Horwitz Attorney Prevails in Supreme Court Challenge
In a landmark case spanning twelve years, lead trial attorney Jay Luchsinger of Horwitz, Horwitz & Associates prevailed before the Illinois Supreme Court, securing justice for two families in a decision that will, from this day forward, provide broader access to justice in cases of multiple-party injuries when an insurance company attempts to limit liability under a clause of “same occurrence” within the policy provisions.
“ …the story on the scene is one of a brave and honorable youth who entered that pit from the opposite side despite the obvious danger. He perished with one foot at the edge of safety, and with arms stretched out to his friend.”Late afternoon on April 30, 1997 began as it had many times before; two close friends (ages 14 and 15 respectfully) heading off to fish at a nearby Commonwealth Edison cooling lake. When the boys had not returned by evening their families feared for their safety and reported them missing to the police.
Family members, neighbors and law enforcement officers searched throughout the night, hampered by the snow and rain-blown veil of a sudden heavy storm that had begun bearing down on the area hours earlier. Despite the intense effort, there was no sign of the boys or clues to their whereabouts.
Three days later the two friends were discovered lifeless, trapped in a pit of wet sand and clay; the positioning of their bodies telling only a partial story of the events that had lead to their deaths.
The land belonged to an owner who operated a construction company from his property. On the open and unguarded land, the owner was mining sand, which left a large pit that he later filled with clay from construction sites.
Testifying in court as an expert, an engineer explained that water from the storm accumulated in the clay and sand-filled pit forming a “quick condition”; a quick-sand like condition in which water prevents the soil from supporting weight and can result in sinking or trapping of any weight-bearing load.
Investigators on scene from the police department surmised and testified in court that the boys – in a likely attempt to out-run the storm -- had cut across the property to reach one boy’s home, merely 100-150 yards from where they were found.
One boy was found facing north, his legs buried to his waist straight down in muck, suggesting that he had attempted to jump the water accumulating in the pit and failed to make it across, becoming trapped feet-first in the quicksand-like mud. The other lad was found facing south, towards his friend with one leg stuck in the mud and the other free on solid ground, suggesting that he had entered the muck from the opposite side in an attempt to pull his friend to safety. Indeed he was close; close enough that the two were touching when found.
Both boys had succumbed to exposure and hypothermia, the coroner’s report adding that drowning was the primary cause of death for one. However it could not be determined how long the boys anguished in the brutal conditions, or in fact, how much time passed between the first boy’s entry into the pit before his friend heroically tried to rescue him.
The underlining case brought against the property owner was one of negligence; failure of the property owner to guard against accidental injury by restricting access to the area, or the posting of warning signs regarding unsafe conditions despite his knowledge of frequent persons (including children) on the property.
At trial, the insurance company agreed to settle the case brought by the families for the policy limits, however they would later argue as to which “policy limits” applied under the clause of “same occurrence”. Generally speaking, if multiple parties are injured during the same event, a policy may in some cases, be limited to a single event dollar amount, which is often far less than the overall policy liability limits itself.
While the insurance policy provided an overall total liability of $2 million, the policy also contained an “Each Occurrence” clause/limit of $1 million. The insurance company argued that since the boys were found together, it was reasonable to conclude that their deaths constituted one single event or occurrence and therefore, only $1 million in liability applied.
The trial court ruled in favor of the boys’ families and concluded that there was evidence to support that although the cause of death was similar in the case of both boys, the time and events were different for each youth, as well as the circumstances that lead to each boy’s entrapment, therefore the death of each would be treated as separate occurrences, each to be awarded $1 million.
The insurance company appealed to the appellate court, which reversed, in a 2/1 decision, the lower court’s ruling in favor of a “single occurrence” decision, reducing liability to an equal split of $1 million recovery between the two families.
Unwilling to accept justice as half-measured, Horwitz, Horwitz & Associates appealed to the Illinois Supreme Court. With professional elegance, attorney Jay Luchsinger approached the justices with both precedence set forth in prior cases, and a respectful demand that the facts of this case – those that were determined by the investigators to be true and uncontested by the insurance company attorneys at trial – patiently outlining the evidence to support the separate occurrences involved.
“It is fact,” he argued, “that the younger boy made a separate and independent choice to enter that pit in an effort to save his friend.”
Luchsinger argued further that the boy could have decided to instead go for help, escaping the pit altogether, but at some point in time, for reasons different and separate of his friend, he entered that pit of his own will and power.” Had he come back for his friend immediately or returned minutes later? Had he simply gone around the pit instead of trying to jump it at the same time? The answers, Luchsinger admitted, “ …we will never know, but the story on the scene is one of a brave and honorable youth who entered that pit from the opposite side despite the obvious danger. He perished with one foot at the edge of safety, and with arms stretched out to his friend.”
After twelve long years, the families of these devoted friends received the full justice they deserved when the Supreme Court filed their unanimous opinion on January 23, 2009.
While the judgment can never replace their loss, the six justices agreed that the tragic deaths of the boys constituted two separate events, each event entitled to the full and separate policy limit of $1 million, combined reaching the full $2 million policy maximum.
This case represents a landmark decision regarding how to interpret “single occurrence” liability clause of an insurance policy.
However, it’s also a reflection the level of commitment and hard work necessary, in both time and resources of the attorneys who advocate on behalf of the injured, and the tenacity required to ensure that justice prevails.
Horwitz, Horwitz & Associates are pleased to offer an opportunity for readers to witness the professional legal skills of attorney Jay Luchsinger during his appearance before the Supreme Court justices.
Managing Partner and Lead Trial Attorney, Cliff Horwitz, welcomes your comments on this article and can be reached at (866) 228-5016, or by visiting http://www.horwitzlaw.com.