Joseph P. Postel
Appeals Highlights (Other Than Coverage)
 
1. Breach Of Contract To Settle Product Liability Lawsuit

Kalis v. Colgate-Palmolive Co., 827 N.E.2d 1098 (Ill.App. 1st Dist. 2005)

This was the second appeal in this case, where the plaintiff was suing for breach of contract to settle a personal injury claim. The issue was whether a contract had been formed. The defendant in the underlying product liability suit in federal court had filed a motion for summary judgment. While waiting for a ruling on that motion, the defendant's counsel wrote a letter to the plaintiff's counsel offering $100,000 to settle the suit. Before the defendant responded to the letter, the federal judge mailed out his ruling granting the motion for summary judgment. Shortly thereafter, the plaintiff wrote a letter purporting to accept the settlement offer. When the defendant refused to tender the funds, the plaintiff sued for breach of contract. The judge entered summary judgment for the defendant, on the grounds that the entry of summary judgment in the underlying case had destroyed any consideration for the offer. The Appellate Court reversed and remanded for further proceedings, holding that the plaintiff still had consideration to give in that she could forego her appeal rights. On remand, the defendant moved for summary judgment again, this time contending that the offer could no longer be accepted once the summary judgment had been entered, because the defendant was entitled to consent to the new consideration (i.e., foregoing an appeal) before becoming bound to it. The trial judge erroneously believed that he was not authorized to entertain this contention, although he said he agreed with it, and so he entered summary judgment against the defendant. We appealed, and the Appellate Court reversed again, remanding a second time with instructions to determine whether the offer was accepted within a reasonable time.

2. Product Liability—Gun Safe Manufacturer Not Liable For Making Safe Too Easy For Troubled Son Of Owner To Break Into—Suicide Is Superseding Cause

Kleen v. Homak Indus., 749 N.E.2d 26 (Ill.App. 1st Dist. 2001)

This was an interlocutory appeal from an order denying a motion to dismiss for failure to state a cause of action. The plaintiff was the father of a teenage son that broke into his father's gun safe, took out a gun and shot himself. The son died from his injuries. The father filed a wrongful death suit against the manufacturer and distributor of the gun safe, alleging that the safe was defective in that it was too easy to break into. We moved for dismissal on the grounds that as a matter of law, any negligence in manufacturing the safe was not the proximate cause of the son's death, because the suicide was a superseding cause. The trial judge denied our motion, but certified the question to the Appellate Court for interlocutory appeal. The Appellate Court reversed and dismissed the case.

3. Product Liability—Defendant Entitled To Summary Judgment Because Plaintiff Could Not Prove That Defendant Manufactured Product

Kalis v. Colgate-Palmolive Co., 231 F.3d 1049 (7th Cir. 2000)

This was the plaintiff's appeal from the product liability summary judgment described in the case summary above under the same name. The plaintiff suffered burns at her birthday party when a can of sterno fuel placed underneath a fondue pot exploded upon being refilled by the plaintiff's mother. The plaintiff was never able to establish that Colgate-Palmolive was the manufacturer of the sterno can. On that basis, the district court entered summary judgment for Colgate-Palmolive, and the Court of Appeals affirmed.

4. Appellate Jurisdiction—Appellate Court Had No Jurisdiction To Hear Appeal Because Plaintiff Did Not Appeal Within 30 Days Of Summary Judgment

Berg v. Allied Security, 737 N.E.2d 160 (Illinois Supreme Court 2000)

Joan Berg was assaulted in the parking lot of a suburban office building where she worked as a travel agent. She sued the company that managed the building, as well as the security firm hired by the building, for providing inadequate security. The trial judge entered summary judgment for the defendants, and the plaintiff appealed. On appeal, the defendants contended that Berg's appeal was untimely. Although Berg filed a motion to reconsider and for leave to file an amended complaint within 30 days of the summary judgment, the motion did not trigger the tolling provisions of Supreme Court Rule 303, the defendants contended, because it failed to specify the grounds for reconsideration. The Appellate Court disagreed, and reversed the summary judgment. On appeal to the Supreme Court, defendants reiterated the lack of specificity argument, and added a new one (which they could do because lack of subject matter jurisdiction can never be waived). The new argument was that even if the portion of the "post-trial motion" seeking reconsideration tolled the plaintiff's time to appeal, her appeal was still untimely, because the trial court denied reconsideration, took under advisement the request for leave to amend, then later denied that request, and plaintiff's notice of appeal was not filed within 30 days of the denial of reconsideration (though it was filed within 30 days of the denial of leave to amend). The Supreme Court affirmed 4-3, and we petitioned for rehearing. After ordering further briefing, Justice Freeman reversed himself, and a new 4-3 majority vacated the judgment of the Appellate Court and dismissed the appeal.

5. Breach Of Contract To Procure Insurance—No Breach Because Obligor Purchased The Required Insurance

West Lafayette Corp. v. Taft Contracting, 178 F.3d 840 (7th Cir. 1999)

This was an appeal from a summary judgment entered against a contractor in an action for breach of contract to procure insurance. The heart of the dispute centered on attorneys' fees incurred by the plaintiff in defending itself in the personal injury suit the insurance was supposed to cover. These fees were incurred before the defendant's insurer, Liberty Mutual, assumed the defense and indemnification of the plaintiff. Our defense was that the plaintiff should look to Liberty Mutual for reimbursement of these fees, not the defendant, and in fact, we filed a petition to intervene on behalf of Liberty Mutual so that the court could determine how much was owed by whom. For some inexplicable reason, though, the plaintiff objected to the petition to intervene, which the court denied, and insisted that the attorneys' fees were damages recoverable from the defendant for breaching its contract to procure insurance. Of course, this contention was ludicrous, because the required insurance had not only been purchased, it had fully indemnified the plaintiff. Nonetheless, the plaintiff somehow convinced the district judge to enter summary judgment in its favor, and we appealed. The Court of Appeals had little trouble seeing things our way, and reversed the judgment, entering judgment in our client's favor.

6. Workers' Compensation Lien—Court Had No Authority To Reduce Lien.  Sanctions—Opposing Counsel's Frivolous Motion Warranted Sanctions

Fremarek v. John Hancock Mut. Life Ins. Co., 651 N.E.2d 601 (Ill.App. 1st Dist. 1995)

The plaintiff settled his personal injury suit against the defendant, and then filed a motion to "adjudicate" Liberty Mutual's workers compensation lien to zero. The plaintiff did not give proper notice of this motion to Liberty Mutual, and Liberty Mutual was not present at the hearing. When the judge asked plaintiff's counsel what authority he had to adjudicate the lien, counsel said the statute provided that a lienholder cannot recover more than one-third of the net amount distributable to the plaintiff. The statute contains no such provision, however. The judge reduced the lien to one thousand dollars. The plaintiff then mailed a check for one-thousand dollars to Liberty Mutual, specifying in the memo portion of the check that it was full satisfaction of the lien. Liberty Mutual cashed the check, but upon realizing that the court had reduced its lien, retained us to get the adjudication vacated and the lien restored. The plaintiff objected to the motion on the grounds that by cashing the check, Liberty Mutual had entered into an accord and satisfaction. Because of the vigorousness of the plaintiff's resistance, we also moved for attorneys fees under Supreme Court Rule 137. The trial court vacated the adjudication and entered judgment in Liberty Mutual's favor for the full amount of the lien, but denied our petition for attorneys' fees. Both sides appealed. The Appellate Court affirmed the judgment in favor of Liberty Mutual on the lien, but reversed the denial of our petition for sanctions, holding that the trial judge abused his discretion in denying that petition, in light of the egregious conduct of plaintiff's counsel.

7. Village Electrical Contractor Owed No Duty To Motorists To Redesign Traffic Light Sequence

Ellison v. Village of Northbrook, 650 N.E.2d 1059 (Ill.App. 1st Dist. 1995)

This was an appeal from a dismissal on the pleadings of an action by an injured motorist against a municipality and an electric company that maintained a traffic light in the village. The plaintiff alleged that the defendants were negligent in designing and maintaining the traffic light, in that it permitted northbound traffic to turn left on an arrow when southbound traffic still had a green light. The trial court held that our client, the electric company, had no duty to decide the sequencing of the lights, and the village was immune from liability for its decisions about that sequencing. The Appellate Court affirmed.

8. Jury Selection—Judge Did Not Err In Disallowing Plaintiff's Third Peremptory Challenge Of An African-American Venireman

Haschke v. Uniflow Mfg. Co., 645 N.E.2d 392 (Ill.App. 1st Dist. 1994)

This was the plaintiff's appeal from a judgment entered on a defense verdict in a product liability case. I was also trial counsel in this case. The plaintiff contended that she was denied a fair trial because the trial judge, on his own motion, conducted an in-chambers hearing to determine if the plaintiff had a legitimate, non-discriminatory reason for exercising a third peremptory challenge to an African-American venireman, then disallowed the challenge when he was not satisfied with the plaintiff's explanation. We contended that the judge's disallowance of the challenge was harmless error. The Appellate Court agreed, and affirmed.