Chicago Partner Carrie A. Durkin and Associate Bradford A. LeHew prevailed on a motion for summary judgment in the Circuit Court of Cook County. At issue was what event triggered the running of the two-year statute of limitations for actions against insurance brokers and producers. Deciding an issue of first impression in Illinois, the Court found in favor of Litchfield Cavo's client, a wholesale broker, in a third-party action brought by a retail broker for negligent procurement of insurance stemming from a gap in coverage in 2003. The Court found that the date of the retail broker's review of the policy with the alleged coverage gap, not the denial by the carrier or the filing of suit against the retail broker, triggered the statute. Because the third-party complaint was not filed until 2007, it was untimely.

In a dispute over legal fees which arose in the context of an insured’s "personal counsel" defending an insured under a reservation of rights, a Norfolk County jury determined that the insurer had not breached its duty to defend under a Directors and Officers liability policy by unreasonably declining to pay the usual and customary rates charged by the insured’s "personal counsel". The insurer, represented by Massachusetts partner Peter Kober, argued that the rates charged by the insured’s "personal counsel" – which were in excess of twice the rates paid by the insurer to its panel counsel – were not "reasonable", notwithstanding the claims by the insured’s "personal counsel" that the issues involved in the underlying litigation involved "complicated" real estate and condominium law questions that were within the particular area of expertise of "personal counsel" and beyond the capabilities of general litigators, i.e., the insurer’s panel counsel. On April 14, 2010, The jury deliberated less than one and one-half hours before deciding that the insurer had neither breached its contract with the insured nor breached an implied covenant of good faith and fair dealing. Board of Trustees of the Chestnut Ridge Condominium Trust II v. Northern Security Ins. Co., et al., No. 06-02275.

Massachusetts Partner, Bethany Minich, recently obtained summary judgment on behalf of a real estate investment firm and hospitality management company in a “toxic tort” case involving claims for personal injuries and damages arising out of the plaintiff’s purported exposure to mold. The plaintiff, a commercial tenant, claimed to have been exposed to elevated levels of mold while operating a business at the defendants' property. As a result, the plaintiff claimed to suffer from a host of respiratory ailments, including chronic, rhinosinusitis, and nasale polyposis. Her medical specials exceeded $167,000 and her lowest demand was $835,000. The motion for summary judgment was allowed after Attorney Minich successfully precluded the plaintiff from offering any causation evidence at the trial of the matter. Following a two day Daubert hearing, challenging the methodology and conclusions of the plaintiff's liability and medical experts, the Trial Court concluded that the underlying basis for the medical expert's opinion did not meet the reliability requirements established by Daubert/Lanigan. Further, the Court precluded the plaintiff's liability expert from offering testimony that the numerical values found in the plaintiff’s office demonstrated "abnormal" or "elevated" mold levels.

In Vermont Mut. Ins. Co. v. Robert Eldridge, et al., No. 09-P-1087, Massachusetts partners Mike Byrne and Peter Kober successfully appealed from a summary judgment order which had required a homeowner’s insurer to defend the homeowner in a personal injury action arising out of the homeowner’s dogs attacking a neighbor and her dog. On April 6, 2010, the Massachusetts Appeals Court vacated the order of the Superior Court, which had ruled, sua sponte, that a question in the insurer’s application for coverage – "Are there any animals or exotic pets kept on the premises?" – was ambiguous, and held that the insurer had no duty to defend the homeowner because he had materially misrepresented the risk to be insured by not disclosing his ownership of the dogs.

Massachusetts partner Peter Kober successfully represented an insurer which had denied coverage under a homeowner’s policy to an insured’s son, who had been involved in a barroom brawl and caused serious injury to another patron. The insured’s son was the subject of both a criminal investigation by the Boston Police Department and a claim for personal injuries by the patron, all of which was subsequently resolved by the insured without the insurer’s participation by means of a cash settlement of $425,000. The insurer had filed an action in the United States District Court for the District of Massachusetts, seeking a declaratory judgment that the injuries had been "expected or intended" from the standpoint of the insured’s son, and that the settlement had been both unreasonable as to its amount and had constituted a "voluntary" payment in violation of the homeowner’s policy. After a five day trial, the jury returned a verdict for the insurer, and in a separate bench trial, on April 6, 2010, the District Court (Zobel, J.) determined that the insurer had not acted in bad faith by declining to participate in the settlement or to "defend" the insured’s son during the course of the post-incident settlement negotiations. Vermont Mut. Ins. Co. v. Desmond Maguire, et al., No. 08-10965-RWZ.

On March 10, 2010, Wisconsin partners Mark W. Rattan and Stephanie L. Dykeman successfully prosecuted an appeal in the Seventh Circuit Court of Appeals. The insured sought reformation of an insurance policy to include a contaminated parcel of land that had been omitted from the schedule of insured properties. On behalf of the insurer, Attorneys Rattan and Dykeman convinced the Seventh Circuit that the district court committed clear error when it reformed the policy to include the contaminated parcel as an insured property. The Court of Appeals held the insured could not have reasonably expected coverage for the subject parcel of land because the insured had not satisfied the insurer’s prerequisites to consider the parcel for coverage, i.e., that the insured own or control the parcel and that the insured provide a sufficient description of the parcel. The Seventh Circuit concluded the insured could not reasonably claim to have proceeded under a mistake that the policy would cover the parcel before satisfying these requirements. Hence, reformation was not a remedy available to the insured under Wisconsin law.

Chicago partner Omar Odland obtained summary judgment in a federal declaratory judgment action. The claimant was seeking to enforce a $2.2 million judgment against the firm's client under a package policy of professional dental liability and business liability coverage. On February 23, 2010, the Court agreed that the firm's client had no duty to defend or indemnify the underlying claims.

Chicago partner Daniel G. Litchfield recently spoke to Chicago Lawyer magazine regarding changes in insurance defense and coverage practice during the economic recession. He emphasized the importance of precision in early case assessments and specific, clear communication on expenses in response to clients seeking to keep their costs low. “It’s now up to attorneys and law firms to adapt to the many changes that are or will soon be hitting the insurance defense industry. Those who do will find that this industry can be as rewarding as it ever has been,” he said.

Chicago Partner Jonathan Barrish successfully defended SkyWest Airlines in two cases before the Illinois Workers' Compensation Commission that were filed against it by the same Claimant (Petitioner). In both cases, the Claimant (Petitioner) was asserting she suffered cervical and lumbar injuries affecting all four of her extremities and her entire spine. In the first case the Claimant (Petitioner) testified that she injured herself when she hit her head on a jet's engine. In a recently issued decision, the Administrative Law Judge (Arbitrator) found the Claimant (Petitioner) injured herself as she alleged but did not suffer any injuries entitling her to Permanent Partial Disability Benefits. In the second case, the Claimant (Petitioner) testified that both of her hands went numb while she was loading luggage on a jet bridge. The Administrative Law Judge (Arbitrator) adopted the position put forth by Mr. Barrish that based upon the Claimant's testimony as well as the medical evidence, the Claimant's (Petitioner's) current condition of ill-being was not related to her alleged accident at SkyWest Airlines. Enaz Wanzer v. SkyWest Airlines, 08 WC 47811, Enaz Wanzer v. SkyWest Airlines, 08 WC 47812.

In January 2010, Massachusetts Partner, Bethany Minich, and Associate, Shanna Boughton, successfully defended a negligence/breach of contract/indemnification suit in the Greenfield Superior Court. The matter arose out of the transportation of low level radioactive waste from a local nuclear power plant that was being decommissioned to a local rail yard. While en route to the rail yard, an intermodal container fell off a flatbed trailer when the chain used to secure the load broke. As a result of the accident, low level radioactive debris spilled into a ravine alongside the road. The general contractor sought damages in excess of a million dollars that had been awarded to it in an arbitration case against its sub-contractor, who was the plaintiff in the case. The plaintiff filed suit against the transportation contractors, claiming that they were solely responsible for securing the load and failed in this respect. Following a trial on the negligence claim, the jury returned a verdict in favor of the defendant transportation contractors. The Court removed the breach of contract claim from the jury’s consideration, allowing the transportation contractor’s motion for a required finding. Subsequently, the Court dismissed the indemnification claims as a matter of law.

On January 5, 2009 Paul G. Roche and Aileen Reilly Wilson obtained dismissal of a $375,000.00 claim for coverage brought in the United States District Court for the District of Connecticut. Plaintiffs argued that the all-risks homeowners’ policy issued to them by Great Northern was ambiguous. The District Court agreed with defendant that the policy was unambiguous. The plaintiffs appealed the ruling to the Second Circuit Court of Appeals. On November 18, 2009, the Second Circuit Court of Appeals affirmed the District Court’s dismissal and judgment. Aileen Reilly Wilson argued the appeal.

Chicago Partner Mitchell H. Frazen was a panelist on a Chicago Bar Association seminar on "Mastering Section 2-615 Motions to Dismiss, along with Judge Kathy M. Flanagan of the Circuit Court of Cook County's Law Division Motions Section, where he spoke and prepared written seminar materials on the topic, "Strategic and Tactical Use of Section 2-615 Motions to Strike." The October 20, 2009 seminar, which was webcast over the CBA and West LegalEdcenter websites, is also available in DVD format from the Chicago Bar Association.

Los Angeles partner Edward D. Vaisbort and senior associate Melinda W. Ebelhar obtained summary judgment on behalf of a major insurance company on breach of contract and “bad faith” claims in Federal District Court in California on June 29, 2009. Plaintiff, a homeowner’s association, contended that the insurer should have defended it in connection with an underlying assault claim pursuant to the employment practices coverage portion of a Director's and Officer's liability insurance policy. On behalf of the insurance company we were able to persuade the court to set an early hearing on summary judgment, thus significantly reducing defense costs, and then were successful in establishing that as a matter of law the policy’s defense obligation was not triggered. Plaintiff’s “bad faith” claims that the insurer did not conduct an adequate investigation were also dismissed as part of the summary judgment motion.

New York Partner Daniel T. Hughes obtained dismissal of a federal suit alleging libel, tortious interference, trade libel and interference with economic advantages and opportunities. The firm’s client had been sued as the result of an article it published and distributed to its membership. The article was picked up and distributed by the co-defendant, a competitor of the plaintiff. The decision dated March 27, 2009 can be found at Sandler v. Simoes, 2009 WL 902405 (E.D.N.Y.)

On March 16, 2009, the Illinois Appellate Court affirmed the trial court's dismissal of a complaint brought by a condominium association against the City of Chicago, a developer and the garage association related to proposed new construction on the condominium association's property. Chicago Partner Carrie Durkin and Associate Bradford LeHew represented the garage association at the trial court and on appeal. In an issue of first impression in Illinois, Carrie and Bradford successfully argued that the condominium association lacked standing to bring the lawsuit where its bylaws required two-thirds of its members to approve the lawsuit prior to filing.

On March 15, 2009, the Illinois Appellate Court affirmed the trial court's dismissal of a complaint brought against a workers' compensation third-party administrator alleging intentional infliction of emotional distress and bodily injuries all stemming from a claim handler's decision to discontinue payment for an at-home nurse care. The claim handler determined that the at-home care was no longer needed after a work-related foot surgery. Instead, the at-home care was desired for the injured worker's many other unrelated systemic conditions. Several weeks after payment for the at-home care was stopped, the worker fell in her home and injured her knee. The worker tried to sue in State Court claiming intentional conduct unrelated to her job activities. The trial court held, and appellate court affirmed, that the civil suit was barred by the exclusive remedies available in the workers' compensation system. This was an important win for the industry. Had this claim been allowed to go forward, it could have opened the courthouse doors to claimants when they do not like a benefits decision. Chicago Partners, Daniel Litchfield and Dawn Gonzalez handled the matter. Calloway v. Specialty Risk Services, IL App. Ct., 1st Dist., 3rd Div. No. 1-08-2989 (July 15, 2009, opinion not published).

On January 7, 2009 Chicago partner Scott D. Stephenson and senior associate William J. Perry, obtained summary judgment on behalf of their client, a manufacturer of industrial valves, in an asbestos related wrongful death case pending in the Cuyahoga County (Ohio) Court of Common Pleas. Plaintiff presented evidence through the testimony of decedent's co-worker, that one of decedents duties as a security guard at an automobile manufacturing plant, was to stand fire watch during the removal and replacement of asbestos gaskets and packing from their client's valves. Plaintiff argued that decedent's close proximity to this work exposed him to asbestos fibers from the packing and gaskets contained in the valves. However, Mr. Stephenson and Mr. Perry successfully argued that although their client's product was identified, the testimony was insufficient to establish that the alleged exposure to the asbestos containing components was a "substantial factor" in causing decedent's mesothelioma as required by Ohio law.

On September 26, 2008, Chicago attorneys Hope Nightingale and Laura Milnichuk prevailed on cross-motions for summary judgment. The issue was whether a homeowner insurer was obliged to defend an insured who was sued for defamation and intentional infliction of emotional distress. The underlying complaint was filed in Sangamon County, Illinois and the coverage action was filed in the federal court for the Central District of Illinois. The insured was an individual who allegedly made intentionally false and malicious statements about an athletic coach at a middle school (previously attended by the insured’s daughter). Ms. Nightingale and Ms. Milnichuk argued that these claims did not fall within the coverage provided by his homeowner’s insurance policy. On cross-motions for summary judgment, the Court granted the insurer’s motion and denied the insured’s cross-motion, finding that the insurer had no duty to defend or indemnify these claims.

On September 18th, 2008 New York partner Christopher A. McLaughlin and associate James Regan obtained summary judgment for their client, a Bronx New York material handling equipment service/repair company. The case was pending in the Supreme Court, Bronx County and involved an accident with a forklift truck resulting in a fractured leg and crushed foot for the plaintiff. Mr. McLaughlin and Mr. Regan successfully argued that their client did not have notice of the alleged break problem on the forklift and since their contract with plaintiff's employer was for "as needed" repairs only, did not have a duty to regularly service or inspect the vehicle. Of note, one of the principle cases cited and relied upon by the trial judge in granting the motion was an Appellate Division case previously handled and argued by Mr. McLaughlin. Venuto v. RCS Electronic Equipment Corp. 5 A.D. 3d 672.

On August 8, CT partner Mike Dugan obtained a Defendant’s verdict for a trucking company and a truck driver in a wrongful death action following a month-long jury trial in Waterbury, CT. Plaintiff’s decedent was struck and killed by a tractor trailer truck at night on I-95 after assisting the operator of a car that was disabled on the highway. The operator of the disabled vehicle settled with the Plaintiff for $1 million before the start of the trial. Plaintiff’s counsel asked the jury to award $8.8 million in damages against the trucker and the trucking company. Plaintiff argued that the trucker was driving in excess of the speed limit, and was over his federally mandated driving time limits. The defense alleged that the trucker could not have seen the unlit, disabled car in time to have avoided the accident. The jury concluded that the trucker’s conduct was not the proximate cause of the action. The jury awarded $1.5 million against the settled defendant only, returned a Defendant’s verdict in favor of the trucker and the trucking company. Prior to the trial, the trucking company offered to settle with the Plaintiff for the sum of $500,000. The Plaintiff’s lowest settlement demand, however, was $1.5 million. The jury deliberated for 3 days prior to returning the Defendant’s verdict.

Vincent J. Velardo, a senior associate in our New York office successfully argued before the Superior Court in New Jersey, resulting in the court vacating an award that was made in mandatory arbitration in the amount of $659,000.00. Plaintiff in the underlying arbitration sought re-payment of PIP benefits in a significant truck versus motor vehicle accident that resulted in one death, two traumatic brain injuries and a fourth individual that suffered serious fractures to both her legs. The PIP carrier demanded mandatory arbitration and the Litchfield Cavo client sought a deferment because the official investigation into the accident was ongoing and one of the issues was the potential involvement of non-parties in the underlying accident. The deferment request was denied and the court then directed an award against the Litchfield Cavo client for the full amount of the damages claimed. An application was brought before the Superior Court to vacate the award on the basis in part that the denial of the deferment was arbitrary and capricious. After an extensive hearing, the court granted the application, which was argued by Mr. Velardo, vacated the arbitration, then deferred the hearing until the underlying investigation is complete.

On August 11, 2008, Chicago attorneys Hope Nightingale and Kathleen Bianco obtained summary judgment regarding the duty of an insurer to defend an insured who was sued in a class action, pending in the Circuit Court of Cook County. The insured owns and manages a large apartment complex. Former tenants sued the complex, claiming that the landlord failed to return their security deposits when their leases ended. Ms. Nightingale and Ms. Bianco argued that these claims did not fall within the coverage provided by the policy. The insured filed a cross-motion for summary judgment. The Court granted the insurer’s motion and denied the insured’s cross-motion, finding that the insurer had no duty to defend or indemnify these claims.

On June 20, 2008, Dawn Gonzalez, partner in Litchfield Cavo's Chicago office, won summary judgment for a shipper client in a wrongful death truck accident case pending in the Northern District of Illinois. Boyle v. RJW Transport, Leslie Brockett and SKF USA Inc., Cause No. 05-C-1082 (Judge Matthew Kennelly). Plaintiffs had argued that the shipper SKF was vicariously liable for the accident because the truck driver and trucking company defendants were acting as SKF's agents under a "dedicated carriage" contract. Ms. Gonzalez' summary judgment motion was able to demonstrate that while the "dedicated carriage" contract called for SKF and the trucking company to have meetings and closely work together, the contract did not allow SKF to have control over how the trucking company would deliver its promised transportation services. As part of this ruling, the District Court also granted Ms. Gonzalez' motion to strike the plaintiff's expert who had tried to opine that this particular "dedicated carriage" contract gave SKF more involvement than is customary in other "dedicated carriage" contracts in the transportation industry. Judge Kennelly agreed that the expert was making a legal conclusion, was making an irrelevant comparison and did not have sufficient factual basis to try to make the comparisons. This was a very significant win which dismissed SKF from the litigation. The trucking company and truck driver had already admitted liability for this unfortunate and horrible accident that took the lives of a 1-year old girl and her mother and left a 3-year old sister with a broken wrist and the father with a broken shoulder. The plaintiffs would be very sympathetic to any jury and a sizable verdict would be expected under any circumstances. Indeed, plaintiffs' counsel (who are two of the most respected, well-funded plaintiffs attorneys in Chicago) had recently presented an eight-figure settlement demand.

On June 13, 2008, Mark A. Everett, one of our New York partners, successfully obtained a defense verdict in favor of the insured clients, the owner and operator of a truck. The action involved a claim for personal injuries to the plaintiff, who was a passenger in a car driven by her son. Both vehicles were making left turns. Plaintiff claimed neck and low back injuries and had undergone a lumbar discectomy procedure. After the jury was selected, plaintiff settled with her son for his policy limit ($25,000) and proceeded against our clients alone. After settling with the son, plaintiff increased her demand against our clients from $300,000 to $400,000. The jury returned a verdict for the remaining defendants.

On May 22, 2008, Chicago attorneys Hope Nightingale and Kathleen Bianco prevailed on a motion to stay discovery until resolution of summary judgment regarding the duty of an insurer to defend, before the Circuit Court of Cook County. The insured sought broad discovery, including the entire claims file and all correspondence between the insurer and its coverage attorneys. Ms. Nightingale and Ms. Bianco argued that these discovery requests presented complex privilege and work product issues which would be irrelevant and unnecessary if the Court granted the insurer's summary judgment motion. The Court held that the insured could seek such discovery only if the Court denied the insurer client's summary judgment motion.

On April 4, 2008 Wisconsin attorney Lynne Mueller obtained a directed verdict in favor of an insured client dismissing all claims asserted against it. The case involved claims by a mining equipment manufacturer for 3.8 million dollars in damages allegedly incurred as a result of an accident involving a boring mill at the plaintiff’s machine shop. The court agreed with Ms. Mueller’s arguments after a week long trial that neither the plaintiff nor the other named defendant, which had also asserted claims against the insured client, had presented sufficient evidence to proceed to the jury for recovery from the insured client.

On April 1, 2008, Chicago attorneys Carrie A. Durkin and Bradford A. LeHew obtained summary judgment on behalf of the Board of Directors of a not for profit client. Thirteen former members of a private golf club sued the Board alleging breach of contract when the Board changed the method and timing of payment of dues and redemption of equity for resigning members. The Court held that the Board of a privately held, volunteer organization had the right to adopt policies and procedures and interpret its bylaws free from intervention of the courts unless plaintiffs could show economic hardship. The devaluing of their equity did not reduce their share in the Club, only the value of that share.

Recently, partner Edward Vaisbort in Litchfield Cavo's Los Angeles office authored an article for Los Angeles Lawyer magazine addressing the challenges companies face in protecting their valuable data assets from outsiders and former employees. His article addresses some of the methods employers should consider in safeguarding what may be their most valuable property.
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On February 8, 2008, Edward Fogarty, Jr., one of our New York Partners, successfully obtained a defense verdict in favor of an insured client. The underlying case arose out of a wrongful death claim, which occurred when a payloader ran over a self-employed landscaper, at a Nassau County waste transfer station, leaving his wife and son as surviving distributees. The underlying case was settled for $3 million dollars by a co-defendant, who then asserted an indemnity and failure to procure insurance claim against the Litchfield Cavo insured, seeking the entire $3 million settlement.

After a full trial, the jury agreed with Mr. Fogarty's presentation, finding the accident did not arise out of the insured's work. This finding precluded the co-defendants argument for indemnity and provided no factual basis to implicate the contractual obligation to procure insurance. The insured had a $1 million primary policy, but the excess carrier, that had the next $2 million dollars of coverage, had disclaimed, potentially subjecting the insured to bankruptcy if faced with an adverse verdict.

On January 11, 2008, a Norfolk County (Massachusetts) jury returned a defense verdict for one of our Massachusetts partners, John Jarosak, in a case entitled Gillis v. UVRS Corp. The case arose out of a construction site accident which occurred at a project in Dover, Massachusetts. The plaintiff, a plumber, alleged that he was working on a ladder when the ladder was struck by a bag of insulation that fell off a large pile of insulation allegedly left at the site by the defendant's employees. This caused the plaintiff to lose his balance and fall off the ladder. The plaintiff alleged the defendant's employees were negligent in haphazardly stacking the pile of insulation in an area where other tradesmen would be working. As a result of the accident, the plaintiff sustained fractures to his left leg and left arm. The plaintiff underwent five surgeries on his left arm and incurred over $200,000 in medical bills for his treatment. As he was determined to be permanently disabled from his occupation as a plumber, he also alleged a loss of earning capacity of approximately $550,000. After a week-long trial, the jury found that the defendant was not negligent.

Jonathan Barrish, partner in the firm's Chicago, Illinois office, recently received two unanimous decisions from the Illinois Worker's Compensation Commission, in Michael Murphy v. U.S. Foodservice, 07 IWCC 1548, and Michael Murphy v. U.S. Foodservice, 07 IWCC 1551, affirming the Administrative Law Judges' (Arbitrators') findings in both cases. Mr. Barrish was commended by the Commission in both opinions for his "outstanding trial advocacy and the pursuit of all available yet admissible evidence."

Both cases involved an employee's worker's compensation claim that was denied. The issues centered on the claimant's (petitioner's) truthfulness in contending his injuries were work-related. The claimant's statements to his physician, his short-term disability carrier and in court did not corroborate each other, and the claimant admitted under cross-examination that he lied in order to receive short-term disability benefits. The Commission in both cases held that the petitioner failed to prove that his alleged injuries occurred while he was working.

Litchfield Cavo LLP is pleased to announce the promotion to Partner of Stephanie L. Dykeman and John L. Pollock in the Wisconsin office, and John A. Mercer, Jr. in the New Jersey office.

Thomas Clark and Melicent Thompson, partners in the firm's Avon, Connecticut office, obtained summary judgment in Federal District Court for the District of Connecticut for an insurer client, on a declaratory judgment complaint seeking rescission of a lawyers' professional liability policy based on misrepresentations the lawyer-insured made in applying for the policy. The insured, a Connecticut lawyer, absconded with millions of dollars of his clients' money. Thus, the judgment has allowed the insurer-client to avoid policy limits indemnity exposure, and to withdraw its defense of the insured in several pending suits against the insured arising from that misfeasance.

The motion for summary judgment was based on the lawyer-insured's material misrepresentations in answering three key questions on his application for the policy at issue: (1) that he had no business relations with clients outside the legal arena; (2) that he had never sued a client for unpaid fees; and (3) that no circumstances had arisen during the term of another insurer's, prior-year policy, that might lead to claims against him. The Court found that Litchfield Cavo attorneys proved, with undisputed facts, that each of those statements was untrue.

Christopher A. McLaughlin, a partner in the New York Office, recently won Summary Judgment on behalf of his clients who were insured by American Hardware Insurance Company. The case involved a two vehicle accident which occurred in Staten Island New York. The plaintiff was a passenger in codefendant's host vehicle which lost control around a turn and slammed into our client's tow truck which was traveling in the opposite lane of travel at the time of the accident. The Court agreed with Mr. McLaughlin's arguments that the "Emergency Doctrine" applied to these facts, and the defendant driver's actions must be judged accordingly in the face of an emergency situation. This was a significant victory since plaintiff was claiming that New York's joint and several liability would apply and our insured's vehicle had more available coverage than the host vehicle.

Litchfield Cavo LLP Connecticut partner David A. Corbett successfully defended M&M Transport Services, Inc., and its driver, Brian Strader, at trial in Connecticut Superior Court. The plaintiff claimed personal injuries, including permanent impairment of the back, and significant lost wages, as a result of a motor vehicle versus pedestrian accident. The defendants admitted liability, but sought to prove that the plaintiff was not otherwise injured in the accident. On October 2, 2007, the Connecticut jury rendered a unanimous decision awarding the plaintiff zero dollars in damages and we are told our client had a significant reserve take down.

Litchfield Cavo LLP is pleased to announce that it has opened its newest office, located in the Los Angeles area, and that Edward D. Vaisbort and G. David Rubin have joined LC as resident partners there. LC's West Coast office will serve our clients' expanding West Coast insurance coverage and defense, complex litigation and commercial real estate needs.

Richard C. Cavo, Charles E. Vermette, and Melicent B. Thompson obtained summary judgment on February 28, 2007 for Acadia Insurance Company in a Federal Court interpleader/declaratory judgment action arising from a serious motor vehicle accident in July 2005 involving four fatalities and dozens of additional injuries, caused by a truck owned and operated by Acadia's insured, American Crushing & Recycling, LLC ("ACR"). In the Federal Court action, Acadia sought a declaratory judgment that Acadia was not obligated to defend or indemnify ACR for claims arising from the accident under either a commercial lines auto or commercial lines umbrella policy with aggregate limits of $3,000,000.

Acadia argued that no defense or indemnity coverage existed under the policies for the accident-related claims because ACR had suspended auto and umbrella coverage for the truck prior to the accident. Acadia alternatively sought interpleader relief because of the extensive number, and value, of the claims actually filed, and likely to be filed, against ACR as a result of the accident.

After full briefing, Judge Janet Arterton of the U.S. District Court for the District of Connecticut granted Acadia summary judgment on the declaratory judgment counts of Acadia's complaint, agreeing with Acadia that there was no genuine issue of fact that as of the time of the accident, ACR had suspended auto and umbrella coverages for the truck involved in the accident, and that therefore, Acadia was entitled to a declaration of no defense or indemnity coverage under those policies for claims arising from the accident.

Thomas C. Clark, Melicent B. Thompson and Aileen R. Wilson recently obtained, from a New London, Connecticut jury, a verdict of no coverage in favor of Vermont Mutual Insurance Company, after a seven day trial. In the action, Vermont Mutual sought a declaration that it was not obligated to indemnify its insured under a homeowners' policy for serious bodily injury claims asserted against the insured in an underlying action. The litigation involved the assertion of the policy's definition of "occurrence" and the policy's exclusion for injuries expected or intended by the insured. The jury returned a verdict for Vermont Mutual in less than 2 1/2 hours.

Chicago partner Tom Crawford and associate Susan O’Brien recently won summary judgment in favor of their client, a building contractor, in the United States District Court for the Southern District of Illinois. On January 25, 2007, the Seventh Circuit Court of Appeals affirmed the decision. The lawsuit was brought by a construction worker who was seriously injured when his truck was struck by an Amtrak train as he was leaving a rail yard where the construction site was located. The Seventh Circuit determined that the defendant contractors owed no duty to Plaintiff because they did not control the railroad crossing. The case was Miller v. Illinois Central R.R. Co., 2006 WL 516732 (S.D.Ill. 2006); 2007 WL 174708 (7^th Cir. 2007).

Litchfield Cavo LLP Chicago partner Mitchell H. Frazen and associate Mark S. Nazarof successfully defended Certified Wrecking Company, Inc. in a catastrophic personal injury action by a night watchman who sustained burns over twenty-four percent of his body from a fire barrel on a demolition site. On January 24, 2007, the Circuit Court of Cook County, Illinois jury found LC's client not guilty of negligence, while awarding more than $2.9 million to the plaintiff against a codefendant brick salvaging company.

Litchfield Cavo LLP is pleased to announce the promotion to Partner of David A. Corbett, Timothy S. Jajliardo, Christopher J. Sochacki and Melicent B. Thompson in the Connecticut office, and James W. Sexton in the Massachusetts office.

On December 20, 2006, the United States District Court for the Southern District of Illinois granted judgment on the pleadings in favor of a Litchfield Cavo carrier client in an insurance coverage dispute. The underlying claim arose from an automobile accident. The insured, a minor, had his driver’s license suspended for various traffic offenses. He was involved in a one-car collision in which his passenger suffered serious injuries. Litchfield Cavo filed a coverage declaratory judgment action in federal court in conjunction with the carrier's denial of coverage and refusal to defend the driver in the personal injury and subrogation action. After briefing, the court granted judgment on the pleadings to the carrier under its automobile coverage exclusions. The case was handled by Chicago partner Hope Nightingale. The case's caption is Cincinnati Insurance Company v. Kyle Uhring, et al., case no. 05-602-DRH (S.D. Ill.).

Two of LC’s Massachusetts partners, Eileen P. Kavanagh and Peter C. Kober, successfully defended an asbestos personal injury suit in Norfolk County Superior Court that went to trial in December 2006. The case involved an individual who alleged he had developed mesothelioma – a cancer of the lining of the lung, which is almost exclusively caused by asbestos exposure and invariably fatal – as a result of his exposure to asbestos to friction products (clutches, brakes and gaskets) used in repairing automobiles and motorcycles, among other exposures. Plaintiffs initially brought claims against numerous defendants, including LC’s client, which was a mail order automotive parts retailer, and ultimately identified 37 defendants as having sold asbestos-containing products to which he had been exposed over the course of approximately 30 years. The demand to LC’s client alone was in the high six figures. After settling with most of these defendants, plaintiffs proceeded to trial against LC’s client, as well as a local hardware store (which was uninsured and kept in the case for jurisdictional purposes) and two nationally known building products manufacturers. After three days of trial, which included testimony from one of plaintiff’s “star” experts, Dr. Arnold Brody, plaintiffs settled with the two building products manufacturers and simply discontinued against LC’s client and the hardware store without any payment. Plaintiffs were represented by the Dallas, Texas firm of Simon, Eddins and Greenstone, whose website states that their firm has obtained verdicts in personal injury and wrongful death suits throughout the United States totaling in excess of $150 million during the past five years. Ms. Kavanagh and Mr. Kober were provided invaluable assistance by their colleague, James Sexton, who was instrumental in discovery and trial preparation.

On November 15, 2006, The Appellate Division of the Massachusetts District Court sustained a Litchfield Cavo LLP victory in a product liability action brought by a claimant who alleged that he suffered burns to his mouth from a novelty candy product imported by a Litchfield Cavo client. At trial, the candy importer obtained a defense verdict from the jury. The plaintiff moved for a new trial, and the trial court not only denied that motion, but further held that the case never should have gone to the jury in the first place. The trial court held that the candy importer had in fact been entitled to a directed verdict as the plaintiff has failed to present sufficient evidence on product defect and causation to allow the case to go to a jury. The plaintiff appealed alleging improper jury instructions and error on the part of the trial court in its handling of the post-trial motions. The Appellate Division affirmed the verdict and the lower court’s decision. Specifically, the Appellate Division found that the plaintiff had failed to present sufficient evidence on product defect and causation to create a jury question and further held that the trial court’s jury instructions were proper as was its handling of post-trial motions. The Appellate Division noted that the trial court could have directed a verdict for the defense at the close of the plaintiff’s evidence, or at the end of the case but that it was perfectly within its discretion to send the case to the jury, receive a verdict in favor of the defendant and deny a motion for a new trial on the ground that the defendant had been entitled to a directed verdict in any case. The trial and appeal were handled by Boston partner Bob Ciociola.

The case is Ide v. The Foreign Candy Company, et al., Appellate Div. No. 9972.

In September 2006, Litchfield Cavo LLP obtained a reversal of a Massachusetts Superior Court’s grant of summary judgment to an insured on a claim that a life insurance policy was fully paid up and still in force. On appeal, the carrier argued that the policy in question had in fact not been a "one premium" policy and that the policy had in fact lapsed for lack of subsequent premium payment after the insured’s initial premium payment. The Massachusetts Appeals Court agreed with the carrier, vacated the trial court’s entry of summary judgment in favor of the insured and remanded the case with orders to grant summary judgment in favor of the carrier. The appeal brief was written by former Boston associate, Gabriel Ciociola, who is now staff counsel for the 1st Circuit. The carrier’s oral argument was presented by Boston partner Bob Ciociola. Connecticut partners Peter Ponziani and David Corbett assisted on the brief.

The case is Sullivan V. Southland Life Insurance Company, Mass. App. No. 05-P-1102.

On September 21, 2006, the Illinois Appellate Court, First District, affirmed summary judgment entered in favor of Litchfield Cavo client, Kole Construction Company of Lemont Inc. (John Paolisso v. Kole Construction Company of Lemont Inc. et al, Appellate Court No.1-05-2672) Plaintiff, an electrician claimed that he stepped on a discarded piece of metal stud (used by Kole in it's work as a drywall subcontractor) as he stepped off his ladder on a job site where Kole also worked. Plaintiff injured his right knee, which required three surgical procedures. Plaintiff is permanently disabled and unable to return to work as an electrician.

Scott D. Stephenson, a partner in the Chicago office successfully argued that Plaintiff failed to present sufficient evidence that Kole (1) was responsible for the placement of the piece of stud on the floor or, (2) knew or should have known of the stud's presence.

On August 16, 2006, the United States District Court for the District of Massachusetts granted summary judgment in favor of a Litchfield Cavo carrier client in a $1 Million+ coverage case. The claims arose out of a commercial construction lawsuit among an insured subcontractor, the project owner, the general contractor (an additional insured), and some sub-subcontractors over the defective installation and/or defective carpet tile which required the entire building to be vacated and repaired. The insured subcontractor and the general contractor demanded a defense and indemnity from the carrier in the underlying action.

Litchfield Cavo filed a coverage declaratory judgment action in federal court in conjunction with the carrier's denial of coverage and refusal to defend. After extensive discovery and briefing, the court granted summary judgment to the carrier under its various business risks exclusions. The case was handled by Boston partner Bob Ciociola and former Boston associate, Gabe Ciociola, who is now staff counsel for the 1st Circuit.

The case's caption is Essex Insurance Company v. BloomSouth Flooring Corp, et al., C. A. No. 03-10275 - LTS.

In July 2006, Scott D. Stephenson, a partner in the Chicago office was appointed by the Board of Directors of The Illinois Association of Defense Trial Counsel to the position of Vice Chairman of the planning committee for the association's annual "Defense Trial Tactics Seminar" to be held on March 9, 2007 in Chicago. Scott will serve as Chairman of the planning committee for the 2008 seminar.

Dawn M. Gonzalez, a partner in our Chicago office, will receive the "Outstanding Young Alumna" award from her alma mater, DePaul University, College of Law during its 13th Annual Law Alumni Awards Luncheon on Thursday, September 21, 2006 at the Palmer House Hilton. The award recognizes DePaul alumni under the age of 40 who have shown a high level of professional excellence. In June 2006, Dawn also completed her term as President of the Women's Bar Association of Illinois.

Hope G. Nightingale, a partner in our Chicago office, along with associate Bradford LeHew, obtained summary judgment in June of 2006, in favor of an insurance company client. Plaintiff was an employer of a worker injured on the job. The employer settled the worker’s FELA claim for $375,000, then sued various subcontractors and their insurers for reimbursement and equitable contribution. Summary judgment was granted to Cincinnati Insurance Company on issues of late notice, voluntary payments and various policy exclusions.

On May 8, 2006 the First District Appellate Court issued its opinion affirming summary judgment on behalf of Litchfield Cavo LLP client, Ginger Ridge. Ginger Ridge is the owner and property manager of a number of condominium buildings in suburban Chicago. The decision was reported on the front page of the Chicago Daily Law Bulletin the day after the opinion was issued.

The decision weighs in on an issue which was previously not addressed in the caselaw and on which plaintiffs have increasingly tried to allege liability against owners and possessors of property. The decision rejected that attempt to broaden defendants' liability. Litchfield Cavo attorneys Carrie Durkin and Renee Wiszowaty represented Ginger Ridge in the successful defense of Ginger Ridge.

Litchfield Cavo LLP is pleased to announce that John D. Shea has joined the Firm as Partner resident in the New Jersey office.

On April 21, 2006, Eileen P. Kavanagh and Peter C. Kober, partners in our Massachusetts office, were successful in obtaining summary judgment with respect to personal injury claims against their clients – a temple, its rabbi and the president of its congregation – arising out of the sexual molestation of one of the temple’s female congregants by the temple’s former hazzan (cantor). Plaintiffs alleged that these defendants had been negligent and grossly negligent in their hiring, retention and/or supervision of the perpetrator, who had recently pled guilty to 14 counts of sexual assault and battery upon a mentally retarded person (the congregant), as well as that these defendants should be held vicariously liable for the acts of the perpetrator. In a detailed decision, the Superior Court rejected each of plaintiffs’ theories of liability against these defendants and dismissed their claims. The case is captioned Allison Getz, PPA, et al. v. Robert Shapiro, et al., Norfolk County (MA) Superior Court Civil Action No. 03-349.

After a three week trial, on April 21, 2006, a Suffolk County (Boston) Superior Court jury returned a defense verdict for John Jarosak and Luana DiSarra of our Massachusetts office in a case entitled Boudreaux v. Cybex International, Inc., et al. The plaintiff fell from a piece of exercise equipment and sustained a fractured hip. The plaintiff eventually underwent five operations, including three hip replacements, as a result of the fracture and a severe post-operative infection which he developed. The plaintiff brought suit against the manufacturer and distributor of the equipment, the health club (our defendant) and an equipment consultant hired by the club under theories of negligence and breach of warranty. The plaintiff alleged that his medical bills exceeded $200,000 and his lost earning capacity ranged from $1,100,000- $1,800,000.

Following trial, on March 31, 2006, a Connecticut jury rendered a defendant’s verdict in favor of a Litchfield Cavo LLP client. The claimed cervical spine injuries arose from a motor vehicle accident. David Corbett of the Connecticut Office represented the sole defendant at trial. Prior to trial, a judge recommended a significant settlement. The case caption is Raisa Pilunts v. Glenn Levasseur, Connecticut Superior Court, Judicial District of Hartford, Docket No: CV03-0827894-S.

Edward Fogarty Jr, a partner in our New York office, obtained summary judgment in March of 2006, in favor of a commercial trucking driver and her employer where the Plaintiff claimed to have sustained a traumatic brain injury as a result of a two vehicle accident. The 62 year old Plaintiff claimed medical bills totaling in excess of 225,000 for four months of inpatient treatment; the loss of his ability to live independently, and continuing medical bills due to the need for constant medical supervision. Plaintiff’s seven figure demand not withstanding, the Supreme Court Queens County dismissed the case on a full record.

In March 2006, Hope G. Nightingale of our Chicago office obtained summary judgment for Cincinnati Insurance Company on a coverage dispute. The insured had closed down a business, removing various trade fixtures and other improvements when they vacated the leased premises. The federal court upheld as proper Cincinnati’s denial of coverage based on various policy exclusions. The caption is Cincinnati Insurance Co. v. Compton, Ltd., Case No. 04 C 50322 (N.D. Illinois).

In March 2006, partners Hope G. Nightingale and Dennis M. Dolan obtained partial summary judgment for Cincinnati Insurance Company on a coverage dispute with an additional insured. Cincinnati won on issues of duty to defend, target tender, estoppel, reformation and equitable subrogation. Of particular interest was the Court’s ruling that an insured cannot selectively tender its defense to an umbrella policy, and that even in a “target tender” situation all primary coverage must be exhausted before umbrella coverage is triggered. The case is Cincinnati Insurance Co. v. Boller, 2006 WL 695459 (N.D. Ill. 3/15/06).

Edward Fogarty, Jr., a partner in our New York office, recently prevailed before the Appellate Division of the New York State Supreme Court in obtaining the dismissal of a significant personal injury action against a Litchfield Cavo commercial trucking client. The 23 year old plaintiff sustained a massive brain injury, rendering him comatose, and subsequently left him in a persistent vegetative state. On appeal from an Order denying dismissal of the action as based wholly upon unscientific expert testimony, the Appellate court reversed the lower court and dismissed the action against the Litchfield Cavo clients. The New York Court of Appeals has denied Plaintiff's application for leave to appeal. The case is Borges v. Zukowski, 22 A.D.3d 439, 801 N.Y.S.2d 544, leave to appeal denied 6 N.Y.3d 705, --- N.E.2d ---- (2006).

On March 1, 2006 the Second District Appellate Court of Illinois affirmed a defense verdict for Big Brothers Big Sisters of Lake County in a case defended at trial by Litchfield Cavo attorneys Michael W. Donaubauer and Matthew D. Walker. In an unpublished Rule 23 order, the Second District Appellate Court ruled that the evidence offered by Defendant Big Brothers at trial convincingly showed that it was not liable to Plaintiff for the assaults committed by a volunteer with the Big Brothers program and, therefore, Plaintiff was not entitled to a new trial or judgment in his favor. Additionally, the Appellate Court rejected the Plaintiff's claim that he was entitled to a new trial as a result of evidentiary errors. No further appeal was taken by the Plaintiff. The case is DeVoss v. Big Brothers Big Sisters of Lake County, Appellate No. 2-04-1042.

On January 31, 2006 the Minnesota Court of Appeals sustained a summary judgment awarded to Litchfield Cavo LLP client Cincinnati Insurance Company. Firm partners Daniel G. Litchfield and Dennis M. Dolan represented Cincinnati in the case. Insurance coverage had been sought for alleged property damage to numerous stucco homes built by a Cincinnati policyholder. The basis for Cincinnati’s victory was Minnesota allocation law established in the 3M decision, among other cases.

Litchfield Cavo LLP is pleased to announce the promotion to Partner of Dennis M. Dolan, Brian M. Reid, and Matthew D. Walker in the Chicago office, and Kathleen J. Collins in the New Jersey office.

In November 2005, Christopher Sochacki of the Connecticut’s Office obtained a defendants’ verdict in the case Frank Stanton v. Robert and Patricia Luewinko in the Judicial District of Waterbury. Mr. Stanton claimed severe rotator cuff injuries as the result of a fall from a set of pull-down attic stairs inside the Luewinko residence. He argued that the attic stairs were unsafe and that the Luewinkos knew or should have known of the stairs’ unsafe condition, but did nothing to remedy the condition or warn him of the condition. At trial Mr. Stanton requested an award of over $600,000. The jury deliberated for 28 minutes before returning a verdict in favor of the Luewinkos, the sole defendants in the case.

On November 2, 2005, Litchfield Cavo attorneys obtained a dismissal of all claims against clients Cincinnati Insurance Company and Cincinnati Casualty Company. The Firm represents the Cincinnati companies in a class action lawsuit filed against them. The suit alleges that the Cincinnati companies improperly reduced payments to healthcare providers by claiming the benefits of a purported PPO agreement. This is a so-called “silent PPO” case. The complaint contained counts for violations of the Illinois Consumer Fraud Act, unjust enrichment and civil conspiracy. In its dismissal order, the Third Judicial Circuit, Madison County, Illinois adopted all of the arguments made by Cincinnati in its dismissal briefs. The case name is Frank C. Bemis & Associates, et al. v. The Cincinnati Insurance Company, et al., Case No. 05 L 178.

On August 23, 2005, following a five-day trial, the jury returned a verdict in favor of our client. The case involved a motor vehicle accident with serious bodily injury. Plaintiff’s medical bills exceeded $100,000 and plaintiff rejected an offer of $250,000 before trial. Timothy S. Jajliardo of the Connecticut office represented the sole defendant at trial.

In May 2005, John R. Catizone and Lisa A. Oonk joined the Firm as Partners resident in the Tampa, Florida office.

Litchfield Cavo LLP is pleased to announce the opening of its Tampa office at

5201 West Kennedy Boulevard
Suite 450
Tampa, FL 33609
(813) 289-0690 Tel
(813) 289-0692 Fax

Connecticut partner Tom Clark, with associate Melicent Thompson on the brief, recently prevailed in a decision by the Connecticut Supreme Court, released on May 24, 2005, in which they had sought a permanent injunction on behalf of the Cantonbury Heights Condominium Association, Canton, CT, to prevent the exercise of development rights by a successor declarant/developer. After the trial court granted the developer, LLD, summary judgment, a unanimous Supreme Court reversed that decision, finding that the developer's rights had expired. As a result, the unit owners are now the sole owners of the adjoining fourteen-acre tract of land. The case represents one of the first interpretations of the rights of successor declarants under the Common Interest Ownership Act (CIOA). See Cantonbury Heights Condominium Assn. v. Local Land Development, LLC, 273 Conn. 724 (May 24, 2005).

Litchfield Cavo LLP Partner Dawn Gonzalez was selected from over 1100 nominees by the Chicago Daily Law Bulletin as one of the "40 Illinois Attorneys Under 40 to Watch." In addition to her stellar legal work, Dawn was cited for her extensive involvement with the Women's Bar Association of Illinois, where she is presently First Vice-President.

Litchfield Cavo LLP Partners Daniel G. Litchfield, Alan I. Becker, Mitchell H. Frazen, Matthew J. Iverson, and Carrie A. Durkin have been selected as Leading Lawyers in Illinois in Insurance Coverage and Defense and Commercial Litigation, based upon a survey of over 50,000 Illinois lawyers. The survey precluded lawyers from selecting themselves or others in their firm. This distinction is afforded to fewer than 5% of lawyers licensed in Illinois.

Two of our Massachusetts partners, Eileen Kavanagh and Peter Kober, recently were successful in defending a manufacturer and supplier the second phase of a serious “toxic tort” case, which involved claims for personal injuries, property damage and damages related to the Massachusetts Consumer Protection Act (“Chapter 93A”).

These claims arose out of the application of a wood preservative product in plaintiffs’ Nantucket, Massachusetts residence. Plaintiffs John and Barbara Zabilansky had alleged that their home became uninhabitable, that Mr. Zabilansky suffered various physical ailments, including multiple chemical sensitivity (“MCS”), environmental asthma, reactive airways disorder syndrome (“RADS”), chemically induced chronic headaches, chemically induced hepatitis, and chemically induced/stress induced periodontal disease, and that Mrs. Zabilansky had suffered personal injuries and loss of consortium, as a result of exposure to defendants’ product.

After extensive consideration of defendants’ Daubert motions challenging the methodology and conclusions of several of plaintiffs’ medical experts, the trial court excluded opinion testimony related to MCS, environmental asthma, chemically induced headaches, chemically induced hepatitis, and chemically induced/stress induced periodontal disease. However, because the trial court permitted plaintiffs’ experts to testify with respect to the purported causal connection between defendants’ product and Mr. Zabilansky’s diagnosed condition of RADS, and that his chronic headaches had been caused by stress related to plaintiffs’ “forced” relocation from their residence to Connecticut, the case proceeded to trial on the negligence and warranty claims in June 2004. Plaintiffs presented evidence that included testimony by 11 experts, who offered opinions relating to medical, toxicological, vocational and economic loss issues, in support of their claims that Mr. Zabilansky was permanently and totally disabled, had lost approximately $1.8 million in future earning capacity and had suffered severe physical and psychological damage related to his exposure to toluene diisocyanate (a known carcinogen and inhalation hazard) contained in defendants’ product.

Following a three week trial, the jury deliberated for nearly three days before returning verdicts in defendants’ favor. In August 2004, the parties offered additional evidence, filed briefs and presented oral argument with respect to plaintiffs’ Chapter 93A claims. In a 25 page memorandum decision of its findings of fact and rulings of law filed on October 13, 2004, the trial court ruled that, notwithstanding evidence of admitted product mislabeling, defendants had not violated Chapter 93A and ordered judgment for defendants. The case is John Zabilansky, et al. v. American Building Restoration Products, Inc., et al., Middlesex County Superior Court (MA) Civil Action No. MICV2001-01985.

In April 2004, Michael Donaubauer and Matt Walker of the Chicago office successfully defended Big Brothers Big Sisters of Lake County in a personal injury lawsuit filed by a former client of the program. The plaintiff alleged numerous psychological injuries as a result of assaults committed by a volunteer with the program. The plaintiff alleged that Big Brothers Big Sisters of Lake County was negligent in its supervision of the plaintiff's match with the volunteer. After an almost two week trial, the Lake County jury returned a verdict in favor of Big Brothers Big Sisters of Lake County in just under 4 hours. The plaintiff had asked for 5.6 million dollars from the jury. The case is DeVoss v. Big Brothers Big Sisters of Lake County, No. 00 L 363.

Founding partner Mitchell H. Frazen was recently successful in obtaining a ruling by the Illinois Appellate Court, First District, in favor of our client Travelers Indemnity Company against American Casualty Company of Reading, PA (a CNA company) that required American Casualty to contribute $2 million in primary policy limits to a $4.5 million nursing professional malpractice settlement that Travelers had funded. Travelers insured an Illinois hospital and its nurses for professional liability under policies of both primary and excess insurance, while American Casualty separately insured three of the nine nurse defendants in the underlying malpractice action under nursing liability policies. American Casualty refused to contribute any part of the $2 million policy limits of its three nurses' policies to the year 2000 settlement of the underlying action, arguing that its policies' "other insurance" provisions made them excess not only to the Travelers primary policy, but also to its excess policy, the limits of which were not exhausted in the settlement. We filed suit for Travelers seeking contribution from American Casualty, and the trial court granted Travelers motion for summary judgment only in part. On our appeal, the Illinois Appellate Court ruled in Travelers favor, holding that the American Casualty nursing policies were primary insurance, and that their $2 million limits had to be exhausted before the Travelers excess policy could be called upon to contribute to the settlement. Travelers Indemnity Company v. American Casualty Company, 337 Ill. App. 3d 345, 786 N.E.2d 582 (1st Dist. 2003); rehearing denied, 2003 Ill. App. LEXIS 491 (April 3, 2003); leave to appeal denied, 2003 Ill. LEXIS 1718, (Illinois Supreme Court, October 7, 2003).