Let's talk about pleadings: Skipping straight to a §2-619 motion may waive a party's right to challenge the sufficiency of a complaint under §2-615

A new case, Cordts v. Chicago Tribune, tackles some pretty thorny and important privacy issues, particularly one's right not to have personal treatment information disclosed under the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq., but this essay will not address those issues except as they relate to the pleadings issue I do want to discuss.

Michael Cordts was a Tribune employee who made a short term diability claim. The newspaper used Medeval Corporation to evaluate the merits of such claims. In his suit against his employer and Medeval, Cordts alleged that Medeval learned about his treatment for depression in the course of its investigation... and that a Medeval employee disclosed that treatment to Cordts' ex-wife.

Cordts hadn't mentioned this treatment to his ex-wife and he had no intention of doing so. His Complaint against the Tribune and Medeval had four counts. Counts I and III alleged defamation. According to the Defendants, Counts II and IV attempted to state a claim under the common law invasion of privacy. The Defendants filed a §2-615 motion to dismiss the defamation counts. Their motion to dismiss Counts II and IV was brought solely under §2-619.

And that's where the Defendants went fatally off course.

The trial court dismissed the entired case, but Cordts elected to appeal the dismissal of only Counts II and IV.

In Storm & Associates, Ltd. v. Cuculich, 298 Ill.App.3d 1040, 700 N.E.2d 202, 206 (1st Dist. 1998), the Appellate Court explained the difference between §2-615 and §2-6159 motions: "A section 2-615 motion attacks the sufficiency of a complaint and raises the question of whether it states a cause of action upon which relief can be granted." The Storm court goes on to point out that, in deciding a §2-615 motion, "the court may only consider the facts apparent from the face of the complaint, matters of which the court may take judicial notice, and judicial admissions in the record. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 115, 660 N.E.2d 863 (1995)." That means that a court can usually only consider what is within the 'four corners' of a pleading in deciding a §2-615 motion.

A motion brought under §2-619 is different. For one thing, a court can consider affidavits or other material competent under Supreme Court Rule 191 in deciding such a motion. Also, as the Storm court points out (700 N.E.2d at 206), "A section 2-619 motion raises certain defects or defenses and poses the question of whether the defendant is entitled to judgment as a matter of law."

Most importantly, however, a §2-619 motion, like a summary judgment motion, "admits the legal sufficiency of a complaint." Joseph v. Collis, 272 Ill.App.3d 200, 649 N.E.2d 964, 969 (1st Dist. 1995). In this sense, the §2-615 and §2-619 motions are contradictory: The 2-615 motion admits well-pleaded allegations, but denies that these allegations together state any cause of action; the 2-619 motion admits that the allegations of the complaint state a cause of action which, if proved, would be successful but for some affirmative matter which defeats the claim.

In the Cordts case, the Defendants had a strategic reason to bring their motion under §2-619: They wanted to use matter outside the four corners of the pleading. Justice Joseph Gordon, writing for a unanimous panel, explained (slip op. at p. 9):

[T]o state a common law claim for invasion of privacy through public disclosure of private facts, a plaintiff must plead that: "(1) publicity was given to the disclosure of private facts; (2) the facts were private, and not public, facts; and (3) the matter made public was such as to be highly offensive to a reasonable person." [Citations omitted.] * * * Generally, to satisfy the publicity element of the tort, a plaintiff must show that the information was disclosed to the public at large; however, the publicity requirement may be satisfied where a disclosure is made to a small number of people who have a "special relationship" with the plaintiff.

Even the Defendants were obliged to concede that the plaintiff's ex-wife was a person with whom the plaintiff had a "special relationship." Getting back to Justice Gordon's opinion (slip op. pp. 10-11):

[D]efendants contend by way of affirmative defense that the disclosure was, nevertheless, excusable because Kathleen had a "natural and proper interest" in the information. Specifically, defendants contend that Kathleen had a right to know the information because Cordts was responsible for helping support their child pursuant to the couple's marital settlement agreement and his mental condition could potentially hinder his ability to meet his obligations, financially and otherwise. Under prevailing law, the "special relationship" exception to the requirement that the disclosure be made to the general public will not apply where the person in the "special relationship" with the plaintiff has a "natural and proper interest" in the information disclosed. [Citations omitted.] We note, however, that although a person in a "special relationship" with a plaintiff is more likely than others to have a "natural and proper interest" in the plaintiff's private information by virtue of that "special relationship," the existence of a "special relationship" does not necessarily create a "natural and proper interest."

The Appellate Court concluded (slip op. at p. 13-14):

[W]e would have to agree with defendants that an ex-wife would have a natural and proper interest in learning about any debilitating condition suffered by her ex-husband that could impact his ability to maintain support of the their children. In this case, no one disputes that Cordts was liable to provide support to his daughter and that if he ceased to be able to support her, that obligation would fall solely to Kathleen, the child's mother. * * * Cordts, by his claim, tacitly concedes that his mental condition was such that a disability claim was appropriate. Therefore, in the absence of any other information tending to minimize the potential effect of his condition, we conclude that the fact that Cordts sought disability benefits was sufficient to indicate that his condition could have potentially impacted his ability to support his daughter and, thereby, could have harmed his ex-wife, Kathleen. Consequently, we cannot disagree with the circuit court's determination that the common law action should be dismissed pursuant to section 2-619.

And if the Appellate Court had agreed with the Defendants that this was all Plaintiff was attempting to plead in Counts II and IV, it would have affirmed the trial court.

But the Appellate Court did not agree.

The court quoted this allegation from Cordt's complaint (slip op. at pp. 2-3):

[Defendants] owed a duty of care to [Cordts] so as not to unreasonably give publicity to the private life of [Cordts] and additionally owed a duty of care to [Cordts] under 740 ILCS 110/3, commonly known as the Mental Health and Developmental Disabilities Confidentiality Act and also under the Defendant Tribune's own privacy policies.

The Appellate Court found (slip op. at 16-17) that this allegation was sufficient to raise a claim -- to put Defendants on notice of a claim -- founded on the Confidentiality Act.

While Cordts' Complaint was "formally defective" because it 'intermingled' the Confidentiality Act claim with the common law invasion of privacy claim, this claim was not "dismissible on that basis" because "neither defendants nor the circuit court ever challenged the sufficiency of Cordts's allegations under the Confidentiality Act." (Slip op. at 17.)

In support of this conclusion, the Appellate Court cited §§2-612(a) & (c)of the Code of Civil Procedure (slip op. at p. 17):

• "If any pleading is insufficient in substance or form the court may order a fuller or more particular statement. If the pleadings do not sufficiently define the issues the court may order other pleadings."

• "All defects in pleadings, either in form or substance, not objected to in the trial court are waived"

and this provision of §2-615:

• "All objections to pleadings shall be raised by motion. The motion shall point out specifically the defects complained of, and shall ask for appropriate relief, such as *** that a pleading be made more definite and certain in a specified *** manner".

I've been waiting a long time for this case. I've been saying for years that -- since a §2-619 motion admits the legal sufficiency of a complaint -- filing such a motion waives a later motion under §2-615. How can you first argue that a complaint states a claim but for some affirmative matter -- and then say, nope, it doesn't state a claim after all? Cordts comes as close as any I've found to standing for this proposition.

Can anyone point me to a better example?

Dona nobis pacem

Ironic that all these "peace globes" are being posted in the Blogosphere on Election Day in the U.S. -- but this is not meant as a political statement of any kind. People of good will can disagree on how true peace may best be achieved, but can people of good will ever doubt that peace must be our ultimate goal? It's Veteran's Day on Saturday: Ask a vet about it.

For more on the peace globe idea, ask Mimi.

So where's the follow up?

I saw this AP story in the Chicago Sun-Times on Wednesday, November 1:

A German court has ordered a self-proclaimed witch to refund a client her hefty fee for a spell that failed to win back the woman's boyfriend.

The court ruled the witch must pay back the $1,275 on the grounds she offered a service that was "objectively, completely impossible."

I've been waiting for the follow up story since, but I haven't seen it:

A German judge recently transformed into a toad. German scientists are baffled by the sudden transformation of the respected jurist who'd ruled recently in a controversial witchcraft case....

Bar Association Judicial Retention Recommendations

From the Chicago Sun-Times.

Do blogs by lawyers amount to advertising?

Read about it in this link to the September 29 ABA Journal eReport.

This is the link to the proposed New York rule.

The eReport article suggests that this provision would make the rule applicable to everyone, since blogs by out-of-state lawyers -- such as this one -- could be freely accessed in New York State.

I thought the disclaimer would be enough. Wouldn't you?

Dead storage claim a non-starter in new case -- just like the motorcycle that burned down the storage facility

John Marx collected motorcycles and he rented two storage bays from M & S Rentals, Inc. in Morris, Illinois in which to keep them. Marx considered the bikes to be collectors’ items; whether Marx’s 1976 Honda Goldwing, 1980 Honda Goldwing, and two 1979 Yamaha 750 cc motorcycles actually were collector’s items is not resolved by the Appellate Court’s opinion in Standard Mutual Ins. Co. v. Marx, 2006 WL 2381967 (Ill.App.3rd Dist. 8/15/06).

Marx came by the storage units from time to time to visit his collection. But he didn’t just visit; he sometimes rode the bikes, too. But only the 1980 Honda was actually licensed and insured.

And he wasn’t riding the Honda on September 1, 2003; on that day, Marx had come to visit one of the ‘79 Yamahas. He’d operated this bike without incident only a month before, but when he went to start the machine on this occasion, there was an explosion – and a fire. Marx tried to put the fire out with a towel, but failed; he subsequently called 911. The fire caused more than $177,000 worth of damage to the storage facility. M & S Rentals’ insurer, Springfield Fire & Casualty Co., paid the claim and brought a subrogation suit against Marx.

Marx tendered the suit to his homeowner’s carrier, Standard Mutual; the newly reported opinion arises from the declaratory judgment action that Standard Mutual filed in response to the tender.

The Circuit Court of Grundy County found for Standard Mutual, agreeing that the homeowner’s carrier did not have a duty to defend Marx in this suit. The Appellate Court, in a unanimous opinion by Justice Kent Slater, affirmed.

Marx was not a party to the appeal: He failed to file a timely notice of appeal; his subsequent motion to adopt Springfield Fire’s brief was denied by the Appellate Court. This may seem odd to persons unfamiliar with coverage litigation, but it happens frequently. The underlying plaintiff and the insured do have a common interest: Both want the insurer’s carrier to remain on the risk – but is it not logical to assume that the insured will want this just a little bit more? It is the insured’s assets that are at risk; the easy collectibility of an eventual judgment against the insured is all the underlying plaintiff really has at stake.

In affirming the judgment in Standard’s favor, the Appellate Court noted that the “homeowner’s policy issued to Marx by plaintiff excluded liability and medical payments coverage for injury or property damage arising out of: ... The ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an ‘insured’[.]”

On the other hand, the court noted that the policy provided that this exclusion did not apply to:

“A vehicle or conveyance not subject to motor vehicle registration which is:

* * *
(c) In dead storage on an ‘insured location’[.]”

The Standard Mutual court held that the exploding Yamaha was neither in “dead storage” nor at an “insured location.”

Courts around the country have split on what constitutes “dead storage”; the Standard Mutual court indicated that it was the first Illinois court to construe the term.

These are the cases cited by the Standard Mutual court as supporting the position that Marx’s Yamaha was in dead storage:

Allstate Insurance Co. v. Burns, 837 N.E.2d 645 (Ind.Ct.App.2005) (unlicensed car which had been inoperable for over a month was in dead storage notwithstanding that fire occurred while insured was attempting to start car); Allstate Insurance Co. v. Geiwitz, 86 Md.App. 704, 587 A.2d 1185 (1991) (car kept by insured as collectible rather than for transportation was in dead storage despite fact that car was occasionally driven on property where it was stored and accident occurred while repairing gas gauge); Nationwide Mutual Fire Insurance Co. v. Allen, 68 N.C.App. 184, 314 S.E.2d 552 (1984) (motorcycle which had been inoperable for six months prior to fire caused when insured was “inspecting” cycle in his living room was in dead storage); Sharpe v. State Farm Fire & Casualty Co., 558 F.Supp. 10 (E.D.Tenn.1982) (old, unlicensed vehicles that were not driven on highway but were occasionally driven on insured’s property were in dead storage).

The Standard Mutual court found other cases more persuasive, particularly North Star Mutual Insurance Co. v. Carlson, 442 N.W.2d 848 (Minn.Ct.App. 1989). Justice Slater’s opinion quotes the Minnesota Court:

“We believe this determination appropriately highlights the distinction between homeowners and automobile insurance policies. Motor vehicles are inherently dangerous instrumentalities and homeowners policies generally do not contemplate coverage of injuries when the vehicle is maintained or used in one of its inherently dangerous capacities. One inherently dangerous aspect is a motor vehicle’s use of highly volatile materials (gasoline) around ignition sources (spark plugs). This was precisely the cause of the accident in this case. Accidents caused by maintenance or use of a vehicle in such an inherently dangerous capacity are not appropriately covered in a homeowners policy, but rather in an automobile policy which requires consequently higher premiums for the increased risk of injury.”

(Quoting Carlson, 442 N.W.2d at 855.)

The Standard Mutual court stated that the focus should properly be on “the vehicle’s status at the time the accident occurred. For example, if the fire at the rental facility had been caused by spontaneous combustion of oily rags while Marx was absent, the Yamaha might very well have been considered to be in dead storage.” On the other hand, quoting American Family Mutual Insurance Co. v. Van Gerpen, 151 F.3d 886, 888 (8th Cir.1998), another case relied upon by the Standard Mutual court, “The ‘dead’ in ‘dead storage’ suggests, at the least, that the engine would not be running.”

Other cases cited by the insurer for the proposition that a vehicle “undergoing maintenance” or being started is not in dead storage were Nationwide Mutual Insurance Co. v. McMahon, 365 F.Supp.2d 671 (E.D.N.C.2005); David v. Tanksley, 218 F.3d 928 (8th Cir.2000) (same); Holliman v. MFA Mutual Insurance Co., 289 Ark. 276, 711 S.W.2d 159 (1986); and Broadway v. Great American Insurance Co., 465 So.2d 1124 (Ala.1985).

The underlying plaintiff suggested that this split of authority nationwide supported a conclusion that the term “dead storage” was at least ambiguous. Rejecting this argument, however, the Standard Mutual court stated, “A vehicle which is periodically driven by its owner, even briefly on private property, is not in dead storage, and an accident caused by an attempt to start that vehicle is not the type of risk contemplated by the parties to a homeowner's policy. We find no ambiguity under these circumstances.”

Besides, even if the old Yamaha could be said to be in “dead storage,” the Appellate Court concluded that it was not at an “insured location”:

“As defined in the policy, an insured location includes “premises occasionally rented to an ‘insured’ for other than ‘business' use.” * * * [I]n this case, the storage units where the fire occurred cannot be said to have been rented to Marx on an irregular or infrequent basis. According to Marx’s deposition testimony and his answers to plaintiff’s request to admit facts, Marx had rented the same two storage bays for a period of three years prior to the fire. Such extended and continuous use cannot be characterized as “occasional” and therefore, even if the motorcycle was considered to be in dead storage, it was not in an “insured location” within the terms of the policy.

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It did not matter to the coverage determination, but I have to admit to some curiosity about where Springfield Fire’s claimed $177,000 in damages came from.

Because Marx could come and go and visit his motorcycles as he pleased, Springfield’s insured, M & S Rentals, was probably a self-service storage facility, regulated under the Self-Service Storage Facility Act, 770 ILCS 95/1 et seq. Section 2(A) of the Act provides expressly that a “self-service storage facility is not a warehouse for purposes of Article 7 of the Uniform Commercial Code” (unless the owner “issues any warehouse receipt, bill of lading, or other document of title for the personal property stored,” in which case the provisions of the Act do not apply.)

If a self-service storage facility is not a warehouse, it can limit its liability to customers; it is not bound by §7-204(2) of the UCC (815 ILCS 5/7-204(2)), which allows warehousemen to limit liability only on a “per article or item” basis, or by “value per unit of weight.” Of course, a warehouse has to know what is coming in and going out of its facility; what comes in and out of the self-service storage facility is limited only by the amount of space the customer rents (and, hopefully, by §7 of the Act which provides, “No occupant may use a self-service storage facility for residential purposes,” 770 ILCS 95/7).

So did M & S Rentals limit its liability to customers in the Standard Mutual case – and, if so, where did the $177,000 in damages come from? It must have been some fire.

If a tree falls in the insurance policy, will it be covered?

Can a tree be cut by accident?

Well, unless you have super powers, you can’t accidentally cut down a tree: Cutting a tree takes considerable effort.

But you can accidentally cut down the wrong tree – a tree you weren’t supposed to cut – a tree you didn’t intend to cut.

This fine distinction is at the heart of Pekin Ins. Co. v. Miller, 2006 WL 2265604 (Ill.App. 1st Dist. 8/8/06).

Sarang Construction hired Miller Tree Service to cut down trees on lots 13, 14, and 15 of a subdivision in Hanover Park. Miller removed the trees from lots 10, 11, and 12 instead.

The owners of these lots took umbrage. They sued for trespass – an intentional tort – and for violation of the Wrongful Tree Cutting Act, 740 ILCS 185/0.01 et seq. Section 2 of the Act provides that, “Any party found to have intentionally cut or knowingly caused to be cut any timber or tree which he did not have the full legal right to cut or caused to be cut shall pay the owner of the timber or tree 3 times its stumpage value.” (740 ILCS 185/2.) Later amendments to the property owners’ complaint alleged “negligent trespass.”

Miller tendered the suit to Pekin for a defense. Pekin brought a declaratory action instead, contending that it did not owe a defense. First, it argued, the property owners’ suit did not allege an “occurrence.” That would keep the incident outside the insuring agreement of the Pekin policy. In addition, Pekin argued, even if the incident described in the property owners’ suit was an occurrence, two policy exclusions would defeat coverage. The trial court rejected these contentions and found that Pekin had a duty to defend; the Appellate Court, in a unanimous opinion by Justice Warren Wolfson, affirmed.

The Pekin policy provided coverage for “those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Property damage would be covered only if the damage were caused by an “occurrence.” The policy, in turn, defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (2006 WL 2265604 at *2.)

The word “accident” is typically not defined in insurance policies. This was apparently the case here. Quoting Monticello Insurance Co. v. Wil-Freds Construction, Inc., 277 Ill.App.3d 697, 703, 661 N.E.2d 451, 455 (2nd Dist. 1996), Justice Wolfson noted that, “Courts define an accident as ‘an unforeseen occurrence, usually of an untoward or disastrous character or an undesigned sudden or unexpected event of an inflictive or unfortunate character.’ ... ‘The natural and ordinary consequences of an act do not constitute an accident.’”

This is consistent with the definition of the word “accident” in other cases. In Travelers Ins. Co. v. P.C. Quote, Inc., 211 Ill.App.3d 719, 570 N.E.2d 614, 619 (1st Dist. 1991) the court stated:

An insurance policy’s use of the word “occurrence” instead of “accident” broadens coverage and eliminates the need to find an exact cause of damages so long as they are neither expected nor intended from the standpoint of the insured. Nevertheless, the occurrence must still be accidental. (Aetna Casualty and Surety Co. v. Freyer (1980), 89 Ill.App.3d 617, 619, 44 Ill.Dec. 791, 411 N.E.2d 1157.) An accident is defined as “an unforseen occurrence of untoward or disastrous character” or “an undesigned sudden or unexpected event.”

Miller surely intended to chop down trees but, just as surely, Miller did not intend to chop down trees on the wrong lots. That was not expected from the insured’s standpoint.

Pekin, relying on the formulation in Wil-Freds, contended that the trees were removed as the natural and ordinary consequence of chopping them down. Thus, there was no accident. But Justice Wolfson noted that, while “the construction defects alleged in the [Wil-Freds] complaint for breach of contract were the natural and ordinary consequences of improper construction techniques. . . the plaintiffs in the underlying complaint do not allege Miller used improper techniques in removing trees on their property. Rather, they allege he removed trees on the wrong property.” (2006 WL 2265604 at *2.)

The Pekin court looked instead to Lyons v. State Farm Fire & Casualty Co., 349 Ill.App.3d 404, 811 N.E.2d 451 (5th Dist. 2004), a case in which the insureds allegedly built levees that “protruded onto the plaintiffs’ property.” According to the Pekin court, the Lyons court concluded that “the focus of the inquiry in determining whether an occurrence is an accident is ‘whether the injury is expected or intended by the insured, not whether the acts were performed intentionally.’” ((2006 WL 2265604 at *2, quoting Lyons, 811 N.E.2d at 723.) Applying this approach, because “[t]here is no evidence Miller intended the harmful result – the clearing of trees on the wrong property,” the Pekin court concluded that the property owners’ complaint alleged an “occurrence.” (2006 WL 2265604 at *2.)

Significantly, the Pekin court found it “immaterial that the underlying complaint alleges intentional torts.” (2006 WL 2265604 at *6.) The words used to describe the conduct giving rise to the claim are not controlling; the conduct described is what counts.

That brings us to the exclusions on which Pekin also relied.

Section 2j(5) of the Pekin policy excluded coverage for property damage to “[t]hat particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations.” (2006 WL 2265604 at *3.)

Section 2j(6) excluded coverage for property damage to “[t]hat particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.” (2006 WL 2265604 at *3.)

“Your work” was defined in the policy as:

a. Work or operations performed by you or on your behalf; and
b. Materials, parts or equipment furnished in connection with such work or operations.

(2006 WL 2265604 at *3.)

The Pekin court found no Illinois case which provided any guidance in this case. Instead, the court looked to a case from Minnesota, Thommes v. Milwaukee Insurance Co., 641 N.W.2d 877 (2002).

The Pekin court read Thommes as distinguishing two different types of risk “undertaken by an insured contractor.” One is a ‘business risk’ – a risk that the insured “may be liable as a matter of contract law to make good on products or work which is defective or otherwise unsuitable” – as in a guarantee or warranty. CGL policies do not guarantee the quality of the work performed by their insureds. Instead, CGL policies “are intended to insure against the second type of risk – ‘the risk that [the contractor’s] work or product will cause bodily injury or property damage to other property,’ which may give rise to tort liability to third parties.” (2006 WL 2265604 at *5.)

The Minnesota court found both exclusions ambiguous – and therefore construed them against the insurer. The Pekin court agreed. With regard to exclusion 2j(5), there was a question as to whether the phrase “that particular part of real property” refers to the land – or the trees. (2006 WL 2265604 at *5.)

“In addition,” the Pekin court continued, “section 2j(5) is ambiguous because it is not clear whether the exclusion refers to any property or only to property that the insured is contractually obligated to perform operations on. Given the purpose of CGL policies, one could reasonably interpret exclusion 2j(5) to apply only to property the insured is contractually obligated to work on” – the lots on which the trees were left standing. (2006 WL 2265604 at *6.)

As for exclusion 2j(6), the Pekin court likewise found “two reasonable interpretations of the provision. The phrase ‘incorrectly performed’ could refer to the manner in which the trees were removed. Here, there was nothing incorrect about the manner in which Miller removed the trees. It also could refer to the location from which they were removed, which would be applicable in this case. It is not clear whether the exclusion applies to the unusual situation in this case because the underlying complaint does not allege Miller's tree-removal procedures were incorrect, only that trees were removed from the wrong lots. We also believe the phrase ‘your work’ as applied to 2j(6) is ambiguous. Nowhere in the exclusion or in the definition of ‘your work’ does the policy indicate whether ‘your work’ is confined to the actual location [where] Miller was hired to perform his tree-cutting work.” (2006 WL 2265604 at *6.)

The Pekin court concluded that section “2j(6) does not define the phrase ‘any property.’ If it means the land Miller cut trees on it might reasonably be argued the exclusion does not apply because it is not the land that must be ‘restored, repaired or replaced;’ it is the trees. If ‘any property’ refers to the trees that were cut, the exclusion makes no sense in this case because Miller's ‘work’ was not ‘incorrectly performed’ on the trees. We find exclusion 2j(6) is ambiguous and construe it against the insurer. It does not apply in this case.” (2006 WL 2265604 at *6.)

Wrongful tree cutting cases are not a major burden on the courts of Cook County. But Pekin has a general lesson, as well as the specific ones we’ve just gone through: When in doubt, if you’re sued, tender the complaint to your carrier. Even though the complaint does not plead “negligence” – even though the suit pleads only intentional torts – tender. The insurer has an obligation to carefully evaluate its obligations whenever a suit is tendered for a defense.

It’s all relative in new State Farm household exclusion case

Donya Tyree Hooks and her brother, Donald Hooks, owned an apartment building on Green Street in Chicago. Donald lived in the building; Donya did not. The property was insured with State Farm Fire and Casualty Company.

The building was damaged in a fire on March 4, 2001 and a building tenant, Sharon Conner Hooks, was injured.

Sharon was married to Donald at the time of the fire.

Sharon sued Donya, but not Donald, for the injuries she sustained in the fire, alleging that Donya failed to provide or maintain working smoke and carbon monoxide detectors; that she negligently allowed “tenants with connections to drug activity” to go into the basement where the fire started; and that she failed to provide an emergency escape light in the common hallways.

Donya tendered Sharon’s suit to State Farm. State Farm initially provided a defense pursuant to a reservation of rights, but ultimately withdrew that defense and filed the declaratory suit that gave rise to State Farm Fire and Casualty Co. v. Hooks, 2006 WL 1676212 (Ill.App. 1st Dist. 6/19/06).

State Farm contended that Sharon was an insured under Donya’s policy and, in general, an insurer has no obligation to defend a suit by one insured against another.

Specifically, State Farm relied on the policy definitions to establish who was supposed to be insured under the contract: “‘You’ and ‘your’ mean the ‘named insured’ shown in the Declarations. Your spouse is included if a resident of your household. ‘We’, ‘us' and ‘our’ mean the Company shown in the Declarations.” Donya and Donald were named insureds under the policy – and Donald’s spouse, Sharon, the plaintiff in the underlying case, would also be included within this definition.

The policy also separately defined insured to mean “you and, if residents of your household... a. relatives.” The policy also separately defined insured to mean “you and, if residents of your household... a. relatives.”

The liability coverage of the policy contained an exclusion purporting to excuse State Farm from defending against any claim for “bodily injury to you or any insured within the meaning of part a. or b. of the definition of insured. This exclusion also applies to any claim made or suit brought against you or any insured to share damages with or repay someone else who may be obligated to pay damages because of the bodily injury sustained by you or any insured within the meaning of part a. or b. of the definition of insured. (Bolded terms are terms defined in the policy.)

The trial court accepted State Farm’s interpretation and agreed that it had no duty to defend or indemnify Donya Hooks against her ex-sister-in-law’s suit (by the time the case reached the summary judgment stage in the Cook County Chancery Court, Donald and Sharon’s marriage had ended). The Appellate Court, however, in a unanimous opinion written by Justice Joseph Gordon, reversed.

The Appellate Court’s decision is grounded in the severability provision of the State Farm policy. That provision read, “This insurance applies separately to each insured. This condition shall not increase our limit of liability for any one occurrence.”

Construing a similar provision in the 1975 case of United States Fidelity & Guaranty Co. v. Globe Indemnity Co., 60 Ill.2d 295, 327 N.E.2d 321, 323 the Illinois Supreme Court found, “the severability clause provides each insured with separate coverage, as if each were separately insured with a distinct policy, subject to the liability limits of the policy.” Essentially, then, Sharon could not sue Donald (which she didn’t) because she’d be an insured under ‘his’ policy – but she could sue Donya because she did not come within the definition of an ‘insured’ when the policy was analyzed in terms of Donya.

State Farm argued that this conclusion would be inconsistent with State Farm Fire and Casualty Co. v. Guccione, 171 Ill.App.3d 404, 525 N.E.2d 595 (2nd Dist. 1988). In Guccione, a named insured, Anthony Guccione, was accused of negligently discharging a firearm in the direction of his stepson, Gus Kazas, causing injury to Gus. Prior to the shooting, at least, Anthony, Gus, and Gus’ mother had all lived under the same roof (presumably, although the opinion does not discuss this, not as an entirely happy family).

Discussing the severability clause in Guccione, the Appellate Court stated (525 N.E.2d at 597), “even if we view Anthony Guccione as a separately insured party, the exclusionary clause still applies. That provision states that the personal liability coverage does not apply to ‘bodily injury to you or to any insured within the meaning of part (a) or (b) of the definition of insured.’ Since, as we have previously seen, Gus Kazas falls within the definition of insured as that term is defined in the policy, the personal liability coverage afforded to Anthony Guccione does not apply to bodily injuries suffered by Kazas.”

But the Hooks court distinguished Guccione on the facts (2006 WL 1676212 at *5): “Under both policies, in order for someone to qualify as an ‘insured,’ that person must be both a relative of the named insured and reside in the same domicile as the named insured. In Guccione, the underlying plaintiff, Gus, met both requirements in that he was related to and living with both of the named insureds, Anthony and Tessie.... Although Gus’s relationship to Anthony would appear to be that of stepson, the declaratory plaintiff in that case did not contend that he was not Anthony’s relative because of a lack of consanguinity.”

State Farm was the plaintiff in Guccione as well; one can hardly have expected State Farm to raise this argument. On the other hand, the Guccione court did not address the absence of any blood tie between Anthony and Gus. The point that the Hooks court stressed, however, was that, unlike Anthony and Gus, Sharon and Donya never lived under the same roof. (2006 WL 1676212 at *5.)

Referring to the policy definition of “insured” therefore (“you and, if residents of your household... a. relatives”) Sharon was not an insured under Donya’s ‘separate’ coverage: They were not residents of the same household.

The Hooks court goes on to discuss the ‘business purposes’ behind “family exclusion” clauses, noting that two of the commonly stated justification for these provisions is to prevent “collusion between resident household members” or “to keep premiums down by excluding those individuals most likely to be injured, namely, resident family members.” The court concluded: “Interestingly, each of [these]... business reasons would emphasize the need for a combined familial and residence-sharing relationship in order to come within the underlying business purpose. Thus, the application of the severability clause to narrow the scope of the exclusion to permit coverage for a claim against an insured residing in a separate domicile is by no means inconsistent with the foregoing articulated business purposes.” (2006 WL 1676212 at *8).

Under Hooks it is clear that and insurer can refuse to defend its insured against a suit brought by related persons living with the insured. Left unresolved by the Hooks case is whether it is the ‘living together’ or the familial relationship that justifies the exclusion.

Other insurance companies have crafted an exclusion to attempt to prevent persons from suing a named insured with whom they reside, whether or not the person suing has any familial relationship with the insured.

For example, in Peters v. Farmers Ins. Co. of Washington, 2003 WL 734208 (Wash.App. 2003), an unpublished opinion, Daniel Peters rented an “upstairs bedroom” from David Wearn, a colleague of his from work. Peters sued Wearn after falling down the stairs leading to his rented bedroom. This mishap may not have fatally wounded their friendship, however: Wearn settled with Peters for $180,000, but he didn’t pay his erstwhile tenant any of that money; he merely assigned his claims against Farmers to Peters (2003 WL 734208 at *2). Farmers thereafter refused to pay – based on an exclusion which purportedly excused the insurer from defending or indemnifying against claims of “bodily injury to any resident of the residence premises except a residence employee” – and this was affirmed by the Washington court.

Similarly, in Illinois Farmers Ins. Co. v. Neumann, 596 N.W.2d 685 (Minn.App. 1999), the underlying tort claimant, Barbara Brenny, was a ‘sublessee’ of the apartment rented by Farmers’ insured, Katina Neumann. Brenny argued, unsuccessfully, that the absence of any “social relationship” between with Ms. Neumann should have been taken into account concerning the applicability of the exclusion pertinent in that case. But the tort claimant and the defendant insured did reside in the same apartment.

Certainly, insurers are entitled to be protected against collusive claims. However, family or resident exclusions, like other “provisions that limit or exclude coverage are to be construed liberally in favor of the insured and ‘most strongly against the insurer.’” See, National Union Fire Ins. Co. of Pittsburgh v. Glenview Park District, 158 Ill.2d 116, 632 N.E.2d 1039, 1042 (1994); see also, State Farm Mutual Automobile Ins. Co. v. Villicana, 181 Ill.2d 436, 692 N.E.2d 1196, 1199 (1998). Moreover, insurance policies are to be construed “as a whole, taking into account the type of insurance for which the parties have contracted, the risks undertaken and purchased, the subject matter that is insured and the purposes of the entire contract.” Crum & Forster v. Resolution Trust Corp., 156 Ill.2d 384, 620 N.E.2d 1073, 1078 (1993); see also, Lenny Szarek, Inc. v. Maryland Casualty Co., 357 Ill.App.3d 584, 829 N.E.2d 871, 874 (1st Dist. 2005) (“court must construe the policy as a whole”). An exclusion drawn so broadly as to encompass all likely collusive scenarios would leave precious little that was covered; it is unlikely, however, that so broad an exclusion would survive ordinary policy analysis.

Why don't they ever offer more than 25%?

I know it's becoming redundant (all together now: "and repetitive") but I can't help but read these scam fund transfer e-mails. The facts change; the size of the fortune varies -- but 20 or 25% seems to be the going rate for participation in these ventures.

My Dear Friend,

I am interested in a partnership investment programme with your self/corporation.

Clearly they've done their due diligence; they seem to know so much about me.

There is this huge amount of Five million Seven hundred and fifthy thousand U.S dollars($5,750,000.00)which my late father kept in a security/financial company before he was assasinated by unknown persons, during a political crisis in my country. My father deposited it as a family treasure and that was before his death.

As opposed to deposits made after death, as is alleged in some of these....

Now I and mother left Angola to Senegal,through the help of my late father's good friend. Right now we are in refugee camp and we have decided to invest these money in your country or anywhere safe enough outside my country Angola and the whole of Africa for security and political reasons.

Maybe I'm just a spoiled American, but if I had $5.75 million burning a hole in my pocket, I'd find a decent hotel to stay in, not a refugee camp. Couldn't your "father's good friend" direct you to the local Holiday Inn? Is that why you're not looking to him to help direct your investment strategy? Because you think any random stranger with an e-mail address can do better than he could?

We would want you to assist us to transfer this fund to your country for safty and investment purposes on the followings below:

1).Telecommunication
2).Manufacturing
3).Real Estate Business

If you will be able of rendering an assistance to us we will adequately compensate you 25% Of the total fund.

We will arrange all the necessary procedures in ensuring a smooth process for the funds to get to you. We will also appreciate if you contact me once you receive this mail to enable me give you more details.

Such as the your bank's ABA routing number and your account number so that funds can be 'smoothly' wired in. Or out.

This matter requires your urgent attention , confidentiality and discretion no matter what your decision maybe.

Thank you and God bless you.
Your's Sincerely,
Duoala Mbale

These things keep coming, so I have to assume that -- at least sometimes -- they actually work. When? Who's fallen for this? How? If you know of a 'for instance' please leave me a comment.

New Spam Technique?

Maybe I wasn't paying attention before, but this one strikes me as new: I may have received an actual follow-up e-mail to a scam fund-transfer e-mail. Here it is:

Dear friend,

I am pleased to introduce a business opportunity to transfer to your overseas account the sum of ($15;US Dollars) Fifteen Million United States Dollars from one of the Fidelity Finance & Security Company here in Dakar-Senegal.

I am M/s Laura Jones the Auditor General in the Real Estate Finance & Security Company here in Bangkok, Thailand, During the course of our auditing , I discovered a floating fund in an account opened in the our custody since 1998 and till date no body has operated or inquired about this fund.

After going through some old files in the records I discovered that the owner of the account died long ago in a plane crash along with his family without leaving [Heir/WILL] hence the funds is floating and if I do not remit this money out urgently it will be forfeited for nothing.

The owner of this account is Engr.Taha Ali William a foreigner, before his death, he was a management consultant and he died since 1992. No other person knows about this account or any thing concerning it the account has no other beneficiary.

Since I hardly know any foreigner,I am only contacting you as a foreigner to stand and apply as his international business partner because this money can not be approved to a local person here as his next of kin.

I need your full co-operation to make this workout fine because the management is ready to approve this payment to any foreigner who has correct documents concerning this fund, which I will provide to you upon your positive response and once I am convinced of your capability and assurance that you will never never let me down.

At the conclussion of this project ,we may proceed into an investment as equal partners of which you are to guide it pending my resignation which will be in a short while after the transfer if you may wish or we may share it in a ratio of 2.5 for you and 7.5 for me.

Regarding moral justification of the fund ,i wouldn't want you to consider it haramful. If you had been the victim, Certainly you wouldn't be happy having your hard earned fund shared among government as an unclaimed deposit, i believe there are aspects of life we may contribute with this fund to help the less priveledged and the needy in our society .

Furnish me with your direct telephone & Fax number for easy comminucation with you as soon as possible, and finally, please send your response to me at my other email....

Once again, I've left off the return address. But what a letter: It doesn't just appeal to greed. There are appeals to altruism (we may contribute with this fund to help the less priveledged and the needy in our society) as well as xenophobia (The owner of this account is Engr.Taha Ali William a foreigner). I'm not sure how the name "William" got in there, however; last week it was "Al-Akram Bin Abdullah an Iraqi Oil Merchant" who died in the war last year, not in 1992. (Not that I'm being critical, here, but if Taha Ali William died in 1992, who opened his account with Ms. Jones' company in 1998?) And that Laura Jones sure gets around, too: First she was only in Thailand; now she's both in Thailand and "Dakar-Senegal." One could almost wonder if Ms. Jones has two accounts she's trying to be rid of....

I hope she finds a taker for her accounts soon. Laura might think of investing some of her profits in English lessons. From her name we might assume that she was educated in English, but not much of it seems to have 'taken.' At the very least, in her travels she seems to have forgotten most of it....

AOL may have read my last post...

Because this letter was intercepted by the spam filter:

Dear friend,

Thanks for spending your time to go through this proposal, even though we do not know each other. It would have been more formal for a transaction or business of this magnitude should have commenced properly with a formal meeting between you and us to enable both parties know ourselves, have a fore knowledge of the nature of the business, discuss and acquaint ourselves with the responsibilities and functions of both parties and appropriate shares accordingly.

Let me start by first introducing myself properly to you. I am Professional Financial Advisor on offshore and real estate investment, Portfolio Management with a Private Security & Finance Company Here In Bangkok Thailand. My company work for expatriate community here in Thailand. I came to know of you in my private search for a reliable and reputable person to handle this confidential transaction, which involves the transfer of a huge sum of money to a foreign account requiring maximum confidence.

The proposition is this: A Foreigner, Late Engineer Al-Akram Bin Abdullah an Iraqi Oil Merchant/Contractor with the Thailand National Petroleum Corporation, lodged the sum of $19.5 Million USD with our company. Upon Maturity, I have sent a routine notification to his forwarding address but got no reply, after a month I sent a reminder and finally discovered from his contract employers (TNPC) that Mr. Abdullah died in war in Baghdad last year. Ever since no close relative or family has come forward to claim the money deposited with us. Therefore, my colleague and I, who are the direct fund managers, have decided to move/transfer this fund into a nominated foreign account, for future investment. To this regards, we sincerely request for your immediate assistance and co-operation for our mutual benefit.

1. I will forward to you copies or the deposit certificate and agreement
2. I will issue to you a Transfer Authorization of the Consignment,
3. We shall guide you up in all that we will do in ensuring that we claims this consignment as soon as possible.

You should rest assured that no one will question it because all financial deposit Certificates and transfer authorization pass my desk for final approval. To facilitate a smooth transaction, we have agree on the following : 20% of the money for you as reward, 10% For expenses on hotel , flight tickets and any other, While, 70% shall be for us (I and my colleague)

All these will be worked out as soon as we get your interest and acceptance. Upon the receipt of your mail message, send to me the following: Your private telephone and fax number for easier communication and to enable me fax to you the documents concerning the consignment. This is a sensitive and private business, The knowledge of which should be restricted , therefore do not discuss it with a third party, and bear it mind that these funds is not terrorist or drug money. I am assuring you of a 100% risk free transaction. While awaiting your prompt reply, please contact me on these emails.

I love these letters! But wouldn't you think that these titans of business would be able to construct a proper English sentence?

Oh -- I did not include the return address for you to send your e-mail response. You'll just have to respond to the copy of this letter that's probably in your own spam filter.

Spam, spam, spam, spam, spam, eggs, bacon, spam -- and e-mail, too.

I've been on AOL since it was new, through all the years when it's been the "Internet on training wheels." I'm used to it. And my AOL e-mail address is published in enough places that people can find me. Such as clients. I hope.

Since even AOL now offers a spam filter, I assume that everyone who can read this is familiar with what spam filters are and what they do. Or what they're supposed to do.

But here's what my spam filter did yesterday: It intercepted and blocked an order sent by the District Court in one of my cases -- but it passed this e-mail through:

My Dear Friend,

I am Hajjiah. Mariam Abacha, wife to the late Nigerian Head of state, General Sani Abacha who is late now, l am contacting you with the hope that you will be of great assistance to me....

I have moved this e-mail to my spam pile -- but, if you want me to refer this case to you, well, feel free to e-mail me. Who knows where your e-mail will end up?

Hawking says humanity has to move to the stars, not just look

In an AP story posted this morning on Yahoo, super-physicist Stephen Hawking says humanity must expand from Earth in order to insure the survival of the race. A long clip from the article follows:

HONG KONG - The survival of the human race depends on its ability to find new homes elsewhere in the universe because there's an increasing risk that a disaster will destroy the Earth, world-renowned scientist Stephen Hawking said Tuesday.

The British astrophysicist told a news conference in Hong Kong that humans could have a permanent base on the moon in 20 years and a colony on Mars in the next 40 years.

"We won't find anywhere as nice as Earth unless we go to another star system," added Hawking, who arrived to a rock star's welcome Monday. Tickets for his lecture planned for Wednesday were sold out.

He added that if humans can avoid killing themselves in the next 100 years, they should have space settlements that can continue without support from Earth.

"It is important for the human race to spread out into space for the survival of the species," Hawking said. "Life on Earth is at the ever-increasing risk of being wiped out by a disaster, such as sudden global warming, nuclear war, a genetically engineered virus or other dangers we have not yet thought of."

The 64-year-old scientist -- author of the global best seller "A Brief History of Time" -- is wheelchair-bound and communicates with the help of a computer because he suffers from a neurological disorder called amyotrophic lateral sclerosis, or ALS.

And, yes, Stephen Hawking is a "super-physicist." We have "supermodels," don't we?

Hawking numbers 'sudden global warming' among the potential events that may wipe out Earth-bound humanity. I have argued global warming may not be caused by humanity -- but that does not mean that it isn't happening. The global climate is always changing -- and we know that it has sometimes changed dramatically, in a relatively short time (without human assistance). Indeed, focusing our efforts at "stopping" global warming -- by curtailing auto emissions or handicapping industry -- may well cripple our global economy... and be about as effective at holding back global climate change as standing on a beach with an umbrella would be at trying to hold back a tsunami. Nature is bigger and stronger than we are. We should diversify, and not limit ourselves to the hope that we can control the heating and air conditioning system on Spaceship Earth.

And for a truly good scare about a bleak human future without space exploration, read Stephen Baxter's Titan. It's a 1997 book, slightly out of date, but all too plausible in its description of the slow strangulation of the space program, the International Space Station, the failure to replace the Shuttle, the abandonment of the once-so-very-real excitement about going into space to live and work. (One plot element I'll question: Why would Evangelical Christians be against the exploration of space? Do they not really believe that God gave them dominion over His creation?)

On (salty) language

Cussing is big news these days. There have been a rash of articles lately about how coarse language is creeping into everyday conversation. There was a column in the Wall Street Journal a couple of days ago that specifically addressed profanity in the blogosphere, offering a bleak prediction for the continued decline of linguistic standards.

This morning, the comic strip Prickly City got into the act. In today's episode, Carmen is complaining to the coyote pup, Winslow, that people are cussing more than ever. "Used to be," she says, with a disgusted look on her face, "you'd get your mouth washed out soap.... But not anymore." She sighs and walks away. In the last panel, now standing alone, Winslow delivers the punchline: "#☆@*&%! Lawyers!!!"

The punchline got me thinking about how lawyers use language, including profanity.

There was a time when a grasp of various Latin phrases was a sine quo non for a lawyer: res ipsa loquitur, quo warranto, de minimus non curat lex, et cetera....

(How's that for a transition?)

The use of handy Latin phrases has declined over the years although (perhaps) some lawyers may trot them out on occasion in an effort to dazzle a client or impress a colleague. It may even have worked once or twice.

It also helps a lawyer to have a few Yiddish words or phrases at one's disposal -- the motion in gelt (when a lawyer seeks to withdraw from a case because the client has stopped paying for services rendered) or the writ of rachmones (when the lawyer who's messed up begs for the court's mercy for the client's sake). And then there are words we use that we forget are Yiddish -- mishegas, nosh, cockamammie, mensch, schtick, bupkis....

But we sometimes resort to profanity as well. Not in correspondence (not yet, anyway) but sometimes over the phone during an especially testy negotiation, or outside (young lawyers, remember: outside) the courtroom in order to let opposing counsel know how little you appreciated being "sandbagged" or "back-doored" et cetera.

(Back to Latin, where it's safe!)

Anyway, I've tried to use profanity sparingly over the years, not because I'm such a prude, but because overuse diminishes the power of those words.

Swear words are words that are supposed to shock. George Carlin's "Seven Dirty Words" routine was genuinely shocking when it first came out. Now it's transcribed on the Internet (no, I'm not providing that link). Lenny Bruce got arrested for using words that little children now spew indiscriminately on every playground in the land.

Cuss words that are overused lose their power. The example that I remember from high school is "fie." (And, no, the term was not in everyday use when I was in high school; I learned this in a Shakespeare class.) If all of George Carlin's Seven Dirty Words lose their power, how then will we express truly strong emotions?

Let me illustrate with a couple of stories. One day, a few years back, I was on the phone with a particularly obnoxious attorney. I don't remember who it was; I don't even remember the case in question. What I remember is that I laid down a carpet of f-bombs and soon thereafter terminated the connection.

Gene Sullivan ran into my office moments later. Gene was working with me then; he remains, technically, "of counsel" to me because I'm holding open a chair for him pending his return from a temporary Pentagon assignment. Of course, that's been a couple of years now -- and Gene recently told me he's been recalled to active duty as a Captain in the U.S. Navy so I don't know when he's coming back.

But that's not the point. The point is that, as a Navy veteran, as a Naval Flight Officer who's made hundreds, if not thousands of carrier landings in his day (one more takeoff than landing, he'd tell you), Gene is neither offended nor bruised by a string of undeleted expletives.

But he responded on the double to my tirade -- checking to see if I was OK -- because when I used those words, at the volume at which I used them, the words retained some 'shock and awe' value. This would be a much better story if I could remember that the attorney on the other side modified his behavior after this outburst, but that's life, I guess.

So we try another example: Some years ago, when I was at my old firm, I took a call from opposing counsel in the office manager's glass-walled office on the first floor of our building. There were secretarial stations facing either wall of the large room outside that office. I had just come back from court or something when the call came in, and I had no idea where the conversation would go.

Well, the conversation went south in a big hurry and in a big way: Within a very short time, I called him a bunch of vile names, he called me a bunch of vile names and we both slammed down the phone in about the same instant. I vividly recall seeing that every face on that first floor was goggle-eyed and open-mouthed and turned toward the office manager's desk, where I stood, embarrassed at my complete loss of temper. I do remember this case, and the identity of the attorney -- and we've always gotten on well since we cleared the air between us in this unlikely fashion.

So at least in the second illustration, the targeted use of profanity had an ultimately positive effect. Therefore, I conclude that strong language may be kept, with Latin and Yiddish phrases, in the attorney's tool box -- but only in a separate, insulated container.

This is a relief -- ALJ OK's web surfing at work

From a story published earlier this afternoon by the Chicago Tribune:

NEW YORK -- Surfing the Web at work is equivalent to reading a newspaper or talking on the phone, an administrative law judge said in recommending the lightest possible punishment for a city worker accused of disregarding warnings to stay off the Internet.

The case involved Toquir Choudhri, a 14-year veteran of the Department of Education, whose office computer had been used to visit news and travel Web sites.

"It should be observed that the Internet has become the modern equivalent of a telephone or a daily newspaper, providing a combination of communication and information that most employees use as frequently in their personal lives as for their work," Administrative Law Judge John Spooner said in recommending only a reprimand for Choudhri.

The judge noted that city agencies allow workers to make personal calls if it doesn't interfere with their work performance.

Choudhri's lawyer, Martin Druyan, called the ruling "very reasonable."

Don't you feel relieved? You don't mean to tell me you're looking at this on your own time, are you?

How not to take a deposition

This was a topic brought up on the ISBA listserv this week (with a link to this You Tube video offered by T.J. Thurston).

I can see where non-lawyers might find this clip very funny. At the risk of offending 10-year olds everywhere, the clip shows well-educated professional people acting like contentious 10-year olds on the playground. I found it all too familiar, if in an exaggerated way -- I've never actually been at a deposition that came as close to fisticuffs as this one apparently did. But, then, everything is bigger in Texas, isn't it?

The clip initially reinforced my long standing prejudice against video depositions. The video camera is light a harsh, bright light, leaving no shadows in which to hide. And that question that seemed so articulate and precise in memory, turns out, on tape, to be halting, forced, and stilted. At least court reporters will sometimes clean up my "um's" and "er's" leaving a transcript that is at least arguably consistent with optimistic recollection.

But then I thought of one deposition in which I -- admittedly -- failed to live up to the highest standards of civility. Opposing counsel had really gotten under my skin. I don't remember why. I don't remember the case. I do remember, quite clearly, the other attorney dictating in a flat monotone, enunciating very clearly so that the court reporter could not miss a single syllable. I don't remember the exact words, but the monologue went something like this: "Mr. Leyhane is raising his voice at me... I am in fear for my safety... now Mr. Leyhane is clenching and unclenching his fists, he is standing up out of his chair -- I am concerned that he is about to hit me and I am in fear for my safety...."

This only made me madder. Obviously, I did not hit the man -- anyone who knows me would confirm that I am a practicing coward and unlikely to take a swing at anyone. I don't know how the situation resolved -- but we must have got through it somehow.

In that one instance, a video record might have been helpful.

But "how not to take a deposition" involves more than just incivility. I recall a deposition a long time ago, in a construction subro case. It may have actually been my first solo effort. The witness was an architect and I asked a question that seemed alright to me, at the time. I have no idea today what my question actually was.

The witness responded, however, by asking to go off the record.

Well, I wasn't going to take that; no, sir, I was going to be aggressive and bore on ahead (bore probably being a particularly apt word choice here). So I refused to go off the record.

"Fine," the witness said, "we'll stay on the record. That was the singularly most stupid and asinine question I have ever heard in my entire life."

Of course, I'm sure I've asked lots of dumber questions in the 25 or so years since. There's always room for improvement....

"Global warming" may be real, but not artificially caused

A story in Sunday's Sun-Times reports these poll findings:

●53 percent think warming is caused more by human activity than by normal Earth cycles.

●70 percent think the effects of global warming can be reduced.

●59 percent think their efforts as individuals can make a difference in global warming.

●At least 90 percent are willing to take the following steps to reduce greenhouse gas emissions: recycle, turn thermostats down in winter by 2 degrees, caulk around windows, and combine driving trips when running errands.

●Between 80 percent and 90 percent are willing to take these energy-saving actions: wash clothes in cold water, turn down water heater temperature, buy energy-efficient light bulbs, buy energy-efficient appliances, and buy energy-efficient cars.

●70 percent are willing to drive less, and walk, bike, car pool or take mass transit.

I applaud the willingness of so many to take practical energy-saving actions. But none of this will necessarily stop "global warming."

The idea that the planet is warming because of human activity -- industrial and auto pollution, deforestation, etc. -- and that curtailing these activities or ceasing particular activities altogether (let's all go back to caves and live off the land!) will somehow stop this "global warming" strikes me as hubristic, and potentially dangerous, nonsense.

The History Channel has recently been running a program entitled Little Ice Age: Big Chill, about a 550 year global cold snap that changed European history -- and prompted the beginning of American history as we now know it.

The ad copy for the DVD of the program states:

Scientists call it the Little Ice Age--but its impact was anything but small. From 1300 to 1850, a period of cataclysmic cold caused havoc. It froze Viking colonists in Greenland, accelerated the Black Death in Europe, decimated the Spanish Armada, and helped trigger the French Revolution. The Little Ice Age reshaped the world in ways that now seem the stuff of fantasy--New York Harbor froze and people walked from Manhattan to Staten Island, Eskimos sailed kayaks as far south as Scotland, and "the year without a summer" saw two feet of snow fell on New England one June and July.

Those who fret about global warming presumably do not recall the fate of the Viking colonists of Greenland.

During the warm centuries that preceded the Little Ice Age, Vikings journeyed to Greenland, Iceland, and to the shores of North America. Calling the island "Greenland" was always a bit of hyperbole on the part of its Viking promoters, but the early colonists there did have grazing land for sheep and were able to maintain flocks.

The Little Ice Age changed this -- and the Vikings ultimately starved.

Now Greenland is apparently warming again -- but is it yet as warm as it was before the Little Ice Age? And why was it so warm then? If that episode of "global warming" was not caused by medieval knights, then why is mankind responsible for the current episode?

The world changes. It has changed before. It will change again. This is part of the natural order of things. Humankind must have some influence, particularly in localized areas -- urban heat islands, for example -- but what is it about the human ego that makes some people feel as if the human race is responsible for everything, good or bad, that happens in, or to, the world?

Climate change should certainly be studied. We should study how best to adapt to climate changes that may be coming. We should try and figure out how human activity retards or accelerates climate change (my working hypothesis is that, in different areas, human activity does both). But neither good science nor good public policy can be constructed on an assumption that "global warming" is caused by human activity.

Immigration Reform, Abstract and Personal

Where to stand on immigration reform is easy -- in the abstract.

We must have secure borders. A nation that can not control its borders can not long remain a nation. The tide of illegal immigration must be stopped.

That's the easy part.

But for so many of us, it becomes much more difficult when viewed on a personal level.

You may not know an illegal immigrant. You may not have had a nanny or au pair who overstayed her visa, or worked contrary to the visa's terms -- or was just plain undocumented. But you may well know someone who has employed an 'illegal' nanny. You may not have a lawn service -- but you probably know people who do.

I don't have either a nanny or a lawn service. But I worked for a building contractor nearly 30 years ago, after my first year of law school, as a laborer. I was the only Anglo among the laborers. The others were Mexican. I did not know their immigration status, but I can guess. We lived in an area (now the built-up Northwest suburbs of Chicago) that had a long tradition of Mexican migrant laborers coming through each summer to work local farms.

Anyway, these men got to work before I did, and left later. They were stronger than I was, and worked harder. And they sent much of their money "home" to their families.

It is impossible to see such men as felons.

It is fascinating to listen to the immigration debate today: The conservatives claim to be protecting the wages of American workers. The liberals call for the operation of a free market in labor. (No, I didn't get that backwards.) And the big business types, that one would ordinarily assume to be in the conservatives' camp, are all in favor of 'guest worker' status for illegals (do you think that might be because they buy into the idea that illegals keep wages down?).

But in all the talk about fences and felonies, on the one hand, and 'guest workers' and amnesty on the other, I'm not hearing enough about whether the immigrants among us already are here to become Americans -- or just here for the cash. In fairness, the McCain-Kennedy proposal supposedly requires that illegals learn English as part of their process of normalization. But there seems to be some sort of embarrassment about being American that permeates our society at all levels, and that is a matter of concern to me.

My children have all had an assignment, in grammar school, to write about their 'country of origin' -- and to put 'their flag' on the cover of their report. When my oldest told me about this assignment, I told her to put an American flag on the cover and write about the United States. This is where she was born. I got angry when she insisted that she had to write about either Cuba (where her mother's family comes from) or Ireland (home of my remote ancestors). (And I was angry with the school, not with my daughter, because that was what the assignment required.)

I think it's wonderful that a family keeps the traditions it brought with it into this country. It's nobody's business what language is spoken at home. American culture is a tapestry, woven from the threads of the myriad of traditions imported to these shores by immigrants. But people who come here should come here to become Americans; those of us who are Americans should be proud of who and what we are -- even if, and maybe even especially when, we disagree with a particular President or a particular party.

When did the oath of citizenship change? It formerly required renunciation of every foreign prince or potentate. Now we have "dual citizenship." It's not just Mexicans voting in Mexican elections in Chicago. There were Iraqis driving across the Midwest to vote in Rosemont for the new Iraqi government. We recently had a prominent Chicagoan campaigning to represent 'overseas Italians' in the next Italian parliament. (I don't know if he won or lost.) I know many Americans with Irish passports (although that may not a bad idea, I suppose, as a safety measure given the enmity which Americans can face overseas).

My point is this. The topic of immigration reform can't be limited only to a discussion of what to do about illegal immigrants. We have to address whether we who are here already are also asking newcomers to assimilate, to become Americans like us. I think we need to renew and celebrate our belief that being an American is something special, and desirable. That doesn't mean we embrace the prejudices that scarred our ancestors: Being an American is not about having blonde hair or blue eyes; being an American has always been more about ideas than genetics. (Don't tell me that I'm overlooking slavery and the subsequent struggle for civil rights. I'm not. I dispute the contention that this central fact of American history undermines my point. It underscores my point instead: Indeed, the civil rights movement can be seen as a struggle for African Americans to fully participate in the American meritocracy.) To be an American requires the embrace of principles of individual liberty, fair play, self-reliance, equal opportunity, tolerance. Yes, that's a partial list; yes, we can argue about what these values mean. I think of Frank Capra movies when I try to define what being an American is -- but I realize even that reference can be, and was at one time, controversial.

There's a quote from Theodore Roosevelt about immigration circulating now among red-meat conservatives. The cited link shows that TR made this statement shortly before his death, in 1919, not in 1907 as the ubiquitous e-mail asserts (hence the reference, omitted in the partial quote that follows, to the "red flag"). But here's the important part of the quote: "In the first place we should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin."

Isn't that a good basis upon which to start discussing how to deal with the illegal immigrants who are already here?

Losing Another Old House in the Community

The Edison-Norwood Times-Review is running a story in this weeks issue about another Victorian house in Old Norwood that is about to face the wrecking ball. That link is active for only a limited time, so let me quote just a bit from the article:

Time is running out for a Norwood Park home that was built shortly after the community was annexed by the city of Chicago in 1893.

The James A. Low house, 5957 N. Nina Ave., a single-family, frame residence is targeted for demolition. According to records from the City Landmarks Commission, the application for a demolition permit was put on a hold list Jan. 23, postponing a decision for 90 days.

On the Chicago Historical Resources Survey, the house is rated "orange" -- the second highest classification -- meaning it "possesses potential significant architectural or historical features."

The house, which according to the survey was constructed beginning in 1895, was also listed as "contributing" to the Norwood Park National Register District.

* * *

Alderman Brian Doherty, R-41st, said he was informed by Brian Goeken, deputy commissioner of Landmarks, that the house does not meet the criteria necessary to designate it a city landmark. Doherty called the standards "very subjective."

The Norwood Park Historical Society's Tom Spenny called the Low House an important piece of neighborhood history that warrants preservation.

He has been trying to save the Low house, but doesn't expect it to remain intact much past April 23, when the demolition hold period expires.

The story illustrates a growing problem in the City of Chicago: How do we preserve our past and our property rights both?

The article quoted Ald. Doherty on this issue:

"The city shouldn't tell people what to do with their property." Doherty said. The best way to save historic buildings, he said, is to give the property owners incentives to preserve them.

I think the alderman is entirely correct on this. But what incentives are appropriate?

There is a vicious cycle at work here: Beautiful old buildings attract new people to a neighborhood. Property values are enhanced by the newcomers who fix up or demolish run-down properties and build "McMansions" (as the link shows, this is not just a Chicago problem) -- and everybody's property value goes up. And so do the property taxes. Older folks living in the older houses may have trouble paying both the new, higher taxes and the costs of maintaining the properties. Now the one-time neighborhood gems, some of the very buildings that attracted the newcomers in the first place, are the small ones, the shoddy ones, the ones in the crosshairs of developers.

I worked for many years in the River North neighborhood. When we moved in, the area was run-down, faded, and not a place to be after dark. But there were beautiful buildings everywhere, like the Hotel St. Benedict Flats and dozens of beautiful buildings along Dearborn Street, particularly north of Chicago Avenue (we were just south). Now that whole area is a forest of skyscrapers, full of expensive condos and luxury apartments. The Hotel St. Benedict Flats has survived, although it's been threatened more than once, but many distinctive buildings have been lost. And yet: It's those buildings that helped developers sell the "charm" of the neighborhood in which they were building.

On the other hand, if you could sell your three-flat to a developer for 10-20-100 times what you paid for it -- wouldn't you take the money and run?

And that's why building owners fear "landmark" status like the plague: It prevents the owner from demolishing his building; it may prevent the owner from making all sorts of improvements. In the meantime, the assessed value rises along with the skyscrapers or the McMansions next door.

I'd like to know if we can link property taxes to landmark status; that is, if we can induce property owners to accept landmark status by offering to freeze, or even rollback assessed value on "landmark" properties. Perhaps this would supply sufficient incentive for owners to hold onto and preserve their distinctive buildings.

The Morning After the Primary

The votes are in, but not yet counted, from yesterday's Illinois primary.

One thing is certain, however: Thousands, probably tens of thousands, of Illinois voters were effectively disenfranchised.

I'm not referring to the speculations about the new voting systems that are thoroughly documented in today's newspapers. Rather, I'm talking about Republicans in Cook County (except those in a handful of Republican subcircuits) and Democrats in the collar counties who took ballots for their parties -- and were thereby prevented from having any say in who would be elected to the bench.

Judicial races are decided in the primaries in Illinois. In Cook County, the Republicans don't even bother to put up candidates for the circuit bench in countywide races: The winners of yesterday's primary races must wait until December to be sworn in, but they will take office at that time. November is only a formality.

The bar associations say this shows the need for "merit selection" of judges.

But what is merit selection? Politicians slate judicial candidates now; the slated candidates usually win. "Usually" means not always. Sometimes it's because a "slated" candidate is "dumped" in favor of someone else by a group of committeemen. Sometimes it's because the slated candidates have 'funny names' and they are beaten by a man or woman whose only qualification for elected office is a mellifluous Irish surname. But sometimes the slated candidate loses because a more qualified candidate finds a way to squeak by.

With merit selection, the politicians get to slate the candidates -- and they will always win. Because politicians will do the selecting, whatever "blue ribbon" commissions are set up to disguise their choices.

I know most voters don't know and don't care about judicial candidates. I know the newspapers can't be bothered to cover judicial races. Here's a link to the March 1 story that appeared in the Chicago Tribune -- the only one I could find while searching the website this morning. Not one candidate is mentioned. Last Sunday, instead of reporting information, the Tribune ran a six-panel editorial cartoon in the Perspective section lampooning how people choose judges in the absence of information with which to make informed choices.

My perception is that the Chicago Sun-Times does a better job of covering judicial races, largely because former Chicago Law Bulletin writer Abdon Pallasch is on the staff -- but I must confess that my search this morning of the Sun-Times web site for appropriate illustrative links came up empty.

In any event: I propose that we do away with partisan primaries for judicial elections. All judicial candidates would appear on all primary ballots, for whatever party. A candidate who receives 50% plus one would be unopposed in November -- in all other cases, the top two finishers would be paired off. It would not eliminate slating, but at least those persons sufficiently civic-minded enough to come out for a primary election would not have to choose between party loyalty or forfeiting the opportunity to stand up and be counted as to who will serve them on the bench.