Insurer Wins First Appellate COVID-19 BI Coverage Decision SCOTUS Explains Jurisdictional Rule Covering Corporate Defendants - Clausen Miller
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2021 • Vol. 2
Insurer Wins First Appellate
COVID-19 BI Coverage Decision
SCOTUS Explains Jurisdictional
Rule Covering Corporate Defendants
Forum Non Conveniens—
Persistence Conquers
Plaintiff’s Forum Shopping
th
Anniversary
A summary of significant recent developments in the law focusing on substantive
issues of litigation and featuring analysis and commentary on special points of interest.
2021 • Vol. 2
FEATURES ARTICLES
3 Sidebar APPELLATE
6 CM News 11 United States Supreme Court Holds That Prevailing Defendants
On Appeal Are Entitled To The Full Amount Of Premium
9 On The Litigation Front
Supersedeas Bond Costs From A Losing Plaintiff
29 Case Notes by Melinda S. Kollross
13 Illinois Supreme Court Decides “Unanswered Question”
Under The Illinois Contribution Act
Report Staff by Melinda S. Kollross
Editor-In-Chief FIRST-PARTY PROPERTY
Melinda S. Kollross 15 Insurer Wins First Appellate Decision Addressing COVID-19
Business Interruption Coverage
Assistant Editor
by Melinda S. Kollross
Joseph J. Ferrini
JURISDICTION
Senior Advisor and
Editor Emeritus 17 Home Is Where You Make It: SCOTUS Explains
Edward M. Kay The Jurisdictional Rule Covering Corporate Defendants
by Paul V. Esposito
Feature Commentators LIABILITY INSURANCE COVERAGE
Kimbley A. Kearney
19 Extrinsic Evidence Properly Considered In Coverage Denial
Case Notes For Sexual Molestation
Contributing Writers by Don R. Sampen
Melinda S. Kollross
LITIGATION
Paul V. Esposito
Joseph J. Ferrini 21 Forum Non Conveniens—Persistence Conquers Plaintiff ’s
Don R. Sampen Forum Shopping
Patrick L. Breen by Scott R. Shinkan and Alexander J. Brinson
Mara Goltsman NEGLIGENCE
Gregory J. Popadiuk
23 TMI!: HIPAA Informs State Law Negligence Claims
Meredith D. Stewart
Ross S. Felsher by Paul V. Esposito
Joseph R. Paxton PREJUDGMENT INTEREST
25 Alert On Illinois Personal Injury And Wrongful Death Actions:
Prejudgment Interest On Those Judgments Is Effective
On July 1, 2021
The CM Report of Recent Decisions by Melinda S. Kollross and Amy R. Paulus
is provided as a general information source and
is not intended, nor should it be considered, the SUBROGATION
rendition of legal advice. Please contact us to 27 Skin In The Game: Insurers’ Standing To Seek Subrogation
discuss any particular questions you may have.
For Attorneys’ Malpractice In Defending Insureds
© 2021 Clausen Miller P.C. by Anne E. Kevlin and Paul V. Esposito
2 clausen.com
SIDEBAR
More Tales From The Minefield—
Or Why Appellate Counsel Is A Must
During Litigation
by Melinda S. Kollross
In this quarter’s Sidebar, we report on The trial court ruled in Rembrandt’s
two recent federal appellate decisions favor on liability, and a damages
illustrating the wisdom of employing trial was held. The jury awarded
trained appellate practitioners. Rembrandt $1,268,481 for losses
on eggs it had resold, based on the
Rexing Quality Eggs v. difference between the contract price
Rembrandt Enterprises, Inc., and the resale price, and another
Nos. 20-1726 & 20-1727 (7th $193,752 for losses on eggs that it was
Cir. 4-22-21). not able to resell. Rexing appealed the
damages to the Seventh Circuit.
There are important lessons to be
learned from the Seventh Circuit Rexing’s Appeal
decision in Rexing Quality Eggs v. Melinda S. Kollross
Rembrandt Enterprises, Inc., Nos. Rexing appealed two aspects of the is an AV® PreeminentTM rated Clausen
20-1726 & 20-1727 (7th Cir. 4-22-21). jury’s resale award. First, it argued Miller senior shareholder and Chair of the
Appellate Practice Group. Specializing
First, as this author has counseled her that there was no evidence that the in post-trial and appellate litigation for
clients may times, it is wise to utilize eggs sold by Rembrandt met the case- savvy clients nationwide, Melinda is
appellate counsel during trials to weight requirement of the Purchase admitted to practice in both New York
ensure all arguments are preserved Agreement, and thus those eggs could and Illinois, as well as the U.S. Supreme
for appellate review; secondly, Rexing not form the basis of a resale remedy, Court and U.S. Courts of Appeal for the
Second, Third, Fourth, Sixth, Seventh,
teaches the importance of reviewing and Rembrandt should not have Eighth, Ninth, Tenth and Eleventh
the pertinent rules each time legal received any damages under the law. Circuits. Melinda has litigated over 200
work is performed. Second, Rexing argued there was no federal and state court appeals and has
evidence of actual market transactions been named a Super Lawyer and Leading
Facts Lawyer in appellate practice.
to support the calculation of damages mkollross@clausen.com
Rexing involved the sale of eggs to for the eggs that Rembrandt could not
a buyer (Rexing) from a supplier resell and used for its own purposes.
(Rembrandt). Rexing began refusing Consequently, according to Rexing,
shipments of the eggs from Rembrandt the jury lacked critical evidence
because of alleged quality issues. to calculate Rembrandt’s damages
Rexing sued contending it was excused based on market price. Rexing sought
from purchasing the eggs. Rembrandt judgment in its favor on these damages,
counterclaimed seeking damages for and not merely a new trial.
Rexing’s repudiation of the contract.
clausen.com 3
SIDEBAR
Rexing’s Arguments the evidence regarding case-weight matter jurisdiction from the trial court
Are Waived without discussing the erroneous to the appellate tribunal. Unless all the
market value calculations. rules are followed and all the “t’s” are
The Seventh Circuit dispatched crossed and “i’s” dotted, a notice of
Rexing’s damages arguments finding appeal may be found deficient, and it
Learning Point: Appellate counsel
both arguments waived because of will not properly transfer jurisdiction
would have known that to preserve
Rexing’s failure to follow the dictates of to the appellate tribunal.
Rexing’s damage arguments for review
the Federal Rules of Civil Procedure—
to challenge the award of $1,462,233,
specifically Rules 50(a) and 50(b). That is what happened in Newcomb.
both a Rule 50(a) and Rule 50(b) had
to be made and made with specificity. The Court found that the notice of
As to Rexing’s case-weight argument, the appeal was so deficient that it failed to
In fact, Rexing’s Rule 50(b) post-
Court found that while Rexing raised properly transfer jurisdiction, and the
verdict motion should have been
this point in a Rule 50(a) motion prior court dismissed the appeal.
a part of a larger, global post-trial
to jury deliberations, it did not make
motion seeking not only judgment,
the argument again in a Rule 50(b) The notice of appeal was apparently
but a new trial and remittitur, as is
motion following the jury’s verdict. The prepared by an attorney, albeit not a
this author’s post-trial practice. And
federal rules require both a pre-verdict trained appellate practitioner. It was
appellate counsel would have known
and post-verdict motion to be made. prepared supposedly by a real estate
this because prudent attorneys read
In the absence of a timely filed and attorney, but perhaps he just “lujacked”
the rules before embarking on any
made Rule 50(b) motion following the it off to his paralegal or secretary,
motion preparation. Reading the
verdict, Rexing’s case-weight arguments thinking it was “just a notice” and
rules governing various procedures
were not preserved for review. Rexing’s no big deal. As the Court described it,
is akin to a pilot’s checklist before
arguments that it was not seeking a the notice of appeal had the incorrect
operating a plane. No matter how date of the order appealed from, and
new trial and that its Rule 50(a) motion
many times a pilot may have flown a misdescribed the names of both the
was sufficient were rejected. The 50(b)
plane, she reads the checklist before lower court and Court of Appeals. The
motion could have been utilized by
embarking to make sure everything is Eighth Circuit held:
Rexing to obtain the ruling it sought
proper. The same is true with reading
on appeal—judgment in its favor on
rules of procedure, such as Rules The complete failure by parties
the resale damages. And regardless of
50(a) and 50(b). Had Rexing retained who are attorneys engaged in
how sufficient Rexing’s 50(a) motion
experienced appellate counsel to work multi-state litigation to comply
was, it preserved nothing without
this case, it might not have had to pay with multiple essential elements
a 50(b) motion made after verdict. this $1,462,233 award.
of Rule 3(c)(1) is not “imperfect
These same reasons applied to Rexing’s
but substantial compliance with
arguments regarding the award for the Newcomb v. Wyndham
a technical requirement” that we
eggs Rembrandt could not resell—the
Vacation Ownership, Inc., may excuse; it is an absolute bar
absence of a Rule 50(b) post-verdict to appeal.
motion on the point was fatal to Rexing.
Nos. 19-3109, 19-3111
(8th Cir. 6-8-11)
Learning Point: A notice of appeal
Additionally, the Court found that Newcomb demonstrates why only a should not be left to trial counsel, or
Rexing failed to make its pre-verdict trained appellate practitioner should his/her secretary, paralegal, or law clerk.
Rule 50(a) motions on both damage prepare a notice of appeal. The notice of appeal is not “just a notice”
points with the necessary specificity. and no “big deal”. The notice of appeal
According to the Court, Rule 50(a) The notice of appeal may only be is the “biggest deal” in any appeal. And
required that a party challenging the one or two pages long—but it is the regardless of the court, whether federal
sufficiency of the evidence specify “the single most important document in or state, a notice of appeal should only
law and facts” upon which the motion any appeal because it is the one and be prepared by an appellate practitioner.
is based. Rexing only complained of only document that transfers subject A word to the wise.
4 clausen.com
SIDEBAR IN MY NEXT SIDEBAR SCOTUS Issues Significant Jurisdictional Decision Concerning The Standing Necessary To Sue: TransUnion LLC v. Ramirez, No. 20-297 (U.S. 6-25-21) We also wish to alert our friends in the insurance and defense industries of a recent development that may impact the rights of plaintiff class action lawyers to bring actions in federal court alleging mere technical violations of a statute as a basis for pursuing class action cases and huge recoveries for mostly attorney’s fees. On June 25, 2121, the United States Supreme Court decided TransUnion LLC v. Ramirez, No. 20-297 (U.S. 6-25-21). Ramirez involved a class action brought for violating the Fair Credit Reporting Act, which regulates credit reporting and provides a private right of action for violations of the statute. For most of the class members, the Court held that inaccurate information in a credit file, while violating the credit act, did not by itself give a person standing to sue for damages. The Court did rule, however, that some class members could sue where the inaccurate information was turned over to third parties—those class members suffered a concrete injury that was enough to meet the federal standing requirements. We are currently analyzing the impact Ramirez may have on statutory claims being prosecuted in federal court and will report on same in the next Sidebar of the CM Report. clausen.com 5
CM NEWS
CM Welcomes
New Attorneys Nationwide
A Dozen New Attorneys Join CM Offices in 2021
Veronica Abraham Douglas M. Allen Douglas M. Cohen Jordan E. Gottheim
(pic not yet (pic not yet
available) available)
Brad A. Leventhal Tony Pagán, Jr. James G. Papadakis Brannon J. Simmons
Michael R. Tucker Brian A. Villar Max Wessels Cary C. Woods
6 clausen.com
CM NEWS
GOLTSMAN SPEAKS AT WOMEN IN LAW SUMMIT
Mara Goltsman, a partner in CM’s health care provider malpractice, to
New York office, was a featured speaker various general liability claims which
at a recent Women in Law Summit. include premises liability, personal
The topic was Inclusion, Diversity & injury and labor law cases. She also
Change: Inspiring Growth. The Summit ha ndles worker’s compensation
was held virtually in accordance claims for various carriers. For more
with COVID-19 protocols. Mara information about Mara’s practice or
defends clients involved in litigation her presentation, please contact Mara
ranging from professional malpractice, at mgoltsman@clausen.com.
including medical, dental and other
CLAUSEN MILLER PARTNERS EDUCATE THE ILLINOIS
BAR BY AUTHORING CHAPTERS IN THE ILLINOIS
INSTITUTE OF CONTINUING LEGAL EDUCATION
HANDBOOK ON CHANCERY AND SPECIAL REMEDIES
Clausen Miller partners Don Sampen, Joe Ferrini and Don Sampen authored
Joe Ferrini and Ed Kay again have a chapter on “Quo Wa rra nto,
demonstrated their commitment to Mandamus, and Prohibition” exploring
excellence in the legal profession by the requirements for utilizing these
authoring two Chapters for the Illinois common law writs in Illinois courts
Institute of Continuing Legal Education and the important roles they play in
Handbook entitled “Chancery and litigation today.
Special Remedies.”
IICLE, having been formed in 1961,
Ed Kay and Don Sampen authored serves as one of the premier providers
a chapter on the “Principles of of continuing legal education in the
Contempt” fully examining all the State of Illinois. The Handbook on
substantive and procedural “ins and Chancery and Special Remedies is a
outs” of civil direct and indirect core publication of the Institute. In
contempt and criminal direct and addition to the two chapters mentioned
indirect contempt and appellate issues above, the Handbook covers such
regarding these contempt proceedings. remedies as injunctions, interpleader,
guardians/receivers, subrogation, and
more. It’s a great read!
YOLANDA WELLS PROMOTED
TO MANAGER OF HUMAN RESOURCES
Clausen Miller P.C. and its Board of for our staff, associates, and partners
Directors are pleased to announce across the country. We are thankful
that Yolanda Wells has assumed new for her demonstrated dedication and
responsibilities as the Firm’s Manager continued commitment to making
of Human Resources. Yolanda will Clausen Miller a great place to work
plan, lead, and implement the Firm’s and grow.
HR policies and benefits programs
clausen.com 7
is proud to feature
an additional office location
Tampa, Florida
4830 West Kennedy Boulevard, Suite 600
Further expanding Clausen Miller’s presence in the Southeast
and its ability to serve its clients in this region
8
Visit us at clausen.com clausen.com
on the
CARL PERRI AND GREG POPADIUK LITIGATION FRONT
SCORE SUMMARY JUDGMENT WIN IN NY
Introduction Facts
In this premises liability case involving Plaintiff alleged that on November 29,
a trip and fall on a sidewalk, we 2017, he fell on the sidewalk at or near
successfully moved for summary the BX6 bus stop adjacent to the premises
judgment on behalf of our clients, located at 550 W. 155th Street in New
the Church of the Intercession and York, New York and sustained personal
The Rector, Church Wardens and injuries. The Church Defendants owned
Vestrymembers of the Church of the the property abutting the sidewalk.
Intercession (“Church Defendants” Plaintiff’s photographs depicted where
or “Church of the Intercession”). his accident occurred, which was on
Anthony Sanchez v. The Church of the the sidewalk adjacent to the Church
Intercession and The Rector, Church of the Intercession in between a bus
Wardens and Vestrymembers of the stop sign pole and a bus shelter. In one
Church of the Intercession and The City of particular photograph, Plaintiff circled
New York (Sup. Ct., New York County). the sidewalk area where his accident
We argued that despite being the occurred. This part of the sidewalk
adjacent property owner, the Church was made of ordinary concrete. The
Defendants did not own, use, possess, remaining part of the sidewalk was made
maintain, manage, repair, inspect or of bluestone quarried in Ireland that was
control the portion of the sidewalk on the same type of material that was used
which Plaintiff’s accident occurred nor when the Church of the Intercession was
were responsible for doing so. originally built and completed. It was not
ordinary concrete.
Plaintiff also sued the City of New York
(“City”). Both the Church Defendants In or around October 2020, nearly
and the City denied ownership and three years post-accident, there was
control of that portion of the sidewalk an unrelated car accident, which
where Plaintiff fell in their respective resulted in the bus route pole and the
Answers. Discovery motion practice bus shelter being knocked down and
by our office resulted in the City being destroyed. After that car accident,
ordered to disclose post-accident repair there was some repair work done to the
records since subsequent remedial sidewalk which included a new cement
repair measures are admissible for the pad being poured in the exact area
limited purpose of proving ownership where Plaintiff fell. However, this work
or control. Rather than produce such was not performed by on or behalf
records, during oral argument of our of the Church Defendants. Over the
motion for summary judgment, the years, City contractors maintained the
City conceded that it owned and area where Plaintiff fell.
controlled the area where Plaintiff
fell. Notwithstanding that admission, Analysis
Plaintiff still argued that there were In Bednark v. City of New York, 127
material issues of fact as to whether A.D.3d 403, 404 (1st Dept. 2015), the
the Church Defendants and the City Appellate Division held that “[a] bus
shared responsibility for the sidewalk stop is not delimited to the roadway
area where he fell. The Court disagreed. where buses operate but includes the
sidewalk where passengers board and
disembark from the bus”. In Shaller
v. City of New York, 41 A.D.3d 697,
clausen.com 9
on the
LITIGATION FRONT 839 N.Y.S.2d 766 (2d Dept. 2007), the BX6 bus stop, but that only the City
the Court held that the City of New owned, used, possessed, maintained,
York is responsible for the maintenance managed, repaired, inspected and
of bus stops within the City of New controlled that area. Not only was
York, including the roads, curbs and that particular part of the sidewalk
sidewalks attendant thereto. made of a different material—ordinary
concrete as opposed to bluestone
“Generally, a landowner owes a duty of but only the City and/or its private
care to maintain his or her property in contractors repaired the bus shelter and
a reasonably safe condition”. Gronski v. bus stop sign in that area after both
County of Monroe, 18 N.Y.3d 374, 379 were knocked down and destroyed and
(2011); Basso v. Miller, 40 N.Y.2d 233, shoveled snow and scraped ice from that
241 (1946). “That duty is premised portion of the sidewalk. The Church
on the landowner’s exercise of control Defendants did not own, occupy,
over the property, as the person in control, or make special use of that
possession and control of property portion of the sidewalk where Plaintiff’s
is best able to identify and prevent accident occurred and, therefore,
any harm to others”. See Gronski, did not cause or create any allegedly
supra quoting Butler v. Rafferty, 100 defective or dangerous condition or
N.Y.2d 265, 270 (1976). “[C]ontrol is have actual or constructive notice of
the test which measures generally the any such condition.
responsibility in tort of the owner of
real property”. Ritto v. Goldberg, 27 Learning Point: It is important to
N.Y.2d 887, 889 (1970). A defendant examine and consider other parties’
did not breach a duty of care owed to pleadings. Here, a careful review
plaintiff where it did not own, possess of the City’s Answer paved the way
or exercise control over the day-to-day for our office to pursue subsequent
maintenance or operation of the store remedial repair records. Although
where the plaintiff’s accident occurred. the City challenged the Order that it
Radosta v. Schechter et al., 2017 NY provide such records, it did ultimately
Slip Op 31965(U) (Sup. Ct. Suffolk lead to an admission that it owned
County 2017). and controlled the area in question.
Often times, what pleadings do not
The evidence and testimony here say is equally as important, if not more
established not only that Plaintiff ’s important, than what they do say.
accident occurred at or appurtenant to
7TH CIRCUIT WIN FEATURED IN LAW 360
CM partners Paige Neel and Kim Seventh Circuit. The Seventh Circuit
Kearney obtained judgment on the held that the widow’s claims are
pleadings in a legal malpractice case barred by a jury's findings in a parallel
brought by a widow who claimed Indiana state court case that she
that a f inancia l adviser and an illegally acquired estate interests by
Illinois attorney worked behind her exerting undue influence over him.
back to transfer away assets left to Linda Bergal v. Ben Roth et al., No.
her by her late husband. CM partners 20-2887 (7th Cir. July 2, 2021).
Paige Neel, Kim Kearney and Joe The case is featured in Law360.
Ferrini successfully defended the https://www.law360.com/appellate/
case on appeal before the United articles/1399708/7th-circ-won-t-
States Court of Appea l for the revive-widow-s-legal-malpractice-suit
10 clausen.comAPPELLATE
United States Supreme Court Holds
That Prevailing Defendants On Appeal
Are Entitled To The Full Amount Of
Premium Supersedeas Bond Costs
From A Losing Plaintiff
by Melinda S. Kollross
In City of San Antonio, Texas v. In City of San Antonio, the OTCs had
Hotels.com, L.P., No. 20-334 (U.S. to purchase a supersedeas bond to obtain
5-27-21), the Supreme Court issued the entry of a stay order enjoining the
a unanimous ruling crucial and City from executing on the judgment.
beneficial to defendants seeking to The parties initially agreed to a bond
stay a money judgment in federal court of $69 million to cover the judgment,
pending appeal. The Court ruled that interest, and accrual of further taxes,
Melinda S. Kollross
a district court had no discretion to but at the City’s urging, the bond
is an AV® PreeminentTM rated Clausen
reduce the amount of surety bond amount grew to $84 million after years Miller senior shareholder and Chair of the
premiums assessed as costs against the of post-trial proceedings. Appellate Practice Group. Specializing
plaintiff-appellee who lost on appeal. in post-trial and appellate litigation for
The OTCs prevailed on appeal against savvy clients nationwide, Melinda is
Facts admitted to practice in both New York
the City, wiping out the entire $55 and Illinois, as well as the U.S. Supreme
The City of San Antonio acting million judgment. The appellate Court and U.S. Courts of Appeal for the
on behalf of a class of 173 Texas mandate directed that judgment be Second, Third, Fourth, Sixth, Seventh,
entered for the OTCs. The OTCs Eighth, Ninth, Tenth and Eleventh
municipalities sued several popular Circuits. Melinda has litigated over 200
online travel companies (OTCs) thereafter filed a bill of costs in the
federal and state court appeals and has
cla i m ing t hat t he OTC s were district court pursuant to Federal been named a Super Lawyer and Leading
systematically underpaying hotel Rule of Appellate Procedure 39(e) Lawyer in appellate practice.
occupancy taxes. The City prevailed at which provides for the taxation of mkollross@clausen.com
trial and a $55 million judgment was the premiums paid for a bond to
entered against the OTCs. stay execution. The district court
taxed these costs over the City’s
The Federal Rules of Civil Procedure objection in the approximate amount
only provide an automatic stay of of $2.2 million. The Court of Appeals
execution for 30 days. After that affirmed, and the Supreme Court
period, the defendant must either granted the City’s certiorari petition.
work out an agreement with the
plaintiff to stay execution of judgment Analysis
without a bond during the post-trial The United States Supreme Court
and appellate phases or secure a ruled that Federal Rule of Appellate
surety/supersedeas bond in a sufficient Procedure 39 governs the taxation of
amount to cover the judgment and appellate costs, and a district court had
interest, have it approved by the no discretion to deny or reduce those
district court and plaintiff, and have costs to a party entitled to taxation of
an order entered staying execution. those costs. Rule 39 allows an appellate
clausen.com 11APPELLATE
tribunal to allocate costs as it sees fit, bond costs from the City as costs, and garnishment against the defendant.
and a district court is powerless to the district court could not deny or City of San Antonio now gives the
disturb that appellate determination reduce those costs. defense the ammunition to fight
on costs. these tactics, as a plaintiff might
Learning Point: There is no reason to have to think twice about forcing
In this case, when the OTCs prevailed force a defendant to post a supersedeas an insured defendant or a defendant
on appeal, they were entitled to bond to stay execution of judgment with adequate assets to purchase an
their costs under Federal Rule of pending appeal where the defendant additional bond when the plaintiff
Appellate Procedure 39(a)(3), which has sufficient assets or is adequately will be personally responsible for the
taxes costs against the appellee when insured. But some litigants use the bond premiums if unsuccessful on
the judgment is reversed. The Court bond issue to discourage defendants appeal. City of San Antonio should
of Appeals in reversing the City’s from pursuing appellate remedies… be used by the defense to persuade
judgment did not order that the OTCs demanding exorbitant bond amounts plaintiffs to forego a supersedeas bond
would be entitled to anything less than and the use of surety companies with under these circumstances, and have
what the costs provision of Rule 39 expensive premiums unrelated to the court stay execution upon the
allows. Accordingly, the OTCs were a defendant’s liability carrier—all stipulation of the parties.
entitled to recover their full premium the while dangling a threatened
12 clausen.comAPPELLATE
Illinois Supreme Court Decides
“Unanswered Question”
Under The Illinois Contribution Act
by Melinda S. Kollross
In Volume 3 of our 2020 CM Report, contractor) and Safety (a sub EK
we reported on an order issued by retained to manage the site worker
the United States Court of Appeals safety program) for contribution.
for the Seventh Circuit in Roberts
v. Alexandria Transp. Inc., 968 F.3d Roberts settled with EK for $50K,
794 (7th Cir. 2020), certifying to the and EK was dismissed from the suit.
Illinois Supreme Court an unanswered Roberts also settled with the Alex
question arising under Section 3 the Parties for $1.85 million, and that
Illinois Contribution Act. Section 3 settlement released claims against
provides that each tortfeasor owes Safety as well. The settlement amounts
no more than his/her/its pro rata established a total common liability of
share of the common liability, except $1.9 million.
where the obligation of a tortfeasor
is “uncollectable”. In that event, the The Alex Parties continued their
remaining tortfeasors must share in contribution claim against Safety. The
the uncollectable obligation on a pro trial court determined that the Alex
rata basis. The Seventh Circuit asked parties, EK and Safety all had to be
the Illinois Supreme Court to decide on the verdict form so that the jury
“whether the obligation of a settling could properly apportion fault. The
party is uncollectable” under Section 3 trial court also determined, however,
of the Illinois Contribution Act. that any fault of EK would not be
redistributed between the Alex Parties
The Supreme Court in a split 5-2 and Safety. Rather, Safety would just
decision answered that question on June owe Alex its own share of fault and the
17, 2021, holding that the obligation Alex Parties would have to be liable for
of a tortfeasor who settles is not EK’s share along with its own.
“uncollectable” under the Contribution
Act. Roberts v. Alexandria Transp. Inc., At the end of the trial, the jury
2021 IL 126249. determined fault as follows: 10%
Safety; 15% The Alex Parties; 75% EK.
Facts
Plaintiff Roberts was driving a truck On appeal in the Supreme Court,
through a construction zone. A flagger the Alex Parties argued that since
abruptly turned a f lag from slow a tortfeasor’s settlement with a
to stop. Roberts slammed on his plaintiff discharged the tortfeasor for
brakes and was hit from behind by a all liability for any contribution to
driver working for the Alex Parties. any other tortfeasor, it rendered the
Roberts sued the Alex Parties, and settling defendant’s obligation, such
the Alex Parties sued EK (the general as EK’s, “uncollectable” in any future
clausen.com 13APPELLATE
contribution action. Because EK’s the uncollectable obligation in defendant was forever discharged
75% obligation of the total common accordance with their pro rata for any further liability, the settling
liability was “uncollectable”, EK’s liability.’ (Emphasis in original.). defendant’s share of the common
75% obligation had to be reallocated 740 ILCS 100/3 (West 2018). liability should be deemed uncollectable
between the Alex parties and Safety The legislature could not have under the Contribution Act. According
on a pro rata basis. In opposition, intended to include a settlement to the dissent, establishing the settling
Safety contended that a good-faith as an “uncollectable” obligation defendant’s share of the common
settlement with a plaintiff did not because there is no ‘unpaid liability as “uncollectable” would foster
render the settling party’s obligation portion’ of a settlement. Section the goal of achieving more settlements
“uncollectable” within the meaning 2(c) provides that, where a joint from all defendants in cases such as
of the Contribution Act. Therefore, tortfeasor settles with a plaintiff, this one involving multiple defendants.
the Contribution Act protected Safety it reduces the recovery on any The dissent stated that Safety could
from contributing more than its pro claim against the other joint have protected itself from having
rata share of the common liability, tortfeasors to the extent of the to pay its share of EK’s adjudicated
and EK’s 75% share could not be amount stated in the settlement and “uncollectable” portion of the
reallocated between the Alex Parties agreement or in the amount of common liability by itself settling with
and Safety. the consideration actually paid plaintiffs, like everyone else.
for the settlement, whichever is
Analysis/Holding greater. Id. § 2(c). In this case, for Learning Point: We believe this
The Supreme Court ruled that Safety example, EK’s settlement payment was the right decision by the Illinois
had the better argument that EK’s of $50,000 contributed to the Supreme Court on the issue presented.
settlement with plaintiff and discharge total common liability owed to The Court protected the non-settling
from further liability did not render plaintiffs. Safety accurately argues defendant’s right to pay no more
EK’s obligation “uncollectable” that EK’s obligation was not than its pro rata share of the common
as the word “uncollectable” was uncollectable—it was collected. liability. We respectfully disagree
commonly viewed by the Court. with the dissent’s view that Safety
“Uncollectable” meant “insolvency” The Court also held that its decision should have settled with plaintiffs
or Immunity”, not a discharge from was consistent with the public policy like everyone else to protect itself
further liability because of a good goa l of equitably apportioning from future contribution liability
faith settlement with the plaintiff. The damages. According to the Court, over and above it own pro rata share.
Court approvingly cited the Seventh the Alex Parties’ settlement established Safety’s adjudicated fault of only 10%
Circuit’s observation that discharged the common liability to the plaintiff showed that it had little to do with the
did not mean uncollectable. knowing full well that the $50K accident and a strong case on liability.
EK paid was all it would ever pay The dissent nonetheless would have
Further, the Court found the plain towards the common liability. Further counseled Safety to “throw substantial
language of Section 3 showed that the the Alex Parties knew that Safety money” to the plaintiffs to avoid the risk
obligation of a settling defendant could would owe only its pro rata share, of paying more than the adjudicated
not be considered unpaid because it and Safety might be adjudged only a share of common liability. Although
was in fact paid to the plaintiff as part small percentage of the total common promoting settlement is a goal of the
of the common liability: liability. The Court thus found it Contribution Act, the Supreme Court’s
would be inequitable to require Safety decision shows that the equitable
The plain language of section to pay more than its pro rata share of apportionment of fault outweighs the
3 provides that, where ‘the the total common liability. goal of just settling cases.
obligation of one or more of the
joint tortfeasors is uncollectable,’ Dissent
‘the remaining tortfeasors shall Justices Carter and Burke dissented
share the unpaid portions of contending that since a settling
14 clausen.comFIRST-PARTY
PROPERTY
Insurer Wins First Appellate Decision
Addressing COVID-19 Business
Interruption Coverage
by Melinda S. Kollross
In t he f irst appel late decision because there was no direct physical
nationwide addressing business loss or physical damage to Oral
interruption coverage for COVID-19 Surgeons’ property. This lawsuit
pandemic related losses, the Eighth followed. The district court granted
Circuit ruled for the insurer, holding Cincinnati's motion to dismiss,
that Cincinnati Insurance Company concluding that Oral Surgeons was
does not have to pay an Iowa dental not entitled to declaratory judgment
clinic for losses due to government- and that it had failed to state claims
imposed COVID-19 restrictions. for breach of contract and bad faith.
Oral Surgeons PC v. The Cincinnati Oral Surgeons appealed.
Insurance Co., No. 20-3211 (8th Cir.
July 2, 2021). Analysis
Reviewing de novo and applying Iowa
Facts law in this diversity action, the Eighth
Oral Surgeons provides oral and Circuit unanimously affirmed. The
maxillofacial surgery services at its four Eighth Circuit rejected Oral Surgeons’
offices in the Des Moines, Iowa, area. contention that the policy’s disjunctive
It stopped performing non-emergency definition of “loss” as “physical loss” or
procedures in late March 2020, “physical damage” creates an ambiguity
after the governor of Iowa declared that must be construed against
a state of emergency and imposed Cincinnati. To give the terms separate
restrictions on dental practices because meanings, Oral Surgeons suggested
of the COVID-19 pandemic. Oral defining physical loss to include “lost
Surgeons resumed procedures in May operations or inability to use the
2020 as the restrictions were lifted, business” and defining physical damage
adhering to guidance from the Iowa as a physical alteration to property.
Dental Board. A micus Restaurant Law Center
contended that “physical loss” occurs
Oral Surgeons submitted a claim whenever the insured is physically
to Cincinnati for losses it suffered deprived of the insured property.
as a result of the suspension of non-
emergency procedures. The policy As the Eighth Circuit explained:
insured against lost business income
and certain extra expense sustained The policy here clearly requires
due to the suspension of operations direct “physical loss” or “physical
“caused by direct ‘loss’ to property.” damage” to trigger business
The policy defines “loss” as “accidental interruption and extra expense
physical loss or accidental physical coverage. Accordingly, there must
damage.” Cincinnati responded that be some physicality to the loss or
the policy did not afford coverage damage of property—e.g., a physical
clausen.com 15FIRST-PARTY
PROPERTY
alteration, physical contamination, cited its precedent interpreting “direct a virus exclusion was not at issue,
or physical destruction. physical loss” under Minnesota law as the Eighth Circuit’s ruling shows
instructive. Prior precedent rejected that the insured must first establish
*** the argument that loss of use or a covered cause of loss—which must
function necessarily constitutes “direct be physical—prior to the analysis of
The policy cannot reasonably be physical loss or damage” as such an any exclusionary language. However,
interpreted to cover mere loss of interpretation would allow coverage we also note that the Oral Surgeons
use when the insured's property has whenever property cannot be used for complaint did not allege the presence
suffered no physical loss or damage. its intended purpose. of COVID-19 virus on the property,
and thus policyholders will attempt
The Eighth Circuit further noted that Learning Points: We expect Oral to distinguish it in subsequent cases
the unambiguous requirement that the Surgeons to be widely cited in alleging that the presence of virus on
loss or damage be physical in nature subsequent COV ID-19 BI claim premises constitutes physical loss or
accords with the policy’s coverage cases addressing the physical loss or damage to covered property.
of lost business income during the damage requirement for business
“period of restoration.” The Court interruption coverage to exist. Because
16 clausen.comJURISDICTION
Home Is Where You Make It: SCOTUS
Explains The Jurisdictional Rule
Covering Corporate Defendants
by Paul V. Esposito
We all have a place we call home. Bandemer was a passenger in the car
Over a lifetime, the average person heading to a Minnesota ice-fishing
will own three houses. Some people hole when his driver rear-ended a
may simultaneously own more than snow plow. The airbag did not deploy;
one. But that’s nothing compared to the car landed in a ditch. Bandemer
corporations, some of which operate sustained serious brain injuries. He
in all 50 states. sued Ford in Minnesota.
A corporation may have two home Ford is incorporated in Delaware,
states where it may be sued: the state headquartered in Michigan. It moved
of its incorporation and of its principal to dismiss each suit, arguing that
place of business. But what about the personal jurisdiction over Ford existed Paul V. Esposito
is a partner with Clausen Miller P.C.
other 48 states where it actively does only if Ford’s conduct in the state
who was previously an Illinois assistant
business. May it be sued there? The gave rise to the claim. In Ford’s mind, attorney general. He continues to
U.S. Supreme Court has unanimously a vehicle needed to be designed, research, write, and argue in federal
answered “yes.” Its message to the manufactured, or originally sold in and state courts all over the country,
corporate world: home is not just a state asserting personal jurisdiction a personal passion to him. Paul has
worked closely with some of the
where you’d like it; home is where you over Ford. The state courts in Montana country’s best trial lawyers, against
make it. Ford Motor Co. v. Montana and Minnesota found the ties between some of the country’s best trial lawyers.
Eighth Jud. Dist. Ct., 141 S. Ct. 1017, Ford’s marketing and the victims’ Whatever the issues, the goal always
2021 U.S. LEXIS 1610 (2021). injuries sufficient to make Ford defend remains the same: win first at trial, and
from there, win on appeal.
itself in those states.
pesposito@clausen.com
Facts
Ford designed its 1996 Explorer in Analysis
Michigan and manufactured it in SCOTUS unanimously sided with
Kentucky. It sold a new Explorer in the state courts. Personal jurisdiction
Washington. The owner resold it to exists where a defendant’s contacts
Markkaya Gullett, who moved to with a forum state are enough to
Montana. While she drove it there, the make a suit there reasonable under
tread on a rear tire separated. The car “traditional notions of fair play and
spun, then flipped. Markkaya died at the substantial justice.” There are two
scene. Her estate sued Ford in Montana. forms of personal jurisdiction: general
and specific. General jurisdiction exists
Ford designed its 1994 Crown Victoria where a defendant is incorporated or
in Michigan and manufactured it in has its principal place of business.
Canada. It sold one in North Dakota. Where general jurisdiction exists, a
The car’s owner resold it, and the new lawsuit need not be factually related
buyer moved to Minnesota. Adam to the forum state.
clausen.com 17JURISDICTION
By contrast, specific jurisdiction is involved in the accidents. Ford had resulting from Ford’s approach would
narrowly focused. It looks for evidence 36 dealerships in Montana and 84 undermine the law’s purpose of properly
that a defendant has purposely availed in Minnesota where it sold new and allocating jurisdiction.
itself of the privilege of conducting used cars, again including the involved
activities in a forum state. The claim models. The dealers performed repair Learning Point: The Ford Motor
against it must arise out of or relate to work and Ford sold replacement decision should go far in resolving
defendant’s contacts within the state. parts in the states. In short, Ford jurisdiction disputes involving multi-
The specific-jurisdiction rule gives a systematically served the states where state businesses involved in traditional
defendant fair warning that the extent the allegedly defective vehicles caused sales-and-service operations. If a
of its conduct within a state may injuries. In doing so, Ford benefitted corporation systematically—as opposed
impact future litigation. from the states’ laws covering the to sporadically—transacts business
enforcement of contracts, defense of within a state, it should expect that it
The Supreme Court rejected as too property, and creation of markets. will need to defend suits there.
narrow Ford’s argument that to
invoke specific jurisdiction, an injury The considerations of interstate But Ford Motor does not cover what
needed to be caused by Ford’s conduct federalism also supported jurisdiction SCOTUS must eventually address:
in a forum state. So long as a claim in Montana and Minnesota. Those states whether a mere “virtual” presence
“relates” to a defendant’s activity there, had an interest in providing residents with in a state translates into a specific-
it is enough. And Ford’s activities in a convenient forum and in enforcing jurisdictional contact with it. With
Montana and Minnesota were enough their own safety rules. Ford’s choice of internet transactions having become a
to relate the claims to the forum forums—the states of original sale— fact of business life (think Amazon), that
states. In each state Ford mounted means that states would preside over suits question needs an answer. The “when”
a large advertising campaign about by non-residents involving out-of-state an answer will come is anyone’s guess.
its vehicles, including the models accidents and injuries. The inconvenience
18 clausen.comLIABILITY INS.
COVERAGE
Extrinsic Evidence Properly
Considered In Coverage Denial
For Sexual Molestation
by Don R. Sampen
The evidence on which an insurer may Hawkins had been the target of three
rely in making a decision whether prior lawsuits by students. These prior
to defend an insured constitutes a claims were brought to the attention
frequent issue in liability coverage of an insurance broker in 2010 when
matters. Some jurisdictions subscribe the school district sought to join a
to the “eight corners” rule, meaning state insurance cooperative comprised
that the insurer must confine its of 134 public schools. Hence, when
attention to the “four corners” of the cooperative acquired claims-made
the underlying complaint and the coverage for the school district in 2013
“four corners” of the policy. Other through RSUI, various provisions,
jurisdictions require and/or allow limitations and exclusions on coverage
an insurer to look to “extrinsic” were added to the policy.
evidence, for purposes of finding, or Don R. Sampen
negating, or both, a defense obligation. Among them was a retroactive date is a Clausen Miller partner and has over
30 years of trial and appellate experience
Illinois follows the latter approach, at of July 1, 2009. Another was a “single in various areas, including insurance
least under certain circumstances, as claim” provision stating that all claims coverage and commercial litigation.
evidenced by Freeburg Community based on the “same or related series of Don is a magna cum laude graduate of
Consolidated School District No. 70 v. facts, circumstances [etc.] . . . shall be Northwestern University College of Law,
Country Mutual Insurance Co., 2021 where he was Executive Editor of the
deemed to be a single claim . . . and Northwestern Law Review. Don is an
IL App (5th) 190098. shall be deemed first made when the Adjunct Professor at Loyola University
earliest of such claims is first made.” College of Law teaching a course in
In that case, the Fifth District Insurance Law.
Appellate Court, reversing the trial dsampen@clausen.com
Following the filing of the John
court, held that a liability insurer had Doe 4 claim, the school district
no duty to defend or indemnify an tendered to RSUI, which denied or
insured school district with respect to reserved coverage on a variety of policy
a claim for sexual abuse of a student provisions. The school district then
by a school administrator. filed the current declaratory action
against RSUI and others seeking a
Facts determination of coverage. In late
A f or me r t e a c he r, c o a c h a nd 2014, RSUI filed a section 2-619
superintendent for the Freeburg motion to dismiss, asking the court
Community Consolidated School to find a duty neither to defend nor
District, Robin Hawkins, was sued indemnify. The motion relied in
by a former student, “John Doe 4,” part on extrinsic evidence outside the
in 2014. The former student claimed underlying complaint’s allegations.
he had been sexually molested by
Hawkins while in sixth, seventh and
eighth grades during the period 2007
to the spring of 2009.
clausen.com 19LIABILITY INS.
COVERAGE
The trial court denied that motion more reason why consideration of the would lead a reasonable person to
about a year later. In August of 2017 extrinsic evidence was permissible. conclude that the John Doe 4 action
the trial court entered partial summary resulted from the same or related facts,
judgment in favor of the school district, Hence, the Court wrote, nothing was in that it involved the same continuing
finding that RSUI had a duty to defend. inappropriate in RSUI’s consideration course of misconduct, by the same
After denying RSUI the opportunity of the extrinsic evidence in denying school official, resulting in the same
for an interlocutory appeal, the court coverage. Nor would it have been type of harm, and neglect by the same
further held in October of 2018 that inappropriate for the trial court to school district officials.
RSUI also had a duty to indemnify. have considered such evidence in
RSUI took this appeal. connection with RSUI’s motion to Based on that determination, the
dismiss, nor for the appellate court to Appellate Court concluded that the
Analysis consider such evidence in connection trial court erred in finding that the
Extrinsic Evidence with the instant appeal. single claim provision was ambiguous,
and further erred in denying RSUI’s
In an opinion by Justice John B. Single Claims Provision motion to dismiss.
Barberis, the Fifth District reversed.
The Court initia lly considered Although several provisions in the
The Court therefore reversed in favor
whether RSUI could rely on extrinsic RSUI policy appear from the Court’s
of RSUI.
evidence in denying coverage and, opinion to provide justification for
correspondingly, whether the trial RSUI to have denied coverage, the
Learning Points:
court could properly consider such Fifth District focused on just the single
evidence in support of RSUI’s motion claim provision.
(a) An insurer may reasonably rely
to dismiss. on evidence extrinsic to the
As earlier noted, that provision deemed
“eight corners” of the underlying
Generally, the duty to defend should claims arising from the same or
complaint and policy in denying
be decided based on the “eight corners” related series of facts as a single claim coverage, so long as the evidence
rule, i.e., a comparison of the four first made when the earliest of such does not determine an issue
corners of the underlying tort complaint claims was made. RSUI thus took crucial to the determination of
to the four corners of the insurance the position that the John Doe 4 claim the underlying lawsuit.
policy. That rule, however, under should be deemed as one and the same
Pekin Insurance Co. v. Wilson, 237 Ill. as the three earlier claims involving (b) In determining whether a
2d 446 (2010), does not bar an insurer Hawkins’ alleged sexual molestation, policy provision is ambiguous,
from making use of extrinsic evidence and being part of the same claim, the court will consider only
unless the evidence tends to determine it should be deemed to have been reasonable interpretations of
an issue crucial to the determination of asserted prior to the inception of the the policy language and will
the underlying lawsuit. RSUI policy issued in 2013. not strain to find an ambiguity
where none exists.
In this case, the Appellate Court said The school district and the trial court,
there was no concern that RSUI’s however, attacked the provision as
extrinsic evidence, in the form of the being ambiguous and overly broad with
complaints in the three prior lawsuits respect to the degree of connection
against Hawkins, would interfere required to trigger its application to a
with any factual determinations in particular set of claims.
the action brought by John Doe 4.
The fact that a monetary judgment The Court disagreed that the provision
had been entered against the school was ambiguous. It found that a plain
district prior to this appeal was all the and ordinary reading of the provision
20 clausen.comLITIGATION
Forum Non Conveniens—Persistence
Conquers Plaintiff’s Forum Shopping
by Scott R. Shinkan and Alexander J. Brinson
Introduction semi-truck operated by defendant-
A motion ba sed on forum non driver filed an FNC motion to transfer
conveniens is a great tool that allows venue to Kane County. The trial court
a court to dismiss or transfer a case denied the defendants’ FNC motion.
to a forum better suited to hear the The appellate court initially dismissed
case. The court’s power to transfer the the defendants’ petition for leave for
case to a more appropriate forum is appeal, but the Illinois Supreme Court
discretionary, unlike the mandatory vacated and ordered the appellate court
transfer of a lawsuit based on theories to address the petition.
such as improper venue.
Analysis
Scott R. Shinkan
Forum has a significant impact on The appellate court found that the trial is a skilled trial lawyer focused on
every aspect of a case, including time court abused its discretion in denying defending insured and self-insured
to resolution, likelihood of success, the defendants’ motion to transfer, and clients in state and federal court litigation
remanded with directions to transfer in Illinois and Wisconsin. He has
potential jury make-up, and therefore, represented physicians practicing in
the value of a case. The doctrine of forum the matter from Cook County to many branches of medicine, including
non conveniens discourages forum Kane County. The appellate court obstetrics and gynecology, orthopaedic
shopping by plaintiffs eager to file suit weighed the private and public interest surgery, emergency medicine, internal
in plaintiff-friendly jurisdictions. In factors and held that the defendants medicine, and numerous other specialties
and interdisciplinary fields. Scott has
turn, by transferring the case to a more established that the factors strongly assisted with successfully defending
appropriate forum, the doctrine can favored transfer. physicians at trial and through other
assist in keeping the price of a claim forms of alternative dispute resolution
down for defendants and insurers. The When analyzing an FNC motion, with exposures well into the millions.
sshinkan@clausen.com
Illinois First District Appellate Court Illinois courts consider the “totality of
issued a recent unpublished opinion the circumstances” and weigh certain
that is highly persuasive, albeit not private and public interest factors.
binding, that provides a roadmap There are very similar tests in nearly
for a successful forum non conveniens every jurisdiction. The Matthiessen
(“FNC”) motion. court addressed the following private
interest factors: (1) the convenience of
Facts the parties; (2) the relative ease of access
In Matthiessen, a motor vehicle to sources of testimonial, documentary
accident occurred in Kane County, and real evidence; (3) the availability
Illinois, but the plaintiff filed suit in of compulsory process to secure
Cook County, Illinois, based on the attendance of unwilling witnesses;
residence of a defendant. Matthiessen (4) the cost to obtain attendance of
v. Greenwood Motor Lines, Inc., et al., willing witnesses; (5) the possibility of
2021 IL App (1st) 200405-U (May viewing the premises; and (6) all other
28, 2021). The defendant-driver and practical considerations that make trial
the defendant-entity that owned the easy, expeditious, and inexpensive.
clausen.com 21LITIGATION
The public interest factors included: the lawsuit. Third, judges who deny
(1) the administrative difficulties defendants’ FNC motions often state
flowing from court congestion; (2) that the location of an accident site
the unfairness of burdening citizens does not matter because it is doubtful
in an unrelated forum with jury duty; anyone would take the jury there.
and (3) the interest in having local However, Matthiessen reiterated that
controversies decided locally. the possibility of viewing the premises
should be the factor, not the likelihood
In holding that Kane County would of actually doing it.
be substantially more convenient,
the First District reasoned that Lear ning Points: A forum non
Alexander J. Brinson conveniens motion should be considered
is an associate in Clausen Miller’s Chicago
the convenience of the parties, the
Office. As a young attorney, he is gaining possibility of viewing the premises, and discussed with trial and appellate
experience across different insurance related the administrative difficulties flowing counsel in the early stages of pending
areas; however, he focuses his practice on from court congestion, the unfairness litigation. If unsuccessful, do not give
property coverage and casualty defense up. If denied by the trial court, an
litigation. Alex graduated cum laude from
of burdening citizens in an unrelated
Chicago-Kent College of Law in 2019. forum with jury duty, and the interest appeal should be pursued immediately
While in law school at the Valparaiso in having local controversies decided by petition and/or pursuant to the
University School of Law, he participated locally all favored transfer. rules of the venue. It is highly unlikely
on the Moot Court and Trial Advocacy that an FNC appeal will be successful
teams, where he earned the competition
awards of Best Oralist and Best Defense There were three keys to this case. post-verdict. Matthiessen was a great
Counsel Opening. Alex also participated First, plaintiffs virtually always make example of resiliency on appeal. The
in Chicago-Kent’s Civil Litigation clinic, the argument that their choice of defendants’ motion was denied by the
as well as the Mediation and Alternative trial court, and the petition for leave
Dispute Resolution clinic, where he forum should be given deference,
became a certified mediator. and the defendants have to meet a to appeal was initially denied by the
abrinson@clausen.com heavy burden to show that the case appellate court. It was not until the
should proceed elsewhere. However, Illinois Supreme Court intervened and
Matthiessen clarified that a plaintiff’s ordered the appellate court to address
choice of forum is given minimal the motion that defendants’ relief
deference where the plaintiff is not a was granted. With persistence, the
resident of the forum where suit was defendants successfully transferred the
filed. Second, Matthiessen reiterated case to the more appropriate forum,
that the location of injury giving rise potentially saving significantly on
to the case is the most significant factor indemnity and defense costs.
in giving any county a local interest in
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