The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Illinois Supreme Court Refuses to Invalidate Policy Deadline for Uninsured Motorist Claims

By Kirk Jenkins on October 18, 2012 Posted in Illinois

Can an insurance policy be rendered unenforceable by Illinois public policy because of a conflict with another state’s law?

This morning, in an opinion by Justice Lloyd A. Karmeier for a 6-1 majority, the Illinois Supreme Court held that the answer was "no."

Country Preferred Insurance Co. v. Whitehead arose from an accident in Wisconsin between the insured and an uninsured driver. That fact matters because the insured’s uninsured motorist coverage provided that the insured had two years to file an action against the insurer under the coverage – a natural enough time limit, since the statute of limitations for filing an uninsured motorist claim under Illinois law is two years. But the state of Wisconsin allows uninsured motorist claims to be filed for three years after an accident.

The insured had her accident in the summer of 2007. She contacted her insurer almost immediately, and the parties had a number of communications over the next two years. But the insured never "commenced" a "suit, action or arbitration," as required by her policy. More than two years after the accident, the insurer finally filed an action for declaratory relief, seeking a finding of no coverage. The insured counterclaimed, arguing that since the policy filing deadline was a year shorter than the Wisconsin statute of limitations, the two-year policy deadline deadline was an unenforceable attempt to defeat the intent and the purpose of the Illinois Uninsured Motorist statute, 215 ILCS 5/143a.

The insured filed a motion to compel arbitration pursuant to her policy. The Circuit Court denied the motion, noting that Illinois courts had repeatedly held that the two-year policy filing deadline did not violate public policy. On interlocutory appeal, the Appellate Court reversed, holding that Illinois public policy required that an injured party be placed in the same position he or she would have been if the driver had struck someone carrying insurance. This meant — since the insured would have had three years to file after her accident in Wisconsin — that the policy filing deadline was void as against public policy.

The Supreme Court reversed. "[W]e see no reason why Wisconsin’s policy determinations should control the result in this case," the majority wrote. Nor did the court see any reason why the period for seeking arbitration must mirror the statute of limitations applicable to a suit against the tortfeasor. The insured was legally competent and of age, the Court found, and had failed to explain why she could not have initiated arbitration during the two years following the accident. Given that, the two-year policy statute of limitations did not violate public policy and was fully enforceable to bar the plaintiff’s suit.

Chief Justice Thomas L. Kilbride dissented, arguing that since the insured would have had three years to file if she had collided with an insured driver while in Wisconsin, the public policy underlying the Uninsured Motorist statute required that the policy filing deadline be invalidated.

Illinois Supreme Court Narrowly Limits Duty to Preserve Evidence

By Kirk Jenkins on October 18, 2012 Posted in Illinois

Illinois courts have consistently refused to impose a general duty to preserve evidence. The Supreme Court has set forth a two-factor test for courts to apply in making the occasional exception to this rule: (1) “relationship” – an agreement, contract, statute, special circumstance or voluntary undertaking is such that a duty should be imposed; and (2) “foreseeability” – a reasonable person in defendant’s position would have foreseen that the particular evidence would be material to a potential lawsuit. This morning, the Illinois Supreme Court turned back an attempt to expand that two-factor test to so great a degree as to virtually impose a general duty to preserve evidence.

The case was Martin v. Keeley & Sons, Inc. Plaintiffs were working on the reconstruction of a bridge. Suddenly, the concrete I-beam supporting the plaintiffs collapsed, and the plaintiffs fell to the creek below and were injured. Immediately following the accident, the Illinois Department of Transportation and the Occupational Safety and Health Administration inspected the site. The day after the accident, the I-beam – still laying in the creek where it fell – was destroyed on the instructions of the plaintiffs’ employer, defendant Keeley.

In the weeks that followed, plaintiffs sued the manufacturer of the I-beam and the designer of the bearing assembly that supported the beam, alleging products liability claims. They also sued Keeley for negligent spoliation of evidence, and the other two defendants counter-claimed against Keeley on the same grounds. The Circuit Court dismissed all the claims against Keeley on summary judgment, but the Appellate Court reversed, finding that a reasonable person in Keeley’s position would have anticipated that the beam was material to a potential civil action.

By a 6-1 vote, the Supreme Court reversed the Appellate Court and affirmed the Circuit Court’s finding of no duty to preserve. According to the majority opinion by Justice Anne M. Burke, the defendant had not voluntarily undertaken to preserve the beam; the beam was not moved from the place where it fell before it was destroyed, and the defendant never attempted to make any tests on it.

Until today, Illinois courts have never specifically defined what sort of “special circumstances” might create a duty to preserve, so the majority considered the matter at some length. The Court rejected the view that mere possession or control of the evidence creates a duty, or that the defendant’s status as plaintiffs’ employer made a difference. Nor did the Court find any reason to impose a duty to preserve evidence simply on the grounds that the defendant was likely to wind up in litigation as a result of the accident.

Chief Justice Thomas L. Kilbride dissented, concluding that “special circumstances” had indeed been established. The Chief Justice found that given that the plaintiffs were hospitalized at the time the I-beam was destroyed, and the likelihood that litigation would follow, refusing to recognize a duty to preserve might give potential litigants the perverse incentive to destroy evidence before litigation in order to circumvent discovery or escape liability altogether.

Public Recreational Facilities Can’t Be Sued for Slip-and-Falls on Snow or Ice

By Kirk Jenkins on October 18, 2012 Posted in Illinois

In the first of six opinions issued in civil cases this morning, the Illinois Supreme Court held that publicly-owned recreational facilities have broad immunity from liability to users who fall on snow or ice.

The question arose in Moore v. Chicago Park District. Plaintiffs’ decedent was leaving a facility owned by the Chicago Park District after attending a senior water aerobics class. Three inches of snow had fallen two days earlier, and the Park District had plowed the parking lot and shoveled and salted the sidewalk; but as a result, a small pile of snow had collected at the edge of the lot. Decedent fell, breaking her leg. She developed complications during surgery to repair the leg, sustaining brain damage, and subsequently died. Her Special Administrator sued the Park District, stating one claim each under the Survival Act and the Wrongful Death Act.

The Park District moved for summary judgment, alleging it was immune from liability pursuant to Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/3-106. The Circuit Court initially denied the motion, but then decided to certify two questions relating to the breadth of Section 3-106 immunity. The Appellate Court affirmed, holding that no immunity was available because the decedent had been injured as a result of the Park District’s negligent snow plowing activities, not the condition of the property. A five-Justice majority of the Supreme Court reversed.

Section 3-106 of the Tort Immunity Act provides that “Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes,” barring willful and wanton conduct.

Writing for a five-Justice majority, Justice Lloyd A. Karmeier began by considering whether it mattered that the snow was an “unnatural” accumulation – meaning that the five-inch high pile of snow on which the decedent slipped was where it was as a result of the Park District’s plowing, as opposed to having fallen there. The Court noted that Section 3-105 of the Tort Immunity Act made an express distinction between natural accumulations (absolute immunity) and unnatural ones (qualified immunity). Since Section 3-106 made no such distinction, the natural/unnatural issue must not matter to the scope of immunity.

Once that initial issue was disposed of, it was obvious that plaintiff’s suit was doomed. Snow and ice was a condition of property, not an activity conducted on the property, the Court found. The Court rejected the idea that the decedent was injured by the activities of the employees operating the snow plow, as opposed to the snow itself. Nor did it matter whether the snow or ice was “affixed” to the property, the Court held, overruling Stein v. Chicago Park District. The majority also noted that its holding was in harmony with the statute’s purpose of encouraging the maintenance and development of public recreational areas.

Chief Justice Thomas L. Kilbride and Justice Charles E. Freeman dissented, arguing that plaintiff’s decedent had clearly been injured as a result of a negligently conducted activity – defendant’s snow-plowing – rather than a “condition” of the property.

Six Civil Opinions Coming from the Illinois Supreme Court

By Kirk Jenkins on October 17, 2012 Posted in Illinois

The Illinois Supreme Court has announced that tomorrow morning, October 18, it will file opinions in six civil cases:

No. 112064 – Pielet v. Pielet — (1) Was plaintiff’s cause of action for breach of a long-term consulting agreement viable against corporation under the Survival Statute, 805 ILCS 5/12.80, even though the agreement was not breached until five years after dissolution of the corporation? (2) Was the defendant relieved of its obligations under the contract pursuant to the doctrine of novation? See Contract Law.
No. 112219 et al. — Khan v. BDO Seidman, LLP — (1) Were the investment bank defendants the fiduciaries of their clients, as a matter of law and fact, with respect to their recommendations regarding certain "investment strategies" alleged to hold tax benefits? (2) Did the plaintiffs’ claims accrue prior to the entry of IRS assessments against them with respect to the disputed investments? (3) Does the clause of 735 ILCS 5/13-214.2(b), the statute of repose relating to tax professionals, providing for the last date on which a claim for professional negligence may be brought when an IRS tax assessment has been entered lengthen the statutory period of repose? See Civil Procedure.
No. 112530 – Lawlor v. North American Corporation of Illinois — (1) Were private investigators the agents of defendant for purposes of applying respondeat superior? (2) Did the Circuit Court abuse its discretion by partially remitting an award of $1.75 million in punitive damages? (3) Was the Circuit Court’s finding of a breach of the duty of loyalty contrary to the weight of the evidence? See Tort Law.
No. 112788 – Moore v. Chicago Park District — Does an unnatural accumulation of snow and ice constitute the ‘existence of a condition of any public property’ as this expression is used in Section 3-106 of the Tort Immunity Act? See Tort Law.
No. 113270 – Martin v. Keeley & Sons, Inc. – Where the I-beam on a bridge the plaintiffs were constructing collapsed and fell, did the plaintiffs state a triable issue of fact on (1) the "relationship" prong of duty to preserve evidence, and (2) the "foreseeability" prong of the duty, meaning that a reasonable person would have foreseen that the beam was material to a potential civil action? See Tort Law.
No. 113365 – County Preferred Insurance Co. v. Whitehead — Is the provision of an Illinois automobile insurance policy imposing a two-year statute of limitations on uninsured motorists claims invalid as against public policy with respect to an accident which occurred in Wisconsin, where the statute of limitations for uninsured motorist claims is three years? See Insurance Law.

Join us back here tomorrow as we begin our summaries and analysis of all the new civil opinions.

Illinois Supreme Court in the News 10/1-16

By Kirk Jenkins on October 17, 2012 Posted in Illinois

With the Illinois Supreme Court between terms, coverage in the news and on the blogs has been relatively light over the past two weeks.

Christopher Wills of the Associated Press reported on the Court’s decision in Karbin v. Karbin, authorizing the guardians of disabled adults to file divorce petitions with the approval of the Court. Our post on the Karbin decision is here. According to the story, Equip for Equality praised the ruling as a "major change" in Illinois law. Wills’ story appeared in the Columbus, Indiana Republic, the Dubuque Telegraph-Herald, the St. Louis Post-Dispatch, and the Chicago Tribune. Appelman & Associates LLC reported on the decision at the Illinois Criminal and Civil Defense Blog.

The Court also appointed John B. Simon, a partner at Jenner & Block, to replace Michael Murphy as a Justice of the Illinois Appellate Court for the First District. The story was reported at the Sacramento, California Bee; by Steven R. Strahler at Crain’s Chicago Business, at the Columbus, Indiana Republic, the State Journal Register, Illinois Lawyer Now, the Bloomington Pantagraph, the St. Louis Post-Dispatch and the Belleville News-Democrat.

Finally, the Adjunct Law Prof Blog reported on Doe-3 v. McLean County Unit Dist. No. 5, where the Court held that a former employer had a tort duty to accurately certify a teacher’s employment record upon his departure. Our report on Doe is here.

CA Supreme Court Accepts Review In Valdez v. W.C.A.B. (Warehouse Demo Services)

By on October 14, 2012 Posted in California

The California Supreme Court has unanimously voted to accept review in the matter of Valdez v. W.C.A.B. (Warehouse Demo Services) in order to address the following issue: Does Labor Code § 4616.6 exclude from evidence reports of a treating physician obtained by an applicant outside of his or her employer’s Medical Provider Network ? Two en banc decisions by the Worker’s Compensation Appeals Board answered this question in the affirmative, but those decisions were overturned by the Court of Appeal. The issue has been a great concern to California employers, many of whom employ such networks to provide reasonable medical care at controllable costs. As a result, 19 amicus letters were filed urging the Supreme Court to reverse the Court of Appeal, representing most of California’s counties, cities, and school districts in additional to numerous other public and privates entities, particularly self-insured employers who often rely on MPNs.

Can Lawyers Use Drivers’ DMV Information To Recruit Potential Class Representatives?

By Kirk Jenkins on October 10, 2012 Posted in Class Actions

As I’ve noted in earlier posts (see here and here), this is shaping up as an important term for the class action defense bar at the United States Supreme Court. Late last month, the Court added another important question to its docket, granting certiorari in Maracich v. Spears. In Maracich, the Court will decide whether plaintiffs’ counsel may obtain drivers’ personal identifying information from state Departments of Motor Vehicles in order to send those drivers letters attempting to recruit them as class representatives.

The Drivers’ Privacy Protection Act of 1994 provides that drivers’ “personal information” held by state Departments of Motor Vehicles must be held confidential, and may be disclosed only pursuant to one of several enumerated exceptions. Two are at issue in Maracich. First, the “litigation exception” permits use “in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency . . . including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State or local court.” Second, the “solicitation exception” permits use: “for bulk distribution for surveys, marketing or solicitations if the State has obtained the express consent of the person to whom such personal information pertains.” 18 USC 2721(b). The DPAA includes a private right of action, 18 USC 2724(a), provides for statutory liquidated damages, 18 USC 2724(b), and states that intention or knowing violations may be a criminal offense. 18 USC 2722, 2723.

The defendants in Maracich – several South Carolina plaintiffs’ lawyers and their law firms – were contacted in mid-2006 by several people who complained of unfair practices by car dealerships. The defendants sent their initial FOIA request to the South Carolina DMV, explaining that they were “attempting to determine if this is a common practice,” and invoking the litigation exception to the DPPA. About a month later, they sent a second request, seeking drivers’ information for additional counties and invoking the litigation exception again. A few days after the second request, they filed their first class complaint pursuant to the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act, naming 51 dealerships as defendants and listing four class representatives.

Most of the dealerships moved to dismiss, noting that they had sold nothing to any of the class representatives. So the lawyers sent a third FOIA request, asking for drivers’ personal information and types of vehicles bought for 328 enumerated dealerships, including all those with pending motions to dismiss. Not long after, the defendant lawyers amended their class complaint, naming four more class representatives and 273 additional defendants. Again, the dealerships who had not sold a vehicle to any named class representative moved to dismiss – 183 in all.

In January 2007, the lawyers sent the first of their letters to drivers whose contact information had been received in the FOIA requests. Headed “advertising material,” the letter stated that “we would like the opportunity [to] discuss your rights and options with you in a free consultation.” As required by the South Carolina Rules of Professional Conduct, a copy of the letter and the names and addresses of recipients was filed with the state Office of Disciplinary Counsel, effectively making the information obtained from the DMV a matter of public record. Over the following weeks, the lawyers sent three additional FOIA requests, each time invoking the litigation exception. Following the last FOIA request, they sent two additional waves of letters to drivers, more than 21,000 in all. In June 2007, the lawyers moved for leave to amend their complaint to add 250 additional named plaintiffs.

Two years later, three drivers who had received the letters filed a class action complaint against the lawyers, alleging that their conduct violated the DPPA. The plaintiffs sought $2,500 for each unlawful use of personal information, as well as punitive damages, attorneys’ fees and costs. The lawyers moved to dismiss, citing the litigation exception. After initially denying the motion, the district court reversed itself. The court held that the lawyers’ conduct was not “solicitation” because, having filed a putative class action, the attorneys had a fiduciary duty to unnamed possible class members. In the alternative, the court held that the lawyers’ conduct satisfied the litigation exception, and therefore did not have to satisfy the solicitation exception as well.

The Fourth Circuit affirmed on somewhat different grounds. The Court found that although the lawyers’ conduct was solicitation under an objective standard, solicitation of potential class representatives was “an accepted and expected element of, and . . . inextricably intertwined with” the lawyers’ “investigation in anticipation of litigation” – a permitted use under the litigation exception.

As the plaintiffs’ cert petition points out, the Fourth Circuit’s decision essentially creates a new, free-standing exception to the DPPA: “for use by lawyers.” If a lawyer may send out mass mailings using drivers’ confidential contact information whenever he or she receives a few complaints about a vehicle or other product, it is difficult to imagine when the strict limits on solicitation could ever apply. The plaintiffs note that the Third Circuit flatly rejected the notion that the DPPA allows the use of DMV data in hunting for potential litigants in Pichler v. UNITE. The District of Columbia Circuit reached the same result in Wemhoff v. District of Columbia, as did the Eleventh Circuit in Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, P.A.

The Fourth Circuit considerably worsened a Circuit split regarding the relationship between the DPPA exceptions as well, the plaintiffs argue. The Fourth Circuit’s view that unlawful solicitation is permitted because it is “inextricably intertwined” with permissible litigation use squarely conflicts with the Third Circuit’s view that nothing in the Act excuses an impermissible use just because it is executed in conjunction with a permissible one. Although the Fourth Circuit insisted that its position matched the Eleventh Circuit’s view in Rine v. Imagitas, Inc., the plaintiffs argued that this was not so. The Eleventh Circuit held that any lawful purpose for a single use of personal information was enough to bar liability, not that lawful uses justified separate, unlawful uses.

Given that there seems to have been no serious Circuit split in DPPA law worth the Court’s time until Maracich, the Court’s immediate grant of certiorari here seems to indicate a better-than-even chance that the Court will reverse the Fourth Circuit. The Fourth Circuit’s extraordinarily broad construction of the litigation exception – previously thought to be limited to locating witnesses and facilitating service of process – writes the clear limits to the solicitation exception out of the statute, in violation of long-settled rules of construction. Reversal in Maracich will restore the balance Congress intended when the statute was enacted, vindicating important privacy rights. We expect a decision in the first quarter of 2013.

How Long Does a Non-Client Have to Sue Over a Lawyer’s Representation?

By Kirk Jenkins on October 8, 2012 Posted in Illinois

In Illinois, an action against a lawyer "arising out of an act or omission in the performance of professional services" can’t be brought more than 6 years after the act or omission occurred. 735 ILC 5/13-214.3.

But does the statute apply if the plaintiff is someone other than the client? The Illinois Supreme Court will soon answer that question in Evanston Insurance Co. v. Riseborough, the final new civil case added to the docket during the September term.

Evanston arises from an injury on a warehouse construction site. The defendants represented the general contractor. The general contractor’s primary insurer filed a declaratory judgment action seeking a finding of no coverage, and each of the sub-contractors’ insurers joined. Ultimately, all of the insurers joined in what’s called a "Fund and Fight" Settlement — essentially, the claimants are paid and the parties contributing to the settlement litigate policy and coverage defenses against each other. The defendants signed the Fund and Fight on behalf of the general contractor.

But the "Fund and Fight" settlement rapidly unraveled. First, the plaintiff insurer alleged that the general contractor’s insurer had to exhaust its coverage before the plaintiff owed a dime. In response, the general contractor itself filed an affidavit stating that the defendant lawyers didn’t have authority from their client to settle in the first place. The plaintiff insurer and the general contractor’s insurer settled with each other, but then the general contractor’s insurer went into liquidation, and their check bounced.

So the plaintiff insurer sued the defendants, the general contractor’s lawyers, alleging that they didn’t have authority to settle. The plaintiff purported to state claims for breach of the implied warranty of authority, fraudulent misrepresentation and negligent misrepresentation. The defendants moved to dismiss, arguing that the complaint was barred by the 6-year statute of repose under 735 ILCS 5/13-214.3. The trial court agreed and tossed the case out.

In several cases over the past two decades, courts in Illinois have narrowly interpreted Section 214.3, drawing a distinction between actions for professional negligence and third-party actions for other types of torts alleging breach of different duties. For example, in Bova v. U.S. Bank, N.A., the Federal district court refused to bar an action against defendants based on violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. In Ganci v. Blauvelt, the defendant filed a third-party complaint against his deceased mother’s attorney, alleging that the attorney shared culpability for the injuries sustained by the plaintiff children. Following Bova and Ganci, the Evanston Court reversed the Circuit Court, holding that the plaintiff’s complaint sounded in negligent misrepresentation, not professional negligence, and was therefore not barred by the statute of repose.

We expect Evanston to be decided in the first half of next year.

Are Federal Junk Fax Damages Insurable in Illinois?

By Kirk Jenkins on October 5, 2012 Posted in Illinois

In the final days of its September term, the Illinois Supreme Court allowed a petition for review in Standard Mutual Insurance Co. v. Lay. [pdf] In Lay, the Court will decide whether the Federal statutory penalty for sending junk faxes is in the nature of punitive damages, and thus uninsurable under Illinois law.

The defendant in Lay is a small real estate agency. According to the complaint, the defendant hired a “fax broadcaster” in connection with advertising a particular property listing. “Fax broadcasters” offer a “blast fax” service, sending advertisements to thousands of fax machines cheaply.

According to the Federal Telephone Consumer Protection Act, it is unlawful to send unsolicited advertisements to a fax machine, whether by use of a fax machine, computer or any other device. 47 USC 227(b)(1)(C). The TCPA creates a strict liability private right of action, with damages equal to actual monetary loss to the plaintiff or $500 per fax, whichever is greater. The penalty is trebled if the violation is willful or knowing.

The fax broadcaster in Lay allegedly represented to the defendant that only persons who had agreed to receive advertisements would get its blast fax. Allegedly this was not so. So not long after the defendant’s blast fax was sent, the underlying action was filed, seeking a trebled penalty of $1,500 for each of the 3,478 faxes purportedly sent.

The defendant tendered its defense to its insurer, which accepted under a reservation of rights. Ultimately, the defendant agreed to settle the underlying action, with the plaintiff class representative agreeing not to execute against the defendant’s assets, with the exception of its insurance policy.

Meanwhile, the insurer had filed a declaratory judgment action, seeking a declaration that the insured’s liability was not covered under the policy. Following the settlement of the underlying action, the class representative became actively involved in the dec action, and the insurer and the class representative filed cross motions for summary judgment. The Circuit Court granted the insurer’s motion, finding no duty to defend or indemnify.

The Appellate Court affirmed. After clearing away a preliminary issue, finding that the insurer’s reservation of rights letter had adequately disclosed the nature of its conflicts with the insured, the Court turned to the TCPA. The class representative argued that the damages from the TCPA action were covered under both the advertising injury and property damage provisions of the policies. The Appellate Court disagreed.

The purpose of the TCPA, according to the Court, is to deter sending of unwanted fax transmissions. The $500-per-fax penalty, the Court pointed out, is far in excess of any damages suffered by the recipient, which are limited to paper, toner and annoyance. If construed as compensatory damages, the penalty is clearly a windfall.

Illinois courts have written that the purposes of punitive damages are (1) retribution against a defendant; (2) deterrence of future wrongs by the defendant; and (3) general deterrence of others. The final two purposes apply equally to the TCPA penalty, the Court found. The Court conceded that at least some other jurisdictions have held that the TCPA is remedial rather than penal in nature, but declined to follow those decisions, pointing out that allowing defendants to get insurance coverage for the penalty would frustrate the purpose of deterring violations. The Court held that TCPA statutory damages are in the nature of punitive damages, and therefore uninsurable as a matter of law in Illinois.

The Supreme Court will likely decide Lay sometime in the first half of next year.

Plenary Guardian May File Divorce Petition For Disabled Adult With Court Approval

By Kirk Jenkins on October 4, 2012 Posted in Illinois

This morning, the Illinois Supreme Court filed its unanimous opinion in Karbin v. Karbin. In an opinion by Justice Charles E. Freeman, the Court overruled its twenty-six year old decision in In re Marriage of Drews and held that the plenary guardian of a disabled adult may file a divorce petition on the ward’s behalf.

Following a 1997 car accident, appellee wife suffered brain damage and became totally disabled. Her husband was initially appointed plenary guardian of her person and estate, but he was ultimately forced to relinquish the position due to the onset of Parkinson’s disease. After the guardianship transfer, the wife left Illinois to live with her new guardian. A few years later, the husband filed a petition for divorce, and the wife subsequently filed a verified counterpetition. Some time after that, the husband moved for voluntary dismissal of his own petition, alleging that he had never wanted the divorce, and filed only upon the request of the wife’s guardian. He then successfully moved to dismiss the wife’s petition, arguing that under In re Marriage of Drews, the wife’s guardian had no standing to initiate a divorce petition on her behalf. The Appellate Court affirmed based upon Drews, with Justice Cahill dissenting.

The Supreme Court began its analysis with the decision in Drews. There, the Court had noted a strong “majority rule” holding that absent statutory authorization, a guardian could not institute a divorce proceeding. The Drews Court then analyzed the relevant provisions of the Probate Act, finding no express authorization in either. Reading all of the relevant provisions together, the Court concluded that the Probate Act confers only limited standing on the guardian in connection with matters directly related to the ward’s estate.

The Supreme Court found, however, that beginning only a few years after Drews, it had abandoned its strict construction of the Probate Act and the powers of the guardian. In both In re Estate of Longeway and In re Estate of Greenspan, the Court found expansive implied authority for guardians conferred in the Act. In In re Marriage of Burgess, the Court authorized a guardian to continue a divorce action began before the ward became disabled (although a guardian could still not initiate a divorce), noting the “broad” description of the guardian’s powers found in the Act.

The Court then turned to the history of the old majority rule, concluding that it was founded on the idea that divorce was a uniquely personal matter, often involving religious and moral precepts, and courts had accordingly been reluctant to let another speak for an incompetent adult. Given the State’s enactment of no-fault divorce, however, the Court concluded that divorce was no more uniquely personal a decision than a host of other decisions indisputably entrusted to a guardian. Further, the Court noted, denying an incompetent adult any avenue to seek divorce risked putting the ward “at the mercy of a competent spouse,” a situation incompatible with the policy of the State towards disabled persons. Accordingly, the Court unanimously overruled Drews. As an additional safeguard for disabled adults, the Court held that before filing a divorce petition, guardians must prove by clear and convincing evidence to the satisfaction of the Circuit Court that such a filing was in the best interest of the ward.