Justia Lawyer Rating for Robert D. Kreisman

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Great caution must be taken when multi-count lawsuits are filed and a voluntary dismissal considered. Suppose one of the three counts of the complaint turns out to be unsustainable and a voluntary dismissal is taken as to Count II leaving Counts I and III.  The voluntary dismissal as to that count II amounts to a dismissal with prejudice.

Suppose further that as the case remains, the case reaches a point where the plaintiff makes a decision to voluntarily dismiss without the remaining two-count complaint under Illinois Code of Civil Procedure §2-1009, which allows the refiling of the case within one year.

This is where it becomes very tricky. Under the Hudson v. City of Chicago, the Illinois Supreme Court set out the issue as:  “Whether the involuntary dismissal of plaintiffs’ negligence claim and plaintiffs’ subsequent voluntary dismissal of their remaining willful and wanton misconduct claim (against the City of Chicago) barred the refiling of their willful and wanton misconduct claim under the doctrine of res judicata.” What the Illinois Supreme Court was looking at is that in Hudson, the original complaint was two counts. The first count sounded in negligence and the second willful and wanton misconduct.  Under the law, the City and its employees had immunity under the Emergency Medical Services Systems Act. 210 ILCS 50/3.150.

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Michael Harvey was riding his bicycle north on Ashland Avenue in Chicago in the right lane as he approached Foster Avenue.  It was Aug. 12, 2010 when Harvey, 26, claimed to be cut off by the defendant, Vanna Phillips, who was driving her car northbound making a sudden right turn directly in front of Harvey. The bicycle and car collided. On impact, Harvey was propelled into Phillips’ rear window which shattered. Harvey then landed on the ground. 

The crash took place at about 11 p.m. while both plaintiff and defendant were traveling from separate bars. Harvey suffered  cuts to his chin, upper lip and required 29 stitches with permanent scars. He also had lacerations to his left forearm that required nine staples with scarring. Harvey also suffered from permanent left forearm nerve damage and numbness with pain. He may require future surgery to repair the nerve pain and plastic surgery for revision of the scars. 

Harvey was an actor and claimed difficulty getting roles after the accident due to his scars. He is now working as a waiter.

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A Lake County, Ill., jury returned a $183,008 verdict in favor of Patricia Lewis, whose car was rear-ended by another vehicle at high speed. The crash took place on Nov. 7, 2008 on northbound Route 12 near Route 134 in Fox Lake, Ill.  The impact of the defendant’s collision with Lewis pushed her car ahead and triggered a five-car chain reaction.

Lewis, age 50, claimed that the impact and resulting injuries to her caused a herniated disk at C5-6 (neck) with radiculopathy into her right arm. She also claimed that she will need future neck fusion surgery. The Lewis claim for lost time from work as a medical administrator was barred by the court. Radiculopathy in the neck is often described as a pinched nerve. Some people complain that the neck pain radiates into the arm, like Lewis did in this case. 

Lewis’s husband testified that she had been his fishing partner, but she was no longer able to go boating after the crash because of her neck injury. The husband also testified that Lewis is now unable to cook family dinners, do normal household chores or do yard work. 

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The Illinois Appellate Court dismissed an appeal taken from the Circuit Court of Cook County. This case involved Isaiah DeLaCruz, who was hit by a car while crossing a Chicago street. An uninsured motorist was driving the vehicle that struck DeLaCruz. However, it was determined that the vehicle was used as a weapon to run over DeLaCruz, who later died of his injuries.

The plaintiff, Universal Casualty Co., had issued an insurance policy to Ana Ocampo, who was a relative of DeLaCruz. Universal claimed that because this incident was not an accident, but rather an intentional criminal act on the part of the motorist who struck DeLaCruz, it would not be responsible under its uninsured motorist coverage. 

Universal filed a declaratory judgment action in Cook County against the estate of DeLaCruz.In December 2011, the estate moved to dismiss the complaint pursuant to §2-615 of the Illinois Code of Civil Procedure. In March 2012, the trial judge in the Circuit Court granted the motion to dismiss. In that decision, the judge granted Universal’s motion for leave to file an amended complaint and the court’s order noted that the dismissal was entered without prejudice.

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The Illinois Appellate Court has affirmed a decision of a Cook County Circuit Court judge with respect to the forum-selection clause found in a service contract. MillerCoors, headquartered in Chicago, is the second largest brewer in the United States with approximately 30% market share. In 2007, MillerCoors approached Entec regarding parts procurement and management services.

On March 1, 2010, Entec and MillerCoors entered into a contract wherein Entec agreed to provide parts procurement for MillerCoors breweries in Georgia, North Carolina, Virginia and Ohio. The agreement between the parties was a standard contract that MillerCoors had used in the past. The document included a forum-selection clause indicating that all litigation that may arise involving the contract could be brought against MillerCoors in Colorado.That part of the contract was not discussed or negotiated by the evidence that the court reviewed. The contract was nevertheless signed by the parties.

During the course of the contract, MillerCoors understood that some of its suppliers reported that Entec had failed to pay them.  This was true even though MillerCoors had paid Entec. MillerCoors began receiving complaints and notices of mechanic’s liens, and some suppliers threatened to cease providing supplies to MillerCoors.

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The Illinois Third District Appellate Court has held  that the large hardware chain Menards was entitled to insurance coverage under the automobile insurance policy issued to the insured, the customer, who was injured while a Menards employee loaded her car. 

In this case, Ruby Bohlen purchased gravel and bricks from a Menards store in Champaign, Ill.  She brought her car around to the loading area where her car was to be loaded by an employee of Menards. While the Menards employee was loading the bricks, Bohlen tripped and fell on debris near her car and was injured. 

Bohlen filed a lawsuit against Menards claiming that Menards was negligent in failing to provide a safe place for its customers.  As part of the complaint, Bohlen claimed that Menards chose not to remove debris from the aisles, sidewalks and other areas of the store. 

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Robert Jones was injured while he was delivering supplies to a Pizza Hut restaurant in South Elgin, Ill. Jones was struck by the pizza delivery car driven by defendant Bibiana Bojorge in the parking lot of the pizza restaurant. Jones injured his knee. The jury’s verdict of $489,364.05, which was reduced by 5% for contributory negligence of Mr. Jones, was appealed by the defendants Bojorge and Pizza Hut.

The issue on appeal was whether the trial judge was in error in admitting into evidence the plaintiff’s prior consistent statement to his wife that he was hit by defendant’s car. The defendant had made  Jones’s credibility the centerpiece of their defense at trial. The plaintiff’s prior consistent statement was admissible to rebut the charge that plaintiff’s prior testimony was a fabrication, especially when the evidence included defendant’s written statement in which she admitted that she “hit the delivery guy.”  The appellate court affirmed the trial judge’s order and the jury verdict stands.

The facts were that the plaintiff  Jones, a delivery truck driver working at a Pizza Hut location, claimed that the defendant Bojorge, a pizza delivery driver, struck him with a car as he was moving boxes of dough on his dolly, injuring his knee. 

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Twenty-two-year-old Bryan Widstrand was driving into a parking garage at Concordia University in River Forest, Ill., when 19-year-old Paige Kecseg backed out of a parking spot and hit the passenger side of Widstrand’s car. Widstrand contended that the impact caused him to suffer herniated discs at C5-6 and C6-7. In addition, he complained of headaches, neck/back and shoulder pain as well as numbness in his right forearm and two fingers. He also claimed the accident-related injuries caused him to become dependent on pain medicine resulting in rehabilitation at MacNeal Hospital for drug dependency.

The defendant denied that she was negligent and argued that the plaintiff was speeding. Kecseg contended that there were inconsistencies in Widstrand’s testimony at trial and denied that he was injured. She pointed to the fact that the plaintiff had gone on numerous trips since the accident, including two visits to Europe and a mountain hiking trip one month prior to the trial. 

This case was a one-day “stipulated facts” trial with Judge Michael Panter of the Circuit Court of Cook County. The judge read the medical treatment summary to the jury. The attorney for Widstrand reported that he asked the jury for approximately $150,000 while the defendant’s attorney reported that the plaintiff’s counsel asked the jury for a verdict of $209,637. The offer to settle before trial was $4,350 with a demand to settle at $100,000.

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The Illinois Appellate Court has affirmed a decision by a Cook County trial judge. Krysztof Emiljanowicz, a truck driver, agreed to act as a contractor for SSTS, Inc. On May 12, 2004, Krysztof signed an agreement in which he agreed to transport freight for SSTS in his semitrailer. 

SSTS said that its policy required truck contractors to have their equipment inspected, to carry only SSTS freight while under contract with SSTS and to place decals on their vehicles showing that they were authorized to operate. 

Later that same day, Krysztof was on his way to pick up a friend; they planned to ride together in Krysztof’s truck to a mechanic for a check-up. Before starting the new job, and on the way to the mechanic, Krysztof crashed into a vehicle driven by Barbara Kawacki-Horowitz.

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In a lawsuit against ExxonMobil Corp., four individuals claimed injury and death because they were exposed to benzene and other hazardous chemicals when they worked as rubber workers, tire builders and final finish laborers at a tire manufacturing facility.  The cases were brought by the families of these deceased workers for their wrongful deaths and survival claims. In the circuit court, the claims were dismissed on summary judgment being timed-barred. This case was filed in Wisconsin and the plaintiffs appealed to the Wisconsin Court of Appeals.

In the lawsuit that was filed, the four individuals also claimed that they suffered personal injuries and died as a result of their exposure to benzene and benzene-containing materials. 

It was determined by the trial judge that the statute of limitations began to run for all claims at the latest on the decedents’ dates of death and that the complaint, which was filed more than three years (statute of limitations in Wisconsin), after those dates was time-barred because the three years had passed.

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