News

by Brett Kruckmeyer

Award to family in Rockford train derailment: $36.2 million

By Chris Green // rrstar.com

CHICAGO – A multimillion-dollar settlement was reached today stemming from the June 19, 2009, train derailment and explosion that claimed the life of a woman and her daughter’s unborn baby.

Canadian National Railway will pay a total of $36.2 million to the Jose Tellez family.

Killed in the multi-car derailment was Jose Tellez’s wife, Zoila Tellez. The railroad company settled with Jose Tellez for $22.5 million. Jose suffered second and third-degree burns over 25 percent of his body, said his Chicago-based attorney, Robert Bingle of Corboy and Demetrio.

Jose and Zoila’s 19-year-old daughter, Adriana, was pregnant and suffered second- and third-degree burns to her face, chest,  shoulder, arms and hands as wcll as the loss of her baby, Samara Ramirez-Tellez. After a four-week trial, Canadian National Railway  settled with Adriana for $137 million, said her Chicago-based attorney. Christopher Norem of Parente and Norerm Law Offices.

About 8:35 pm. June 19, 2009, the Tellez family was traveling north on South Mulford Road when they stopped at the south set of double railroad tracks.

Unknown to them and to the operators of a freight train hauling ethanol, torrential rains had washed away the bedrock underneath the railroad tracks. As the train traveled over the tracks, ethanol cars derailed. exploded and burned for nearly 21 hours.

“The Tellez family has endured a terrible tragedy, and CN wishes lo express again its sincerest regrets and deepest sympathies to the entire Tellez family. No amount of money can replace the family’s losses,” CN spokesman Patrick Waldron said.

The family’s personal-injury attorneys were pleased with the settlements.

“It was a terrible tragedy, and nothing will bring back that wonderful mother and wife, but this is certainly a measure of justice,” Bingle said.

Norem added: “The family wanted to hear the jury hold Canadian National responsible, and that’s what the jury did.”

Waldron said the settlements conclude all remaining litigation in connection with the 2009 train derailment. The case remains under investigation by the National Transportation Safety Board.

Copyright 2011 Rockford Register Star. Some rights reserved

by Brett Kruckmeyer

$5M settlement reached in a drunken-driving lawsuit

Chicago Daily Law Bulletin  // In Circuit Court

By Maria Kantzavelos Law Bulletin staff writer

A lawsuit brought by a Walgreens project manager who suffered injuries in a 2006 traffic accident involving a worker who was drinking on St. Patrick’s Day at a bar across the street from his job site before driving away in his company-issued van has settled for $5 million, the plaintiff’s attorney said.

The case involved a foreman of United States Fire Protection Inc. The company, which equips buildings with fire sprinkler systems, was also a defendant in the lawsuit.

On March 17, 2006, Gary W. Ericksen, who had been working as a foreman sprin- kler fitter at the construction site of a Westin Hotel in Wheeling, left the job site with his crew for lunch to patronize the Old Munich Inn, a bar across the street that Ericksen frequented regularly during work hours for a period of five to six months, the plaintiff’s lawyers alleged.

The plaintiff, Joseph Ambrogio, con- tended that Ericksen was intoxicated when he got into his company van and drove about a mile — to Lake-Cook Road on a bridge over the intersection with the Canadian National Railroad — where he struck a line of stopped cars including the car driven by Ambrogio, which was the second car in line, said Joseph D. Parente of Parente & Norem P.C. who, along with Christopher M. Norem, represented the plaintiff.

Ericksen was later convicted of aggra- vated driving under the influence of alcohol as a result of the accident. But the lawsuit alleged that this was not the first time the sprinkler fitter was convicted or charged with drinking-related offenses.

Parente said a unique fact pattern in the case helped drive the settlement, which was approved last week by Cook County Circuit Judge Lynn M. Egan, just a few days before the matter was to proceed to trial before her on Monday.

“You had a person who was somewhat

known to be a drinker, who would frequent the drinking establishment right across the street from the construction site multiple times a week and it actually happened on St. Paddy’s day. I couldn’t make up better facts than that,” Parente said.

“It’s pretty compelling if you’re talking to a jury,” Parente said. “First of all, it’s a motorist who’s a known drinker, who is given the keys to a company vehicle and he chooses to drive that vehicle after drinking in excess on St. Paddy’s Day. The fear is that anyone in the jury, including any of the lawyers, could face the same danger that Joseph Ambrogio did — a drunk driver.”

Prior to the settlement, the judge granted the plaintiff leave to plead punitive damages against not only the individual driver of the van but his employer as well — another unique factor that Parente said he believes was key to the settlement.

“We were prepared to ask the jury for in excess of $10 million in punitive damages,” said Parente, pointing out that Illinois law does not allow punitive damages to be covered by liability insurance.

If a jury were to award punitive damages in the case, Parente said, “they would’ve had to have been paid or satisfied directly by United Fire Protection, out of corporate funds.”

United States Fire Protection was rep- resented by Dean Barakat of Nyhan, Kralovec & Barakat P.C., and John W. Patton Jr. and John A. Ouska III of Patton & Ryan LLC. Barakat declined to comment and Patton and Ouska could not be reached on Friday.

The driver of the van was represented by James B. Tobin of Lewis, Brisbois, Bisgaard & Smith LLP, who declined to comment on the case.

Among the allegations in the lawsuit was the contention that United States Fire Protection was aware or should have been aware that Ericksen was regularly present at the bar across the street from the work site, with a company van, during work

hours and immediately following regular work hours for several months. The lawsuit also alleged that the employer failed to learn or inquire about Ericksen’s driving record, including a 1998 DUI conviction, before allowing him to use the company van to drive from home to various work sites.

“That’s where the rub was in this case,” Parente said. “They were supposed to do background checks on their drivers. It’s our argument that had they done it, they would’ve seen that he had prior DUIs and/or convictions for drinking-related offenses. … If they did the proper background check, they never would have allowed this man to take a company vehicle.”

Parente said his client, who was 34 at the time of the accident, suffered a herniated disc in his lower back that required a single- level lumbar fusion and a meniscal injury in his knee requiring several arthroscopic sur- geries. But, other than during a few weeks following his back surgery and knee surger- ies, since the accident, the plaintiff has been working full-time in the same job as a com- munications technician supervising the installation of communications wiring in newly constructed Walgreens stores, his attorneys said.

Parente said the $5 million settlement is the highest reported settlement in Illinois “for an injury involving a single-level lumbar fusion wherein the plaintiff contin- ued in his pre-accident occupation since the date of the accident.”

John L. Kirkton, editor of the Illinois Jury Verdict Reporter, said he could not confirm that claim. But he said the settle- ment is particularly hefty in light of the injuries the plaintiff suffered in the crash.

“Most of the time when you get into that dollar value it’s because there is some per- manent disability or paralysis that resulted from the spinal damage and there’s cer- tainly none in this instance,” Kirkton said.

The case is Joseph Ambrogio and Debra Ambrogio v. Gary W. Ericksen, et al., No. 06 L 6380

—————————————————————

CHICAGOLAWBULLETIN.COM // In the News

Volume 157, No. 30 // FRIDAY, FEBRUARY 11, 2011

by Brett Kruckmeyer

Carpenter injured in a fall preparing to set trusses

Chicago Daily Law Bulletin  // In Circuit Court

 A carpenter who was injured in a fall while preparing to set trusses at a residential construction site has settled his lawsuit against the project’s general contractor and a crane/truss company for nearly $4.9 million, according to the carpenter’s attorney.

As a bundle of trusses was being lowered by a crane, John Halek, 42, was standing on the top edge of a back wall of a house under construction, waiting to grab the trusses that would make up the home’s roof, when the bundle shifted, causing him to fall 30 feet, said Christopher M. Norem of Parente & Norem P.C., who along with Joseph D. Parente and Timothy D. Quinn represented the plaintiff.

The carpenter sustained a moderate traumatic brain injury, fractured wrists requiring surgery and a neck injury requiring fusion surgery, Norem said.

The plaintiff claimed that Kingsport Development LLC, the owner and general contractor of the project, failed to ensure that Halek’s employer, the carpentry subcontractor, had an OSHA- compliant fall-protection plan and to ensure that feasible work supports were being used while landing the truss bundles, rather than the top edge of the walls. The plaintiff also alleged that the crane and truss company did not provide the correct rigging for a bundle of that size, or a competent opera- tor.

The general contractor, who was represented by Jeffrey H. Lipe and Thomas J. Pontikis of Williams, Montgomery & John Ltd., agreed to pay $4 million on Thursday, after a trial had begun before Cook County Circuit Judge Jennifer Duncan- Brice, who dismissed the case, Estate of John Halek v. Kingsport Development LLC, et al., No. 08 L 6980.

On Nov. 2, the case against Tempo Components and Tempo Wood Products, which supplied the crane operator and the trusses and was represented by Christopher G. Buenik and John J. Moroney IV of Bollinger, Ruberry & Garvey, was settled for $875,000.

Norem said the carpenter’s employer waived a $1.66 million workers’ compensation lien, dismissing it from the case.

—————————————————————

CHICAGOLAWBULLETIN.COM // In the News

TUESDAY, AUGUST 5, 2003 // Volume 149, No. 152

by Brett Kruckmeyer

Construction worker fractured vertebrae and injured his rotator cuff

Chicago Daily Law Bulletin  // In Circuit Court

A construction worker who fractured vertebrae and injured his rotator cuff on the job has received a $3.5 million settle- ment, his attorney said.

Kyle Ziminsky was 17 years old in 2004 when he was working as a non-union laborer at a condominium construction site in Frankfort.

He stepped onto a shaft opening that was covered with Styrofoam and fell 13 feet onto his back.

The shaft was covered, but not barricaded, the plaintiff alleged.

Ziminsky was represented by Christopher M. Norem and Joseph D. Parente of Parente & Norem P.C.

Bruti Associates Ltd. was represented by W. Grant Farrar of Bollinger, Ruberry & Garvey.

Frankfort Masonry and FMC Service Corp. were repre- sented by Thomas P. Boylan of Cassiday, Schade LLP.

HTH Mechanical Services Inc. was was represented by William Walter Elinski of Pretzel & Stouffer Chtd.

Bruti Associates paid $1.5 million. HTH Mechanical Services paid $1.5 million. Frankfort Masonry and FMC Service Corp. paid a total of $500,000.

The settlement was reached Thursday after a private medi- ation before Jerome M. Orbach, a retired Cook County circuit judge.

Kyle Ziminsky v. Bruti Associates, et al., No. 04 L 5670.

CHICAGOLAWBULLETIN.COM // In the News

TUESDAY, DECEMBER 16, 2008 // Volume 154, No. 246

by Brett Kruckmeyer

Deck-collapse victim sues for over $50,000

The suit was filed Wednesday in Winnebago County Circuit Court.

By Carrie Watters // Rockford Register Star

ROCKFORD – At least one victim in a Hampton Meadows deck collapse is suing the owners of the Rockford apartment complex, with others expected.

About a dozen people fell 10 feet when a wooden deck detached from the building shortly after midnight June 29. Injuries included broken bones in feet and ankles, according to a Rock- ford Department report.

Lucas J. Jeanmaire, 22, of Rockford seeks in excess of $50,000. Details of his injuries were undisclosed, although the complaint listed permanent injuries to his head, body, mind, limbs and nervous system.

Jeanmaire is represented by Chicago ­based personal injury attorney Christopher Norem, who alleges that apartment owners failed to properly maintain the deck and ensure it was properly fastened to the building.

“The fact that it collapsed speaks for itself, ” Norem said in a phone interview.

Norem and Rockford-based attorney Frank Perrecone, who is representing mo other victims, will appear in court this morning, Norem said. The attorneys seek a court order to obtain remnants of the deck and to preserve the accident site, Norem said.

The 12-year-old apartment building off Bell School Road is owned by Hampton Properties. Majority owner and Rockford developer John Slack has said the deck was built to withstand 100 pounds per square foot, or 7,200 pounds. Slack could not be reached Wednesday afternoon. Doug Winters, who manages the property, also did not return phone calls.

Norem said the deck should have been able to handle the occupants’ weight. “They weren’t partying,” Norem said. “They were hanging out on the deck.”

Norem contends the deck did not have enough lag bolts fastening it to the building, and the bolts were not long enough. Norem said only a half-inch to an inch of bolt was screwed into the buildings structure.

State law required owners to hire a design professional to determine the cause of the accident ‘This immediately was done.

But Mike Pfieffer, vice president of codes and standards development with the International Codes Council, said it often is the court system that decides who was at fault.

by Brett Kruckmeyer

Insurer loses bid to limit costs in collision involving rental car

By Stephanie Potter Law Bulletin staff writer

The 1st District Appellate Court decided Friday that a rental car company was not required to provide liability cov- erage to customers who prefer to use their own coverage.

The ruling, written by Justice P. Scott Neville Jr., affirmed a decision by Cook County Circuit Judge John K. Madden, who has since retired.

The case arose out of an Oct. 25, 2000, auto accident between Allstate Insurance Co. policy- holder Rajiv Munschi and Gary Vitt, who was driving a rental car owned by Hertz Corp., the deci- sion said. Munschi settled with Vitt for $20,000, but did not pursue a claim against Hertz.

Allstate then filed an action for declaratory judgment to determine its liability under the underinsured motorist provision of its policy with Munschi.

Allstate sought to limit the amount it would have to pay Munschi under his underinsured motorist policy to its coverage limit of $100,000, minus the $20,000 Munschi received from Vitt and the $50,000 to which it argued Munschi might have been entitled had he sued Hertz.

At the very least, said Allstate attorney Peter C. Morse, Hertz should have been required to provide $30,000 in coverage, for a total of $50,000 when Vitt’s other coverage was factored in.

Hertz is required under the law to maintain coverage of $50,000 per person or $100,000 per accident in liability protect for its renters, the decision said. But in offering customers that insurance, Hertz also states that it will not indemnify customers who rely on their own insurance as long as the policies meet minimum state requirements, the decision said.

According to the decision, Vitt

rented the Hertz car on Oct. 3, 2000, and declined to purchase the liability insurance offered by Hertz. He opted to rely on his policy from Geico Insurance, which had coverage of $20,000 per person or $40,000 per acci- dent for personal injury or death, the minimum required under Illinois law.

In Allstate’s declaratory judg- ment action, Madden granted summary judgment in favor of Munschi.

Agreeing with Madden’s deci- sion that Munschi was entitled to $80,000 worth of coverage, Neville cited Hertz’s liability insurance supplement provision, which states that the company’s liability will be triggered only if the renter does not have the minimum insurance required under the law.

Allstate based its argument on the Illinois law concerning underinsured motorists, 215 ILCS 5/143a-2(4). The law states that the liability limits “for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recov- ered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle.”

Allstate argued that Hertz’s $50,000 in self-insurance should be considered “other security,” Neville said.

But the court rejected that argument, relying on Fogel v. Enterprise Leasing Co. of Chicago, 353 Ill.App.3d 165, 176 (2004), citing Farm Bureau Mutual Insurance Co. v. Alamo Rent A Car, 319 Ill.App.3d 382, 389 (2000). Those cases hold that the parties to a rental agree- ment can contract as to which insurer, the rental agency or the renter’s own insurance, is responsible for primary cover-

age, as long as the state’s minimum requirements are met, Neville wrote.

“Finally, and most impor- tantly, the UIM statute pro- vides that the insurer (Allstate) providing underinsured motorist coverage is limited to a deduction of the ‘amounts actually recovered’ from the insurance policy on the under- insured motor vehicle,” Neville wrote.

Morse, who said he was disap- pointed with the decision, said he did not know whether Allstate would appeal. He called the issue of the definition of “other secu- rity” a minor part of the case. The real issue, he said, is that rental car companies should be held to the requirement of main- taining coverage for its renters of $50,000 per person or $100,000 per accident.

“They don’t seem to want to hold the rental car company’s feet to the statutory fire,” Morse said.

In requiring Allstate to provide $80,000 worth of cover- age. Neville said Illinois law has established that the intent of the underinsured motor vehicle law is to leave the insured in the same position he or she would have been if the other driver had adequate insurance, citing Susler v. County Mutual Insurance, 147 Ill. 2d 548, 555 (1992).

Justices Michael J. Gallagher and Sheila M. O’Brien concurred in the decision, which was unpublished under Supreme Court Rule 23.

Allstate was represented by Morse and Jeffrey A. Siderius of Morse & Bolduc. Munschi was represented by Christopher M. Norem of Parente & Norem P.C. He could not be reached for comment.

The case is Allstate Insurance Co. v. Rajiv Munschi, No. 1-04- 1919.

———————————————————————-

CHICAGOLAWBULLETIN.COM // In the News

Volume 151, No. 197 // FRIDAY, OCTOBER 7, 2005