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Purcell & Wardrope Chartered What's New at P&W? The year 2015 is off to a great start for P&W. In the courtroom,King Roy secured the exact verdict he recommended to the jury ina trial involving a trucking accident with admitted liability. Clickhere to learn more about the trial. Out of the courtroom, Brad Purcell presented on the topic ofpremises liability litigation at the NAMIC Claims Conference inPhoenix, Arizona. Join Brad at the PLRB Claims Conference inAnaheim, California, on March 30 and 31, where he will bepresenting on the same topic.

For over 40 years,Purcell & Wardrope has built itsreputation as trial attorneyssuccessfully defending clients incomplex litigation whileadhering to the highest ethicalstandards.

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Last, but not least, R.J. Van Swol's article on developments inIllinois' targeted tender law was published in the Illinois BarJournal this month. Visit our website to view the article.

New State Law Reduces Jury Size to Six In mid­December, outgoing Governor Pat Quinn signed legislation that was touted for increasing juror pay.Jurors will now receive $25 for the first day and $50 for each day thereafter. But the most important impactfrom the new law is that "[a]ll jury cases shall be tried by a jury of 6" instead of by 12 beginning June 1, 2015.735 ILCS 5/2­1105(b); Pub. Act 98­1132. The switch will apply to all cases proceeding to trial after Juneunless a party already has paid for a jury of 12 by this date. There are some obvious consequences from reducing the size of juries. For instance, trials will be shorterbecause it will take less time to select jurors and less time will be required for deliberations. It follows that asmaller group is more likely to reach a consensus, which should result in fewer hung juries and re­trials. The major drawback is that smaller juries are less likely to be representative of the community in terms ofdemographics, views, and values. This is particularly true considering that each side will continue to have fiveperemptory challenges, and up to three more depending on the number of parties involved. 735 ILCS 5/2­1106(a). Larger juries tend to have more debate, better recall of the facts, and more moderation in their awards.It is far less likely that one strong­willed juror can take over deliberations in a group of 12. The Illinois Association of Defense Trial Counsel opposed the initiative when it was proposed by the plaintiff'sbar in November 2014. Many think the new law will help stack the deck in the plaintiff's favor because thereare less jurors to persuade that the burden of proof has been met. Given the choice, many plaintiff's attorneyswill accept a smaller jury while most defense attorneys opt for 12. A constitutional challenge to the new law is almost inevitable. Until then, make a note of your cases going tojury trial after June and discuss voir dire strategy with defense counsel. The imperative to eliminateopinionated or outspoken jurors is even greater than before.

Equitable Causes of Action Protect Responsible Insurers What happens when two insurers both cover a loss but one of them refuses to pay its full share, or refuses topay at all? These concerns can arise in any case with multiple insurance policies in play, such as the policiesof a property owner, a general contractor, and a subcontractor on a construction project; the policies of acommercial vehicle's owner and driver; the policies of a hospital and an affiliated doctor; or a single insured'sprimary and excess policies. Illinois has a well­established principle that the law should not force theresponsible insurer to bear more than its share of the loss or allow the breaching insurer to escape its duties.The law provides two avenues for the paying insurer to recover payments from the breaching insurer, knownas equitable contribution and equitable subrogation. The Illinois Supreme Court discussed both of thesedoctrines at length in Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill.2d 307 (2004). As Home explains, equitable contribution applies between concurrent insurance policies that insure the sameentities, the same interests, and the same risks. This case illustrates two ways in which policies might notcover the "same risk." First, because an excess or umbrella insurer has no obligation to pay until a primarypolicy has been exhausted, it does not cover the "same risks" as the primary insurer, and equitablecontribution is not available between them. Second, when two policies cover the same additional insured for

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liabilities arising out of two different named insureds' work, Home says those policies will cover different riskseven if both policies may apply to a single claim. Although equitable contribution is not available for an insurer covering a different risk, such as an excess orumbrella insurer seeking recovery from a primary insurer, such an insurer would still have a claim for equitablesubrogation if these elements are met: (1) the defendant carrier is primarily liable to the insured for a loss undera policy of insurance; (2) the plaintiff carrier is secondarily liable for the same loss under its policy; and (3) theplaintiff carrier must have discharged its liability to the insured and extinguished the defendant's liability at thesame time. The "same loss" requirement is broader than the "same risk" element of equitable contribution. Theplaintiff carrier must have an actual secondary obligation that would require it to pay if the primary policy didnot apply or had been exhausted; if a carrier pays as a volunteer, it cannot state a cause of action for equitablesubrogation. If the plaintiff insurer's policy has a subrogation clause, it may be prudent to bring another count inthe alternative for contractual subrogation. While Home v. Cininnati held that excess carrier Home was entitled to judgment on its claim for equitablesubrogation against primary carrier Cincinnati, this case remains a cautionary tale for diligent carriers becauseit also held that Home had waived part of its claim. Waiver may arise whenever an insurer's conduct isinconsistent with any intention other than to give up a known right. To be sure of avoiding waiver, an insurershould reserve its rights in correspondence with the breaching insurer before payment, giving the breachinginsurer one more chance to honor its duties and ensuring that it knows the consequences of its breach. Thepaying insurer should also include a specific reservation of its rights in any written settlement agreement.

Our firm has recovered multimillion­dollar settlements and judgments on behalf of paying insurers throughthese sorts of "pay and chase" suits, and we have also successfully defended contribution and subrogationclaims where our client insurers were not responsible under their policies for losses that other insurers paid.We will be glad to assist any insurer that wants to determine the extent of its policy obligations or to preserveits rights against another carrier that has failed to fulfill its obligations.

The Disappearing Notice Requirement A landowner is liable in premises liability if the plaintiff can show: (1) there is a condition on the property whichpresented an unreasonable risk of harm; (2) the landowner knew or in the exercise of ordinary care should haveknown of the risk; and (3) the landowner could reasonably expect that people on the property would notdiscover the danger or would fail to protect themselves. I.P.I. 120.08. Most of us are familiar with the secondprong of this test as the notice requirement. Defendants are responsible for unsafe conditions of which theyknew (actual notice) or should have known (constructive notice). There is no liability without notice, or so wethought. Notice can be disregarded when the plaintiff shows, through direct or circumstantial evidence, that the unsafecondition arose from the landowner's acts or business. Reed v. Walmart Stores, Inc., 298 Ill.App.3d 712 (4thDist. 1998). In those situations, the plaintiff may choose to proceed under ordinary negligence and/or premisesliability. Savvy plaintiffs often proceed under an ordinary negligence theory at trial in order to avoid provingnotice. Instead, they only need to show that the landowner did not exercise reasonable care for the safety ofthose on the property. This small distinction made a big difference in Hawkins v. Capital Fitness, Inc., 2015 IL App (1st) 133716,which an Illinois appellate court decided earlier this month. The plaintiff was working out in a fitness club whensuddenly a nearby mirror fell from the wall and struck him. The trial court granted summary judgment andspecifically found no evidence of notice. The appellate court reversed, holding that "[t]he premise underlyingthis portion of the trial court's ruling and Capital Fitness's argument is that Hawkins pursued a premisesliability cause of action. Our review of Hawkins's one­count complaint, however, establishes that it sounds innegligence, not premises liability, and therefore, lack of evidence concerning notice is both inapplicable andirrelevant."

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This decision shows how quickly a premises liability case can become an ordinary negligence case at theplaintiff's whim. In Hawkins, the plaintiff had no evidence of notice of the danger, and didn't need any.

Purcell & Wardrope Chtd.

10 S. LaSalle, Suite 1200, Chicago, IL 60603 P 312.427.3900 F 312.427.3944 www.pw­law.com

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