Vested Interest - Committee Updates - November 1997 Issue

ITLA AMICUS COMMITTEE - STATUS REPORT

Volunteers are needed to review, monitor and/or brief these cases:

1. Cirrincione v. Johnson, 287 Ill.App.3d 683, 678 N.E.2d 738 (lst Dist. 1997)

Chiropractor’s lien on patient’s settlement proceeds in personal injury action was valid and enforceable against patient’s substituted attorney, even though it did not comply with Physicians’ Lien Act’s statutory requirements, where substituted attorney was in possession of acknowledgment of lien, was aware of patient’s intent to be bound by it, and assured patient’s original attorney and chiropractor that lien would be honored. Jury’s award of punitive damages was vacated since punitive damages were not available pursuant to the Physicians’ Lien Act or a breach of contract claim.

Cirrincione’s (chiropractor) PLA granted Wednesday, October 1, 1997. Gerald Haberkom, Chicago, for Johnson, the injured party.

2. Estate of Sinn v. Mid-Century Insurance Co., 288 Ill.App.3d 193, 679 N.E.2d 870 (5th Dist. 1997)

Fifth District reversed the Circuit Court’s granting of summary judgment to the insurer, holding the exclusion barring UIM coverage if the injured person was occupying a non-owned vehicle for which UIM coverage was available under another policy violated public policy. The Court further held that an "other insurance" provision stating that the insurer would not provide UIM benefits for any vehicle other than "your insured car" unless owner of that vehicle lacked UIM coverage also violated public policy. Insurer’s PLA granted Wednesday, October 1, 1997. Plaintiff Sinn represented by Edward T. McCarthy, Edwardsville.

3. Doe v. McKay, 286 Ill.App.3d 1020, 678 N.E.2d 50 (2nd Dist. 1997)

Second District reversed the Circuit Court’s granting of defendant’s motion to dismiss for failure to state a cause of action, holding that the father of an adult patient may bring an action against a psychologist based on the alleged negligent treatment of daughter in diagnosing repressed memory of sexual abuse. Relying on the doctrine of transferred negligence, the court held that where the parent is brought into the treatment process by the therapist, a therapist’s duty to the patient to use reasonable care in the treatment process is extended to the parent. The court further held that due to the direct and intentional interference by defendants with plaintiff’s parent-child relationship, plaintiff may bring a claim for recovery of damages resulting from the loss of society and companionship of his adult daughter. Psychologist’s PLA granted Wednesday, October 1, 1997. Plaintiff represented by Zachary Bravos and James H. Knippen, both of Wheaton.

4. Cincinnati Companies v. West American Insurance Company, 287 Ill.App. 3d 505, 679 N.E.2d 91 (2nd Dist. 1997)

Second District affirmed summary judgment in favor of liability insurer ("first insurer"), which had paid a portion of the judgment in the underlying personal injury action against the additional insured, against second insurer on duty to defend and equitable contribution theories. The court held that the second insurer’s duty to defend and indemnify additional insured arose when it had actual notice of the underlying action, and second insurer was liable for costs incurred by first insurer prior to tender from the date on which it had actual knowledge of the underlying action. Defendants’ PLA granted Wednesday, October 1, 1997. Pretzel on one side, McKenna on the other.

5. DeLuna v. Treister, 286 Ill.App.3d 25, 676 N.E.2d 973 (1st Dist. 1997)

First District reversed Circuit Court’s dismissal of cause of action based on doctrine of res judicata, where first case was dismissed due to plaintiff’s failure to file a 2-622 affidavit. The court held that it did not have authority to alter the "with prejudice" language in the dismissal order of the first case, as it was mandated by the Supreme Court; and that dismissal of the first case was not an adjudication on the merits because it was not attended by a hearing on the merits, and plaintiff was merely testing his right to test the state-wide, avidly contested constitutionality of 2-622. Defendants' PLA granted Wednesday, October 1, 1997. Michael Rathsack, Chicago, for plaintiff.

Any lawyer willing to volunteer on any of these cases, or with new cases for the Committee to consider, should call Bruce Pfaff, Amicus Chair, 312-828-9666.