Category Archives: Dram Shop

Rogers v. Imeri – Illinois Supreme Court Resolves Split in Circuits over How to Apply Set-Off’s When the Guaranty Fund Defends a Dram Shop Defendant

Rogers v. Imeri, 2013 IL 115860 (Theis)

Facts:  Plaintiff’s decedent was killed in a head-on motor vehicle collision with an intoxicated driver. The Estate had two available claims, the automobile negligence claim against the driver and a dram shop claim against the bar that served him alcohol.  The dram shop claim included claims for injury and loss of society thereby making $130,335.51 the total statutory amount available to the plaintiff under the Dram Shop Act.  The Estate obtained $26,550 from the driver’s insurance policy and an additional $80,000 in underinsured coverage from its own policy.  The insurer for the dram shop defendant was insolvent and so the Illinois Insurance Guaranty Fund was defending the case.  It sought a ruling from the trial court that pursuant to section 546(a) of the Illinois Insurance Guaranty Fund Act the $106,550 recovered by the plaintiff should be set off as “other insurance” from the $130,335.51 statutory cap amount such that the total recoverable to the plaintiff would be only $23,788.51.  The plaintiff argued that the “other insurance” set off should not be applied until after a jury verdict.  The trial court agreed with the plaintiff and ruled that the request was pre-mature and set-offs would be determined after a jury determined the total damages, however, it approved a 308 certified question which was accepted and affirmed by the appellate court.  The defendant petitioned the Illinois Supreme Court for review which due to a split in authority between the First District and Fifth District was accepted.

Holding:  When the Illinois Insurance Guaranty Fund is defending a claim under the Dram Shop Act, the set-off from other insurance are reduced from the total available limits under the Dram Shop Act, not from the verdict.

Filed in Trial Book Under:  Dram Shop Act, Illinois Insurance Guaranty Fund, Statutory Interpretation, Set-Offs

Commentary:  Add this decision to the long list of reasons that Dram Shop cases are generally unappealing for plaintiffs.  Under the approach adopted by the plaintiff, and followed by the 5th District, the plaintiff would be able to try the case to a verdict and if the result were say $500,000, the $106,550 in other insurance would then be applied to that total, and the Guaranty Fund would be required to underwrite the entire statutory limit under the Dram Shop because the verdict was much higher than the “other insurance” set-off.  Instead, they are left with only $23,788.51 in coverage because the court is to apply the other insurance to the statutory limits of the Dram Shop Act first.  I certainly understand the logic of the plaintiff and the Fifth District here, and wish that the Supreme Court had followed it, but at the end of the day the statutory purpose of the Guaranty Fund is to be an insurer of last resort and not to make the plaintiff whole, or “more whole” in this particular case.

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Filed under Dram Shop, Insurance Coverage, Statutory Interpretation

Olle v. C House Corporation – ‘Fireman’s Rule’ Not a Bar to Dram Shop Claim by Police Officer for Injuries Sustained in Quelling Bar Fight

Olle v. C House Corporation, 2012 IL App (1st) 110427 (Lampkin)

Facts:  Plaintiff was an off-duty police officer that was a patron at the defendant bar when he was injured in an assault by two unruly and intoxicated patrons while he voluntarily attempted to assist the bar owner with removing them from the bar.  Defendant moved for summary judgment arguing that the inherent risk doctrine, a.k.a. the ‘Fireman’s Rule’, precluded a police officer from recovering for injuries under the Dram Shop Act.  The trial court recognized that there were no Illinois cases applying the inherent risk doctrine to dram shop action, either for or against, but agreed that it should preclude recovery and granted summary judgment for the defendant.  Plaintiff appealed.

Holding:  The inherent risk doctrine does not preclude recovery under the Dramshop Act.

Filed in Trial Book Under:  Dram Shop, Fireman’s Rule, Inherent Risk Doctrine

Commentary:  Police are called to respond to bar fights all of the time and therefore the potential for injury is great.  As a result, so is the potential for lots of claims.  Because the nature of the job for a police officer, or fireman, necessarily involves placing themselves in harms way, the inherent risk doctrine typically serves to bar claims for injury that arise out of dangerous situations from their occupation.  The trial court saw this as a good reason to apply the inherent risk doctrine to dram shop claims.  The appellate court fully recognized that there is a great potential for a flood of litigation, but concluded that the statutory language within the Dram Shop Act does not support excluding claims by officers.  I was initially surprised that after all of these years, this was a case of first impression, however, as the opinion points out there are very practical reasons why officers don’t normally file dram shop claims, and that is becasue the limits of recovery are small, with a maximum of $45,000, and are subject to a workers compensation lien.  In light of the practical reality of these claims, I think that the appellate court made a very pragmatic and reasonable call here by permitting the plaintiff’s claim to stand.

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Filed under Dram Shop