If two insurance companies get their way, the Illinois State Toll Highway Authority will need to defend itself against a lawsuit brought by a girl whose neck was broken in 2008 while sledding on an embankment in Franklin Park.
Ohio-based Scottsdale Indemnity Co. and Wisconsin-based National Casualty Co. filed a complaint for declaratory judgment May 28 in Chicago's federal court, seeking to be absolved of any obligation to help the highway authority fend off the suit Sabrina Carollo brought against the road agency over her injuries.
The action stems from a premises liability lawsuit Carollo filed in 2009 and amended in August 2012 in Cook County Circuit Court. Carollo, whose age is not listed in the suit, is being represented by Chicago attorney Michael E. Holden of Romanucci & Blandin.
The insurance companies are being represented by Jonathan L. Schwartz of Goldbery Segalla LLP in Chicago.
In the underlying suit, Carollo alleges she and her friends were sledding late at night on Dec. 16, 2008 on an embankment running up from Panorama Drive to Interstate 294, near the junction of I-294 and Mannheim Road in Franklin Park. The children were under the supervision of Carollo’s father, Jack, the suit notes.
Shortly before 1 a.m., Carollo sledded down the hill, stopping when she struck her head on a snow-covered manhole cover on a sewer access pipe jutting above the ground. As a result of the collision, the complaint alleges Carollo suffered multiple permanent injuries in the incident, including a fractured vertebrae in her neck.
The case was filed in 2009 against the State of Illinois, which then tendered the defense to the highway authority, which owned the embankment and was responsible for maintaining and inspecting the slope.
Carollo alleges the highway authority was negligent, asserting that the agency should have known local children used the hill for sledding and taken steps to prevent them from doing so. She also claims it failed to remedy the hazard caused by the sewer access pipe or warn the public of the existence of the potential danger.
She has asked the court to award her at least $200,000 in damages.
Once included in the suit, the highway authority, in turn, sought to pass on the case to the Village of Schiller Park, which holds a permit from the agency for the sewer pipe, and Scottsdale Indemnity and National Casualty, which issued liability insurance policies to Schiller Park.
In their recently-filed complaint, the insurance companies, argue that neither they nor Schiller Park should be obligated to defend the state highway authority against Carollo’s claims.
They contend the “Tollway does not qualify as an ‘insured’” as the permit “does not qualify as an insured contract,” because Schiller Park was not required by the permit to carry insurance for the Tollway, and Carollo didn't sue Schiller Park.
Even though they assert they have no duty to defend or indemnify the state highway authority under their policies, the insurance companies' suit notes that Scottsdale offered “good faith” assistance to the authority, “subject to a reservation of rights.”
As of May 23, the suit states, the highway authority has not notified Scottsdale if it will accept its defense subject to a reservation of rights. No court documents, except for a notice that the summons was served, have been filed since the complaint was submitted.