CM Report of Recent Decisions (2007v2)
2007 Volume 2
A summary of significant recent developments in the law focusing on substantive issues of litigation and featuring analysis and commentary on special points of interest.
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Articles in this report
Carbon Monoxide Is A Pollutant In Iowa, But Not Wisconsin
Recently the courts in two mid-western states had the opportunity to consider whether carbon monoxide constitutes a “pollutant” so as to exclude carbon monoxide based claims under the absolute pollution exclusion. The result is that carbon monoxide is a “pollutant” in Iowa but not in Wisconsin.
Defense Costs May Be Recovered If Insurer's Obligation To Defend Arises Solely Out Of Court Order
The Illinois Appellate Court, First District implicitly creates an exception to the Illinois Supreme Court’s prohibition against an insurer’s right to reimbursement of defense costs incurred for uncovered claims. Steadfast Ins. Co. v. Caremark RX, Inc., 2007 WL 1485900 (Ill. App. 2007).
Florida Appellate Court Holds Insureds Established Actual Total Loss And Certifies Valued Policy Law Question To Florida Supreme Court
Florida’s First District Court of Appeal recently held that the insureds presented evidence necessary to establish that the damage to their home caused by Hurricane Ivan constituted a “total loss” under Florida’s Valued Policy Law. State Farm Florida Ins. Co. v. Ondis, 2007 WL 1385958 (Fla. App. 1 Dist., 2007). The Ondis court also certified to the Florida Supreme Court an issue which it had previously certified in October, 2006 in Florida Farm Bureau Cas. Ins. Co. v. Cox, 943 So.2d 823 (Fla.App. 1 Dist. 2006): whether Florida’s Valued Policy Law requires an insurance carrier to pay the face amount of its insurance policy when the insured property is primarily damaged by an excluded peril.
Cinergy, a power company being sued by the United States, three states, and several environmental organizations pursuant to the federal Clean Air Act and similar state statutes, sought to determine the extent of insurers’ obligations with respect to defense costs being incurred in the federal suit. Affirming the denial of Cinergy’s motion for partial summary judgment, the court held that the insureds’ costs to install government mandated equipment to reduce future emissions of pollutants and to prevent future environmental harm were not caused by an “occurrence” and thus not within policy coverage. Cinergy Corp. v. Associated Elec. & Gas Ins. Services, Ltd., 865 N.E.2d 571 (Ind. 2007).
Insured Fails To Prove Covered Advertising Injury Under Liability Policy
In Federal Ins. Co. v. Symons Corp., 2007 WL 689679 (Cal. App. 1 Dist.), the California Appellate Court, First District found that damages arising from a false advertising claim did not fall within the terms of a liability policy and thus, the insurer had no duty to indemnify the policyholder.
Recent Amendment to Illinois Wrongful Death Act Expands Scope Of Recoverable Damages To Include Grief, Sorrow And Mental Anguish
Illinois Governor Rod Blagojevich recently signed into law an amendment to the Illinois Wrongful Death Act, 740 ILCS 180/2, expanding the scope of recoverable damages to expressly include for the first time the grief, sorrow and mental anguish suffered by surviving spouses and next of kin. Under the prior version of the Act, juries were permitted to award only damages for the “pecuniary injuries” resulting from the wrongful death of a family member, but the emotional aspects of such death were not compensable.
Rental Car Company And Its Security Guard Company Found Not Liable For An Accident Involving A Stolen Rental Car
In Phillips v. Budget Rent-A-Car Systems, Inc., 372 Ill.App.3d 155, 864 N.E.2nd 709 (1st Dist. 2007), the Illinois Appellate Court, First District, held that an accident involving a stolen vehicle from defendant Budget Rent-A-Car Systems, Inc. (“Budget”) was not foreseeable to the company, and defendant Ranger Security, Inc. (“Ranger Security”) did not owe a duty of care to the plaintiff. The court further held that plaintiff’s injuries were not proximately caused by the breach of any duty.
Spotlight on Winning Litigation Strategies: Ed Ozog Obtains Summary Judgment on Behalf of Target Defendant in 69 W. Washington Case
At approximately 5:00 p.m. on October 17, 2003, workers smelled something burning in the Illinois Secretary of State’s Business Services Office (“BSO”) on the 12th floor of the Cook County Building at 69 W. Washington Street, Chicago, Illinois. A BSO employee alerted others when she saw smoke coming from a storage room on the south side of their tenant space. One female employee went to the storeroom and peeked in for one to two seconds. Amidst the black smoke at ceiling level, she saw flames “right where the light generally is.”
