Horwitz Recovers Policy Limits For Families Of Two Boys Who Drown After The Case Is Taken To The Supreme Court Of Illinois ($2 Million)

In a landmark case spanning twelve years, Partner Jay Luchsinger of Horwitz, Horwitz & Associates, Ltd., prevailed before the Illinois Supreme Court, securing justice for two families. As a result, the decision will 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 Case

Late afternoon on April 30, 1997, two close friends, ages 14 and 15, went fishing 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 and trapped in a pit of wet sand and clay; the positioning of their bodies told only a partial story of the events that had lead to their deaths.

The land where the boys were found belonged to an owner who operated a construction company from his property. On the open and unguarded land, the owner was mining sand.  The owner left the large pit of sand overnight that he later filled with clay from construction sites.

In-Depth Look

An engineer who testified as an expert in court explained that water from the storm accumulated in the clay and sand-filled pit, forming a “quick condition”. The “quick condition” is a quicksand-like condition in which water prevents the soil from supporting weight, sinking or trapping any weight-bearing load.

Investigators from the police department who examined the scene testified in court that the boy had cut across the property in an attempt to out-run the storm.  The boys’ homes were just 100-150 yards from where they were found.

One boy was found facing north, his legs buried to his waist straight down in the muck, suggesting that he had attempted to jump the water accumulating in the pit. He failed to make it across and became trapped feet-first in the quicksand-like mud. The other boy was found facing south, towards his friend, with one leg stuck in the mud and the other free on solid ground. His position suggested that he had entered the sand from the opposite side in an attempt to reach his friend and pull him to safety. The two were touching hands when found.

Both boys had succumbed to exposure and hypothermia. The coroner’s report stated that drowning was the primary cause of death for one. It could not be determined how long the boys endured the brutal conditions or how much time had passed between the time the first boy fell into the pit and when his friend attempted to rescue him.

The case was brought against the property owner for negligence, alleging the 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 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 a single event or occurrence and, therefore, only $1 million in liability applied.

The trial court ruled in favor of the boys’ families, concluding 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. The circumstances that lead to each boy’s entrapment also differed. Therefore, the death of each boy would be treated as separate occurrences and each were to be awarded $1 million.

The insurance company appealed and the appellate court 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 a $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, Partner and Trial Attorney Jay Luchsinger approached the justices with precedents set forth in prior cases and a respectful demand of the facts of this case – those that were determined by the investigators to be true and uncontested by the insurance company attorneys at trial. He outlined 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 go for help, escaping the pit altogether, but stated, “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, reaching the full $2 million policy maximum.

This case represents a landmark decision involving the interpretation of a “single occurrence” liability clause of an insurance policy.

It is also a reflection of the dedication, hard work, and time commitment necessary for the attorneys who advocate on behalf of the injured, along with the tenacity required to ensure that justice prevails.