Plaintiff moves for default judgment in foot amputation case

I am now posting the articles I receive, to this board instead of the front page. I think it will simplify things and I can get the articles posted quicker. Our sincere thanks to Deborah True who sends most of them to us.

Plaintiff moves for default judgment in foot amputation case

Unread postby webmaster » Sat Apr 03, 2010 9:51 pm

Plaintiff moves for default judgment in foot amputation case

4/1/2010 11:00 AM By Amelia Flood

An Alton man who won more than $1 million in a suit over an accident that caused him to lose his right foot has asked for default judgment against the insurance company that settled his claims before trial.

Steven Kirk moved for default judgment against Allstate Insurance Company March 5. Kirk sued Allstate in January in place of Enver Hamiti, the man who hit Kirk after allegedly running an Alton stop sign four years ago. Kirk lost his right foot in the accident.

Kirk's suit against Hamiti went to trial last year. Jurors awarded Kirk over $1 million.

Madison County Circuit Judge Barbara Crowder will hear motions in the Allstate case April 9 at 9 a.m.

Kirk sued Allstate, Hamiti's insurance company for allegedly settling his claims against it without protecting Hamiti.

The 2010 suit seeks damages of at least $50,000 and costs.

Kirk also has a suit pending against Mercury Insurance Company related to the Alton accident. In that suit, Kirk alleges that Mercury bribed and coached a mentally ill woman to testify at the Hamiti suit's trial.

That witness's testimony was shown to be false when her former landlord took the stand and presented the handwritten rental application showing the she did in the apartment overlooking the accident site and could not have witnessed the July 2006 incident.

In the March 3 motion, Kirk asks for default judgment pointing the fact that Allstate did not enter an appearance or answer the suit within 30 days.

Allstate filed its answer March 8.

In that answer, Allstate denies it did not protect Hamiti when it settled with Kirk. Instead, the company alleges counterclaims against Kirk for fraud and equitable estoppels.

It argues that Kirk never intended to settle with the company in good faith. It argues that Kirk's attorneys indicated that they wanted to pursue actions against Mercury and that they refused to settle their client's claims against Hamiti.

Allstate calls those statements a "deceptive scheme."

In the counterclaim, the company asks for attorney's fees, costs and the return of the settlement money it paid Kirk.

It also has a motion asking for leave to file its answer instanter.
Allstate asked Crowder to deny the default judgment March 18.

Chris Kolker represents Kirk in all three of the actions.
Michael Bedesky of Edwardsville represents Allstate.
Hamiti is represented by Mark Kurz.
Madison County Circuit Judge David Hylla presides over the Hamiti suit. Madison County Chief Judge Ann Callis presides over the Mercury action.

The Allstate case is Madison case number 10-L-010.
The underlying Hamiti suit is Madison case number 07-L-165.
The Mercury suit is case number 10-L-156. ... ation-case
Don Thompson

Let Me Help With Your Web Hosting Needs
User avatar
Site Admin
Site Admin
Posts: 914
Joined: Thu Jun 05, 2003 11:53 pm
Location: Fort Worth, Texas 76135

Update: Allstate Found To Have Acted In Bad Faith

Unread postby RatPak11 » Wed Jun 06, 2012 1:05 pm ... -bad-faith

Fifth District rules for plaintiff who won $1 million at '09 trial; Allstate found to have acted in bad faith
5/31/2012 8:48 AM
By Sarah Zavala

The Fifth District Appellate Court ruled early last week in favor of a man who sued Allstate Insurance over an incident that resulted in the loss of his leg.

A panel of Fifth District Appellate Court justices reversed the decision of partial summary judgment from Madison County Associate Judge Clarence Harrison II, and ruled that Allstate Insurance did act in bad faith against a former policyholder.

Justice Richard Goldenhersh delivered the opinion of the court and Justices Thomas Welch and Stephen Spomer concurred.

The case sparked from a 2006 car accident where plaintiff Steven Kirk, had his leg amputated as a result of Enver Hamiti running a stop sign and colliding with his motorcycle.

Hamiti was driving an automobile owned by Lindsey Skenderi, whose car was insured by Allstate with a liability limit in the amount of $100,000 per person and $300,000 per accident.

Mercury Insurance Company insured Hamiti.

In 2007, Kirk originally sued Hamiti, and won more than $1 million at a trial presided over by Circuit Judge Dave Hylla in 2009.

Following his victory in the Hamiti case, Kirk sued Mercury Insurance Co. for allegedly bribing and coaching a witness's testimony. In January 2010, Mercury settled with Kirk and Kirk obtained assignment of rights from Hamiti to sue Allstate for bad faith.

On the same day Kirk obtained Hamiti's right to sue Allstate, he filed suit against Allstate, the insurer that settled his first lawsuit, for bad faith.

At issue was whether Kirk induced a release from Hamiti.

The appellate court found that "Kirk is entitled to all of Hamiti's right, title, or interest in the bad faith claim against Allstate."

"If Kirk somehow had coerced or tricked Allstate in removing Hamiti's name from the release, that might be a reason for entering partial summary judgment in favor of Allstate," Goldenhersh wrote. "However, the record before us is completely devoid of any type of coercion or trickery involved in the underlying action."

In 2006, multiple emails were sent back and forth between an Allstate employee and his supervisor about changing the release to exclude Hamiti's name.

The Allstate employee took Hamiti's name off the release and admitted doing so.

During the original case, Kirk argued that Allstate committed numerous acts of bad faith, including failing to notify Hamiti that he was being sued, not providing him with an attorney until a year later, and most important failing to protect him by taking his name off the release.

The Appellate Court agreed with Kirk that Allstate acted in bad faith.

"It appears that Allstate tried to clear itself from exposure in an excess case at the expense of Hamiti," Goldenhersh wrote.

"If Allstate truly believed the release should only provide a release for Hamiti to the extent that he had other coverage with Mercury or perhaps some other insurance company, Allstate should have specifically stated that in the release language and should not have omitted Hamiti entirely from the release," Goldenhersh wrote.

However, Allstate argued that it did protect Hamiti because he received the full $100,000 in full liability limits set out by his policy.

Allstate claims it did not act in bad faith because the company paid its policy limits, and bad faith cases can only come from insurance companies that fail to pay its policy limits.

"Illinois cases have long held that an insurer cannot discharge its duty to defend simply by paying policy limits," Goldenhersh wrote, referring to Conway v. Country Casualty Insurance Co., 92 Ill. 2d 388, 442 N.E. 2d 245 (1982).

Goldenhersh also looked to the decision in Douglas v. Allied American Insurance, 312 Ill. App. 3d 535, 727 N.E. 2d 376 (2000), saying that insurers are required to do more than simply pay policy limits because if not, they would just fork up the policy money and leave the rest up to the client.

"This would be a breach of the insurer's contract to defend," Goldenhersh wrote.
Done That
Done That
Posts: 3082
Joined: Tue Feb 20, 2007 3:25 pm

Return to Allstate Articles of Interest

Who is online

Users browsing this forum: No registered users and 1 guest