Brad Purcell gave a presentation in Michigan on September 7 for an insurance client regarding changes in the Federal Rules of Evidence. Amendments to the rules that take effect on December 1, 2017, will make self-authentication of data copied from electronic devices easier. With a growing number of cases involving amateur cell phone video, surveillance video, and bodycam or dashcam video, it is important for attorneys and clients to be prepared for these changes.
Tom Underwood and R.J. VanSwol obtained summary judgment in favor of a general contractor’s insurer and against a subcontractor’s insurer in a declaratory action concerning allocation of an underlying construction injury settlement. The subcontractor’s insurer had argued that its policy language reduced the liability limits available to the general contractor as an additional insured and had claimed that the insurance requirements in the subcontract were ambiguous. The Cook County court rejected the arguments of the subcontractor’s insurer, holding that the subcontract imposed “a floor, not a ceiling” when calling for “not less than” a given amount of coverage. This judgment continues a recent streak of recovering over $15 million in judgments and settlements for insurers that have been forced to step in and protect their insureds when other carriers are reluctant to acknowledge coverage.
R.J. VanSwol obtained judgment on the pleadings in favor of a restaurant’s insurer on the grounds that it owed no coverage to a delivery driver in an underlying suit based on an auto accident with a pedestrian. The DuPage County court agreed with P&W’s arguments that the restaurant’s auto liability policy did not apply because the driver was not an insured under the policy while using a car that he or a member of his household owned, and that even if he had qualified as an insured under the restaurant’s general liability policy, the auto exclusion in that policy would have precluded coverage for the alleged accident.
Tom Underwood, Mike Sanders, and R.J. VanSwol obtained an appellate ruling in favor of an attorney who was alleged to have breached a fiduciary duty by representing his wife, who was also a lawyer, in a suit against the law firm she was leaving. The alleged successor to the firm and another partner claimed that P&W’s client had also represented the firm during its organization process. The trial court granted summary judgment to P&W’s client on the basis that the plaintiffs had not shown how his representation of his wife had proximately caused the plaintiffs damages, as any other attorney could have taken his wife’s case. The First District of the Illinois Appellate Court affirmed on the alternative ground, argued by P&W, that collateral estoppel precluded the plaintiffs’ argument that P&W’s client had ever had an attorney–client relationship with his wife’s former firm, and that the plaintiffs could not prevail on their claims because he had no duties to the firm. Depke v. Kitzinger, 2017 IL App (1st) 163336-U.
Defendants have long been wary of several counties in Illinois that have a reputation for plaintiff-friendly courts and juries. These venues include Cook County, home to Chicago and many of its suburbs, and Madison and St. Clair Counties, immediately across the Mississippi River from St. Louis. These three counties shared the dubious distinction of ranking #6 on the American Tort Reform Foundation’s 2016–17 Judicial Hellholes list.
But on September 21, 2017, the Illinois Supreme Court provided a new tool for out-of-state defendants seeking to avoid litigating cases in these counties (or any others in Illinois) where the facts of the litigation bear no relationship to the plaintiff’s chosen venue. In Aspen American Insurance Co. v. Interstate Warehousing, Inc., 2017 IL 121281, Aspen’s insured, Eastern Fish Company, stored fish products in Interstate’s refrigerated warehouse near Grand Rapids, Michigan. A portion of the warehouse roof collapsed, causing an ammonia leak that contaminated Eastern’s fish. Aspen paid Eastern for its lost fish and brought a subrogation suit against Interstate in Cook County, Illinois. Although Interstate had another warehouse in nearby Will County, Illinois, Interstate was incorporated and headquartered in Indiana.
The court explained the difference between specific personal jurisdiction, which exists when the plaintiff’s claims arise out of the defendant’s contacts with the forum state, and general personal jurisdiction, which can exist even if the defendant’s conduct at issue in the suit occurred entirely outside the forum state. Id. at ¶ 14. Aspen claimed that the Will County warehouse sufficed to subject Interstate to general personal jurisdiction in Illinois because it showed Interstate had “continuous and systematic” contacts with Illinois and was “doing business within” Illinois. But Interstate said the Will County warehouse did not establish that Interstate was “at home” in Illinois, citing the United States Supreme Court’s decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014).
The Illinois Supreme Court agreed with Interstate, reversing the denial of Interstate’s motion to dismiss. It noted that Interstate was “at home” in Indiana and did not have sufficient contacts to make it “essentially at home” in Illinois as well, or to make Illinois a “surrogate home.” As Daimler noted, “A corporation that operates in many places can scarcely be deemed at home in all of them.” Aspen at ¶ 19 (quoting Daimler, 134 S.Ct. at 762 n.20). The Illinois Supreme Court further held that under the Daimler test, the “doing business” section of the Illinois “long-arm” statute, 735 ILCS 5/2-209(b)(4), cannot constitutionally be applied to establish general jurisdiction where the defendant’s contacts have not rendered it “essentially at home” in Illinois. Aspen at ¶ 21. A corporation’s mere registration with the Illinois Secretary of State to transact business under 805 ILCS 5/13.05 or its maintenance of a registered agent in Illinois under § 5.05 likewise did not establish general personal jurisdiction. Id. at ¶¶ 23–27.
The United States Supreme Court has issued further decisions that confirm the Aspen court’s interpretation of Daimler, such as BNSF Railway Co. v. Tyrell, 137 S.Ct. 1549 (2017), holding that a Montana court could not exercise general jurisdiction over a railroad in a FELA suit based on injuries allegedly sustained outside Montana, and Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S.Ct. 1773 (2017), holding that where a California court lacked general jurisdiction over the defendant, it also could not assert specific jurisdiction over nonresident plaintiffs’ products liability claims. The Aspen case indicates that such jurisdictional decisions may have lasting effects on plaintiffs’ attempts to take advantage of reputedly friendly venues with no real connection to the defendants or to the plaintiffs’ claims.
A plaintiff is injured when the defendant’s motor vehicle swerves suddenly across a highway centerline and strikes the plaintiff’s vehicle. The case seems to be one of open-and-shut liability: the plaintiff was injured through no fault of her own. However, an injury is not necessarily evidence of negligence, and the occurrence of an accident does not automatically entitle a plaintiff to a recovery. Some accidents are simply beyond the power of human intervention to prevent. For this reason, Illinois recognizes an act of God as an affirmative defense and basis for summary judgment.
An act-of-God defense applies when an unforeseeable and sudden illness renders a defendant incapable of controlling his vehicle and precludes liability for a resulting collision. In such rare circumstances, the loss is not recoverable because it “is occasioned exclusively by natural causes such as could not be prevented by human care, skill[,] and foresight.” Evans v. Brown, 399 Ill.App.3d 238, 246 (4th Dist. 2010); Grote v. Estate of Franklin, 214 Ill.App.3d 261, 271 (2d Dist. 1991) (holding an unforeseeable sudden illness that renders a defendant incapable of controlling his or her vehicle is an act of God and can preclude liability for a resulting collision). The defense applies most often when the defendant driver experiences a seizure, loss of consciousness, or death before his vehicle causes the plaintiff’s loss. However, even when the defense can show that defendant driver suffered a sudden loss of control due to a condition of health, the act-of-God defense does not automatically preclude liability. Liability is only precluded if the asserted act of God was wholly unforeseeable and actually constitutes the sole and proximate cause of the claimed loss.
In short, the act-of-God defense applies in circumstances that where the defendant can be viewed as free of negligence. Thus, the requirement that the loss of control be unforeseeable means that liability may still attach for the driver who operated a motor vehicle with the knowledge that he has a medical condition that can cause him to lose control of his vehicle even when the condition was asymptomatic and the onset of the debilitating symptoms was sudden and unexpected. Burns v. Grezeka, 155 Ill.App.3d 294, 299 (2d Dist. 1987) (reversing summary judgment in part on grounds that defendant driver may be deemed negligent for driving with an abdominal aneurysm, which had been present for two or three years, even though his doctor testified that he would not have experienced any forewarning of the rupture that the defendant contended cause him to lose control over his vehicle).
On December 1, 2017, Rule 902 of the Federal Rules of Evidence will be amended to ease the burden and expense of authenticating electronic evidence at trial. Rule 902 sets forth the types of evidence that are “self-authenticating.” In other words, no extrinsic evidence (e.g. witness testimony) is needed to lay the foundation for admission at trial.
The new amendments adding Paragraphs (13) and (14) to Rule 902 will permit parties to submit a certification (similar to an affidavit) in lieu of witness testimony to authenticate the electronic evidence. Instead of appearing at trial to testify, Paragraph 13 will permit a witness to attest, by certification, that “[a] record [was] generated by an electronic process or system that produces an accurate result.” Similarly, Paragraph 14 allows “[d]ata copied from an electronic device, storage medium, or file,” to be “authenticated by a process of digital identification, as shown by a certification.” The amendment to Rule 902 will apply to all forms of electronic evidence including video surveillance, social media postings, and internal electronic data.
All certifications “must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed.” Fed. R. Evid. 902(12). Opposing counsel must also be given reasonable written notice before the trial or hearing of the intent to offer the record, and the offering party must make the record and certification available for inspection, so that the opposing party has a fair opportunity to challenge them. Id.
The certifications a qualified witness executes must contain the same information as would be presented through testimony at trial. Consider, for example, video surveillance that a bank’s camera captured after business hours. First, a bank’s supervisor in the loss control division should state in the certification how he or she has knowledge of the surveillance system’s operations. U.S. v. Rembert, 863 F.2d 1023, 1028 (D.C. Cir. 1988). Second, the certification should explain the method in which the bank surveillance is captured. Specifically, the certification would need information such as the activation and operation of the camera, the procedure for handing and storing the video after it is recorded, the chain of custody of the video, and the fair and accurate representation of the scene depicted. U.S. v. Cejas, 761 F.3d 717, 723 (7th Cir. 2014); U.S. v. Marshall, 332 F.3d 254, 263 (4th Cir. 2003).
Each type of electronic evidence will present its own unique certification. The amendments to Rule 902 are certain to decrease the cost and burden of calling a witness to lay the foundation for electronic evidence at trial. But notwithstanding the amendments to Rule 902, electronic evidence is still subject to a number of other evidentiary objections. Rule 902 seeks only to ease the burden of laying the foundation for electronic evidence at trial.
In a recent trial where our office successfully defended a third-party defendant/employer with respect to a construction accident, the plaintiff objected to the third-party defendant’s presenting evidence of, and cross-examining the plaintiff regarding, the plaintiff’s contributory negligence. The plaintiff had filed a suit alleging construction negligence by the general contractor, who in turn filed a third-party complaint for contribution against the employer. Because our client had waived its Kotecki protections in its subcontract, it was at risk for an amount in contribution that exceeded its considerable workers’ compensation liability. The plaintiff argued that the issue of his contributory negligence was not relevant to the defendant/general contractor’s contribution action. In fact, the plaintiff also moved to sever the third-party action from the plaintiff’s complaint against the general contractor.
Although the court seriously considered the plaintiff’s arguments, we convinced the court to allow the third-party defendant to present evidence of the plaintiff’s contributory negligence. Rule 402 of the Illinois Rules of Evidence provides, “All relevant evidence is admissible, except as otherwise provided by law.” “It is well settled that evidence admitted into a case is available for all purposes, and every party is entitled to the benefit of all evidence whether produced by him or his adversary.” Dudanas v. Plate, 44 Ill.App.3d 901, 909 (1st Dist. 1976). The jury is instructed that it “should consider all the evidence without regard to which party produced it.” Ill. Pattern Jury Instructions, Civil No. 1.01. It therefore makes no difference whether evidence of a plaintiff’s contributory fault is presented by the direct defendant or third-party defendant.
Evidence of the plaintiff’s contributory negligence is obviously relevant to the third-party defendant’s defense because the plaintiff’s fault affects the general contractor’s contribution action against the third-party defendant. If the jury returns a verdict in favor of the general contractor/defendant, there would be no right of contribution against the third-party defendant/employer. Even if the defendant is found liable to the plaintiff, the more the jury finds the plaintiff to be at fault for his own injury, the lower the damages for which the general contractor/defendant is liable and, correspondingly, the lower the amount for which it can seek contribution from the third-party defendant/employer. See Galliher v. Holloway, 130 Ill.App.3d 628, 636 (5th Dist. 1985) (“Questions probative of the issue of plaintiff’s contributory negligence were . . . properly within the scope of third-party defendant’s examination.”). This is shown clearly by the Illinois Pattern Jury Instructions’ jury verdict form used in tort cases, No. 600.14, where the jury is instructed to assign the percentage of the total fault to the plaintiff, each defendant, and the third-party defendant. Naturally, in order to properly evaluate the fault of all parties, the jury must be able to review all evidence of the plaintiff’s negligence.
Our arguments convinced the court to reject plaintiff’s position, and we were allowed to cross-examine the plaintiff and his witnesses with respect to his contributory negligence. Our examination, along with questioning from the general contractor/defendant, persuaded the jury to return a full defense verdict, thereby eliminating any contribution action against our client. This experience is an example not only of the need to be fully prepared for any argument a crafty plaintiff’s attorney may present (no matter how meritless it appears on its face), but also of how cooperation among defendants can lead to successful resolution of trials for all defendants.
King Roy and Aaron LaRue obtained a defense verdict for a construction company after a four-week jury trial in Cook County. The plaintiff, a union ironworker, asked for $16.5 million for various injuries, including Complex Regional Pain Syndrome, ACL/MCL/PCL ruptures, and Adjustment Disorder. The plaintiff put over $4.6 million “on the board” in special damages.
Click here to read R.J. VanSwol’s latest article in the October issue of the Illinois Bar Journal entitled, “The Debate Over Insurance Coverage for Alleged ‘Blast Fax’ Violations.”
Reprinted with permission of the Illinois Bar Journal, Vol. 105 # 10, October 2017. Copyright by the Illinois State Bar Association. www.isba.org