismisssed that one too. The trial court then denied Evanston’s request for reconsideration.

Inn the Illinois Supreme Court, Evanston argued (1) its second amended complaint “related back” to its original complaint, which was filed timely, and (2) the original complaint was not premature and should not have been dismissed. But Evanston did not make these arguments in its original opposition to J&R’s dismissal request.

So the Illinois Supreme Court ruled Evanston forfeited those arguments, and refused to consider them. Raising the arguments for the first time in a request for reconsideration was not good enough to preserve them for appeal. Here is the supreme court’s reasoning:

The purpose of a motion to reconsider is to bring to the court’s attention newly discovered evidence that was not available at the time of the original hearing, changes in existing law, or errors in the court’s application of the law … Arguments raised for the first time in a motion for reconsideration in the circuit [trial] court are forfeited on appeal.

The rule is loud and clear: An argument is forfeited if you wait to raise it on reconsideration. Read the whole case, Evanston Insurance v. Riseborough, 2014 IL 114271 (2/21/2014), by clicking here.