CM Report of Recent Decisions – 2017 Vol. 4

United States Supreme Court Decision Proves That Appellate Practice Is A Minefield Best Navigated By Savvy Appellate Practitioners

The recent unanimous decision by the United States Supreme Court in Hamer v. Neighborhood Housing Services of Chicago, __ U.S.__ (No. 16-58, Nov. 8 2017), illustrates once again the perilous nature of appellate practice, for in this decision the Supreme Court took to task experienced federal appellate jurists for failing “to grasp the distinction” “between jurisdictional appeal filing deadlines and mandatory claim-processing rules.”

2017 DRI Annual Meeting: Appellate Advocacy Committee CLE Panel Presentation Highlights

On October 4, 2017, the DRI Appellate Advocacy Committee presented “Perspectives on the Appellate Practitioner’s Role at Trial and on Appeal: A View from the Plaintiff, the Defense, and the Court.”

Common Law Claim for Intentional Infliction of Emotional Distress in Sexual Harassment Case Preempted By Illinois Human Rights Act

The Seventh Circuit recently took on, and eventually barred, an emotional distress claim for sexual harassment in the workplace in Richards v. U.S. Steel, 88 F.3d 557 (7th Cir. 2017). The Plaintiff could not file a claim under the Illinois Human Rights Act (the Act), so instead filed a common law claim for intentional infliction of emotional distress. The Court threw out the emotional distress claim, because the Act preempted it.

Manufacturing And Selling Are But One Occurrence

Most commercial general liability policies are subject to both an occurrence limit and a higher aggregate limit. Hence, an important question sometimes arises whether a loss or series of losses involves just one occurrence, thereby triggering only the single occurrence limit, or whether it involves more than one occurrence, for which two or more occurrence limits could be available.

Horizontal Exhaustion Applies Where Excess Policies Require Exhaustion Of All Underlying Coverage Before Excess Polices Are Triggered

In Montrose Chemical Corp. of Cal. v. Superior Court, 14 Cal. App. 5th 1306 (Cal. App. 2017), the Court of Appeal of California held that, where excess policies required exhaustion of all underlying coverage before they could be triggered, horizontal exhaustion would apply to determine the manner in which coverage attached.

Second Circuit Enforces Non-Cumulation Clauses In Olin Corp. v. OneBeacon Am. Ins. Co.

In Olin Corp. v. OneBeacon Am. Ins. Co., 864 F.3d 130 (2d Cir 2017) (“Olin IV”), the U.S. Court of Appeals for the Second Circuit held, in an environmental insurance coverage action, that where policies contain “prior insurance clauses”, an insurer may reduce the limits of liability of those policies by the amounts paid by another insurer for the same loss under any prior policy in the same excess layer, rejecting the policyholder position that the prior insurance clause only applied to prior policies issued by the same insurer.

Medical Malpractice Claim Brought Under The Wrongful Death Act Can Relate Back To Existing Claim And Is Not Barred By Statute Of Repose

The Illinois Supreme Court holds that a medical malpractice claim brought under the Wrongful Death Act, 740 ILCS 180/0.01 et seq., can relate back to an existing claim and is not barred by the statute of repose. Lawler v. The University of Chicago Medical Center, 2017 IL 120745.

Hospital Not Vicariously Liable For Acts Of Employees Of Unrelated, Independent Clinic Under Apparent Agency Theory

In a split decision, the Illinois Supreme Court holds that a hospital could not be held vicariously liable under the doctrine of apparent agency for the acts of the employees of an unrelated, independent clinic that was not a party to the litigation. Yarbrough v. Northwestern Memorial Hospital, 2017 IL 121367.

California Supreme Court Holds Landowner Not Liable For Obvious Danger It Does Not And Cannot Control

A landowner’s liability to its invitees hinges on whether or not a duty is imposed by law. But, mere ownership of property does not automatically equate to liability. Rather, in Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, the California Supreme Court recently declined to find a landowner owed a duty to protect invitees from obvious dangers presented by crossing a public street.

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