John Dark Wins Motion for Summary Judgment After Fire Causes Millions in Damages to Historical Home

2019-L-009251 (Cook County, Illinois)

During the renovation of a large historical home, a fire broke out causing millions of dollars in damages to the home and property. The renovation included the conversion of multiple electric fireplaces into gas fireplaces. The fire was caused during construction when someone remotely turned on the fireplace, which lit flammable material left in front of the fireplace. Plaintiffs sued the general contractor of the construction project. The general contractor then filed third party complaints against the retailer which sold the fireplaces, and the gas company which performed the installation.

The general contractor’s theory against the fireplace seller and the gas company was that they both knew there was ongoing construction so they had a responsibility to warn and instruct the homeowners on the safe use of the fireplace, warn the homeowners not to ignite the fireplace in an ongoing construction zone, to make certain the fireplace pilot-light was extinguished and could not be activated during the construction, and to label the remotes so someone could not unknowingly turn on the fireplace.

John Dark from Costello Ginex and Wideikis took up representation of the fireplace retailer and sought to prove that the retailer did not owe a duty to either the plaintiff or general contractor and any alleged breach was not a proximate cause of the fire. The discovery process was extensive and involved multiple experts hired by the general contractor, including a cause and origin expert and a codes and standard expert.

After discovery, all three defendants filed motions for summary judgment. John argued that his client did not owe a duty to either the plaintiff or to the general contractor, as they did not the install of the fireplace, the instructions provided to the homeowners directly and contained on the invoice were sufficient, and the seller’s conduct was not a proximate cause of the fire. John further argued a condition is distinct from cause, and that the placement of combustible material in front of the fireplace and the subsequent ignition were unforeseeable as to the fireplace seller, as they were unaware of the ongoing construction.

The court granted John’s motion for summary judgment. The court pointed out in their opinion that as a retailer, the fireplace seller was not aware of ongoing construction, was not responsible for installation, and that the general contractor’s own expert did not believe that the retailer violated its duty of care. Meanwhile, the court denied the motions of both of the other defendants.

Shipra Mehta wins Motion for Summary Judgment Defending Construction Manager after Fall at Church

2020-L-007145 (Cook County, Illinois)

Partner Shipra Mehta won another summary judgment representing a construction manager who had done construction work on a church.

Plaintiff, a 58-year-old woman, was a member of a small church who slipped while she was walking up the church podium. She sustained injuries to her arm and shoulder, requiring surgery and incurring significant medical bills. Plaintiff sued a number of parties including the church and a variety of construction companies that had performed work on the church over the years. Shipra took up the defense of a construction manager who had done construction work on the church over a decade before the incident. All parties except the construction manager were dismissed voluntarily early on due to claims of non-involvement with the subject area of the fall.

Shipra defended the construction manager vigorously through over two years of discovery. Plaintiff attempted to attach liability to the construction manager by claiming both that the construction manager designed and constructed the podium that plaintiff fell on, and that the construction manager was responsible for ongoing maintenance and repair duties for the podium. Plaintiff further alleged that the construction manager was somehow responsible for allowing the premises to remain in dangerous and slippery condition despite not having worked on the podium for over 10 years.

After completing the necessary discovery, Shipra filed a motion for summary judgment claiming that plaintiff’s claims were time-barred by the statute of repose, and there were no facts whatsoever which supported a claim that there was any ongoing duty on behalf of the construction manager to the church or its patrons. Further, Shipra claimed any defect was open and obvious and that plaintiff cannot establish a proximate cause between any action from the construction company and the plaintiff’s injuries. The judge agreed, granting the motion and dismissing the construction company with Plaintiff’s claims in the entirety.

Shipra Mehta Wins Defense Victory for Concrete Subcontractor in Death Case

2017-L-000052 (Lake County, Illinois)

A woman slipped and fell while leaving a Bank of America in Waukegan, Illinois, and then died months later. The deceased husband, as Special Administrator of her Estate brought suit against the Bank of America and property owner, attributing her death to complications from this fall, bringing wrongful death and survival claims against the defendants. Plaintiff alleged the ADA ramp was negligently maintained, though as the ramp was built a few years before the fall, the owner and property manager subsequently sued the contractors involved with the prior construction alleging improper construction and noncompliance with the plans and specifications.

Shipra Mehta defended the concrete subcontractor and after multiple depositions including the completion of expert discovery, filed a motion for summary judgment emphasizing the speculative nature of the overall claim, lack of notice of any issues with the construction, and compliance with the construction plans and specifications. As such, Shipra argued, no reasonable jury could find against the concrete subcontractor. The Court agreed, granting the concrete subcontractor's motion for summary judgment, dismissing all claims brought against the subcontractor in its entirety.

Dan Costello to Speak at COVID-19 Seminar Hosted by CLM on Defending Construction Claims

On July 21st, the Claims and Litigation Management Alliance (CLM) is hosting an online Webinar entitled “Defending Construction Site COVID-19 Infection Claims in Judicial Hellholes.” Dan Costello will be a speaker along with Ken Bloom, Elaine Fresch, and Jorge Cruz, and Moderated by Karen Rice.

Dan Costello is a nationally recognized expert in litigation management, trial practice, and complex case management. Dan has personally handled a wide variety of high value construction defect and construction injury claims, many in Cook County, which is one of the most nationally recognized plaintiff-friendly venues in the county.

Anyone interested in registering for the webinar can do so here:

After Mystery Fire in Historic Chicago Building, Costello Legal Defends Accused Plumbing Company

2015-L-013013 (Illinois, Cook County)

A historic Chicago building over 100 years old that used to be a school was being gut rehabbed to put in high end condos. At 2am, a fire broke out during construction between the 3rd and 4th floors and the contractor pointed the finger at the plumbing company who they believed caused the fire. However, the plumbing company had left the job site hours before. Costello Legal picked up the defense of the plumbing company and engaged in a lengthy process of discovery to determine who was on the site and what happened.

After years of discovery, the parties’ demands were too divergent to settle, and attempts at mediation failed. Each side hired experts to opine on what caused the fire, resulting in a “battle of the experts” type of construction defect dispute. The case went to jury trial, where plaintiff demanded millions in damages up to what the cost might be to restore the building to its pre-fire site. However, Dan Costello and James Barrow mounted a vigorous defense, using their experts’ testimony to poke holes in plainitff’s theories about the cause of the fire. Before judgment, the plaintiff decided to reduce their risk of going home with nothing and agreed to settle the matter for less than 20% of their original trial demand.

Control Panel Fails at Steel Facility, Costello Legal Gets Maintenance Company Out on Motion

64D05-1411-CT-9781 (Indiana, Porter County)

At a steel production facility, a control panel that controlled the operation of a stacking device failed, causing damages approaching $50 million. Due to the number of companies working on the site and interacting with the machinery, the case spent significant time in discovery across many parties. During the discovery process, a contractor that once worked on the control panel was brought in, on a negligence theory as well as a claim that the contractor breached implied contracts resulting in the damages. Costello Legal partners Dan Costello and James Barrow picked up the defense of the company.

Costello Legal filed a motion on behalf of the contractor alleging that they could not be held responsible in any way for the accident. The motion argued that the damages incurred fell outside the scope of work performed by the contractor, that there was no causational link between the contractor’s work and the damage that resulted, and based on the work actually performed by the contractor, there existed no “implied contracts” between the contractor and the facility that were breached in any way. The judge agreed, granting the motion, fully dismissing the contractor from the suit and allowing the contractor to avoid a potentially lengthy and expensive trial.

Back-to-Back Wins on Motions for Summary Judgment

In March, Daniel P. Costello & Associates won two large cases with a combined value of over $5.6 million on motions for summary judgment.

Personal Injury Case- Janitorial Company

Plaintiff, a 32 year old resident of a condominium complex, was attempting to dispose of glass shelves into a dumpster when a mirror fell onto plaintiff’s foot causing severe injuries which necessitated an amputation of his left leg just below the knee. The plaintiff was seeking a settlement in excess of $4 million for his injuries. Plaintiff sued a number of defendants in Illinois federal court including our client who was the janitorial company allegedly responsible for garbage pickup, common area cleanup, and maintenance around the dumpster coral. Plaintiff alleged that the Janitors were negligent in placing the mirror on the dumpsters and/or failing to remove it. The defense team at Costello Legal headed by Managing Partner Dan Costello vigorously defended the janitorial company. Mr. Costello argued that not only was our client not responsible for creating the hazard but that they also had no notice of the hazard and therefore owed plaintiff no duty of care. The federal court agreed, and granted the motion on all counts and dismissed the case with prejudice.

Construction Defect Case

Dan Costello and Andrew Smith were able to obtain summary judgment and dismissal of all counts against their clients in a high stakes construction defect case. Mr. Costello defended handling the claim from the inception, including coordinating the investigation, coordinating coverage, bring in the third party defendants, and defending the Developer and General Contractor. The plaintiff’s in this case demanded over $1.6 million for alleged construction defects that went back to the construction of the building in 2002. Cook County Judge Mitchell ruled that the claims were barred under the statute of limitations/statute of repose as the plaintiff’s had direct knowledge of the minor water intrusions issues shortly after construction, and had a duty to investigate this claims. After several years of litigation and numerous depositions the Costello team were able to get all of the counts including breach of warranties, and fraud. The case is now subject to appeal.

Efficiently Handling Construction Defect Cases

Typically, when an insurance company gets dragged into a construction defect case one thing is certain; high defense costs. As home building ramps up around the country and particularly in the western states such as California, problems inevitably arise and with them come construction defect lawsuits.

Studying the metrics of construction defect cases show us that defense costs tend to be high completely regardless of whether indemnity payments are high or low. The nature of these kinds of cases leads to high defense costs due to: a multitude of parties involved, boxes of documentation to review, and excessive time spent by attorneys at site inspections, depositions, and mediations. So the million dollar question becomes: what can be done to control these costs? Fortunately there are options. From the law firm’s perspective, a clear focus early on in the case is crucial. Many of these cases tend to settle in a similar range, and when a firm can target an early settlement this can save hundreds of thousands of dollars in defense costs over the life cycle of the case. Additionally, there are many areas of opportunity in controlling costs. Many firms tend to live in the stone age and print out every document they need; resulting in thousands of dollars in printing boxes and boxes of documents.

When experts become involved the cost of these cases can skyrocket, and paying reasonable costs for experts is a huge cost saving measure.Sometimes it is on the insurance company to control and direct the firms they are paying. Pushing firms to resolve cases instead of spinning their wheels can save money in the long run. Additionally, instituting a robust review of attorney billing can prevent paying out for excessive time spent on unnecessary work. Even just instituting the program shows firms their time is being watched and encourages the firms to self-review and be conscious of the time they are spending.While construction defect cases can be very costly, insurance companies shouldn’t feel resigned to feeling like they don’t have any control over the money going out the door. Taking a vigilant and smart approach results in more efficiently handled cases that can save millions of dollars in unnecessary defense costs in the long run.