Cook County Judge Restricts Insurance Recovery in Porch Collapse Case; Ware v. First Specialty Insurance Corp.

A Circuit Court judge ruled on a provision in an insurance policy claim that arose out of a 2003 Chicago porch collapse. At issue was whether or not the death and injuries of several individuals was the result of a single occurrence. The judge decided in favor of the defendant insurance company, which contended that the injuries arising out of the porch collapse constituted a single occurrence in Jean Ware, et al. v. First Specialty Insurance Corp., 10 CH 10841.

The 2003 porch collapse that is the subject of Ware occurred in Chicago’s Lincoln Park neighborhood. The various plaintiffs were outside on a third story porch when it collapsed; thirteen individuals died while many others suffered severe injuries. The building was insured by First Specialty Insurance Corp.; therefore, the injured plaintiffs brought a claim against the insurance company for the personal injuries and wrongful deaths that arose out of the porch collapse.

The current issue deals with the fact that the First Specialty Insurance policy had a limit of $1 million per occurrence and a $2 million aggregate limit for multiple occurrences. While the plaintiffs argued that their injuries constituted multiple occurrences since the related deaths happened at different times, the defendant argued that the claim constituted one occurrence because all the injuries arose out of the porch collapse. If the judge ruled in favor of the plaintiffs, then there would be a $2 million policy cap; whereas if the judge ruled in favor of the defendant, then there would only be a $1 million policy cap.

The presiding judge, Hon. Franklin Valderrma, referred to the Illinois Supreme Court case of Addison Ins. Co. v. Fay, 232 Ill.2d 446 (2009) to decide the insurance policy claim. The Addison case involved a wrongful death claim filed by the family of two boys after they died in a excavation pit. The boys were last seen on their way to go fishing and were then found several days later in a neighbor’s unsecured evacuation pit. The pit was partially filled with water; both boys had suffered from hypothermia and one had drown. Their times of death were unknown.

Addison was similar to Ware in that both cases had the same policy limits and both cases involved a dispute as to whether the incident constituted one or two occurrences. In Addison, the Supreme Court held that the deaths constituted two separate occurrences because the insurance company failed to prove that the boys’ deaths were closely linked “in time and space” and therefore could be considered one event. Therefore, in Addison, the Illinois Supreme Court held that the $2 million insurance policy limit should be applied.

In Ware, the insurance policy defined “occurrence” as an accident that includes continuous or repeated exposure to the same harmful conditions. And while Judge Valderrama referred to the Addison case when coming to his decision, he determined that its “time and space” test did not apply to Ware. He held that because the various plaintiffs’ deaths could all be directly traced to one cause, i.e. the porch collapse, that it constituted one occurrence.

As a result of the judge’s decision, the insurance company would only be responsible for paying out a maximum of $1 million to the various plaintiffs. However, after receiving the judge’s decision, the plaintiffs indicated that they would appeal the decision to the First District Appellate Court. If the appellate court finds in favor of the plaintiffs, the insurance company could then be liable for $2 million instead of the $1 million policy limits.

Kreisman Law Offices has been handling Illinois personal injury matters for individuals and families for more than 35 years in and around Chicago, Cook County and surrounding areas, including Addison, Bolingbrook, Round Lake, Chicago’s Hyde Park, Schaumburg, and Willow Springs.

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