General Contractor Owes Duty of Care Despite Lack of Retained Control

January 2023

Matthew K. Abrams

In Ellis v. ICC Grp., Inc., 2022 IL App (1st) 211581-U, the First District Appellate Court addressed a general contractor’s duties to an employee of a subcontractor who sustaining a spinal injury at a job site.

The Court overturned the lower court’s granting of summary judgment on behalf of a general contractor when it ruled that, under Section 343 relating to “premises liability,” the contractor owed a duty of care to the plaintiff. Of note, the Appellate Court also affirmed that no duty of care was owed under Section 414 (“retained control”) as there was no evidence the contractor retained control of the means and methods of the subcontractor’s work.

The Storm that Never Arrived – An Update on Civil Litigation and COVID-19

January 2023

Robert J. Schwarz

On January 30, 2019, only four short years ago, viral videos of pots of boiling water being tossed into the air and freezing instantly were all the rage as temperatures hit record lows and the “polar vortex” brought life to a halt in northern Illinois. Less than one year later, the COVID-19 virus emerged and brought the entire world to a standstill. The massive impact of the ensuing global pandemic on our society will undoubtedly be felt and debated for many years to come.

As we continue to emerge into this new, post-pandemic world, the courts have begun grappling in earnest with sporadic litigation issues brought about by the ubiquitous virus. Workplace COVID-19 lawsuits include not only employees or contractors alleging they contracted the virus while working at their job site, but also, on rare occasions, so-called “take home” cases. “Take home” COVID-19 cases allege they were infected by a household member that contracted the virus at work.

Employer’s Liability for an Employee’s Auto Accident

June 2022

Emma L. Knowles

Where vicarious liability for its employee’s conduct is admitted by an employer, can that employer also be held directly liable for its own negligence in a separate cause of action, even if its employee’s conduct is not negligent? According to the recently decided Illinois Supreme Court case, McQueen v. Green, 2022 IL 126666, the answer is yes, if there are allegations against the employer which are not rooted in the employee’s conduct.

At its heart, a claim brought under the theory of respondeat superior is a derivative claim, meaning that an employer’s liability flows, or derives, from the conduct of its employee. But what happens when an employer’s conduct is allegedly negligent in a manner that is completely separate from its employee’s conduct? This opinion leaves no doubt that in certain circumstances, Illinois employers will be exposed to additional liability for their own conduct.

Prepping for Winter

June 2022

Catherine L. Carlson

While basking in the summer sunshine, it’s the perfect time to relax by the pool and contemplate all the frozen fun of winter. The Illinois Appellate Court in the Third District recently issued an opinion about the treats that Jack Frost leaves behind.

In the matter of Gore v. Pilot Travel Centers, LLC, the Appellate court affirmed the summary judgment in favor of the defendant premises owner on the basis that plaintiff failed to provide any evidence that defendant’s ice removal efforts created an unnatural accumulation of ice on the sidewalk where he fell. In this case, Plaintiff Gore fell on the sidewalk at a gas station owned by the Defendant, Pilot Travel Centers. The plaintiff introduced evidence that there had been wintery precipitation a few days prior to the incident. On the date of the incident, he alleged that the gas station failed to remove snow and ice from the sidewalk where the plaintiff fell in the afternoon on December 19, 2016, when the temperatures were a chilly 15°F.

Illinois Prejudgment Interest Act Ruled Unconstitutional by Cook County Judge

June 2022

Jeffrey F. Clement

Judge Marcia Maras of the Circuit Court of Cook Country recently issued a ruling finding the Illinois prejudgment interest act to be unconstitutional. The ruling is welcome for multiple reasons, including the impending June 30, 2022 deadline in many cases for defendants to make a settlement offer to potentially avoid the imposition of prejudgment interest.

As background, effective July 1, 2021, the Illinois legislature amended 735 ILCS 5/2-1303 to provide for the awarding of prejudgment interest at a rate of 6% per annum in all actions to recover damages for personal injury or wrongful death resulting from or occasioned by negligence, willful and wanton misconduct, intentional conduct or strict liability. The only way to avoid interest was to make a written settlement offer which ends up being equal to or greater than the ultimate judgment. The written settlement offer must be made within 12 months of July 1, 2021 or the filing of the action, whichever is later.

Update to the Workers’ Compensation Medicare Set-Aside Reference Guide

February 2022

By: Carolyn P. Murray & Surbhi Saraswat Goyal

Key Takeaways:

The Centers for Medicare and Medicaid Services (CMS) has updated its Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide to directly address the insurance industry's frequent use of Evidence Based MSA and Non-Submit MSA.
There is an inherent contradiction in CMS maintaining that the MSA process is voluntary and yet strongly advocating for CMS approval of MSAs.
CMS’s implementation of this new change remains to be seen.

On January 10, 2022, CMS issued an updated WCMSA Reference Guide, Version 3.5. The updated WCMSA Reference Guide only included one change; however, it is causing a ripple throughout the Medicare industry.

Section 4.3: The Use of Non-CMS-Approved Products to Address Future Medical Care now states as follows: