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Malpractice vs Insurance Broker

Jury Instructions-IL > Insurance > Broker Malpractice – Insurance Coverage > Malpractice vs Insurance Broker

                        Professional malpractice suit against an insurance broker.

            The Estate, Inc./Matousek v.  Hager & Insurance Correlaters, Inc. 06 L 8320

            This was a professional malpractice claim tried in September, 2011against an insurance broker for failure to provide sufficient insurance to cover claim for $190,000 resulting from a daylight  jewelry robbery at mall antique shop. Verdict for broker.

IPI 1.01 – Modified by the court to be read at end of case,  and updated by IPI Committee in 2009 to include old IPI 3.01 language)

            Now that the evidence has concluded, I will further instruct you as to the law and your duties.  The law regarding this case is contained in the instructions I will give to you.  You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

            It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a company or a corporation or  an individual should receive your same fair consideration.

            I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

            You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

            You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

            The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them

            You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

            An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 2.01 – Evidence Deposition

            The testimony of Marc Strich was presented by the reading of his testimony. You should give this testimony the same consideration you would give it had the witness personally appeared in court.

IPI 3.02 Witness Who Has Been Interviewed by Attorney

            An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.

IPI 3.04 Circumstantial Evidence

            A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 15.01 Proximate Cause

When I use the expression “proximate cause,” I mean any cause which, in natural or probable sequence, produced the damages complained of.

IPI 20.01 – ISSUES – Negligence

The plaintiffs claim to have sustained damages, and that the defendants were negligent in one or more of the following respects:

1.         By failing to procure a policy that afforded adequate coverage for the plaintiffs’ jewelry merchandise;

2.         By failing to notice that the insurance policy did not afford adequate coverage; or

3.         By failing to take action to ensure that the policy adequately and Appropriately provided coverage according to the Plaintiffs’

reasonably contemplated request for coverage.

The plaintiffs further claim that one or more of the foregoing was a proximate cause of plaintiffs’ damages.

The defendants deny doing any of the things claimed by the plaintiffs, deny negligence in doing any of the things claimed by the plaintiffs, and deny that any claimed act or omission on the part of the defendants was a proximate cause of the plaintiffs’ claimed damages.


When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which the party has the burden of proof is more probably true than not true.

21.02 Burden of Proof on the Issues— Admitted Negligence—One Plaintiff and One Defendant—No Contributory Negligence

The plaintiffs have the burden of proving each of the following propositions:

First, that the defendants acted or failed to act in one of the ways claimed by the plaintiffs as stated to you in these instructions and that in so acting, or failing to act, the defendants were professionally negligent.

Second, that the plaintiffs incurred damages;

Third, that the professional negligence of the defendants was a proximate cause of the plaintiffs damages.

If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiffs.

On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendants.

IPI 30.01 Measure of Damages/Modified under    Scarsdale v. Korman, 178 Ill. App. 3d 261 (1st – 1988)

If you decide for the plaintiffs on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate the plaintiffs for any of the following damages proved by the evidence to have resulted from the negligence of the defendants.

The amount that the plaintiffs would have been entitled to for the May 14, 2006

theft loss under the insurance policy that the plaintiffs had reasonably contemplated

and requested that the defendants would obtain.

Whether these damages have been proved by the evidence is for you to determine.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for the defendants on the question of liability, you will have no occasion to consider the question of damages.

IPI 50.01 Both Principal and Agent Sued—No Issue as to Agency

The Plaintiffs in this case are:             The Estate, Inc. & Dolores T. Matousek

The Defendants in this case are:         Brett Hager & Insurance Correlaters, Inc.

The defendants are sued as principal and agent. The defendant, Insurance Correlaters, Inc., is  the principal and the defendant, Brett Hager, is its agent. If you find that the defendant, Brett Hager, is liable, then you must find that the defendant, Insurance Correlaters, Inc., is also liable. However, if you find that Brett Hager is not liable, then you must find that Insurance Correlaters, Inc. is not liable.

50.11 A Corporation Acts Through Its Employees

The defendant, Insurance Correlaters, Inc.. is a corporation and can act only through its  officers and employees. Any act or omission of an officer or employee within the scope of his employment is the action or omission of the defendant Insurance Correlaters, Inc.

IPI 60.01 Violation of Statute, Ordinance, or Administrative Regulation [§ 735 ILCS 5/2-2201.  Ordinary care; civil liability]

There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:

An insurance producer shall exercise ordinary care and skill in renewing, procuring, binding, or placing the coverage requested by the insured or proposed insured.

The provisions of this section do not limit or release an insurance producer from liability for negligence concerning the sale, placement, procurement, renewal, binding, cancellation of, or failure to procure any policy of insurance

If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, a party was negligent before and at the time of the occurrence.

105.01 Duty of a Non–Specialist Professional—Professional Negligence

“Professional Negligence” by an insurance producer is the failure to do something that a reasonably careful insurance producer would do, or the doing of something that a reasonably careful insurance producer would not do, under circumstances similar to those shown by the evidence.

The phrase “violation of the standard of care” means the same thing as “professional negligence.”

To determine what the standard of care required in this case, you must rely

upon the opinion testimony from qualified witnesses. You must not attempt to determine this question from any personal knowledge you have.

The law does not say how a reasonably careful insurance producer  would act

under these circumstances. That is for you to decide.


            When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

            Your verdict must be unanimous.

            Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form of verdict and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The Plaintiffs in this case are:             The Estate, Inc. & Dolores T. Matousek

The Defendants in this case are:         Brett Hager & Insurance Correlaters, Inc.

If you find for Plaintiffs and against the Defendants, then you should use Verdict Form A.

If you find for Defendants and against the Plaintiffs, then you should use Verdict Form B.



We, the jury, find for the Plaintiffs and against the Defendants. We assess

damages as follows:

  1. We assess damages based upon the wholesale value

of the loss:                                                             $____________________

  1. We assess damages based upon the retail value

of the loss:                                                             $____________________

[Please pick either paragraph 1 or paragraph 2 above.]

[Signature Lines ]

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We, the jury, find for the Defendants  and against the Plaintiffs.

[Signature Lines ]

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