The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Illinois Supreme Court Debates Scope of Accountant-Client Privilege in Will Contests

By Kirk Jenkins on Posted in Illinois

15175613578_5b2705e2a3_zLast week, the Illinois Supreme Court heard oral argument in Brunton v. Kruger.  Brunton involves the scope of the accountant-client privilege – specifically, what happens to that privilege after the client dies, and how the privilege can be waived.  Our detailed summary of the facts and lower court opinions in Bruton is here.

An accounting firm assisted a couple with estate planning.  As part of that process, both spouses of an elderly couple executed a will and trust.  The wife’s will was admitted to probate, and provided that most of her property would be distributed through a Trust.  The Trust provided that one son would get the entirety of the family farm, and everything else would be distributed to the three sons equally.  The testator’s daughter filed a will challenge, alleging undue influence by one of the sons.  The sons, who were defending the will, subpoenaed all the estate documents from the accountants.  The accountants provided the documents.  Not long after, the daughter subpoenaed the estate planning documents from the accountants too.  The accountants refused to produce the documents to the daughter, asserting the accountant-client privilege.  When the daughter moved to compel production, the trial court held that the sons had waived the accountant-client privilege.  Counsel for the accountants declined to produce the documents, inviting a finding of friendly contempt in order to render the production order appealable.  The Appellate Court affirmed the order of production, holding that (1) by analogy to the attorney-client privilege, any privilege was automatically waived in a will contest; and (2) the privilege was held by the estate, and had been waived by the sons’ subpoena.  The Court vacated the finding of contempt, finding that counsel had declined to produce the documents in good faith in order to facilitate an appeal.

Counsel for the appellant (the attorney in the lower court for the accountants) began by arguing that the Court should affirm the vacating of the contempt order regardless of whatever else the Court decided.  Counsel argued that the statute was clear and unambiguous.  Both the respondents and the Appellate Court had likened the accountant-client privilege to a common law privilege.  But the case involves a statutory privilege with no exceptions, counsel argued.  The issue couldn’t be determined by conjecture as to what the legislature meant, but rather by construction of the actual language used.  Because the accountant-client privilege is statutory, counsel argued that it could only be expanded or contracted by the legislature.  Justice Theis whether an accountant could waive the privilege without the consent of the client, and counsel said that the accountant was the holder of privilege, and could choose to waive it.  Justice Theis asked whether that meant that a client who came to the accountant with confidential information had no control over it.  Counsel answered that clients gave information to their accountants with the understanding that it would be held in confidence pursuant to the privilege.  Unless the accountant chose not to hold it in confidence, Justice Theis noted.  Counsel answered that whether to maintain the privilege was up to the accountant as the holder.  Justice Thomas asked whether the executors could waive the privilege.  Counsel responded no – production to the attorney for the estate was not a waiver, since the estate was not adverse to the accountants’ deceased clients.  Chief Justice Garman asked whether counsel would argue that there was no testamentary exception, despite the parallel between an attorney’s role in estate planning and the role of an accountant.   Counsel said that was correct.  Although the First District had commented that it was unclear what the accountant’s interest in secrecy might be, the Court also noted that it was not the Court’s purpose to rewrite the statute.  In fact, counsel argued, the statute was clear and unambiguous, and didn’t have an exception.  There was no basis for finding that the accountants had waived the privilege, either expressly or by implication.  Counsel concluded by asking the Court to affirm the vacation of the contempt finding, but to otherwise reverse, holding that the accountants held the privilege and had not waived.

Counsel for the executors followed, arguing that the Court should affirm the lower court and order production.  Counsel argued that the client of the accountant holds the privilege.  Full disclosure by individuals is promoted by finding that the privilege is held by the clients, not the accountant, counsel argued.  Justice Thomas asked whether there was any significance to the fact that it’s called the accountant privilege.  Counsel answered that it’s not called that in the statute.  After death, counsel argued, when there is a dispute about the validity of the will, the scales tip in favor of disclosure.  Alternatively, counsel argued, even if the accountants hold the privilege, it was waived when they chose to respond to the executors’ subpoena.  Justice Karmeier noted that there had been a comment in the argument suggesting that the executors could have directly disclosed certain documents.  Were there other documents at issue?  Counsel answered yes.  Justice Karmeier asked whether the executors could have disclosed those documents to the daughter.  Counsel answered that the daughter had subpoenaed documents from the executors, and that subpoena was still pending.  Justice Karmeier asked whether the executors had an obligation not to disclose those documents.  Counsel answered that if the Court holds that the privilege belongs to the accountants, the executors’ disclosure would be over their privilege.

Counsel for the daughter challenging the will was next, and argued that the subpoena had nothing to do with certified financial statements.  Justice Thomas asked whether the statute made any exception for testamentary disputes.  Counsel agreed that was so, but argued that the statute doesn’t apply to estate planning activities.  In addition to testamentary intent, the subpoena involved issues of who was in attendance during certain conversations.  The Chief Justice asked whether the privilege belonged to both the accountant and the client.  Counsel answered that it belonged only to the client.  Justice Thomas asked whether the evidence being sought was obtained by the accountant in a confidential capacity.  Justice Thomas asked whether the statute would have been the place to provide a testamentary intent exception if the legislature had intended that there by one – would the Court be revising the statute to exclude such evidence?  Counsel said no, that the specific purpose of the statute was to protect the ability to certify financial statements.  There was no such dispute here.  The privilege was waived both expressly and impliedly, counsel argued.  Because the accountants were not a beneficiary of the estate, they had no common interest with anyone, and production affected a waiver.

Counsel for the accountants concluded with rebuttal.  Counsel argued that the proposition that estate planning was not within the scope of the Act was a nonstarter.  The legislature simply didn’t add a testamentary exception, and that was the bottom line, regardless of whether one considered that result unwise, unjust or absurd.  Opposing counsel had argued for harmonizing Illinois law with other states, but counsel argued that that wasn’t possible – there were sixteen different state statutes, and some expressly gave the privilege to the client.  Counsel argued that the Court should uphold the statute as written, and not worry about sixteen other states with sixteen different laws.  Counsel argued that there has been no waiver, either express or implied.  Counsel closed by asking that the Court reverse in all respects, with the exception of the Appellate Court’s vacation of the contempt order itself.

We expect Brunton to be decided in three to four months.

Image courtesy of Flickr by Sean (no changes).

Illinois Supreme Court Debates Scope of Tort Duty for Insurance Agents

By Kirk Jenkins on Posted in Illinois

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Last week, the Illinois Supreme Court began hearing arguments from its civil docket with Skaperdas v. Country Casualty Insurance Company.  Skaperdas poses a major question for the insurance industry: does a “captive” insurance agent who only represents a single insurer owe customers a tort duty of care in obtaining insurance?  Our detailed summary of the facts and lower court opinions in Skaperdas is here.

In early 2008, shortly after the plaintiff’s girlfriend had had an accident driving one of his vehicles, the plaintiff allegedly had a conversation with his insurance agent and told the agent to add both his girlfriend and her son to his policy.  For whatever reason, something went wrong; the declarations page identified the driver as a “female, 30-64,” but the policy listed only the plaintiff as a named insured.

Not long after, the girlfriend’s son was seriously injured in a bicycle accident.  When the negligent driver turned out to be underinsured, the plaintiff and his girlfriend sought benefits from the plaintiff’s policy. The claim was denied on the grounds that neither the girlfriend nor her son was named insureds.

The plaintiff sued the insurance agent for negligence, and sought a declaration of insurance coverage with respect to the defendant insurer.  Both defendants moved to dismiss, arguing that since the defendant was an “agent,” not a “broker,” he owed the plaintiffs no duty of care under the Insurance Placement Liability Act.  (735 ILCS 5/2-2201(a).)  The Fourth District reversed, holding that there was no difference between agents and brokers under the statute for purposes of assigning tort duties.

Counsel for the insurance agent began the argument, arguing that a captive agent owed no duty to his or her customer.  Counsel argued that the Appellate Court had misapplied Section 2-2201, expanding liability and contradicting agency law, the common law and legislative intent.  Counsel argued that no case other than Country Mutual Insurance Co. v. Carr, an earlier decision of the Fourth District (vacated by settlement) which the Fourth District followed in Skaperdas, had ever held that Section 2-2201 imposes any tort duty on a captive agent.  The Appellate Court disregarded the rule that the legislature is presumed to act in view of the common law, which at the time Section 2-2201 was enacted, had long drawn a distinction between captive agents and independent brokers.  The principal of a captive agent is the insurer, not the insured.  Section 2-2201 can and should have been interpreted consistently with the common law to keep in place the long-standing distinction between captive agents and brokers. Justice Theis asked when the legislature first used the term “insurance producer.”  Counsel responded that the legislature had used the term in the Act, but had not defined it until 2001 – therefore, one must assume the legislature was informed by the common law in using the term. Justice Theis asked when the term was placed in the statute, and counsel answered 1997.  Justice Theis asked whether one could argue that the legislature knew exactly what it was doing when it amended the Insurance Code.  Counsel responded that there was nothing in the Insurance Code that showed an intent to change the common law.  The question was what was the legislative intent in 1997, when it inserted the relevant language.  Justice Thomas asked whether plaintiff had any cause of action available as a result of the agent’s apparent mistake.  Counsel responded that plaintiffs were pursuing claims for breach of contract and declaratory judgment.  Justice Thomas asked whether there was a breach of fiduciary duty claim, and counsel answered no.  Nevertheless, plaintiffs were not left without a remedy.  Counsel argued that clear and convincing evidence of intent was necessary to support a finding that the common law had been changed to expand liability.  The intent of the statute was remedy breaches of fiduciary duty – but captive agents don’t have fiduciary duties.  Counsel also pointed out that Section 2-2201 had been proposed by the independent agents association, which would have no reason to seek expanded liability.  Justice Karmeier asked whether the Court would have to conclude that the statute was ambiguous to reach any of these points, and counsel said yes.  Justice Karmeier asked whether the Court could look at the Insurance Code together with the relevant provisions of the CCP and conclude that the statute is clear.  Counsel answered that that would amount to going outside the plain language of the statute, and the Court would have to first find ambiguity.  Counsel argued that the Fourth District’s holding would encourage insureds not to confirm their own coverage, and when something went wrong, to pursue their agents.  Counsel argued that under the Appellate Court’s holding, it might even be possible for a captive agent to be sued for failing to offer coverage from other companies.  Justice Theis noted that that wasn’t the plaintiffs’ theory.  Counsel agreed, but argued that it was the inevitable outcome of the Fourth District’s holding.

Counsel for the insurer followed, adopting the arguments made by counsel for the agent.  Counsel argued that nothing in the statute suggested liability for the insurer, but because of respondeat superior, that was the result of finding liability for the agent.  Counsel argued that the Fourth District’s construction of the statute disadvantages captive agents, since a broker could not render the insurer liable under respondeat superior.

Counsel for the plaintiffs followed.  Counsel argued that the “absurd results” discussed by appellants weren’t what the plaintiffs were alleging.  Without a negligence cause of action, counsel argued that the plaintiffs would have no recourse against the agent for his error. Chief Justice Garman asked whether the case was a statutory interpretation matter.  Counsel agreed that it was based on the question of who was an “insurance producer” under the Insurance Code.  The Chief Justice asked whether the statute was ambiguous, and counsel said it was not.  Counsel said plaintiffs were merely arguing for a standard of ordinary care – simply give the plaintiff what he asked for.  Justice Thomas asked whether counsel was suggesting that the parade of horribles urged by defendants was impossible, and counsel said yes.  The first step in statutory construction is the plain language of the statute, and Section 2-2201 merely refers to insurance producers, making no distinction between agents and brokers.  Practically speaking, counsel argued, the public interacts with both types of insurance representatives in similar ways. The Chief Justice asked whether the legislature intended in 1997 to abrogate the common law distinction between agents and brokers, and counsel answered yes.

Counsel for the agent concluded in rebuttal, arguing that the parade of horribles is inevitable if Section 2-2201 is interpreted to create an ordinary duty of care in placing coverage.  Counsel argued that the insured is obliged under the law to seek an explanation if he doesn’t understand the scope of his coverage.  The legislature’s action in 1997 could not be interpreted using a definition the legislature didn’t adopt until 2001, according to counsel.  Justice Theis asked whether there was a statute before 1997, and counsel said there was no statute specific to insurance placement liability.  Justice Thomas asked whether any negligent conduct by a captive agent is absolved, and counsel answered that the agent is responsible only if he or she fails to submit the application.  Justice Thomas asked whether a breach of contract action would cover the agent’s alleged failure to include the additional insureds, and counsel said no.  Nevertheless, the plaintiffs’ claim for breach of contract against the insurer continues.  Thus, plaintiffs are not left without a remedy.  Counsel pointed out that interpreting Section 2-2201 to create a tort duty would create an inherent conflict of interest between a captive agent and his insurer, if the agent is to have a tort duty to the insured or prospective insured.  Thus, the Appellate Court’s decision will require a comprehensive overhaul of the industry.  Justice Thomas asked whether such conflicts exist between insurers and brokers, and counsel said yes.  Justice Thomas pointed out that the only difference was that an agent could only deal with a single insurer.  Counsel responded that the difference was that customers went to brokers because they’re independent, and can source insurance from any number of insurers. If the insured goes to a captive agent, the insured knows the agent is only going to offer what his or her company has.

We expect Skaperdas to be decided in four to six months.

Image courtesy of Flickr by Alan Cleaver (no changes).

A Different Kind of Blog – Decision Analytics Comes to Appellate Law

By Kirk Jenkins on Posted in Announcements

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Academics in various disciplines have been developing sophisticated tools for analyzing the dynamics of group decision making for many years.  The leading figures in this research have been mostly law and politics professors, along with a number of economists, and their methods have included data analytics, game theory, organization theory and behavioral economics, to name just a few.

Although these tools have become increasingly common in the business world, they’re not especially well known in the appellate bar.  And that’s odd, because much of this research speaks directly to the essence of what we do as appellate lawyers.  All litigators are in the business of persuading judges.  But trial lawyers, with few exceptions, are tasked with persuading one decision maker at a time.  Appellate lawyers face a different challenge – persuading a majority of a panel – typically anywhere from three to seven, or once in a great while nine or more judges.  Understanding both the preferences of the decision makers, and what internal and external influences might constrain them from acting on those preferences, is a key concern.

Today, we at Sedgwick announce the founding of our second appellate blog, the Illinois Supreme Court Review.  We founded ISCR to bring the power of data analytics, and ultimately other academic tools for studying group decision making, to the rigorous study of the decision making of the Illinois Supreme Court.

The Review will be a different kind of blog.  For the past several years, authorities on the future of social media have been predicting that it’s only a matter of time before the rigorous scholarship that has been published in law reviews for generations begins to transition to blogs.  We think that evolution is inevitable, and we hope to contribute to it with the empirical research we’ll be posting at the Review.

So while the conversation about last week’s appellate arguments or yesterday’s new opinions continues here, over at the Review we’ll take a longer-term view, seeking new insights into the Court’s decision making in civil litigation based upon the entire span of what one might call the Court’s recent history, from 2000 to today.  Our analysis will rest on a foundation of an enormous data library, encompassing dozens of data points from each of the more than six hundred civil decisions the Court has handed down during our period of study.

Image courtesy of Flickr by Anne Swoboda (no changes).

Illinois Supreme Court Debates Starting Point for Appeals Clock

By Kirk Jenkins on Posted in Illinois

 

Can an oral order apparently disposing of all post-trial motions start the appeals clock running when the trial court is still considering a post-trial motion for setoff (and may be planning to enter a written order on the post-trial motions)? That’s the question that the Illinois Supreme Court debated in the closing days of its November term in Williams v. BNSF Railway Company. Our detailed report on the underlying facts and lower court opinions in Williams is here.

Williams arises under the Federal Employers’ Liability Act. Following a jury trial, the plaintiff was awarded judgment. In April 2012, the trial court issued an oral ruling denying all post-trial motions. Although the court suggested that a written order would be forthcoming, none was ever entered. This left only a motion for setoff pending. The defendant filed an emergency motion for leave to file supplemental authority the following month. During a June 1 hearing, the Court again stated that the post-trial motions had already been denied, but ultimately agreed to consider the new authority; a few days later, it reiterated its previous rulings and issued a written order. The order said it was “final and appealable.” The defendant filed its notice of appeal on June 29. The Appellate Court granted the plaintiff’s motion to dismiss defendant’s appeal from the judgment.

Counsel for the defendant began the argument. Counsel argued that Supreme Court Rule 272 exists to remove all doubt as to when the appealable judgment was entered. If the Appellate Court had applied Rule 272 as written, the case wouldn’t be before the Court, counsel argued. Justice Theis asked what the Court should do with the trial judge’s comment in the oral ruling that the court would issue an order in ten days or so. Counsel responded that Rule 272 covers two scenarios. First is when the court indicates that a written signed order will be forthcoming – then the appealable judgment is entered when the signed order is filed. Justice Theis asked whether there was a signed order, and counsel said yes, on June 6. Viewing the record in its entirety, counsel argued, the judge intended the June 6 order to definitively dispose of all post-trial motions. Counsel argued that an oral pronouncement, standing alone, does not start the appeal time running. In this case, that’s all that occurred before the June 6 written order. Therefore, applying Rule 272, the notice of appeal is timely. Counsel argued that appellees insist that Rule 272 only applies to final judgment, not post-trial motions. No case holds that Rule 272 doesn’t apply to post-trial motions, counsel stated, and such a construction would make no sense. Counsel argued that the plaintiff’s entire argument rests on the proposition that Rule 272 only uses the word “judgment,” not “Judgment or order.” The only way to accomplish the purpose of Rule 272 – to eliminate all doubt about the time to appeal – is to apply is across the board to everything. When counsel turned briefly to the plaintiff’s alternative argument that the notice of appeal was premature, Justice Theis noted that there is some discussion of Rule 304(a) – was there a Rule 304(a) finding in the June 6 order? Counsel responded that the June 6 written order disposed of everything left in front of the court. Counsel noted that on June 1, the trial court had directed the parties to return on June 6 and the court would give the parties a record “you can take up.” Counsel closed by noting that if the Court reaches the merits (as opposed to merely disposing of the issue of timeliness of the appeal), defendants ask that the Court reach the interpretation of an indemnity contract. Justice Thomas asked whether there is any reason why the Court shouldn’t ship the substantive issues back to the Appellate Court, if it reverses on timeliness. Counsel answered that judicial economy would dictate disposing of everything. Justice Thomas asked whether plaintiffs believe there are fact disputes involved in the merits issues. Counsel said yes, although the defendants disagree.

Counsel for the plaintiff followed, arguing that the appeal was properly dismissed for lack of jurisdiction. Counsel argued that Rule 272 does not govern the disposal of post-judgment motions given that its plain language refers to “judgments.” Moreover, even if Rule 272 does govern the situation, defendant’s failure to include the docket sheet in the record on appeal prevents the proper application of the rule. The only court action in the case subject to Rule 272, counsel argued, was the judgment entered the same day as the jury verdict. Justice Thomas asked whether the defendant could have appealed the April 18 oral order prior to the written order on June 6, and counsel said yes. The only remaining issue following that order was a collateral issue not impacting the accuracy of the judgment. Counsel argued that it was incumbent on the defendant to appeal from the oral ruling. An oral ruling is entered the moment it is pronounced on the record, according to counsel. Rule 272 modifies that common law rule only for final judgments. Justice Thomas asked whether the plaintiff has any evidence that the oral order was entered of record. Counsel responded that no notation by the clerk was necessary; the common law rule was that the order was entered the moment it was announced. Justice Thomas asked why the plaintiff opposed the defendant’s motion to supplement the record with copies of the law record for the period of the oral order. Counsel answered that it was too little too late. If Rule 272 applies, then it becomes necessary to examine the court’s docket sheet, but defendant failed to include that in the record on appeal. It was well within the Appellate Court’s discretion, counsel argued, to deny a motion to add to the record after the Appellate Court had already decided the case. Justice Thomas asked whether, if the Court disagreed about Rule 272 applying to post-judgment motions, there was any way to avoid the conclusion that the June 6 order was entry of record for purposes of the Rule. Counsel responded that if the defendant was correct that only a written record is sufficient to satisfy the Rule, then the June 6 written order applies to only a couple of orders. Therefore, if the defendant is right, then the appeal still hasn’t been perfected. But plaintiff argues that the defendant’s failure to include the docket sheet in the record precludes application of the Rule. Justice Thomas noted that opposing counsel had seemed to indicate that some strategy was involved in the entry of the orders, and asked whether there was any gamesmanship involved. Counsel answered no – since the oral announcement of the post-trial orders was not subject to Rule 272, it was effective at the moment of announcement.

Counsel for the third-party defendant followed. He argued that the Appellate Court was correct in dismissing, both on grounds of untimeliness and for failure to provide a sufficient record. The April oral ruling was a final decision under Rule 272 based on the record the defendant provided, counsel argued. All that the defendant provided in the record was the April transcript, the June written order, and two June transcripts, and there was no basis for finding appellate jurisdiction based on that, according to counsel. Justice Theis asked what impact the trial court’s statement in the April transcript that it would enter a written order later should have. Counsel answered that it had no impact. Justice Theis asked what should have happened next after the trial court indicated it would enter a written order and didn’t? Counsel answered that the Appellate Court, based on the record before it, was entitled to presume that that’s what happened. Justice Thomas asked how the Appellate Court could reasonably assume that an order was entered when in fact it wasn’t. How could the defendant provide proof that something didn’t happen? Counsel answered that the defendant’s obligation was to provide the law record to the Appellate Court. In its absence, the Appellate Court was entitled to presume that the record was complete and correct. Justice Theis asked what the appeal date would have been if the written order had been timely entered. Counsel responded that the record would reflect a written order ten days after the oral announcement. Justice Thomas pointed out that both plaintiff and the third-party defendant had failed to offer evidence that the April oral order was entered of record, and in fact, it wasn’t. Counsel agreed that was correct. Justice Thomas pointed out that the plaintiff and third-party defendant opposed supplementing the record with copies of the law record. So where doe0s fairness enter into this? Counsel answered that it was the defendant’s obligation to get it right. Justice Thomas asked whether there was something wrong with presuming that an order was entered when everyone knows it wasn’t. Counsel answered that the order was entered at the moment it was orally announced. Justice Thomas explained that he meant the written order. Counsel answered that the bottom line was it was the defendant’s obligation to provide a record to show jurisdiction.

Counsel for the defendant argued in rebuttal that the appellees’ arguments were very similar to what led to the creation of Rule 272. Justice Thomas asked counsel to address the argument that defendant failed to provide an adequate record. Counsel responded that the rules provide that the record on appeal consists of the entire common law record. So that’s what the Circuit Court prepared and submitted. The law record is not typically included by the clerk. The appellees initially moved to dismiss in the wake of the filing of the notice of appeal, but that motion was denied; the appeal was ultimately dismissed by the merits panel. Counsel argued that appellees had taken the position before the Appellate Court that Rule 272 applies to both judgments and post-trial orders, and that accordingly the notice of appeal might be premature (since there had never been a written order with respect to a number of post-trial challenges). Justice Thomas pointed out that that argument rested on the fact that there was no written order following the April hearing. Counsel agreed, and argued that the defendant had provided the record of everything that happened. If the plaintiff and third-party defendant choose to rely on the April oral ruling to foreclose the appeal, they were obliged to provide a sufficient record to show that it had been entered in the record, as required by Rule 272. Justice Kilbride asked whether the declarations in the record memorializing the April oral ruling had any consequence. Counsel pointed out that those declarations were made on June 1, less than thirty days before the notice of appeal was filed. Counsel argued that the Court should decline to hold that filing a transcript satisfies Rule 272, since a party would be unable to tell when judgment had been filed from the court docket sheet. But if those declarations triggered Rule 272, then the notice of appeal was timely filed.

We expect Williams to be decided in four to six months.

Image courtesy of Flickr by Alexander Boden (no changes).

 

Illinois Supreme Court Debates “Rules of the Road” Orders in Custody Disputes

By Kirk Jenkins on Posted in Illinois

 

It’s become commonplace in domestic relations cases with custody issues, in Cook County and certain other jurisdictions, for the trial court, early in the proceedings, to enter a kind of “rules of the road” order specifying what the parents can and can’t do with the children. The centerpiece of these orders is usually that neither parent can disparage the other to the children, but they typically contain anywhere from five to ten subparts.

But what procedural hurdles does the trial court have to go through before entering such an order? That’s the issue the Illinois Supreme Court debated during its November term in In re Marriage of Eckersall, an appeal from a decision of the First District, Division 3.

Eckersall began in 2013 when the husband filed for divorce and joint custody of three daughters. The wife filed a counter-petition and also sought joint custody, but specifically sought sole custody if the parties couldn’t agree on a joint arrangement. The parties agreed to the appointment of counsel to represent the interests of the children. The children’s attorney submitted a “rules of the road” order, including a non-disparagement clause and seven other categories of conduct that the parents would be barred from engaging in while in the presence of the children. The husband’s attorney asked for minor changes in the draft order, but the wife’s attorney objected to the order from start to finish on the grounds that it infringed on the wife’s right to communicate with and parent her children. The trial court entered the order, and shortly thereafter, the wife filed a notice of appeal, contending that the order was appealable as an injunction.

The Appellate Court disagreed and dismissed the appeal. The order did not purport to adjudicate any substantive issues, the Court noted; it merely controlled the parties’ conduct during the litigation, and automatically dissolved upon entry of a final judgment. The Court concluded that the points on which the wife rested her argument – that the trial court had proceeded without a motion, a supporting affidavit and an order setting forth reasons – actually compelled the conclusion that the result was not an injunction, since trial judges are presumed to follow the law. Nor was the order intended to maintain the status quo, in the Court’s view. Justice Mason dissented, arguing that the order was both substantively an injunction (and therefore appealable) and procedurally defective.

Counsel for the wife began the Supreme Court hearing, arguing that the practical meaning of the Appellate Court’s action was that any trial court could restrict parental rights without the slightest appellate review. Justice Theis asked why the Court should decide the issues presented, given that they were moot (final judgment in the underlying divorce had been entered while the appeal worked its way through the system). Counsel responded that the Court should invoke the public interest exception to mootness. Justice Theis asked what the public interest was if one judge entered a particular order in a single case. Counsel answered that similar orders are entered nearly every day, as a matter of course, without underlying justification. Justice Thomas noted that this was the first time such orders had ever been challenged, so doesn’t it cut against the public interest argument that they’re so common? Counsel responded that there was little time to challenge such orders, since they are in effect only until final judgment. Justice Thomas asked whether that fact too cuts against review – if the order is temporary, its effect is limited. Counsel answered that a divorce case can be the hardest time of all for children, and not having parents available to answer the children’s questions is wrong. Chief Justice Garman asked whether the court must wait until the children have suffered actual harm before entering an order. Counsel answered no, but there must be at least an articulable threat. The Chief Justice asked how that restriction intersected with the courts’ obligation to protect the children. Counsel answered that the courts’ obligations must be balanced against the duty to respect the parents’ rights. The result is that the court must have a hearing and tailor the order to the facts of the case. Justice Karmeier asked whether, if the Court agrees with the wife, any temporary custody order would be immediately appealable. Counsel said no, that some temporary custody orders are not coercive. Justice Karmeier asked what if the order imposed additional terms and conditions on the parents’ interactions with their children. Counsel answered that if there are restrictions in the order, that part of the order is appealable. Chief Justice Garman asked whether there was any restriction a trial court could impose on parties’ conduct that wouldn’t be an injunction. Counsel answered that certain directives, such as setting times that children should be dropped off and picked up, are just declaring the parties’ rights and obligations. The Chief Justice asked what about an order not to disparage the other party. Counsel responded that such an order is an injunction. Chief Justice Garman asked whether there was an attempt to raise the wife’s objections with the Court. Counsel answered that both sides had provided versions of an order they’d agree to, but the wife objected to being barred from answering her children’s questions about the divorce. The Chief Justice asked whether that was in the record, and counsel said no, the court had entered the child representative’s order with one modification suggested by the father.

Counsel for the children spoke next. He argued that no one was denying that the order entered was in the children’s best interest. It was critical to consider the injury that would occur every day if similar orders were barred. The threshold issue, counsel argued, was whether the order was an injunction. In fact, the order was clearly permissible under the Marriage and Dissolution of Marriage Act. Counsel argued that injunctions are an extraordinary remedy, while the language of the order here shows that it was the furthest thing from extraordinary. The order entered was not final, and if any inequity had been found, it could easily have been corrected. Counsel argued that similar orders are entered every day in divorce cases involving children, and they are not intended as injunctions. Counsel argued that there is already an avenue for appeal of such orders by permission under Supreme Court Rule 306(a)(5), and nothing more is needed. Counsel urged the Court, if it felt that something about the order had gone too far, to provide guidance, but not to label the order an injunction.

Counsel for the husband followed, arguing that the appeal was moot. A final judgment for dissolution had been entered before the petition for leave to appeal was ever filed, and the temporary order at issue was no longer in effect. The public interest exception doesn’t apply, counsel argued, for two reasons. First, it applies only to a limited group of people. Second, although it has been in use for years, this case was the first challenge to the order, showing that there was no significant need for the Court’s guidance. Counsel concluded by agreeing with the children’s representative that the order was clearly in the best interests of the children.

Counsel for the wife concluded in rebuttal. He agreed that certain provisions were in the children’s best interests, but for others – such as the bar on answering the children’s questions – that proposition was very much in dispute. Counsel argued that there was no basis for construing only orders based on actual wrongdoing as injunctions. Counsel noted that Rule 306(a)(5) allowed permissive appeal only where an order dealt both with care and custody of the children – there was no grounds for appealing the order at issue. Counsel disputed the notion that the order applied only to a limited class of persons – this order potentially applied to any parent with children. Counsel concluded by noting that a similar order had been challenged in another case which went to the Second District and was ultimately vacated.

We expect Eckersall to be decided in four to six months.

Image courtesy of Flickr by Tori Rector (no changes).

 

Illinois Supreme Court Debates Retroactive Application of Landfill Cleanup Statute

By Kirk Jenkins on Posted in Illinois

 

In 2004, the Illinois legislature amended the Illinois Environmental Protection Act to authorize mandatory injunctions to require cleanups of landfills. But could the courts use the statute to order cleanups of older landfills in cases that were already pending at the time of the amendment? That’s the question the Illinois Supreme Court debated during its November term, hearing oral argument in People ex rel. Madigan v. J. T. Einoder, Inc. Our detailed summary of the facts and lower court opinions in Einoder is here.

Einoder involved a landfill site held in a land trust for the benefit of one of the corporate defendants, which was wholly owned by the defendant husband. The second corporate defendant – 90% owned by the defendant wife – leased equipment and operators to the first corporation for use at the site.

The Attorney General filed suit in 2000 after several citations over the previous five years, alleging open dumping, unpermitted waste disposal operations, development and operation of a solid waste management site without a permit, and various other violations. In a bifurcated trial, the Court first found for the State on most major claims, and later, issued a permanent injunction requiring the defendants to remove the above-grade waste pile, as well as imposing substantial fines. The Appellate Court affirmed, holding that the legislature intended that the 2004 amendments, adopted four years after the case was filed, should apply retroactively.

Counsel for the defendants began. He explained that the case involved two principal issues: (1) the individual liability of a corporate officer for the corporation’s violations of the Environmental Protection Act; and (2) whether the 2004 amendments to the Act imposed a new liability for past actions. Prior to 2004, no mandatory injunctive relief was possible for improper deposit of non-hazardous material (which this was). Counsel argued that the statutory amendment did not clearly indicate any intent to apply retroactively. When the law is silent on retroactive application, Illinois law requires that the court turn to Section 4 of the Statute on Statutes, which requires the court to determine whether the change was substantive or procedural. Counsel argued that Judge Mason had followed the proper framework in dissent, concluding that the amendment could not be applied retroactively. Counsel commended the Court to Justice Stevens’ opinion in Landgraf v. USI Film Products, which he described as a scholarly discussion of why statutes should ordinarily not apply retroactively. If the statute changes the substantive burden on one of the parties, then retroactive application if barred. Counsel argued for a broad definition of what constitutes a “substantive” change – anything which makes a substantial difference to the consequences of a party’s action qualifies. A “procedural” change, in contrast, is limited to the machinery of litigating the suit. A change of penalty is not merely procedural. Justice Burke asked counsel how the fact that the mandatory injunction – which the State insists is a purely procedural change – might cost the defendants as much as $130 million factors in. Counsel argued that analytically, that was relevant to the third step. First, we ask whether the legislature indicated that the statute applied retroactively. If not, we then ask whether the statutory change is substantive or procedural. Even if procedural, then we ask whether the change should nevertheless not be applied retroactively. If the additional burden is significant, even if the change might technically be called procedural, it is unreasonable and unfair to apply retroactively. Counsel argued that this case involved a hill of clean construction debris, all of it non-hazardous. Justice Burke asked whether it was true that there was testimony from the mayor and city officials about removing the hill. Counsel said yes, the mayor had testified that the hill and the landfill shouldn’t be removed because the town wanted to put energy-generating windmills there. Counsel argued that removing the hill of debris would take 48,000 truckloads at a cost of anywhere from $8 to $130 million, depending on the witness. If the defendants are required to peel away the top layer of vegetation on the hill, counsel argued, the result would be an environmental disaster. Chief Justice Garman asked whether a mandatory injunction was always substantive, or it depended on the facts. Counsel argued that it was tempting to say that just one truckload wasn’t a big deal, but 48,000 truckloads were indisputably a substantive change. The Chief Justice said so in this case it’s a substantive change. Counsel responded that the injunction here made a difference between fines only and a massively burdensome multi-million dollar injunction. Counsel then turned briefly to the remedial issue. He pointed out that Landgraf involved an amendment to remedies. The Supreme Court nevertheless held that the change couldn’t apply retroactively. Counsel closed by asking that the Court apply a three-factor definition holding that a statute cannot apply retroactively when it impairs rights a party possessed when he or she acted, imposes new duties, or increases a party’s liability for past acts.

Counsel for the Attorney General followed. Counsel argued that defendants disputed the particulars of the scope of the injunction and its cost, but in fact, that wasn’t the issue. According to counsel, before the lower courts the defendants had assumed that the new statute would apply retroactively, and merely argued that their liability under it should be capped, while before the Supreme Court, they have relied solely on the retroactivity issue. Counsel argued that since the defendants purportedly didn’t challenge the constitutionality of retroactive application, the question became one purely of legislative intent. Even if the legislature hadn’t indicated its intent, counsel argued, the change was procedural. Counsel argued that the legislature indicated its intent that the statute apply retroactively in various ways, including by instructing courts to construe the statute liberally, and by saying it intended to “restore” and “protect” the quality of the environment, while ensuring that violators would bear the costs of cleanup. Justice Thomas pointed out that counsel’s argument – and the Appellate Court’s below – relied on existing provisions of the Act, but the Supreme Court had earlier indicated that only the intent of the amendment was relevant. If the amendment was silent, the analysis continued with the substantive vs. procedural issue. Counsel responded that the real issue was whether the legislature indicated the temporal reach of the statute. The plaintiff was looking at the amended language, counsel argued, but reading it in conjunction with the rest of the Act. Justice Thomas asked counsel if he was saying that the amendatory Act encompasses the Act prior to the amendment, and counsel explained that the amendments had to be read in concert with what they were amending. Justice Thomas commented that it was a little hard to get one’s arms around, the analysis looks to the Act in conjunction with the rest of the Act in order to divine legislative intent, but then looks at the amendment only to classify it as retroactive or prospective. Counsel responded that even if the analysis reached that second step, the amendment merely added a new remedy. Justice Burke asked whether the new section wasn’t more permissive – it uses the word “may,” at the request of the Agency. Counsel agreed. Justice Burke suggested that this was a fairly fact-intensive case, with a landfill that stopped being used prior to the amendment, a remedy that was highly detrimental to the defendant and the Mayor and City Council arguing against the Attorney General’s preferred position. Counsel responded that the Mayor’s opposition to the remedy of removal was irrelevant to retroactivity. Justice Kilbride asked what the scope of the Department’s authority was before the 2004 amendment. Counsel responded that the first case ever questioning the Department’s authority to seek a mandatory injunction was in 2004, so when this case was filed, the State believed a mandatory injunction was possible. Counsel attempted to distinguish Landgraf, arguing that it was about the quintessentially backwards-looking nature of compensatory damages. Mandatory injunctive relief, counsel argued, is forward-looking. Justice Karmeier asked counsel whether he thought the Court would have to overrule prior precedent if it disagreed with the State, and counsel said yes.

When defendant’s counsel rose for rebuttal, Justice Karmeier repeated the question he’d closed the plaintiff’s presentation with: would the Court have to overrule prior precedent to find for you? Counsel responded no, but the Court would have to repudiate most of its leading cases on retroactivity to find for plaintiff. Counsel stated that it was undisputed that the amendment itself does not address the issue of retroactivity. Counsel argued that if it’s permissible to refer to a thirty-year old statutory preamble for the analysis, one might as well discard all of retroactivity analysis, since there will always be something to rely on. The bottom line, counsel argued, is that if a statutory amendment imposes a substantive burden on a party, it can’t apply retroactively. Counsel briefly continued with the issues relating to the defendant wife. Counsel argued that under the cases, if a party doesn’t have active participation in the events at issue, you don’t have personal liability. According to counsel, the wife defendant didn’t do anything approaching enough to justify personal liability under the cases. Justice Thomas suggested that the State would argue that the wife had played a substantial role in decision making. Counsel responded that the contracts said that the price to be charged each truck was determined by the person on site. The wife signed those in a purely ministerial capacity as president of the company.

We expect Einoder to be decided in four to six months.

Image courtesy of Flickr by Mace Ojala (no changes).

 

Illinois Supreme Court Debates Whether Treasurer Needs Appellate Bond

By Kirk Jenkins on Posted in Illinois

 

Although Illinois courts are generally presumed to have subject matter jurisdiction, that rule doesn’t apply when it comes time to review a decision of the Workers’ Compensation Commission. In order to initiate judicial review of a workers comp decision, strict compliance with the steps set forth in the Act are required. One of those steps is to file an appeal bond with the clerk. (820 ILCS 305/19(f)(2).)

But does that rule apply to the Illinois State Treasurer when suing as ex officio custodian of the Injured Workers’ Benefit Fund?

Ordinarily, the purpose of an appellate bond is to protect the prevailing party’s right to the judgment in case the losing party dissipates assets while the appeal is pending (as well as to partially compensate the prevailing party for loss of use of the money). But is there really any risk that the State is going to run out of money?

The Illinois Supreme Court considered these issues during its November term, hearing oral argument in Illinois State Treasurer v. The Illinois Workers’ Compensation Commission. Our detailed summary of the underlying facts and lower court opinions in State Treasurer is here.

The claimant in State Treasurer is a home healthcare provider who fell on the stairs at a patient’s home. Because her employer had no workers’ compensation insurance, the claimant added the Injured Workers’ Benefit Fund as a co-respondent. The arbitrator awarded benefits. The State Treasurer appealed the ruling to the Commission, which affirmed, then to the Circuit Court, which affirmed again, and finally to the Appellate Court. The Appellate Court initially reversed. The plaintiff sought rehearing, arguing for the first time that the Circuit Court (and by extension, the Appellate Court) lacked jurisdiction to hear the appeal. This was so, plaintiff argued, because the Treasurer had failed to file an appellate bond. The Appellate Court agreed, dismissed the appeal and vacated the Circuit Court’s judgment.

Counsel for the Treasurer began the argument. Counsel argued that the Treasurer must defend the Fund against workers’ comp claims in order to hold the employee to its proof. The Treasurer’s role is important because the Fund doesn’t become involved unless the employer is insolvent, or has insufficient funds to have a real stake in the defense. Counsel argued that since the legislature doesn’t guarantee full payment of an award when no appeal is involved, there is no reason to assume the legislature would have been worried about guaranteeing full payment in case of appeal. Counsel argued that the Appellate Court was wrong for three reasons: (1) the state is immune from costs, including bonds, absent affirmative language in the statute – which the Workers Comp Act doesn’t have; (2) Section 19(f)(2) indicates that a bond requirement applies only when an award for payment of money has been entered – and the Treasurer is not immediately liable for any judgment; and (3) the consequences of applying the bond requirement to the Treasurer would be absurd.

Counsel argued that the State’s sovereign immunity could not be overridden by generally applicable language in the Act. Justice Thomas asked how the Court should get past the language of the Act, which appears to unambiguously provide that the Treasurer isn’t exempt. Counsel answered that the plain language of the statute supported the Treasurer’s view, since the bond requirement is only applicable against a party against whom an award is entered. Since the amount payable by the Fund isn’t determined until the end of a fiscal year, the statute doesn’t apply. Chief Justice Garman asked whether the statute was plain or ambiguous. Counsel answered that the language of the Act was plain. The Act provides that no amount is due from the Fund at the time of the award. Various factors determine whether the Fund will be liable for the entire award, including how many claims the Fund has received and how much money remains. Besides, counsel argued, it was clear that government entities appearing before the Commission as employers were exempt from the bond requirement, and it made no sense to exempt government entities which are directly liable while not exempting the Fund, whose liability is only derivative. Counsel argued that the practical consequences of imposing the bond requirement would be absurd as well. Imposing the bond requirement against the Treasurer would upset the legislative scheme by reducing the money available from the Fund for paying awards. Moreover, counsel argued, the bond could never be triggered, since no matter how little money is left in the Fund at the end of the year, a pro rata distribution is made. Justice Karmeier asked whether the bond would be triggered if the legislature zeroed out the Fund. Counsel answered no, since the Act bars relying on any other source of funding. If there is no money in the Fund, the Fund distributes nothing, and the Act is satisfied. Counsel acknowledged that the legislature has diverted money from the Fund in the past, but that was during periods when considerable excess money was in the Fund. It was unlikely that the legislature would divert funds again in the future.

Counsel for the employee followed. He argued that the language of the Act was plain, so there was no need for construction. Justice Thomas asked whether counsel thought there was legislative oversight in this case. Counsel responded that the Fund had been created in 2005, but although the legislature had carved out an exception for Commission employees, it had not exempted the Fund from the bond requirement. Justice Thomas asked whether that would be a matter for the legislature to amend later, if the Court agrees with the employee. Counsel responded that the legislature could amend the statute. Justice Burke asked whether there was language in Section 19(f)(2) supporting a distinction between awards which are presently payable by the Fund and a mere contingent right to later distributions. Counsel said no – the amount of the bond isn’t based on the award, it’s capped at $75,000. Counsel argued that there are many reasons why the employee needed a bond. The legislature might shut down the Fund, or comprehensively reform the system. Counsel argued that failure to carry workers compensation insurance is a criminal act, so every injured employee in this situation is a crime victim. Chief Justice Garman asked whether the Treasurer should take the bond premium out of the Fund, and if not, where the money should come from. Counsel answered that the Treasurer has to pay for the transcript in order to perfect the appeal – if they can pay for that, there must be funds somewhere to pay for the bond premium. Moreover, Supreme Court Rule 305(i) requires the Treasurer to file a bond when an appeal is not taken for the benefit of the general public, and the premiums for those bonds are getting paid from somewhere. The Chief Justice asked what role the Treasurer has other than to hold the Fund and pay it out as required by awards. Counsel answered that the Treasurer is a party to the case. The Treasurer is not analogous to a co-signer – they are jointly and severally liable for the award. Justice Karmeier asked how counsel responded to the Attorney General’s argument that the bond could never be triggered. Counsel answered that if the Fund were entirely closed down, the employee would have the right to proceed against the bond. Justice Karmeier asked whether, in that event, the employee would be better off if all the money in the Fund were diverted. Counsel acknowledged that in some years, Fund payment has been less than 100%. Justice Karmeier asked whether the result – that an employee can get 100% of the award from the bond if the Fund is entirely zeroed out – conflicts with the language in the Act saying that an employee gets a pro rata award if the Fund is depleted. Counsel answered that even if the employee proceeded against the bond, a court would still have to determine the amount owed. Justice Kilbride asked whether the Commission entered an award against both the employer and the Fund. Counsel responded yes.

In rebuttal, counsel for the Attorney General explained that the award was against the Fund only to the extent appropriate under Section 4(d) of the Act. Nothing in the award suggests that the Fund is liable in the same way as the employer. Counsel argued that the joinder provision referenced by opposing counsel merely means that the Treasurer can participate in the case – it doesn’t make the Treasurer fully liable for the award. Counsel argued that there was no basis for opposing counsel’s claim that the employee could proceed against the bond if the Fund were zeroed out.

We expect State Treasurer to be decided in four to six months.

Image courtesy of Flickr by Marko Kudjerski (no changes).

 

Illinois Supreme Court Debates Workers’ Comp Commission and Attorneys’ Fees

By Kirk Jenkins on Posted in Illinois

 

Does the Workers’ Compensation Commission have exclusive jurisdiction over a plaintiff’s claim for breach of an agreement to pay referral fees in connection with two workers’ compensation cases? That’s the question the Illinois Supreme Court debated during its November term, hearing oral argument in Ferris, Thompson and Zweig, Ltd. v. Esposito. Our detailed summary of the underlying facts and lower court opinions in Ferris, Thompson is here.

The plaintiff law firm allegedly entered into a joint representation agreement with the defendant. The plaintiff agreed to undertake certain steps in preparing the litigation, and the defendant agreed to represent the clients before the Workers’ Compensation Commission. When the defendant failed to pay the plaintiff following settlement of the two claims, the plaintiff filed suit.

The defendant moved to dismiss, arguing that the Commission had exclusive jurisdiction over all disputes regarding attorneys’ fees; the plaintiff responded that the Commission’s authority was limited to fees for representing clients before the Commission. The circuit court denied the motion to dismiss, and ultimately found for the plaintiff following trial. The Appellate Court affirmed, holding that the Commission’s authority was limited to fees for representing clients before the Commission.

Counsel for the defendant began. He explained that the two issues at bar were (1) whether the Appellate Court’s determination of the subject matter jurisdiction issue was consistent with the legislature’s intent re fees disputes in workers comp; and (2) whether holding that the Commission had continuing jurisdiction to determine fees collateral to the main award frustrated the intent of the Workers Comp Act to protect workers’ right to prompt compensation. The Second District Appellate Court said requiring this issue to be determined at the Commission would frustrate that intent. Although normally subject matter jurisdiction is presumed, counsel argued that that presumption did not apply under the Workers Comp Act, where the Circuit Court’s jurisdiction was appellate only. The consequence of bringing an action in Circuit Court that belongs at the Workers Comp Commission is that the Court must dismiss in deference to the Commission’s exclusive jurisdiction. Counsel argued that the Workers Comp Act explicitly divests the Circuit Court of its ordinary jurisdiction by providing that any and all disputes regarding attorneys’ fees, including the division of fees, “shall be heard” by the Commission. Counsel argued that the complaint made it clear that this is a fee dispute arising from a workers comp claim, and also attached the workers’ comp complaints, making it clear that this was a co-representation matter before the Board. Justice Theis asked whether the plaintiff attorney filed an appearance before the Commission, and counsel said no. Justice Theis asked whether the fact that most fees disputes involving the Commission were between lawyers who had both filed appearances should change the analysis. Counsel responded that the language of the Act doesn’t require both attorneys to appear for jurisdiction to kick in. Various provisions of the Comp Act demonstrate that the Act is concerned with regulating the behavior not just of lawyers appearing before the Commission, but also of attorneys representing the workers outside. Counsel argued that Section 16(b) of the Act expressly regulates referring attorneys – the Act is a comprehensive statutory scheme using broad language reaching all attorneys involved in these cases. Chief Justice Garman pointed out that in a pure referral situation, the Commission would be determining whether the referring attorney did enough under the Rules of Professional Conduct to justify a fee. Counsel answered that under the Rule, there’s a proportional services approach. If the primary service provided is a referral, the agreement must reflect that the referring attorney is assuming joint financial responsibility. Counsel continued, noting that because there is an express divestment of the legislature’s ordinary jurisdiction, there can be no concurrent jurisdiction in the Circuit Court. Justice Karmeier asked whether it was clear that the dispute between the attorneys would have no bearing on the ultimate net award. Counsel said yes. Justice Karmeier asked whether that bore on the analysis in any way. Counsel responded that it did only in the sense that the courts have found that the Commission has continuing jurisdiction where the matter is merely collateral to the award. Counsel cited Section 305/16 of the Act, which says that the Commission has the power to fix a fee for services rendered in securing a right under the Act. Rule 1.5 of the Rules of Professional Conduct refers to referral as a service. Counsel concluded by briefly noting the plaintiff’s argument that it was being deprived of its constitutional right to a jury trial. That principle didn’t apply here because the right at issue is created solely by statute.

Counsel for the plaintiff began with the constitutional point. Counsel argued that the case was a run-of-the-mill breach of contract claim. Since that claim existed at common law at the time of the Sixth Amendment, the plaintiff had a constitutional right to a trial of the claim by jury. Counsel pointed out that there is no mention of the Act in plaintiffs’ complaint. Justice Thomas asked whether counsel was departing somewhat from the rationale of the Appellate Court regarding exclusive jurisdiction. Counsel denied that plaintiffs were sandbagging defendants by raising the constitutional issue for the first time at the Supreme Court. When the Court granted the petition for leave to appeal, counsel explained that he realized that a mandatory trial before the Commission would violate the right to trial by jury. Justice Burke asked whether that was why no fee petition had been filed before the Commission. Counsel responded that plaintiffs’ firm does criminal, bankruptcy and personal injury actions; since the plaintiffs’ firm doesn’t practice before the Workers’ Comp Commission, it referred the case. Justice Theis asked counsel how he read Section 16b of the Act, which appears to say that issues about referral agreements are resolved by the Commission. Counsel argued that Section 16b was actually a gift ban, criminalizing any gift given for referring workers comp cases. Counsel argued that in fact, Section 16b demonstrates that the Commission does not have exclusive jurisdiction over such disputes – when the legislature drafted the section, it was cognizant of referral fee arrangements, and nevertheless it didn’t mention the issue in the statute. Counsel argued that the defendant was asking for the statute to be amended to include language that isn’t there – the Act refers to claims brought under the Act, but this case wasn’t such a claim. Counsel concluded by arguing that the Court should defer to the trial court’s finding that this was a pure referral agreement.

Counsel for the defendant began his rebuttal by addressing the plaintiff’s claim that the complaint doesn’t refer to the Act. He pointed out that the complaint attaches two co-representation agreements which expressly mention recovery under the Act. As for the constitutional argument, counsel argued that since it was clear at the time the parties entered into their agreement that the Commission has exclusive jurisdiction over fee disputes, so that result could hardly be a surprise now. Counsel argued that defendant doesn’t concede that the agreement was a pure referral fee. Each party had duties delineated in the agreement – this was part and parcel of a traditional joint representation. Nevertheless, the dispute belonged at the Commission whether or not it was a pure referral. Counsel argued that the notion that the Commission’s authority was limited to persons appearing before the Commission was a red herring – for example, the Commission had authority to set a physician’s fees, and they don’t appear. Counsel concluded by noting the argument made by plaintiff’s counsel for deference to the factual findings. Any factual findings were made without subject matter jurisdiction, counsel argued, so they were all void and deserving of no deference by the Supreme Court.

We expect Ferris, Thompson to be decided in four to six months.

Image courtesy of Flickr by Till Krech (no changes).

 

Illinois Supreme Court Debates Applicability of Innocent Insured Doctrine

By Kirk Jenkins on Posted in Illinois

 

Does the innocent insured doctrine – which provides that one of multiple insureds doesn’t necessarily lose coverage if he or she wasn’t involved in a breach – apply to renewal applications? That’s the question the Illinois Supreme Court debated during its November term in Illinois State Bar Association Mutual Insurance Co. v. Law Office of Tuzzolino & Terpinas. Our detailed summary of the underlying facts and lower court hearings is here.

Tuzzolino began when a former client filed a malpractice claim against one of the partners. The attorney persuaded the former client to drop the suit and instead retain him to sue the attorney who handled a related bankruptcy. That suit was dismissed. When the client discovered the dismissal, the attorney offered to settle the malpractice claim, but the offer was rejected. Not long after, the same partner filed a renewal form with the firm’s malpractice carrier. In response to a question on the form about whether he was aware of any circumstance which might give rise to a claim, the partner checked “no.” The second partner was not required to sign the form. The insurer filed suit seeking rescission of the policy as to both partners and the firm, arguing that the misstatement on the application voided the policy ab initio.

The plaintiff moved for summary judgment on all counts. The trial court granted the motion, finding that the insurance contract was indivisible, and must stand or fall as a whole with respect to both partners and the firm.

The Appellate Court reversed, holding that the common law innocent insured doctrine protected the innocent partner. The Court further held that the policy was merely voidable, not void. The Court found that Section 154 of the Insurance Code (215 ILCS 5/154) – which provides that no misrepresentation or false warranty in an insurance application can defeat coverage unless material or made with an intent to deceive – supported application of the common law innocent insured doctrine.

Counsel for the insurer began the argument. It was undisputed that the insurer had issued the policy in reliance on a material misrepresentation in the policy application, counsel argued. Insurance Code 154 permits rescission on that basis. Counsel argued that the second partner’s innocence was irrelevant, since Section 154 permits equitable rescission for even an innocent misrepresentation. The only issue is whether the innocent party entered into a contract that would not have been made but for the misrepresentation. Counsel argued that appellees claimed that rescission was a penalty for wrongdoing. But in fact, counsel argued, it was a remedy for the making of an agreement that wouldn’t have otherwise been made. Counsel argued that the innocent insured doctrine has never been applied outside of policy exclusions. Justice Theis asked, if the insurer was correct that the misrepresentation of one partner defeats coverage for the entire firm, how other lawyers in a large firm should protect themselves. Counsel answered that the application said that inquiry had been made of other lawyers in the firm. Justice Theis asked whether there was any way for an innocent lawyer to protect him- or herself? Counsel answered that firms should have a loss management procedure requiring attorneys to come forward if there are any potential claims. That wasn’t done here, counsel argued – the person with knowledge of the claim didn’t report it. Only the innocent attorney appealed – not the other partner or the law firm. Justice Burke pointed out that the insurer had included the innocent insured clause, so shouldn’t it be construed in favor of the insured? Counsel responded that there is a severability clause and an innocent insured clause. Justice Burke asked whether the policy was voidable rather than void. Counsel answered that it didn’t matter – there was a basis for rescission based on the misrepresentation. Severability means that there is a separate policy with each insured – but in this case, each was based on an application which was fraught with fraud. Justice Burke asked whether there was a difference between a renewal and an application. Counsel answered no, the net result is the same. Chief Justice Garman noted that the Court doesn’t mandate malpractice coverage, but does require disclosure on an ARDC application – what about clients relying on that information in hiring counsel? Counsel answered that the statute is very clear – there is nothing carved out based on who made the misrepresentation. Defendants speak at length about public policy, but in fact, Section 154 of the Code is the public policy for rescission. Justice Burke pointed out that Section 154 references misrepresentations in negotiations for the policy – that was the basis for her question about whether it made a difference between a renewal and an application. Counsel responded that the statute refers both to renewals and first issuance policies. If certain circumstances exist, the insurer has a right to rescind. Counsel argued that neither the appellee nor the Appellate Court had pointed to any aspect of Section 154 which had not been met. The defendants and the Appellate Court had obscured the difference between a rescission and the intentional act exclusion, according to counsel. Justice Kilbride asked whether the insurer’s argument began and ended with Section 154. Counsel said yes. Justice Kilbride asked whether, under Section 154, one needs actual intent or not? Counsel responded that here, the misstatement had gone to the risk to be assumed – why should any court tolerate an insurance policy procured by fraud? Justice Kilbride suggested that the second sentence of the statute seems to say that a misrepresentation doesn’t defeat the policy unless made with an actual intent to deceive or materially affect the risk to be assumed. Counsel answered that the insurer was not asserting an intent to deceive. Justice Kilbride asked whether a material misrepresentation justifies rescission regardless of intent. Counsel responded yes.

Counsel for the claimant was next. He argued that the insurer’s argument was merely an attempt to void insurance after the insurer received notice of a claim. The exclusion of coverage must be clear and free from doubt. Counsel argued that a policy is not void ab initio under these sorts of circumstances. The Chief Justice asked wasn’t that what rescission means? Counsel answered not necessarily – rescission is an equitable remedy. The Chief Justice asked whether this went to contract formation. Counsel answered that it does, but the question is whether there is coverage for the innocent insured. And under that doctrine, the most germane authority is Micelli v. State Farm. Counsel argued that Micelli was a declaratory judgment action to void a policy based upon a policy clause relating to misrepresentation of any material fact. There, only the insured who engaged in misconduct was deprived of coverage. Justice Theis asked whether there was a difference between coverage and contract formation. Counsel answered no, because this was a contract for liability insurance. Justice Theis suggested that there was a difference between the scope of the contract and whether there even was a contract. Counsel pointed out that the insurer in MIcelli had argued that the entire contract was void. Justice Theis asked counsel to state his position in terms of contract formation.  Counsel answered that a contract was formed as to the innocent partner, but not the guilty partner or the firm. The innocent partner made no misrepresentations when the contract was formed. Justice Thomas pointed out that the statute says “or materially affects either the acceptance of the risk or the hazard assumed,” and suggested that the statute seems to be aimed at helping insurers avoid risks they hadn’t contracted for. Counsel answered that the statute simply doesn’t give a right to rescission. Justice Thomas asked what the statutory language meant then. Counsel answered that the statute means that the insurer is limited in seeking the remedy of rescission. Justice Thomas pointed out that the insurer was arguing that the factual misrepresentation had affected their decision to accept the risk. Counsel said he understood that. Justice Thomas asked then what does the statute give them the right to do? Counsel answered that the insurer could rescind as to the guilty partner and the firm, but as to the innocent insured. Justice Thomas suggested that that was quite a bit of unwanted risk for the insurer – it would be on the hook for 399 of the 400 lawyers in a 400 lawyer firm, even when the renewal was based on a misrepresentation. Counsel agreed. Justice Thomas asked what that does to premiums. Counsel answered that the insurer should be aware of the possibility. Chief Justice Garman asked whether the insurer should therefore have to get a separate application from every member of the 400 lawyer firm. Counsel said yes, but he doubted that the insurer here insured many 400 lawyer firms. The Chief Justice asked whether the outcome would be different if the innocent insured had signed the application. Counsel answered that the innocent insured could have signed the representation truthfully. The Chief Justice asked whether, in that event, the innocent partner would have been covered. Counsel answered maybe, maybe not. The Chief Justice pointed out that the form says “I affirm that after inquiry of all members of the firm the aforementioned information is true.” Counsel answered that if the innocent insured had signed that, the case wouldn’t be before the Court.

Counsel for the innocent partner argued next. Counsel argued that the Court had pointed out the important issue – how should lawyers protect themselves. If one looks at the policy, there is a severability clause. The Appellate Court said that there were effectively three separate policies, and one applicable to the innocent insured. Counsel argued that there was nothing in the policy imputing the representation of one to all, and the record is clear that the innocent partner had no knowledge of the situation. Justice Kilbride asked what about the “after inquiry” language? Counsel answered that if the innocent partner had gone to his partner and asked, he doubted that the other partner would have stated the facts. Thus, the innocent partner’s statements were true – he misrepresented nothing. Justice Thomas asked how the facts play into the situation. Counsel argued that the insurer wanted to apply Section 154 as a one-size-fits-all solution. In this case, there was no knowledge, counsel insisted, so the innocent lawyer is protected, just as the policy says. Justice Thomas asked whether the partner who had been involved in the malpractice dispute benefited from counsel’s approach to the case. Counsel said no.

In rebuttal, counsel for the insurer argued the outcome would have been the same if the innocent partner had signed the application, given that the statute doesn’t have a carve-out for who makes the misrepresentation. Counsel argued that the liberal construction concept goes to the existence of the duty to defend – not something at issue here. Counsel noted earlier discussions about whether the document was a renewal application or invoice, and pointed out that it was headed “Renewal Invoice and Acceptance Form.” Counsel argued that there was no merit to the severability argument because all separate contract were tied into a fraudulent application. Otherwise, one would have to ask who knew what when; but that’s not how policy formation works. As for the 400-lawyer hypothetical, counsel argued that it’s inconceivable that the industry has a duty to send the application to all 400 lawyers. A person in a position of trust signs the application. Counsel concluded by arguing once again that the Court should not tolerate the absurdity of a policy procured by fraud.

We expect Tuzzolino & Terpinas to be decided in ninety to one hundred twenty days.

Image courtesy of Flickr by David HIlowitz (no changes).

Illinois Supreme Court Debates Constitutionality of Nursing Home Tax

By Kirk Jenkins on Posted in Illinois

 

During its November term, the Illinois Supreme Court heard oral argument in Grand Chapter, Order of the Eastern Star of the State of Illinois v. Topinka. Grand Chapter is a direct appeal from the Circuit Court’s holding that a “bed tax” on Illinois nursing homes violated various provisions of the state Constitution. The statute at issue, 305 ILCS 5/5E-10, imposes a “fee” of “$1.50 for each licensed nursing bed day for the calendar quarter.” The statute provides that the fee may not be “billed or passed on to any resident of a nursing home operated by the nursing home provider.” The proceeds of the tax are deposited “into the Long-Term Care Provider Fund.”

Counsel for the State began the argument, arguing that the bed fee is reasonable and passes muster under the Court’s uniformity standards. The three main reasons that the Circuit Court provided for striking down the statute don’t hold up to scrutiny. Counsel argued that statutes are presumed to be constitutional under the uniformity clause (Art. IX, Section 2). The General Assembly has broad discretion to classify different groups of taxpayers, so review under the uniformity clause is deferential. To prevail, counsel argues, a plaintiff must bear the heavy burden of demonstrating that neither the facts nor the law support the enactment. On the other hand, counsel argued, all the State has to show is that the facts can be reasonably conceived so as to sustain the classification. The process, according to counsel, is similar to rational basis due process review: if the basis for the statute is not arbitrary, there can be no further inquiry into the legislative purpose. Counsel argued that the fee is reasonable because it serves the legitimate purpose of supporting indigent and at risk populations in the area of health care by contributing to the Long Term Care Provider Fund. Of the $650 million in the Fund, $557 million was directed in 2011 to the Department of Health Care and Family Services. Another $2 million was directed to the Department of Public Health, which licenses all nursing homes in the state, including the plaintiff. Because the plaintiff is a nursing home, according to counsel it benefits from improvements to the regulation and licensing process. Therefore, although it’s not a requirement to survive under the uniformity clause, in fact the plaintiff does benefit from the fee. Counsel argued that the Circuit Court’s view that the uniformity clause requires that a taxpayer receive some sort of quid pro quo for a fee to be lawful is simply wrong. The second flaw in the Court’s reasoning was the notion that the Long Term Care Provider Fund solely supports Medicaid, and the plaintiff has no Medicaid patients. The third flaw in the Court’s order was the proposition that the plaintiff was exempt from the fee on the grounds that it is a charity. Counsel returned to the first point: the view that the uniformity clause requires that a fee be aimed at a harm caused by the taxed entities, or a benefit given to them. In fact, counsel argued, just the opposite is true. A small group of taxpayers can be required to subsidize a larger group, or a different group, or the public at large.

Justice Burke asked whether this was a tax for the general welfare, or a fee for services. Counsel responded that it was more akin to a focused fee, or a limited general revenue measure. The Long Term Care Provider Fund funds more than just Medicaid; it is involved in about half a dozen different areas. Under the plaintiff’s theory, counsel argued, requiring a retiree to pay taxes used to support youth programs violates the uniformity clause. If that theory were upheld, the state’s entire taxing structure would collapse.

Counsel argued that the Circuit Court had relied on the Supreme Court’s decision in Primeco Personal Communications v. Illinois Commerce Commission, but in fact, that decision is distinguishable. In Primeco, the Court found a uniformity clause violation because dissimilar entities were treated similarly. It doesn’t follow, counsel argued, that the plaintiff must be exempt from the bed fee. In fact, the plaintiff is nearly identical to other nursing home entities in the system – there is no material difference between them and any other licensed home. The key distinction between the plaintiff and any other home is the fact that plaintiff limits residents to members of its order, but that doesn’t change the analysis. The second issue was the theory that the bed fee was solely for supporting Medicaid. This was factually incorrect, counsel argued. Medicaid is not the sole purpose of the fee. The third problem with the Circuit Court’s order was the mistaken idea that charities are by definition exempt. In fact, under the plain language of the statute, they are not. Counsel concluded by arguing that if the basis for the plaintiff’s challenge is the notion that the language of the statute exempted charities, that was a non-constitutional argument, and since the case was up on a Rule 302(a) constitutional issue, there was no jurisdiction to consider such matters.

Counsel for the plaintiff spoke next. He argued that the plaintiff is a charitable and fraternal organization first incorporated in 1885. The plaintiff has been offering nursing home care for indigent women since the late 1800s. The plaintiff is a non-profit operating on donations and spending about $2 million a year on patient care. Almost all patients are indigent at the time they enter the home, counsel argued, although a few contribute what assets they have, with the plaintiff making up the rest. Counsel disputed the view that it has anything to do with the Department – in fact, the Department doesn’t inspect, regulate or license them. Counsel insisted that the record shows that not one penny of the fee is spent on anything that benefits the plaintiff. Chief Justice Garman asked whether there was anything in the statute indicating charities were exempt. Counsel responded that the statute provides that only facilities charging patients are subject to the fee. Justice Thomas asked whether both counsel’s argument and the trial court’s reasoning rests on the proposition that the sole purpose of the bed fee is to reimburse providers participating in Medicaid. Counsel said no. Justice Thomas wondered whether the language of the statute doesn’t clearly suggest that Medicaid reimbursement is only one of the purposes of the statute. Counsel agreed that that’s what the statute says, but argued that the Court should go beyond that to the findings of the legislature. Justice Thomas asked whether, if that was the import of the plain language, the Court even could go behind the language to consider the legislature’s aims. Counsel answered that when the legislature enacted the statute, it said that the purpose of the law was to provide Medicaid funding, period. Justice Thomas asked how the Court could avoid doing violence to statutory construction rules by going behind the plain language? Counsel denied that he was asking the Court to do that, and again insisted that the expenditures from the Fund have nothing to do with the plaintiff. Justice Thomas pointed out that initially, plaintiff had argued that the Court should look to the legislature’s purpose, and now, counsel was saying that even the other enumerated purposes don’t affect the plaintiff. Counsel responded that Medicaid is woefully underfunded, and to argue that the money is used for other purposes is a fallacy. Justice Thomas read several of the other statutory purposes and asked again whether counsel was arguing that none of those purposes impacted the plaintiff. Counsel agreed that they did not. Justice Thomas asked, if the Court disagrees, whether Primeco is off the table. Counsel answered that under Primeco, the Court should be looking at the purpose of the legislation to decide if the classification it makes is reasonable. The purpose of the bed fee is to raise funds for Medicaid. Justice Kilbride asked counsel why he said that nursing home standards don’t apply. Counsel responded that the plaintiff is regulated by the Department of Public Health. Justice Kilbride suggested that the question was whether the fee goes towards supporting the laundry list of activities in the statute. Counsel answered that there was no evidence of that; in fact, the criminal background checks for employees – one purpose cited by the State – are paid for by the plaintiff. Justice Kilbride pointed out that the State was arguing that the plaintiff was eligible for reimbursement for those expenses. Counsel responded that the plaintiff was not eligible for reimbursement pursuant to federal law. Counsel argued that federal law controls what the State must do to get matching funds for Medicaid. The State submits a proposal to the Center for Medicare and Medicaid Services, they review it, and the parties enter into a written contract. The State repealed their then-existing law and enacted a new funding mechanism. The next year, the legislature enacted the bed fee. Justice Thomas asked what the authority was for the proposition that the statute fell if none of its purposes benefited the plaintiff – after all, a taxpayer can’t opt out of public school taxes if he or she sends the kids to private school. Counsel answered that the legislature has created a very narrow class to fund what amounts to a general welfare tax. When the legislature does that, members of the class must have some kind of connection to the issue – it must be aimed at a problem they helped create, or they must benefit from the funds. But the plaintiff not only doesn’t contribute to the problem Medicaid is aimed at, it helps alleviate the problem, since the women the plaintiff cares for would otherwise be on Medicaid. Justice Karmeier pointed out that counsel had argued that the plaintiff doesn’t charge, but in fact, the plaintiff requires that residents surrender whatever assets they have, or pay half their costs if they have income – is that not charging for the services? Counsel answered that it was not under the meaning of the statute. Charging means being compensated for providing a bed. Counsel argued that there was no precedent for taking money from charities to support for-profit business.

In rebuttal, counsel for the State argued that the plaintiff is seeking the creation of a charitable exemption where none exists. The plaintiff’s argument was purely statutory, and the Court therefore has no jurisdiction in a Rule 302(a) appeal to proceed. Counsel argued that plaintiff is claiming it is a charitable operation because it operates at a loss, but in fact, it requires surrender of assets or monthly payments from those able to afford it. There was nothing in the record to support finding the plaintiff a charity – no sales tax exemption, no property tax exemption. The plaintiff’s claim that not one penny from the Fund benefits it is legally irrelevant. The taxing class is not narrow, counsel argued; it encompasses every nursing home in the State. Counsel argued that in fact, Section 5B – the Medicaid section – was not at issue here. The record shows that $2 million from the Fund goes to the licensing operations of the Department of Public Health, which licenses – among others – the plaintiff. Counsel argued that state funding of programs benefiting the indigent and at risk means that they have the health care and life skills they need, and thereby reduces the burden on the nursing home system. Counsel referred to Justice Thomas’ question about going behind the plain language, and argued that under rational basis analysis, all that’s needed is a non-arbitrary reason for the statute. There is no need to show that the plaintiff either directly benefits from the statute, or that the bed fee is aimed at a problem the plaintiff helped create.

We expect Grand Chapter to be decided in approximately ninety to one hundred days.

Image courtesy of Flickr by Ulrich Joho (no changes).

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