OUTCOME: Summary judgment at trial; affirmed on appeal.
The Illinois Supreme Court has denied an appeal by State Farm Insurance, thus, allowing to stand the decision of the Illinois Appellate Court in Nicholson v. State Farm Insurance, No. 2-08-0639 (2nd Di...st. 2010) construing the obligations of an insurance carrier to provide underinsured motorist coverage pursuant to section 143a--2 of the Illinois Insurance Code (Code) (215 ILCS 5/143a--2 (West 1998). Under the decision, “whenever liability coverage is increased above that provided under the previous policy, insurers must again offer UM coverage equal to liability coverage and obtain a signed election declining such equal coverage.” Attorney John J. Malm proudly served as trial and appellate counsel to the family of a woman who was killed when the vehicle in which she was a passenger crossed the center line. Evidence obtained by Mr. Malm included an admission by State Farm that its underwriting file had been discarded, and that the written election of coverage form was not obtained by the State Farm at the time the coverage changes were issued in the subsequent policy. The decision represents an expansion of consumer rights for purchasers of automobile insurance in Illinois.
Litigation
Estate of Ann L. Cuneo
Oct 25, 2002
OUTCOME: Judgment at trial; affirmed on appeal.
My clients, Ronald and Breda Stout, were victims of real estate fraud. Two forged deeds were recorded against the Palm Desert, California real estate belonging to a decedent's estate. The two purport...ed deeds were recorded by the decedent's adopted daughter, Candida Mowinski, and her husband, Thomas Mowinski.
Mr. and Mrs. Stout were to receive the property as specific legatees under the Decedent's Last Will. Upon Probate of the decedent;s estate, two suspicious deeds purportedly transferring the California property out of the estate surfaced in an ademption lawsuit filed in the probate case. At the center of the controversy was the authenticity of the two deeds to the California property. The deeds had been recorded in California. Evidence of fraud in the making, signing and notarizing of the deeds was introduced at trial.
Because there is a presumption of validity given to notarized, recorded instruments, Mr. and Mrs. Stout carried the burden of clear and convincing proof a trial.
After years of litigation and discovery, and a week-long trial before Hon. Ronald Mehling (Ret.), the Stouts successfully overcame the burden of clear and convincing proof. The case was won upon substantial cross-examination of the adverse witnesses who testified to having seen the decedent sign the deeds. The witnesses included notary public, Vivian Somers. Some of the evidence admitted against the deeds included sunset data from the US Naval Observatory showing the precise minute that sunset and twilight ended on the date in question, thereby demonstrating from an hourly time line that the decedent could not have been present in the place and time alleged by the decedent's daughter, husband, notary public, and eyewitnesses.
Additional evidence showed that the Notary public, along with numerous eyewitnesses for the opposing parties, had falsified testimony, both before and during trial. Indeed, evidence at trial showed that the notary lied about placing her seal on the two instruments.
The court's decision in favor of the Stouts revealed that cross-examination of the Mowinski parties and their witnesses, including the notary public, had resulted in substantial impeachment on material issues, calling into question the veracity of the alleged deeds.
After a successful verdict came a successful appeal, affirming the trial court's decision. In a rare decision, the Illinois Appellate Court, Second District, awarded sanctions, including attorney's fees, to the Stouts for the questionable appeal undertaken by the Mowinskis and their counsel, John B. Kincaid, Wheaton, Illinois.
The Notary Public, Vivian Somers, was later prosecuted and convicted in an Illinois criminal court for perjury, in a felony trial in which John Malm served as a key witne, offering testimony to explain the "materiality" of the notary's crime.
John Malm proudly represented Stouts again in a subsequent lawsuit against the notary public for additional damages, sounding in common law fraud. A successful settlement was reached with the Notary before trial.
Interestingly, the Executor of the Estate, who was then a senior broker with the former Lehman Brothers investment firm, was removed from the estate upon a motion by the Stouts for good cause shown, after information surfaced in several national newspapers suggesting that the executor, too, had been stealing from the estate and certain other clients of Lehman. News accounts stated that the executor had disappeared after a mysterious suicide note was allegedly recovered from the broker's car. A manhunt later found him hiding out in Colorado. He was separately tried and convicted in a US Federal Court for a "Ponzi" scheme that is believed to have been the largest retail securities fraud of its kind, at the time.
The Appellate Court's opinion can be found at: www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=jife&searchTerm=ehdO.SfHa.aadj.eeXN&searchFlag=y&l
