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.

Gravestone Injury at a Cemetery

2014-L-12244 (Illinois, Cook County)

When a family went to visit our client’s cemetery to visit family graves, one of the children in the family grabbed a gravestone for support, whereupon the gravestone fell on the child, injuring his leg. The parents brought suit against the cemetery on behalf of their son. As trial approached, plaintiffs made a demand of $95,000. However, Costello Legal drafted a motion for summary judgment on the issue that the duty to maintain gravestones belongs to the individual plot owners, not the cemetery, and the court agreed, granting the motion and dismissing the case.

Continued 2016 Success with Two More Trial Victories

Daniel P. Costello & Associates is continuing a very successful 2016 with two more complete defense verdicts at trial. Combined, these plaintiffs asked for nearly $1.5 million at trial.

Jones v. West Cook YMCA

The 68 year-old Plaintiff broke her wrist when she slipped and fell on a pool deck. Plaintiff retained a parks and recreation expert with over 40 years of experience to contend that the West Cook YMCA was negligent in eight different ways. Among other allegations, Plaintiff argued that the defendant should have installed rubber mats, abrasive stripping, or handrails on the pool deck. After six witnesses testified over four days, Plaintiff requested nearly $400,000.00 in damages. For the defense, Jessica Biagi from Daniel P. Costello & Associates, LLC, fought zealously to deny fault and prove the Defendant's affirmative defense of contributory negligence. Both YMCA employees and a professional engineer testified that the floor was sufficiently slip-resistant and reasonably safe. Within fifteen minutes of deliberation, the jury returned a complete defense verdict.

Sustek v. First Choice Landscaping

After the Plaintiff, a 53 year semi truck driver injured his knee after falling into a 10" x 10" hole in the parkway while removing fallen leaves, he filed suit against Peoples Gas, Northern Pipeline, Jacobs Engineering, and First Choice Landscaping. Prior to trial, Plaintiff settled with all the other entities, leaving only the premises liability claim against First Choice Landscaping. Plaintiff requested $1,081,110.05 million at the end of a jury trial, including $83,527 in past medical bills, $9,436 in lost wages and future medical for a possible knee replacement. The trial lasted 8 days and included fifteen witnesses, including three experts, one of which was an expert in soils. For the defense, Susan Bledsoe of Daniel P. Costello & Associates fought zealously to deny fault and prove that First Choice landscaping had no knowledge that a void created by another defendant was festering under the surface of the new sod, only coming to light after 2 weeks of excessive watering by the plaintiff. The jury properly returned a verdict of not guilty in favor of Defendant First Choice Landscaping.

Trial Win After Slip & Fall at Pool

2013-L-012143 (Illinois, Cook County)

Plaintiff, an older woman, was at a local pool and recreation facility. After coming down a stairway she stepped onto a wet pool deck and slipped, injuring herself. She sued the recreation facility alleging a number of acts of negligence on behalf of the facility, saying the facility should have put a mat on the floor or posted a sign. Plaintiff demanded over $200,000 but ultimately the case went to trial where Jessica Biagi represented the recreation facility. Jessica Biagi made a common-sense argument to the jury that a wet area by a pool is open and obvious, and that a wet floor does not constitute an unreasonable risk of harm. The jury returned a full defense verdict after only fifteen minutes of deliberation.

Illinois Passes New Snow Removal Bill- What Does It Mean For You?

Illinois has just passed the Snow Removal Service Liability Limitation Act (Public Act 099-0889), which applies immediately to any contracts entered into on or after August 25, 2016. This bill affects certain clauses in contracts between snow and ice removal providers and any party they contract with (usually property owners/managers) for snow and ice removal. Any clauses that contain indemnification, duty to defend and hold harmless language are now void, unenforceable and against public policy. This is similar to legislation in the construction industry where there is an anti-indemnification statute based on public policy. The idea being that those in power, property managers/owners should not be able to shift their risk to snow removal contractors. The snow and ice removal company cannot be required to indemnify, hold harmless or defend the property manager/owner and vice versa. Instead, liability is to be apportioned based on each party's proportionate negligence.

This means that the parties can no longer go after each other for indemnification and defense costs when the party initiating the action for indemnification or defense costs was negligent themselves, and that negligence led to some type of injury. Some likely effects of this act will be:

• 1) Impacting insurance rates for snow removal companies and property owners (overall, good for snow removal companies, bad for the property owners/managers who used to include these kinds of provisions)

• 2) Alleviating insurance carriers' concerns about contract language

• 3) Increasing the value of professional snow and ice management services as property owners will want a good service since they cannot pass on their liability onto the removal service anymore.

The importance of the act should be significant to snow removal contractors. With this change, contractors will be on the hook for only for their negligence, and not that of those who hired them. It will also vastly impact the insurer of these contractors. It will help to take frivolous lawsuits to trial which would otherwise settle due to the costs of litigation both on behalf of its named insured, but also on behalf of additional insureds. For those on the property management or ownership side, the risks associated with slip and fall cases has increased, and a key tool in risk transfer has been eliminated. We expect that the early cases will test the validity of the statute, and breach of contract claims.

Link to the Snow Removal Service Liability Limitation Act: http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0889

What does “Moneyball” mean to Lawyers and Clients?

After just returning from the CLM Annual Conference, where the industry's best and brightest gather, two things that some argue should never be mentioned in the same sentence were once again spoken; "Moneyball", and Lawyers. The idea of “Moneyball” for lawyers is again fresh and topical, and industry leaders are applying a brand of “saber metrics” to counsel. As many know, Moneyball was a highly successful book by Michael Lewis analyzing the use of metrics in baseball. We have talked about this for years, its application to use on Litigation Management and counsel, and what it means to our clients and the industry. The reality is not whether or not to use metrics (that is already well settled; the answer is yes) but rather, what do with them. The real question for our clients is “what is a win?” for them and “what value does counsel bring over replacement counsel?” Here is how I believe our clients and industry leaders will use metrics to differentiate in the future:

1. Outcome— Defining and achieving your goals

2. Risk— Harm avoided

3. Process— How was this achieved and how long did it take.

4. Predictability— How certain are we of cost to achieve outcome

Outcome.

Many attorneys in the litigation arena define the goal as winning at trial or paying nothing to the other-side. However, these goals are generally illusory. First on the civil litigation side 97% of cases are resolved without a trial. Thus, there is little to any benefit measuring success on what is essentially of 3% of your cases. Second paying nothing to the other side means nothing to a client, if you regularly pay your attorney more than it would cost to resolve the case outright. This is especially true if you are doing this over a large volume of say 6,000 cases a year. We suggest that “total case outcome” is measured in dollars, and in sense both in terms of actual indemnity and attorneys fees, as well as counsel's subjective value (sense) and then measuring the deviation from that predicted plan number at the outset of litigation, and again at the conclusion. This number should be within 10% absent some significant new developments in litigation which substantial change.

Risk.

The second component of value is risk or harm avoided. The key concept from the book "Moneyball" is about VORP, or value over replacement player. Many attorneys assert that there is an inherent risk in not using their firm and that their attorneys bring you value. However, they never define that value properly, or rather base their value solely on trial experience. We show our clients the value of our services which makes the risk of using us versus a 100 other attorneys easy to show. Specifically, we quantify in tailored metrics the cycle time, total case outcome, and total fees as just a few key indicators of value and provide this information back to our clients regularly. We actually then compare this side by side with their existing counsel or industry averages from our proprietary database to show in black and white our value in dollars and "sense" versus our competitors.

Process.

This is often overlooked and is a key component of measuring value. In every situation, timeliness, complexity and cost are important considerations. As most legal commentators have stated, “most legal matters are repetitive in some way.” Thus, handling each case according to a defined process and improving on each new matter is paramount to success. This is one of the reasons why cycle time is so important to our clients. Essentially, it is one indicator of how important efficiency is in the process and how we are doing on it.

Predictability.

With most of our insurance clients, their business is run by predictions. Underwriters and actuaries make a living by determining what they can charge, and what they will profit based on risk. The same holds true with litigation. If we can state with certainty the cost of defending a matter to our clients, and agree to the value of legal fees, we have removed uncertainty.Finally, although the industry has recognized that talking metrics is good, clients and counsel need to move talk to implementation and true measurement. The next steps will be implementing VORF (Value Over Replacement Firm) and using this to measure the "batting averages" of firms to determine the industries best players. After all, with baseball or with legal, we only want to reward the best players for the best results. Daniel P. Costello & Associates, LLC specializes in construction litigation, complex litigation, and litigation management.

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.

Costello Legal's First Trial of 2016 is a Win!

Attorney Jessica Biagi helped to start the firm off on a good note for 2016 by winning the firm's first trial of the year.

Thompson v. Ajax Uniform Rental, Inc.

Thompson marks Jessica Biagi's fourth straight jury trial win in a row! The 89 year-old Plaintiff tripped on a floor mat while leaving a bank, sustaining a C2 fracture as well as a 18cm scalp laceration. Within minutes of jury selection, Plaintiff settled with the bank and property manager and went to trial solely against the floor mat rental company. Plaintiff claimed that Ajax Uniform Rental, Inc., placed a curled mat at the entryway and thereby created a dangerous condition. Plaintiff requested $790,000 at the end of the trial, which included claims related to $90,000 in medical expenses, a two week hospital stay, and permanent neck pain. Ten witnesses testified over four days, including two treating physicians and Plaintiff's trip and fall prevention expert. For the defense, Jessica Biagi from Daniel P. Costello & Associates, LLC, fought zealously to deny fault and prove the defendant's affirmative defense of contributory negligence. Within two hours, the jury returned a complete defense verdict.

Slip and Fall at Major Banking Chain

2014-L-3716 (Illinois, Cook County)

After walking into a major banking chain, plaintiff a 92 year old woman, slipped on a rubber mat in the bank’s entrance. She sued the bank, the property manager, and the maintenance company that provides the mats. She alleged multiple potential theories against defendants alleging that the mats were defective and/or installed improperly and made arguments implicating products liability, premises liability, and general negligence theories. Plaintiff’s final demand was $980,000 and ultimately the case went to trial. Despite plaintiff being very sympathetic, Partner Jessica Biagi made it clear that there was nothing wrong with the mat or the installation, and the jury agreed returning a full defense verdict.

Trial Over Use (or Misuse) of Gym Equipment

2010-L-6503 (Illinois, Cook County)

While at the gym, the plaintiff was using an abdominal exercise machine and fell, hitting her head on a metal bar at the bottom of the machine. She sued the gym under a premises liability theory alleging that the machine was wobbly, and sued multiple manufacturers under products liability theories making the case that the machine itself was defective. In the middle of discovery, the defense of the gym was transferred to Daniel P Costello & Associates. Attorneys Dan Costello and Jessica Biagi picked up defense of the gym and took the case to trial. Plaintiff attempted to show that the machine was wobbly and negligently installed, and demanded $1.2 million prior to trial. However, Dan and Jessica showed that there were no problems with the installation of the machine and focused on plaintiff’s use of the machine as the cause of the injury. The jury agreed that the gym was not negligent and returned a full verdict for the defense.

Elderly Plaintiff Hit by Runners at Street Festival

2014-L-9091

Plaintiff, an elderly woman, was attending a street festival in Little Italy in Chicago, when youth from a school running club ran by causing one to bump into plaintiff. Plaintiff fell, and a police officer arrived on the scene, described her injuries as serious and helped transport plaintiff to a hospital. Plaintiff then brought suit against the city and the community organization who hosted the event. Daniel P Costello & Associates took over defense of the community organization. Dan Costello knew that the community organization was not responsible for the runners as they were legally allowed into the event, and pointed to the event organizer as having the duty to the plaintiff in this situation. Attorneys Dan Costello and Donna Rizzuto prepared a motion for summary judgment, and plaintiff, realizing the community organization was not at fault, dismissed them from the case and proceeded against the other defendants.

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.

Three More Jury Trial Wins at Costello Legal

Costello Legal has just won three jury trials this winter, marking 10 wins so far for 2015 and a very successful year. Congratulations to all the attorneys and support staff who worked hard and made this possible!

2013-L-11132 (Illinois, Cook County)

The Plaintiff, a 48 year old special education coach, was involved in a low-speed rear end collision in Evanston, Illinois, and sued the car that struck him. Plaintiff insisted on taking the matter to trial, claiming $80,000 in damages including outstanding medical expenses, the need for future medical care, lost wages from the incident, and permanent injury to his lower back. Partner James Barrow, representing the defendant at trial, showed the jury that this low speed collision could not have possibly caused the damages the plaintiff claimed, which were all the result of a pre-existing medical condition and an intervening work related injury. The trial lasted 3 days and included 5 witnesses, including a treating physician, independent neurosurgeon, and a biomechanical engineer. After deliberating for 90 minutes, the jury returned a verdict in favor of the defendant.

2010-L-6503 (Illinois, Cook County)

After the Plaintiff, 39 year old health instructor, fractured her larynx while working out on a glute-ham machine, she filed suit against the gym, the manufacturer and the retailer. Prior to trial, Plaintiff settled with the manufacturer and retailer, leaving only her premises liability claim against Quad's Gym, Inc. Plaintiff requested $1.16 million at the end of a jury trial, including $130,000 in past medical bills, scarring and permanent changes to her voice. The trial lasted three and a half days and included eleven witnesses, including two laryngologists and one expert biomechanical engineer. For the defense, the team of Daniel Costello and Jessica Biagi fought zealously to deny fault and prove the defendant's affirmative defense of contributory negligence. Within 90 minutes, the jury returned a verdict of not guilty in favor of Defendant Quad's Gym, Inc.

2012-L-11088 (Illinois, Cook County)

The Plaintiff, a 53 year old nurse, fell while roller skating backwards in a roller rink, resulting in a fractured wrist that required surgery. She claims her fall was caused by an object on the ground, and filed a premise liability and negligence claim against the roller rink for failure to maintain and inspect the floor of the roller rink. The trial lasted three days and included seven witnesses. At the end of trial, Plaintiff asked for $125,000. Jessica Velez from Daniel P. Costello & Associates vigorously defended the roller rink and made it clear not only that Tinley Park Roller Rink properly supervised and maintained the roller rink, but also it was not possible the object on the floor could have caused the plaintiff's fall. After only 40 minutes of deliberation, the jury agreed and returned a complete defense verdict.

Continued Trial Success at Costello Legal!

Dan Costello preserved the streak for Costello Legal in what is turning out to be a great 2015, winning our seventh consecutive jury trial.

Yates v. Elegant Acquisition

Mr. Costello represented a local transportation company, and its 80 year driver in a case where plaintiff, a 26 year old attorney claims that she was forced off the road, and ended up striking a tree. The plaintiff claimed catastrophic injuries at trial. The plaintiff claimed nearly $100,000 in medical damages at trial for her Periacetabular osteotomy which resulted in a permanent limp, permanent hardware, and permanent restrictions.The plaintiff’s firm coming off a $15 million verdict one month earlier, asked the jury for $3.57 million dollars in total damages. Despite viewing the case as a presumed liability case against the defendant, the jury awarded 38% contributory negligence on the plaintiff, and awarded only $271,000, less than all pre-trial offers.

Dan Costello to speak at CLM's 2015 LMI Conference

The Claims and Litigation Management Alliance (CLM) will be hosting the "2015 Litigation Management Institute and Coverage Perspectives" conference from October 22-25, 2015 at Columbia Law School in New York City. Dan Costello will be speaking in the "Coverage Perspectives" course which explores the "tri-party" relationship between the insurer, the insured, and defense counsel and highlights some of the nuances of how insurance coverage can influence the handling of defense litigation.More information can be found at these links: 2015 LMI Conference"Coverage Perspectives" Course

CLM Annoucement: "Mr. Daniel Costello to Speak at the 2015 CLM Litigation Management Institute" Mr. Daniel Costello, Managing Partner, Daniel P. Costello & Associates, LLC will be speaking on the following, “2015 Litigation Management Institute and Coverage Perspectives.” This conference will be hosted at Columbia Law School in New York City from October 22-25. Dan Costello, managing partner of Daniel P. Costello & Associates, LLC, has years of experience concentrating in construction litigation, complex litigation, litigation management, professional liability, and insurance coverage matters. He actively works with insurance companies to improve their litigation management and claims handling protocols. He has also acted as an Instructor at the Litigation Management Institute (LMI) hosted at Columbia Law School in New York. In 2014 he was recognized as a finalist for CLM Outside Counsel of the Year award.In addition to his substantial legal experience where he has handled over 100 major jury trials, arbitrations, and mediations, he also has substantial corporate business experience. In his time working for a Fortune 500 insurance company he became the youngest AVP of Claims Litigation in the history of the 90 year old company rising to the position in only five and half years. During that time he also focused his attention on litigating the most complex and catastrophic loss cases across the country.His bar admissions include the United States Supreme Court, the United States 7th Circuit Court of Appeals, U.S District Court for the Northern District of Illinois Trial and General Bar, U.S. District Court for the Northern District of Indiana Trial and General Bar, the Illinois Supreme Court, Pro Hac Vice to the Supreme Court of North Dakota 2005, Pro Hac Vice to the Supreme Court of Louisiana 2005, and other states.In addition to the CLM, Mr. Costello has also lectured all over the country to insurance companies, businesses, and Fortune 500 companies. He has presented on litigation management, ethical considerations, and construction contracts. He has been recognized as an innovator and leader in integrating law and technology. He has worked with state and federal courts, in the non-profit sector, advising on utilizing the web to promote the spread of information and the rule of law. He is also active in his community contributing legal services and acting as an Executive Council member for the Cara Program. He is also on National Alumni Board for Lewis University.

• About the CLM

The Claims and Litigation Management Alliance (CLM) promotes and furthers the highest standards of claims and litigation management and brings together the thought leaders in both industries. CLM’s Members and Fellows include risk and litigation managers, insurance and claims professionals, corporate counsel, outside counsel and third party vendors. The CLM sponsors educational programs, provides resources and fosters communication among all in the industry. To learn more about the CLM, please visit www.theclm.org.

• Contact:

Susan Wisbey-Smith, Communications Manager, Claims and Litigation Management Alliance. 847-317-9103, susan.wisbey-smith@theclm.org