LPP Attorney Howard Trafman Secures Early Dismissal Through Tenders of Defense

Transferring risk is always top of mind for LPP attorneys.  In two recent cases, Howard Trafman obtained dismissal of a pending action through the early and careful analysis of the contractual documents by tendering the defense essentially back to the party that filed the action against our clients.

In one such case, Plaintiff was injured on the premises of our storage facility client while operating a golf-cart to collect trash.  While operating the golf cart, Plaintiff, our employee, was struck by a vehicle being driven by a tenant’s employee.  Plaintiff sued the driver and the tenant.   In turn, the tenant filed a third-party complaint for contribution against the storage center facility. After filing an appearance, LPP promptly obtained the storage unit lease agreement. Based on certain insurance/indemnity language contained in the lease, a tender of defense was made right back to the tenant. Faced with this predicament, the tenant and its insurer chose to voluntarily dismiss the third-party complaint almost immediately, allowing our client to avoid a significant legal spend.

Similarly, Howard also earned an early dismissal by tendering the defense of a concrete fill yard back to the employer of the driver who filed a significant personal injury suit.  Plaintiff was employed by a trucking company as a concrete truck driver and was tasked with making a concrete delivery.  Our client operated the fill yard where Plaintiff’s truck was loaded with concrete.  After leaving the yard, Plaintiff attempted to make a right turn at a nearby intersection.  Plaintiff claims he drove at a slow speed, but the truck nevertheless overturned onto the driver’s side.

Plaintiff alleged the fill yard was negligent in overloading the truck with concrete in violation of an Illinois statute and improperly measuring the amount of concrete to be loaded.  Upon assignment of the lawsuit, LPP obtained a copy of the paperwork exchanged between the Plaintiff’s employer and the fill yard.  Based on certain insurance/indemnity language, we tendered our defense to Plaintiff’s employer, the trucking company.  As a result of the tender, Plaintiff chose to voluntarily dismiss his lawsuit against the fill yard before any discovery had even taken place.  Presumably, Plaintiff’s employer was not too thrilled to have to defend our client in a lawsuit filed by its own employee.

Both cases illustrate the importance of assessing risk transfer as early as possible.  While assigning the costs of indemnity and defense to another party and its insurer is a great result in itself, dismissal of the action against our client is even better.