CM Report of Recent Decisions (2006v3)
2006 Volume 3
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
An Employee In Illinois Cannot Bring A Claim For Retaliatory Discharge Based On Employer's Refusal To Renew A Fixed-Term Employment Contract
In Krum v. Chicago National League Ball Club, Inc., 365 Ill. App. 3d 785, 851 N.E.2d 621 (1st Dist. 2006), the Appellate Court of Illinois, First District, held that an employee could not maintain a retaliatory discharge claim against an employer for its refusal to renew a fixed-term employment contract.
As A Matter Of First Impression, Illinois Selective Tender Rule Does Not Require An Insured To Vertically Exhaust Concurrent Insurance Policies And Deselected Primary Insurers Must Answer For A Loss Before An Excess Policy Must Respond
The Illinois Appellate Court affirmed, finding as a matter of first impression that the selective tender rule does not supersede well-settled principles of Illinois law regarding horizontal exhaustion.
California Supreme Court Holds Assignee Can Recover Brandt Fees
Five Star Dye House, Inc. (Five Star) obtained a judgment against Luis Sanchez (Sanchez). Sanchez then assigned to Five Star his rights against Essex, which had denied Sanchez’s tender of defense. In return, Five Star “agreed to delay execution on the judgment in the underlying action until the claims against Essex for the judgment amount were exhausted.”
California Supreme Court Holds That A Withdrawing Plaintiff Does Not Have To Pay Fees If An Anti-SLAPP Motion Has Not Yet Been Filed
In S.B. Beach Properties v. Richard A. Berti, 2006 DJDAR 9913, the California Supreme Court recently held that defendants who do not file an anti-SLAPP motion before plaintiff’s voluntary dismissal may not recover attorney fees and costs pursuant to California Code of Civil Procedure § 425.16(c).
Clausen Miller Victory Makes New Law: Time Limits For Challenging Arbitration Award Do Not Bar Insurer From Asserting Policy Limits Defense That Was Not Arbitrated
The Illinois Appellate Court recently forged new law in holding that the time limits for moving to vacate, modify, or correct an arbitration award do not apply to an insurer’s policy limits defense that has been reserved from arbitration.
Federal Tort Claims Act: Pursuing Uncle Sam's Deep Pockets By Unlocking The Right Doors
Big recovery opportunities exist for pursing federal tort claims against the United States. This article provides a general overview of the sizeable subrogation and recovery potentials involving “Uncle Sam” and the complexities of developing claims under the Federal Tort Claims Act.
Fifth Circuit Refuses To Recognize Exception To Economic Damage Rule
The Fifth Circuit recently reiterated its longstanding rule: “It is unmistakable that the law of this circuit does not allow recovery of purely economic claims absent physical injury to a propriety interest in a maritime negligence suit.” In re Taira Lynn Marine Ltd. No. 5, LLC, 444 F.3d 371, 377, 2004 AMC 1886, 1888 (5th Cir. 2006), citing Robins Dry Dock & Repair v. Flint, 275 U.S. 303, 309 (1927).
Illinois Appellate Court First District Issues Opinion Protecting The Assets Of Deep-Pocket Defendants In Litigation By Putting Teeth Into Tort Reform Legislation
On August 23, 2006, the Illinois Appellate Court sitting in Chicago, which governs cases tried in Cook County, issued an opinion putting teeth into a piece of tort reform legislation that will protect “deep-pocket” defendants during litigation. In Ready v. United/Godecki Services, Inc., 2006 WL 2434935, the Appellate Court ruled that plaintiffs can no longer settle-out with more culpable parties leaving the “deep-pocket” defendants to bear the brunt of a non-economic (non-medical) damage award. Instead, the “deep-pocket” defendants will now be entitled to have a jury allocate fault to those more culpable settling defendants, protecting the “deep-pocket” defendant from paying the entirety of the damage award.
Illinois Supreme Court Finds Building Owners Must Protect Their Customers From The Negligence Of Others... Even Bad Drivers
In a split decision, the Illinois Supreme Court has held that a premises owner has a duty to protect its invitees from the negligence of third persons and that the imposition of this duty does not require notice of a prior, similar incident of negligent third-party conduct. Marshall v. Burger King Corp., 2006 WL 1703488. This is a substantial change in the law with far reaching implications for premises liability cases.
Nebraska And Oregon Supreme Courts Find In Favor Of Insurers In Two Separate Pollution Cases
The high courts of both Nebraska and Oregon have recently ruled in favor of insurers in two pollution cases, ruling that pollution occurring over 30 years is not "sudden", and that pollution clean-up costs for property owned by the insured are excluded.
No Right Of CERCLA Contribution For Potentially Responsible Parties Who Engage In Voluntary Cleanups
In E.I. DuPont de Nemours and Co. v. U.S., 2006 WL 2474339, the U.S. Court of Appeals for the Third Circuit held that contribution under CERCLA §113 for environmental cleanup costs is not available to potentially responsible parties (PRPs) who engage in voluntary environmental cleanups.
Railroad Subrogation And Third Party Recoveries - "Getting Back On Track"
Railroads ship many commodities, including agriculture, coal, chemicals, and domestic and foreign products. Given the considerable volume of daily rail traffic, there is a large potential for train accidents and derailments. Depending upon the underlying circumstances and causal factors in play, significant subrogation and third-party recovery opportunities may be available.
Retaliation Standard Established By Supreme Court
On June 22, 2006, the United States Supreme Court, in the Burlington Northern Santa Fe Railroad v. White decision, resolved a division of opinion among the Appellate Courts across the country as to what conduct constitutes actionable discriminatory retaliation. The Court also may have expanded the scope of retaliation claims which an employee can bring in the future.
Seventh Circuit Proposes Better Test For Admiralty Jurisdiction But Applies Extension Of Admiralty Jurisdiction Act
In Tagliere v. Harrah’s Illinois Corp., 445 F.3d 1012 (7th Cir. 2006), the Seventh Circuit was called upon to decide whether a personal injury claim involving a casino boat patron’s fall from a slot machine stool fell within its admiralty jurisdiction or whether it would be governed by Illinois tort law and accordingly be time barred.
In Fiess v. State Farm Lloyds, the Texas Supreme Court addressed the Fifth Circuit’s certified question asking whether “the ensuing loss provision contained in Section 1-Exclusions, part 1(f) of the Homeowners Form B (HO-B) insurance policy, … when read in conjunction with the remainder of the policy, provides coverage for mold contamination caused by water damage that is otherwise covered by the policy …” 2006 WL 2505995 (Tex.). The Court answered this question in the negative stating: “…[W]e cannot hold that mold damage is covered when the policy expressly says it is not.”
