The Revolving Door of Premises Liability

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The internet's record of history regarding the revolving door is a bit murky.  For some reason, Answers.com informs us that the revolving door was in use somewhere in Chicago in 1790, and then, in an entry regarding the happenings of 1888 insists that 1888 was the year that Theopholis Van Kannel gave it to the world by installing the first revolving door somewhere in Philadelphia.  We know that Van Kannel received a patent for the door, after a German, H. Bockhacker, but Wikipedia says it was U.S. Patent 387,571, and invent.org insists it was # 641,563 and makes no mention of Bockhacker.  (There were multiple patents awarded to Van Kannel, both are for doors, but 387,571 was the first). 

The purposes listed for the thing involve every intent from controlling crowd capacity to keeping the windows from blowing out of skyscrapers and rarely mention that the fine folks at MIT have definitively stated and proven that the door saves energy and should probably be considered a sustainable instrument... and if you have a greater interest, you can always pick up Beardmore's "The Revolving Door Since 1881."

Whatever the use and history, our interest stems from a case recently decided by the Illinois 1st District Appellate Court called Britton v. University of Chicago Hospitals.

The plaintiff was attempting to enter the Hospital through a revolving door when the door jammed and he decided to give it a "shove."  After he pushed, the door didn't move and next, the outer glass surrounding the door broke and injured the plaintiff's left shin and knee.

Plaintiff sued the University of Chicago Hospital alleging that it was careless in its management of the revolving door alleging that the Hospital had a duty to maintain a proper ingress and egress from the premises and stating that the Hospital failed to make a reasonable inspection of the entrance and that the failure amounted to constructive notice that the door was defective - he also argue that whether the Hospital made a proper inspection was a question of fact.

The trial court granted summary judgment for the Hospital.  The appellate court affirmed the decision for the Hospital noting that the plaintiff was required to have some evidence tending to prove that a specific condition under the Hospital's control caused the glass to break.

"There is nothing in the record regarding any defect in the glass or the revolving door.  There is nothing in the record regarding maintenance of the revolving door.  Further, there is nothing in the record to indicate that the hospital had actual or constructive notice of any defect in the revolving door.  Here the record merely contains general allegations against the defendant but no evidence creating any issues of material fact."

The court also addressed the plaintiff's contention that the door's breaking constituted evidence of negligence in-and-of itself under the legal doctrine of res ipsa loquitor (the thing, for/to itself, speaks).  The court rejected this argument stating that the plaintiff was operating the door and caused it to revolve and... "where a structure not obviously dangerous has been in daily use for an extended period of time" [note that they didn't resolve the 1881/1790/1888 issue] "and has proven adequate, safe, and convenient for the purposes to which it was being put, it may be further continued in use without the imputation of negligence."

That last language is important.  The court came to that reasoning through its understanding that the plaintiff (or anyone) was using the door and taking a distinct part in the operation of the door and thereby, the person is chargeable with the exercise of due care as well.

The case isn't earth-shattering, but it is a good one that people operating a building should have in the deck for premises liability claims.  And, if nothing else, noting the name of Van Kannel could get you another role of the die in trivial pursuit.

Some Morning News

These are all a bit too short for full entries, but they are important.

The deadline on HB 2094 (The Structural Work Act) has been extended to May 31.

A bill relating to the Notary Public Act, that would lessen fraudulent transfers in Cook County by requiring the thumbprints of grantors as well as sufficient descriptions of those transferring property has been amended.  The bill had been sitting in the judiciary committee since December but has been revitalized.  Important to those concerned about records keeping - the bill requires new records under the amendment to be kept for seven years by title companies and attorneys.

Mostly Memories, Inc. v. For Your Ease Only, Inc. (7th Circ. Doc. No. 06-3560)
The Seventh Circuit has reversed a denial of attorney's fees under the prevailing party statute contained in 17 USC 505.  The plaintiff had dismissed its own case as baseless and the district court had denied the defendant's motion for fees under the act.  The appellate court found that fees were proper and that under the circumstances, a dismissal with prejudice did entitle the defendant's to attorney's fees.  For those concerned about their copyright in designs, this is a boon and another reason to follow through on protecting your work through proper registration.  The opinion is here.

Don't Sit On Your Rights - BPI Energy, Inc. v. IEC, LLC, (ILSD, Doc. No. 07-cv-186)

We have seen this before, and will likely continue to see it.

A party sits on its rights a little too long.  During the initial phases of litigation it replies and responds and files motions to dismiss and a year goes by.  Sometime, somewhere, someone reads the agreement again and says: "hey, maybe we should arbitrate this under the arbitration provision in our contract."   Their motion to remove the case to arbitration is denied by a judge finding that their answers and motions to dismiss, along with active participation in litigation amounts to waiver. 

They spent time and energy drafting their contract, negotiating its provisions, sometimes in the context of a project or development that amounts to hundreds of millions.  And now, they cannot avail themselves of the benefits of their negations.  Arbitration was chosen as a provision and likely negotiated on, and if it's the method you choose for the resolution of your dispute, you need to remember to act on it.

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Kelly v. Enbridge (ILCD Doc. No. 07-3245) and Maintaining Easements

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In this case, the original easement, granted in 1939 contained terms authorizing the holder to "the right to lay, operate and maintain a pipe line for the transportation of oil, gas, gasoline and/or other fluids, the grantee selecting the route, upon, over and through the following described land..." and further authorized "the right to lay, operate and maintain, adjacent to and parallel with the first, a second pipe line,..." and the easement would exist "so long as such pipe lines or other structures are maintained;..."

Over the years multiple companies became holders and transferred their holding in the easement to others until the defendant, Enbridge, LLC, became the current holder.  Enbridge desired to build a second pipeline and continue use of the first pipeline.  The plaintiff's owned the land that the easement ran on.  Plaintiff's brought suit to stop the building of the second pipeline seeking to extinguish the easement by proving that the easement had been abandoned.  A previous order discussing the testimony allowed by the plaintiff's expert and applying the standards of the federal rules of evidence to his testimony can be found here.

The parties moved for summary judgment against each other and the court rendered an opinion which is instructive for any company that may have particular easement that they are not using, but that may want to preserve the easement as an asset for a future conveyance.  The court found that the easement was still in place and that Enbridge had the right to full use of the easement.

  • The court noted that abandonment of an easement "requires proof of non-use plus some affirmative act that manifests an intent to abandon the Easement.  The affirmative act must destroy the object for which the Easement was established or the means of its enjoyment."  It then went on to find that there was no evidence of abandonment on these terms.  The fact that the pipeline had laid unused for a period was not an affirmative act, and the plaintiff's presented no evidence of an affirmative act of destruction.  Although previous entities entitled to the easement had not used the pipeline, they had never moved or destroyed the pipes, they had taken measures to determine that the pipeline was in good condition and they had maintained the signs around the pipeline - expending funds to maintain the pipeline.

A large portion of any particular right in an easement and its abandonment will depend on the language in the conveyance.  In this case, and in others, checking the easements that a company holds even if they date back to 1939 could turn out to be profitable with just a little maintenance.

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Gemini Consulting Group, Inc. v. Horan Keogan Ryan, Ltd. (N.D. Ill. Doc. No. 06 C 3032)

Here's an interesting case about the award of attorney's fees in a dispute between an Irish architectural firm and an Illinois builder of medical care facilities for work done on projects in Ireland.

The architect brought an action under the contract's arbitration provision and subsequently prevailed on a good portion of its claims in front of an Irish arbitrator.  The builder brought a suit in federal court in Illinois seeking a declaratory judgment ordering that the arbitration awards were invalid; that the architect had repudiated the contract and waived its right to arbitration; and that the architect had to initiate any legal proceedings against the builder in Illinois.  The district court found that it lacked jurisdiction to award the builder the relief and also affirmed a portion of the arbitration award.  The architect then sought attorney's fees and costs.

The opinion will be of interest to anyone faced with the issue of attorney's fees both in federal court under diversity jurisdiction and in state court.  The court held that attorney's fees in Illinois are a procedural matter and not a substantive matter under Illinois law, consequently, because no provision existed in the contract shifting attorney's fees and because the law of Illinois applied, attorney's fees were not available to the architect for prevailing in the district court matter.

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United Star Industries v. Plastech Engineered Products (7th Circ. 2008)

For those involved with suppliers of steel tubing... In United Star Industries Inc., v. Plastech Engineered Products, Inc. the Seventh Circuit issued an opinion upholding a trial court's determination that a commercial contract for supplying steel tubing did allow for passing the costs of a surcharge on the cost of steel from the manufacturer on to the end purchaser. 
The court also allowed sanctions to be imposed by the trial court against a law firm (not individual lawyers) under Federal Rule 11(c)(3) where the trial court found that the law firm had brought unsupported claims on behalf of the defendant in the nature of a counter-claim against the plaintiff.
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Stoneridge Development Co. v. Highland Glen Associates et al. (Doc. No. 2-06-1166 2nd Dist.)

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In Stoneridge, the court addressed the issue:  Whether an insurance company needs to provide coverage to its insured as well as to an additional insured under the policy.

A company had built townhomes and sold one to the Walskis.  Six years after the Walskis bought the home, they sued Stoneridge, the home company, because structural problems in the compaction of the soil underneath the home had cased the home to move, crack and fail.  Claims were filed against Stoneridge and an additional warrantor as well as several other parties.  Stoneridge tendered the complaint to its insurer and the insurer defended under a reservation of rights.  An arbitration award against Stoneridge and in favor of the Walskis, afterward Stoneridge pursued an action for declaration that its insurer had a duty to indemnify it which had been pending.

The parties to the declaratory action all filed motions for summary judgment.  Stoneridge and those arguing on its behalf (it has since gone insolvent) argued that the insurer was estopped from denying coverage where it had arguably accepted that coverage for an implied warranty of habitability claim may exist by failing to explicitly deny such coverage in its reservation of rights letter and where the appointed counsel for Stoneridge had sought to have that claim dismissed in the arbitration seven separate times while not failing with such vigor to motion for the dismissal of the uncovered breach of contract claim.  The trial court agreed and found that the insurer was estopped from denying coverage to Stoneridge under the policy.

The insurer appealed and the appellate court reversed the trial courts estoppel decision and also found that there was no coverage under the CGL policy for the damage caused to a house by the settling of a house due to improper compaction of the soil.

In the first portion of the opinion regarding estoppel the court determined that the insurer was not estopped from denying coverage because it had never said there would be coverage.  The letter had properly categorized both the breach of contract claim and the implied warranty of habitability claims as being contractual in nature and expressed doubt as to the existence of coverage under the policy in its reservation of rights letter.

Note that in reaching this opinion, the court reaches two others:

  • A trial court may properly examine a reservation of rights letter in determining whether there is a conflict of interest between an insured and an insurer and is not relegated solely to considering the policy and the underlying complaint.
  • The implied warranty of habitability is a contractual claim under Illinois law.

In determining that no coverage existed under the policy the court cited to several other opinions holding that the damage caused directly to a project by faulty work was not an "occurrence" as defined in the policy because it was not accidental in that it could be foreseen that cracks and failures in the project would be the necessary result of faulty workmanship and improper construction techniques.  In defining "property damage" the court also held that there was not property damage in this instance that would be covered by a CGL policy because the clause did not apply to damage to the project, but to damage to other property which was not the project.  (i.e., if the townhouse fell onto someone else's house or their car, that would be "property damage" as defined under the policy).  The court also reiterated the holdings of several other Illinois opinions finding that CGL policies do not include coverage for damage to the project by faulty workmanship and that contrary to other jurisdictions, an exception for subcontractors to an exclusion for faulty work in the standard CGL policy that, in other jurisdictions has been interpreted to provide coverage for damage to the project when the fault work was performed by a subcontractor, is not applicable in Illinois because in Illinois, there is no coverage under a CGL policy for damage to the project from faulty work, period.


Guardian Pipeline and Comparative Appraisal

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Takings are a fact of our constitutional system.  Often, they're the method for beginning any public improvement or development.  Construction lawyers frequently come across the issue in highway expansion or stadium projects.  The results are mixed, and the topic can lead to some harsh rhetoric from critics.  One only has to remember the Kelo v. City of New London opinion and the ensuing humorous attempt at establishing the "Lost Liberty Hotel" in place of Justice Souter's house, to understand just how much people can get worked up.  Few things can have as much sentimental value as someone's home - or in the case of a farmer, as land.  (For an interesting discussion of the Kelo decision and the ensuing problem of the "holdout" owner in takings actions, read this entry by Judge Posner at the Becker-Posner Blog)

Guardian Pipeline v. 950.90 Acres is an opinion about the attempts of farmers to overturn a commission's decision regarding the value of their land.  Guardian Pipeline was authorized by the FERC to construct a pipeline that included the necessary condemnation of portions of more than 100 parcels of land in northeastern Illinois in order to put the pipeline underground.  A commission was appointed by the district court to receive evidence and propose findings to the district judge.  The proposed findings and resulting offers for the land or damage to the land during construction were accepted by all but three defendants.  Those defendants challenged the commissions findings which were adopted by the district court.  The defendants then appealed and the seventh circuit delivered an opinion upholding the decision.

The decision, written by Judge Easterbrook, presents an interesting solution.  Takings of partial portions of land in Illinois are governed by the "unit rule."  (Read the concurring opinion in the cited case to see that the method has its critics.)  In actions involving such takings, the unit rule means that the property subject to taking must be valued as a whole and the owner given the benefit of its assessment at the "highest and best use" of the property at the time of the taking.  Often, comparable parcels of land are sought out by the parties "experts" for evaluation and assessment.  Normally, three to eight parcels (five to seven in most cases) are compiled in a report.  An average value per square foot is assessed for the exemplars.  That value is applied to the total square footage of the proposed portion of the parcel to be taken and the result is the amount of compensation offered by the taking  entity, or the value between the parcel before and the parcel after the taking is assessed with the same per-square-foot methodology being used.  Sometimes assessments include the cost of work to bring the land back into a usable fashion (for instance having to repave a portion of a parking lot that has been decreased in size by a taking).  But often, any such arguments about external factors which the owner feels will require extra compensation are not included in the appraisal and must be argued over in court.

These types of appraisals caused the court in Guardian to wonder:

  • "What puzzles us is why both sides were fixated on pairwise comparisons--that is, matching each subject parcel with a supposedly "comparable" parcel that does not have a transmission-corridor easement (whether for oil, gas, or water underground, or rail or electricity above ground), appraising that parcel, and then comparing the appraised value of the "matched" parcel with appraised values of the subject parcel with a pipeline easement. That process is full of problems. No other parcel will be identical to the subject parcel except for its lack of a transmission corridor easement. Location and other attributes always differ, setting the stage for debate about whether an appropriate comparison has been selected. And even if very similar parcels can be found for comparison, the appraisals are just estimates. Each of these comparisons requires two appraisals: one of the "matched" parcel, and one (informed by the comparison) of the subject parcel with the easement."

Suggesting a different approach, based on regression analysis and citing the FJC's Reference Manual on Scientific Evidence, the court opined that:

  • "A different approach would be to gather data about the actual selling prices of real estate with and without transmission-corridor easements and use these data to determine how much the easement reduces the value of real estate in real transactions. The law of large numbers would make up for the lack of closely matched comparison pairs. How many feet of transmission easement encumbers a parcel is a continuous variable and could be one independent variable in a regression. Daniel L. Rubinfeld, Reference Guide on Multiple Regression, in Reference Manual on Scientific Evidence 179-227 (Federal Judicial Center 2d ed. 2000), provides a good description. Using real transaction prices reduces the role of guesswork. Although no one suggested such an approach in this proceeding, litigants (and district judges) should keep it in mind for the future, as it has the potential to be faster, less expensive, and more accurate than a parade of witnesses offering estimates that cannot be verified."

This method not only makes sense, it seems to be a more scientific and mathematically sound strategy than a method based on comparative appraisals and should be considered by the Illinois Supreme Court and lower courts as a substitute for the unverifiable method in use today.  Such a method often has "experts" applying "principles" and coming out miles apart in their appraisals depending upon which party to the litigation they represent.

 

HB - 2094 v.2.0 - Architect Friendly?

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We had been reporting and continue to report on HB 2094 which would bring the Structural Work Act back into existence.  We had also reported on the original act from 1907 which demonstrated that little work had been performed to update an act to adapt to today's methods of construction and actually provide for worker safety.

Another amendment was introduced to the bill on April 29 which is being held up (the final action deadline for tomorrow has not yet been extended).  The amendment deletes the previous section 8 and adds this:

"Section 11. Illinois licensed design professionals. Notwithstanding the provisions of Section 9 of this Act, no right of action shall accrue under this act against an Illinois licensed design professional who does not have any responsibility for work-site safety and whose involvement, role, and activity is solely and exclusively limited to  architectural, engineering, or land surveying services. For purposes of this Section, "Illinois licensed design  professional" means a person or entity who, at the time the  services in question were performed, was registered as an  Illinois Professional Design Firm or held an active license as an architect under the Illinois Architecture Practice Act of  1989, a structural engineer under the Structural Engineering  Practice Act of 1989, a professional engineer under the  Professional Engineering Practice Act of 1989, or a land  surveyor under the Illinois Professional Land Surveyor Act of 1989."

The proposed amendment would take out the section that had previously required the design professional to comply with the statute.  It leaves in section 9, which gives a private right of action to anyone injured for "direct damages."  We'll have to wait and see if it is adopted, but this is certainly a boon for the design professional community. 

SB 2014 Update

We had previously reported on SB 2014 which would augment standard of review for zoning decisions made by local governments.  Our previous article is here.
Just an update, the bill has passed the state senate and is now up for consideration in the house rules committee.
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Korte & Luitjohan Contractors, Inc. v. Thiems Construction and IDOT (5th Dist, Doc. No. 5-05-0516)

In this case, subcontractor brought a suit against the Illinois Department of Transportation (IDOT), and the general contractor on a project.  The bid on the project was to perform services for the general to excavate a trench, install a sewer pipe, and supply backfill.  The contract required that the parties abide by the IDOT Standard Specifications and the plans specified in the general contract.  The suit alleged a claim for foreclosure under the mechanics lien act, in which IDOT was named a party, a claim for breach of contract, and a claim that the GC had violated the State Prompt Payment Act (30 ILCS 540/0.01 et seq.)  The trial court dismissed IDOT from the case, and found that the IDOT specs precluded the breach of contract and lien actions.  The trial court then determined that retaining payment was improper and awarded interest under the State Prompt Payment Act.  The parties appealed.

Here, the appellate court concluded that the trial court was right in dismissing IDOT given that the mechanics lien act authorizes the funds to be set aside before resolution of the issue, but does not authorize making a state agency party to a foreclosure action. The opinion discusses a topic that should be of interest to those contracting with the state when it considers payment under the mechanics lien act.  §23 of the act authorizes subcontractor remedies through liens against public funds for state projects, but the act has never applied to contractors.  Additionally, suing pursuant to this section means that a subcontractor will be bringing an action for an accounting within 90 days of providing the required notice, and the only way to bring in an officer of the state under the act is in an action claiming they failed to comply with §23 of the statute.

The breach of contract claim filed against the GC was premised on an interpretation of IDOT Standard Specifications.  (This may bore some of our readers, but it is actually pertinent to anyone looking for courts to favorably interpret government specs.)  §208.03(b) governs methods of measurement quantities for trench backfill, and contains a clause stating that any backfill required in excess of the maximum quantity as calculated but he specs "shall be furnished by the Contractor at his/her own expense."  The plaintiff argued that there was no established width to the trench and tried to say that use of the word "shall" in §550.04 (the IDOT spec which states exactly how wide a trench should be on such a project) didn't really mean shall, but meant something like "shall not be less than," which, you don't have to be Bryan A. Garner to understand, is bad form in just about every school of legal interpretation... especially when the court can read other sections of the IDOT specs and see that when IDOT meant to set a minimum limit on something, it used some variant of "shall not be less than" and not just "shall."

Utilizing this reading of §208.03 the court upheld the trial courts determination that the plaintiff was not owed monies for the excess it was required to provide and the dismissal of the breach of contract claim was proper.

With regard to the final argument, the court held that it was IDOT that failed to make prompt payments to the GC who, pursuant to provisions of the contract and federal regulations was then to turn around and hand the money over to the plaintiff.  Contrary to the trial court's opinion, the GC was not in error when it did not turn over monies that had not been forwarded by IDOT.  The GC would only be in error if IDOT had turned over the funds and then the GC failed to pay them to the subcontractor.  The appellate court also said that the trial court had properly interpreted the State Prompt Payment Act, but because the GC did not owe money to the plaintiff, there was no violation of the act.

[NOTE: In addition to the State Prompt Payment Act, there are other prompt payment acts that can be alternative sources for causes of action regarding getting paid such as the Contractor Prompt Payment Act, the Local Government Prompt Payment Act, any of which, along with a host of other methods, can be utilized under the law in securing payments owed.]

McGrath, et al. v. American Family Mutual Ins. Co.

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In McGrath, et al. v. American Family Mutual Ins. Co. (N.D. IL, 07 C 1519) the court has delivered some poignant remarks concerning both the standard under Daubert for expert engineer testimony as well as provided some issues to think about regarding the "latent defect" and "construction design defect" exclusions issued under all-risk insurance policies.

The plaintiffs submitted a claim to their insurance company for water damage inside their home.  The insurance company denied coverage based on two exclusions in the policy, one for construction or design defects and one for latent or inherent defects.  The plaintiffs sued, and the insurance company hired an engineer to provide an opinion regarding the cause of the water damage.  Motions for summary judgment and for judgment under Federal Rule 56(d) limiting the issue of liability were cross-filed.

The engineer had found that external water or moisture from humidity, ice, snow and rain had penetrated the exterior brick walls of the plaintiffs' home due to construction or design defects. 

The plaintiffs moved to have portions of the testimony of the defense expert stricken by questioning his methodology.  Plaintiffs asserted that the expert needed to perform in depth testing of the humidity levels to provide precise calculations regarding his opinions.  The court ruled that the pictures examined by the expert provided enough information for someone with his experience to reach an acceptable opinion regarding the intrusion points of the moisture and that in-depth analysis was not necessary.

The court then went on to interpret the policy exclusions for construction and design defects and latent defects against American Family and in favor of the plaintiffs.  In assessing the nature of the water damage, the court found that because the exclusion failed to include language addressing exclusions for losses resulting from ancillary damages caused by a design or construction defect, that the exclusion only applied to the actual defect and not to the water damage to other portions of the home caused by the defect.  In assessing the latent defect exclusion, the court found that the latent defect exclusion applied to "a hidden defect other than a construction or design defect."  The court analogized latent defects to hidden defects that are unrelated to construction or design such as finding lead paint under layers of previous coats.

Given its conclusions that no exception applied, the found that liability under the policy was established and that the only issues for trial were the amount of damages.

SWPlaza III, LLC v. TSA Stores, Inc. (C.D. IL - 06-3177)

We previously reported on the short facts surrounding this dispute in an entry regarding the propriety of expert testimony regarding the cost of repair.  Not to belabor the point, this dispute arose after two tornadoes damaged a shopping center.  TSA was renting space in the center at the time and part of their store was destroyed.  The lease had a provision that allowed for the TSA to terminate the lease if within 60 days of the destruction, they estimated that the cost of repair and reconstruction exceeded 35% of the total reconstruction cost. 

The parties agreed that the total reconstruction cost of the store was $1,960,067.00 (Slip Op. at 6).  35% of that amount is $686,023.00.  The court heard arguments at a bench trial regarding whether TSA properly estimated the amount would exceed the 35% limit within 60 days of the tornado such that their breach of the lease was proper.

After hearing the evidence from all parties, the court found that actions taken by TSA (the full list of facts is recited the opinion) amounted to a determination to breach the lease and then an ad-hoc approach with the estimates and numbers amounting to working out the figure of 35+% after the fact.  What this means is that there was no "good faith belief that a reasonable estimate of repair and reconstruction costs would be at least 35% of the then-total reconstruction cost."  (Slip Op. at 28-29) 

The opinion, and the different information adduced during the hearing should be a reminder to anyone in-house about the proper procedures for negotiating and dealing with the parties you've contracted with.

The opinion can be found here.

Doing Right By Conservation Easements

In Bjork v. Draper (Doc. No. 2-06-1145, 2nd Dist), neighbors of a house located in the Lake Forest Historic District, included in the National Register of Historic Places, brought suit against the house owners to enforce the terms of a "Conservation Easement" (an easement agreement that creates a type of land preservation agreement that is enforceable between parties normally granted pursuant to the Illinois Real Property Conservation Rights Act) which the neighbors felt the home owners were violating with alterations to their home and subsequent amendments to the easement entered into between the home owners and the Lake Forest Open Lands Association which was the conservation entity that had been granted the easement.

The terms of the easement included a right for the amendment of the easement as well as a statement that the purpose of the easement was to assure that the property would be "retained forever predominately in its scenic and open space condition, as lawn and landscaped grounds."

The trial court heard the neighbors' claims regarding interpretation of the easement, the amendments that the owners and the Association had entered into, and determined that a portion of the landscaping improvements that the owners had made pursuant to a third amendment were in violation of the easement.  The court also determined that the two prior amendments to the easement, allowing the owners to expand their driveway and to construct an addition to their home, were valid.

The neighbors appealed the decision of the trial court and the appellate court found that all the amendments violated the easement's statement of purpose regardless of the provisions in the easement allowing for amendment.  The court then remanded the decision to the circuit court for a determination in line with its opinion regarding exactly which improvements, if any, the owners would be forced to remove from their property.

Dealing with these types of regulations in a construction context is always challenging, but usually negotiating construction terms around conservation easements can be handled in a manner that can increase the historic value and preservation of the structures.  Here, the opinion reveals that the owners took steps to comply with the easement, hired an attorney and negotiated with the Association, it was the neighbors who brought the suit.  These facts are not inconsequential and show why the court in remanding the case, emphasized that the trial court could eventually determine that none of the improvements would need to be removed.

Harleysville Lake States Insurance Company v. Palestine Com. School Dist., et al.

This is a procedural case.  A worker was hurt on a school construction site.  A lift rolled over and fell on him.  He sued the school district, the electrical contractor that the school district had contracted with for sound equipment and the design-build architect for the project.  The insurer for the electrical contractor brought a declaratory judgment action in federal court against the architect and the school district to determine whether exclusions to the policy applied to those defendants as additional insureds.

For carriers, there's an interesting point about federal law governing necessary parties to a declaratory action:

"Underlying tort claimants are not necessary parties to a declaratory judgment action regarding an insurer's duty to defend what the action is filed by the insured.  However, if the declaratory judgment action is filed instead by the insurer or involves a determination of insurance coverage or both, then the underlying claimant is considered a necessary party."

The plaintiff's in the underlying tort action had been brought in as defendants by the insurance company and asked that they be dismissed or that the action be stayed until their underlying claim was resolved.   The court held that it could dismiss the underlying tort plaintiffs from the action, and that a decision regarding the insurers duty to indemnify the school district and the architect would be stayed until judgment in the underlying proceeding.  The court determined that it could not stay the portion of its case regarding the insurers duty to defend the school district and the architect and allowed that claim to progress since the duty to defend was a ripe issue where the underlying tort action was progressing.  The opinion is available here.

Other Construction Law Blogs - Reader Appreciation

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Obviously, if you're reading this blog, you understand the concept.  There are a host of regionally based and topically based construction law blogs out there.  We've taken some time to compile a list of those that are updated frequently.   Additionally, if our readers have some topics that they'd like to see covered, feel free to drop us a line and let us know.


[UPDATE] - Of course, our list will evolve over time.  Over the weekend, one reader clued us in to http://blog.wolfelaw.com
Additionally, the Chicago IP Litigation blog is hosting the May Carnival of Trust.
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AIA and ConsensusDocs Comparison

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On April 25, 2008, FGPP attorneys Douglas Palandech, Robert "Bob" Boylan, and Ashley Brandt were presenters at an online webinar hosted by M.G. Welbel and Associates, Inc. 

The topic of the presentation was a comparison between the 2007 AIA B101 and ConsensusDocs 240 standard form owner-architect agreements.

You can replay and listen to the entire presentation here.