MOUNT VERNON – St. Clair County Circuit Judge Christopher Kolker improperly treated an insurer as a defendant and ordered it to spend more than the value of a lien it tried to enforce, Fifth District appellate judges ruled on Dec. 1.
They reversed discovery orders Kolker entered against Continental Indemnity and struck down contempt orders he entered for its resistance.
They found Continental’s intervention in an injury suit didn’t make the insurer a party for purposes of discovery, and they found no authority establishing the power of a circuit court to mandate an intervenor’s participation as a party to litigation against its will.
Plaintiff Greg Burdess, working for Jack Cooper trucking company, fell from a trailer in 2014.
Continental paid him $128,897.79 on a workers’ compensation claim.
In 2016, Burdess sued trailer manufacturer Cottrell Inc.
Continental moved to intervene in 2018, to secure a lien on any judgment.
Kolker granted intervention, and Burdess issued interrogatories and document requests to Continental.
The pleadings referred to the insurer as a defendant.
Among other documents Burdess sought reports of all Jack Cooper injuries from falls since five years prior to manufacture of the rig in question.
Continental objected to participating beyond its limited role but acknowledged it was subject to subpoena.
It produced an electronic file of the claim and it itemized the benefits it paid.
Burdess moved to compel full responses without objection, claiming Continental “became a party to this action.”
He alleged bad faith and moved for sanctions.
Kolker granted the motion to compel in March 2019, but denied sanctions.
Continental repeated its objection but answered 15 of 16 interrogatories and 45 of 48 document requests.
It stated it had hundreds of Jack Cooper claim files and didn’t know when Cottrell manufactured the trailer.
Burdess moved again for sanctions, and Continental stated it produced nearly 500 pages from his file.
Continental claimed its responses complied with rules for intervenors.
At a hearing, counsel for Burdess said Continental produced a list of more than 3,000 claims of Jack Cooper employees.
Counsel said Continental didn’t sort through them to determine which ones involved falls from upper decks of rigs.
Counsel said if Continental didn’t do it, he would do it himself.
The Fifth District opinion doesn’t identify counsel.
It identifies Roy Dripps, Charles Armbruster, Michael Blotevogel, and Brian Wendler as attorneys for Burdess.
Kolker overruled Continental’s objections, imposed sanctions at $150 a day, and ordered it to pay attorney fees related to the sanctions motion.
He gave Continental 30 days to avoid sanctions by complying.
On the 30th day, Continental moved for a finding of friendly contempt as an avenue to appeal its obligation to participate as a full party.
Kolker granted the motion in June 2019, imposed a penalty of $1 a day, and ruled that the $150 penalty would remain in effect.
In September 2019, Burdess served a subpoena for the information he had already requested along with a deposition notice.
Continental objected to the subpoena and moved to stay it until the Fifth District disposed of the appeal.
Continental secretary Jeffrey Silver filed an affidavit stating none of the claim files were electronic and they weren’t searchable through a computer.
He estimated it would cost $1,500 to locate and assemble files and it would cost $26,400 to $28,500 to review and summarize the accidents.
He stated that if Burdess’s counsel wished to review the files, a skilled person would need 90 minutes to review and redact each one first.
He wrote that if a person making $50 an hour reviewed and redacted 3,300 files, the project would cost $247,500.
Silver’s estimates added up to more than twice the value of Continental’s lien.
In December 2019, Kolker granted friendly contempt again and charged $25.
On appeal, Justices David Overstreet, Thomas Welch, and Mark Boie reversed Kolker’s contempt and discovery orders.
Overstreet wrote that the discovery orders were improper, resulting in the sanctions also being improper.
“The sum exceeding $200,000 to produce the worker’s compensation claims as requested in paragraph 1 of the subpoena is substantial and disproportionate to Continental’s lien amount of $128,897.79,” he wrote.
Because the Justices found the files relevant, they remanded the suit so Kolker could reconsider his ruling under a correct standard.
Jeffrey Kehl and Storrs Downey of Chicago represented Continental.
Overstreet was elected to the Illinois Supreme Court in November.