David S. Osborne - Practice Highlights 

 

- Insurance Coverage and Bad Faith Litigation -

Kmart Corporation v. Footstar, Inc., No. 14-1242, ___ F.3d ___, 2015 WL 448633 (7th Cir. Feb. 4, 2015) (successfully defended complex contractual indemnity claim through summary judgment, trial and appeal against sophisticated national policyholder firm, obtaining reversal of District Court ruling that client owed coverage and affirmance of favorable rulings of no estoppel or bad faith)

FCCI Ins. Co. v. Westfield Ins. Co., 2014 IL App (1st) 131598-U (affirming summary judgment for our client, clearing path to recover nearly $500,000 in defense and indemnity payments from the defendant carrier)

Netherlands Ins. Company v. Phusion Projects, Inc., 737 F.3d 1174 (7th Cir. 2013) (argued and won appeal affirming summary judgment in favor of insurer client that there was no duty to defend or indemnify manufacturer of Four Loko for several underlying wrongful death and personal injury claims pursuant to the Liquor Liability exclusion, despite claims by nationally-recognized policyholder counsel that the particular product at issue presented a separate risk through the combination of high levels of stimulants, which were not subject to any exclusion)

Metropolitan Property and Cas. Ins. Co. v. Stranczek, 2012 IL App (1st) 103760 (reversing the Circuit Court and entering judgment in favor of personal liability insurer client on the basis of the business pursuits exclusion, finding no coverage as a matter of law for dozens of wrongful death and personal injury claims based upon contamination of municipal water supply by mayor)

Liberty Mut. Fire Ins. Co. v. Woodfield Mall, L.L.C., 407 Ill.App.3d 372, 941 N.E.2d 209 (1st Dist. 2010) (affirming summary judgment in favor of insurer client, finding that wrongful death of workman did not “arise out of” named insured’s “work” as a matter of Ohio and Illinois law, setting landmark choice-of-law standard and rejecting waiver argument based upon client’s initial incomplete reservation of rights letter)

Auto-Owners Ins. Co. v. Websolv, 580 F.3d 543 (7th Cir. 2009) (reversing and entering judgment in favor of CGL insurer client, finding that blast fax TCPA class action claim was not covered under standard personal and advertising injury coverage or property damage coverage as a matter of first impression under Iowa law)

Pekin Life Ins. Co. v. Schmid Family Irrevocable Trust, 359 Ill.App.3d 674, 834 N.E.2d 531 (1st Dist. 2005) (prevailed on behalf of life insurer client in $1 million dispute, where insured and agent maintained that premiums had been “constructively” paid, reversing circuit court and attributing agent’s careless record-keeping to insured)

Owners Ins. Co. v. Seamless Gutter Corp., 2011 IL App (1st) 082924-B (reversing adverse summary judgment, vacating prior adverse decision upon issuance of supervisory order from the Illinois Supreme Court and entering judgment as a matter of law in favor of insurer client, finding no duty to defend or indemnify in construction personal injury case, allowing client to rely upon facts outside the complaint to support its reliance on exclusion in refusing to defend)

Economy Premier Assurance Co. v. Faith in Action of McHenry Co., 2013 IL App (1st) 112329-U (affirming summary judgment in favor of insurer client, find opposing insurer estopped to deny additional insured coverage for client’s named insured, shifting entire burden of defense and indemnity to opposing insurer)

Farmers Auto. Ins. Ass'n v. Wroblewski, 382 Ill.App.3d 688, 887 N.E.2d 916 (1st Dist. 2008) (reversing circuit court and entering judgment in favor of insurer client on basis that it was protected by release to which it was not a party, and for which it paid no consideration)

Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536 (7th Cir. 2006) (persuaded Seventh Circuit to depart from numerous prior District Court cases which refused, on grounds of ripeness, to take potential indemnity stakes into account in determining amount-in-controversy for purposes of diversity jurisdiction, allowing blast fax TCPA coverage dispute to remain in federal court, where it was quickly resolved on remand)

Mount Vernon Fire Ins. Co. v. Heaven's Little Hands Day Care, 343 Ill.App.3d 309, 795 N.E.2d 1034 (1st Dist. 2003) (prevailed in arguing that heat stroke death of infant abandoned in day-care van did not “arise out of the use of an auto” for purposes of opposing insurer’s auto exclusion, in contrast to other jurisdictions which have decided the precise question to the contrary)

Sears, Roebuck and Co. v. National Union Fire Ins. Co., 331 Ill.App.3d 347, 772 N.E.2d 247 (1st Dist. 2002) (prevailed in arguing additional insured’s vicarious liability for subcontractor’s sexual assault not “caused by an occurrence” under Pennsylvania law, convincing Circuit Court to reverse its prior decision to the contrary and affirming favorable decision on reconsideration)

The Home Ins. Co. v. U.S. Fidelity and Guar. Co., 324 Ill.App.3d 981, 755 N.E.2d 122 (1st Dist. 2001) (prevailed in arguing that opposing insurer’s coverage was triggered in complex trucking and construction wrongful death case, reversing adverse Circuit Court decision)

Shriver Ins. Agency v. Utica Mut. Ins. Co., 323 Ill.App.3d 243, 750 N.E.2d 1253 (2nd Dist. 2001) (successfully argued no duty to defend on part of E&O insurer client for suit alleging liability for money received by insurance broker as result of insurer insolvency, reversing the Circuit Court)

Stokes v. Pekin Ins. Co., 298 Ill.App.3d 278, 698 N.E.2d 252 (5th Dist. 1998) (prevailed in arguing prematurity of tort plaintiff's action to declare insurer client’s liability limits before judgment in underlying case)

Gregory v. Farmers Auto. Ins. Ass'n., 392 Ill.App.3d 159, 910 N.E.2d 763 (5th Dist. 2009) (reversing declaratory judgment that insurer client’s 100/300 personal auto policy could be “stacked” to provide $3.5 million in “available” combined BI and UM limits for an upcoming wrongful death trial, on the basis that the entire action impermissibly sought an advisory opinion under Stokes v. Pekin Ins. Co., supra)

Braun v. Bollinger Ruberry & Garvey, 347 Ill.App.3d 1099, 867 N.E.2d 114 (Table) (1st Dist. 2004) (successfully defended decision by medical malpractice insurer client to settle $10 million case alleging implantation of false memories of “satanic ritual abuse” by insured psychiatrist, notwithstanding insured’s refusal to consent to settlement, as explicitly required by policy, eliminating exposure from breach of consent clause)

Pekin Ins. Co. v. Smith, 335 Ill.App.3d 1220, 836 N.E.2d 949 (Table) (5th Dist. 2002) (holding no duty to defend or indemnify by insurer client in construction defect case)

West American Ins. Co. v. General Motors Corp., 305 Ill.App.3d 1112, 756 N.E.2d 489 (Table) (1st Dist. 1999) (affirming summary judgment in favor of excess insurer client, holding that blanket additional insured endorsement did not apply where underlying contract did not specify provision of excess coverage to additional insured, and did not “drop down” to fill gap left by named insured’s failure to procure primary additional insured coverage)

Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Illinois Department of Ins., 318 Ill.App.3d 1218, 789 N.E.2d 933 (Table) (1st Dist. 2001) (protected insurer’s right to intervene in FOIA suit against Illinois Department of Insurance to shield confidential rate data from disclosure, reversing the Circuit Court)

Jewelers Mutual Ins. Co. v. Jilco, Inc., No. 12 cv 8730, 2014 WL 259017 (N.D.Ill. Jan. 23, 2014) (obtained summary judgment for insurer client, holding that underlying $250,000 gold bullion theft loss was excluded under first-party employee dishonesty coverage)

Certain Underwriters at Lloyd’s, London v. Guaranty National Title Co., Cause No. 12 CH 39024 (Cir. Ct. of Cook Co., IL Mar. 10, 2014) (obtained summary judgment on behalf of London Market clients, finding no duty to defend or indemnify claims based upon real estate fraud and related claims under Title Agents Errors and Omissions policy)

Acuity v. CB Richard Ellis, Cause No. 11 CH 17360 (Cir. Ct. of Cook Co., IL Aug. 22, 2013), appeal withdrawn(obtained summary judgment in favor of insurer, find that real estate agent for additional insured building owner not entitled to blanket coverage under client’s CGL policy, despite underlying contractual requirement to the contrary)

West Bend Mut. Ins. Co. v. Zurich American Ins. Co., Cause No. 09 CH 51473 (Cir. Ct. of Cook Co., IL Jan. 9, 2013) (obtained summary judgment and dismissal of opponent’s counterclaim, finding opposing insurer estopped for wrongfully refusing to defend mutual insured and shifting entire defense and indemnity burden to opposing insurer, rejecting fraud counterclaim as a matter of law)

Lincoln General Ins. Co. v. Best Buy Stores L.P., Cause No. 08 CH 31295 (Cir. Ct. of Cook Co., IL) (successfully shifted entire additional insured burden from client, insurer for subcontractor charged with causing massive water intrusion, to additional insured landlord’s tenant adjacent to named insured’s work under theory that it failed to procure its own separate required additional insured coverage for landlord)

Zurich Specialties London Ltd. v. Village of Bellwood, Ill., No. 07 cv 2171, 2011 WL 248444 (N.D.Ill. Jan. 26, 2011) (obtained judgment on the pleadings in coverage claim arising out of Wiretapping Act suit against municipality under its Law Enforcement Liability and Public Officials Liability policies, successfully transferring entire defense and indemnity obligation to opposing insurer earlier on the risk, which wrongfully denied coverage)

Auto-Owners Ins. Co. v. Chorak & Sons, Inc., 07 cv 4454, 2008 WL 3286986, 2008 U.S. Dist. LEXIS 60444 (N.D.Ill. Aug. 8, 2008) (obtained summary judgment applying business risk exclusions j(5) and j(6) in favor of client, finding no duty to defend or indemnify contractor in building collapse case)

The Home Ins. Co. v. American Nat. Can Co., No. 97 cv 0975, 1997 WL 467180 (N.D.Ill. Aug. 12, 1997) (won summary judgment holding no advertising injury coverage under client’s policies for $100 million patent infringement judgment)

Zurich Ins. Co. v. Shen Tai Industry Company, Ltd., 98 cv 3440 (N.D.Ill. Oct. 26, 1998), later proceeding, Docket No. 93 Tai San 61 (Sup.Ct. Taiwan Jan. 15, 2004)(prevailed in declaratory judgment action establishing no duty to defend multiple wrongful death and personal injury claims against insured Taiwanese manufacturer, winning judgment against insured not only for reimbursement of underlying defense fees, but also all fees incurred in declaratory judgment action, and successfully collected that judgment in full after protracted litigation ultimately resolved by Supreme Court of Taiwan)

The Illinois State Bar Assoc. v. The Lakin Law Firm, 02 MR 433 (Cir. Ct. Sangamon Co., Ill. July 14, 2008) (obtained summary judgment on behalf of insurer client against influential Southern Illinois law firm in $3.7 million case, holding no duty to defend or indemnify legal malpractice claim based upon structured settlement scheme)

Lincoln General Ins. Co. v. Federal Const., Inc., No. 09 cv 6087, 2010 WL 4978852 (N.D.Ill., Dec. 2, 2010) (obtained summary judgment in favor of insurer client, holding as a matter of first impression that additional insured endorsement provided only vicarious liability coverage)

In Re: Reliance Ins. Co. in Liquidation, 1 REL 2001 (Comm. Ct. Penn. Oct. 2, 2012) (successfully litigated and negotiated $3.6 million cut-through relief for hospital client from reinsurer where insurer was insolvent, despite lack of any explicit cut-through clause in the reinsurance contract)

Acuity v. FCL Builders, Inc., 09 CH 45227 (Cir. Ct. of Cook Co., IL Mar. 24, 2011) (won summary judgment in favor of insurer, interpreting additional insured endorsement to provide only vicarious liability coverage for contractor)

Ashman v. Pekin Ins. Co., 00 L 50 (Cir.Ct. 2nd Jud.Cir., Jefferson Co., IL) (litigated third-party medical review class action against insurer client in Fifth Appellate District to favorable settlement) 

- Additional Appellate Experience -

Governmental Interinsurance Exchange v. Judge, 221 Ill.2d 195, 850 N.E.2d 183 (2006) (argued and won $5 million appellate malpractice case in Illinois Supreme Court on argument that client’s Tort Immunity Act argument in underlying appeal would not have prevailed as a matter of law, despite clients’ alleged “admissions” (i.e., opinion letters) to the contrary, setting leading precedent in Illinois for appellate malpractice standard)

Studt v. Sherman Health Systems, 2011 IL 108182 (authored amicus curiae brief on behalf of Illinois Association of Defense Trial Counsel successfully advocating position that new IPI jury instruction regarding determination of standard of care in professional liability cases incorrectly stated the law and must be rejected)

TIG Ins. Co. v. Giffin Winning Cohen & Bodewes, P.C., 444 F.3d 587, 120 Harv. L. Rev. 1715 (7th Cir. 2006) (argued and won legal malpractice action on behalf of defense attorney clients on theory of no proximate cause against claim for $1 million in fees purportedly incurred by their client’s insurer in defending discovery sanctions proceeding in underlying gender discrimination class action)

Fagocki v. Algonquin/Lake-in-the-Hills Fire Protection District, 496 F.3d 623 (7th Cir. 2007) (succeeded in having $1 million willful and wanton jury verdict against paramedic clients reversed on appeal and judgment entered in their favor as a matter of law without re-trial)

Choice v. YMCA of McHenry County, 2012 IL App (1st) 102877 (affirming dismissal of three wrongful death claims against Chicago charter school and Chicago School Board with prejudice on tort immunity grounds, rejecting constitutional challenges to statute)

Oshana v. FCL Builders, Inc., 2012 IL App (1st) 101628 (affirming summary judgment in favor of steel contractor client under section 414 of the Restatement of Torts for underlying brain injury claim incurred by second tier subcontractor’s worker in unprotected fall)

Borsellino v. Putnam, 389 Ill.App.3d 1142, 976 N.E.2d 1207 (Table) (1st Dist. 2009) (secured affirmance of dismissal of three of six clients who developed Archipelago, the first fully electronic stock exchange in the United States, in interlocutory appeal arising out of $10 million claim for rescission and fraud by alleged co-founder of electronic trading platform; claim ultimately fully resolved in favor of remaining clients, see: Borsellino v. Putnam, 2011 IL App (1st) 102242)

Prodanic v. Grossinger City Autocorp, Inc., 2012 IL App (1st) 110993 (affirming summary judgment in favor of client in wrongful death case, finding as a matter of law that decedent was “borrowed employee”)

Chicago Steel Rule and Die Fabricators Co. v. ADT Sec. Systems, Inc., 327 Ill.App.3d 642, 763 N.E.2d 839 (1st Dist. 2002) (prevailed in arguing effect of client’s exculpatory clause in product liability action)

Lewis v. Chica Trucking, Inc., 409 Ill.App.3d 240, 948 N.E.2d 260 (1st Dist. 2011) (affirming summary judgment in favor of trucking client in “voluntary undertaking” case)

LaSalle Bank, N.A. v. C/HCA Dev. Corp., 384 Ill.App.3d 806, 893 N.E.2d 949 (1st Dist. 2008) (authored amicus curiae Brief on behalf of the Illinois Association of Defense Trial Counsel regarding new jury instruction; verdict for defendant affirmed, argument against jury instruction later accepted by the Illinois Supreme Court in Studt, supra)

Snyder v. Advocate Health & Hospitals Corp., 353 Ill.App.3d 1099, 881 N.E.2d 977 (Table) (1st Dist. 2004) (successfully argued that Circuit Court abused its discretion in denying motion to transfer medical malpractice action to DuPage County)

Hobbs v. Lorenz, 337 Ill.App.3d 566, 786 N.E.2d 260 (2nd Dist. 2003) (successfully argued strict reading of statutory medical professional report requirement, affirming dismissal of suit against surgeon client)

Briggs v. City of Harvey, 341 Ill.App.3d 1100, 853 N.E.2d 446 (Table) (1st Dist. 2003) (obtained reversal of adverse judgment by trial assignment judge vacating prior sanctions order against plaintiff and allowing voluntary dismissal without proper notice to physician client)

Kiefer v. Rust-Oleum Corp., 394 Ill.App.3d 485, 916 N.E.2d 22 (1st Dist. 2009) (applying res judicata to bar all claims upon re-filing after plaintiff’s voluntary dismissal, including those not previously adjudicated)

Estate of Settineri v. Lake Forest Hospital, 384 Ill.App.3d 1081, 973 N.E.2d 1085 (Table) (1st Dist. 2008) (jury verdict in favor of hospital and ER doctor clients affirmed in complex wrongful death failure to diagnose case)

Vittitow v. Allegra, 348 Ill.App.3d 1094, 868 N.E.2d 1102 (Table) (1st Dist. 2004) (litigated application of statute of limitations discovery rule in cosmetic surgery malpractice case)

In Re Estate of Lis, 01 P 115, Docket 076 (Cir.Ct. Cook Co., Probate Div.) (secured dismissal with prejudice of petition to surcharge against law firm client accused of misappropriating estate assets and convinced petitioner to dismiss client prior to decision by Appellate Court as to other respondents, see: In re Estate of Lis, 365 Ill.App.3d 1, 847 N.E.2d 879 (1st Dist. 2006))

In the Matter of Lockport Township Utility Board, HUDBCA No. 01-A-CH-BB117 (May 9, 2002) (handled federal bond dispute issue for municipal client before United States Department of Housing and Urban Development Board of Contract Appeals)