What Happens in Kane County…Should Not Stay in Cook County

September 2021

By: Robert J. Schwarz

Recently, the Illinois Appellate Court, First District issued an opinion that should prove to be a valuable tool when confronted with a forum shopping plaintiff looking to file suit in a more plaintiff-friendly jurisdiction. In Matthiessen v. Greenwood Motor Lines, Inc., 2021 IL App (1st) 200405-U, the Court established that, despite reports of its death, the doctrine of forum non conveniens is actually alive and well in Illinois.

The doctrine of forum non conveniens is an equitable remedy based on considerations of fundamental fairness and effective judicial administration. The circuit court is given the discretion to decline jurisdiction in cases where another forum with proper jurisdiction and venue would better serve the ends of justice.

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In-Person Jury Trials Resume in Illinois

September 2021

By: Jeffrey F. Clement

Since the start of the Covid-19 pandemic, courts throughout Illinois have enacted a patchwork of procedures for court appearances, hearings and trials. Early on, this resulted in a complete suspension of jury trials. Then, courts moved to remote procedures and/or a hybrid approach where a personal appearance was optional. More recently, many courts throughout Illinois have started in-person appearances and trials. Yet, Cook County lagged with enacting any procedures to specifically resume in-person jury trials.

It appears those days are now behind us. On September 8, 2021, the Circuit Court of Cook County entered a new General Administrative Order (GAO) allowing all court proceedings to be conducted in person, remotely or in a hybrid of the two. Most importantly, the Court is expanding operations in all district and divisions to accommodate in-person jury trials.

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21 More Medicare Tips For 2021

June 2021

In 2020, the Brady, Connolly & Masuda, P.C. Medicare Compliance Department (MCD) provided our top 20 tips and updates for the Medicare Secondary Payer world (https://conta.cc/2T6NjH4). Since then, we have all overcome new obstacles, developed innovative processes, and continued to advance the practice. With 2021 in full swing, the MCD presents 21 more tips and updates for you.

GENERAL INFORMATION:

1. Start. Early! The MCD continues to emphasize early investigation into possible Medicare implications for your claims in order to avoid delay in resolution down the road.
2. With that said…it is never too late. Whether the claimant is still treating, you have settled the claim, or the permanency portion of the claim has been closed for some time, the MCD can always offer recommendations to resolve possible Medicare-related issues throughout your claims.
3. The low-dollar review thresholds for liability, no-fault, and workers’ compensation cases remain $750.00 in 2021.
4. Rated ages are not only useful for future medical analyses, but can also decrease potential exposure for other aspects of claims. Please reach out to us if you need assistance with obtaining a rated age.

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Two Heads Are Better Than One

June 2021

By: Markeya A. Fowler and Carolyn P. Murray, MSCC

Two heads are better than one! We have all heard this old adage and found it to be true more often than not. Brady, Connolly & Masuda, P.C. is proud to share one such case where two practice groups came together to achieve a great result.

One of the hardest to contain and costliest parts of any workers’ compensation case is the exposure for future medical. That task becomes even more arduous when the claimant is a Medicare recipient. Our attorneys, Markeya Fowler (Workers’ Compensation Litigator) and Carolyn Murray (Certified Medicare Consultant) were faced with this task in a work injury claim. Together, they formulated and implemented a strategy which completely mitigated the future medical exposure for the client.

The claimant alleged that he was involved in two accidents occurring a month apart. He claimed an injury to his shoulder on June 11, 2012 while removing baseboards and to his bilateral hands on July 12, 2012 while prying out tile. As the case developed, we were able to identify evidence that called into the question the claimant’s credibility, as well as the alleged mechanism of injury.

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Mechanics Lien Forfeited by Failing to Sue all Necessary Parties

June 2021

By: Jeffrey F. Clement

The Illinois Appellate Court, First District, recently issued an opinion which should remind contractors that the Illinois Mechanics Lien Act (the “Act”) is strictly construed and the lien can be forfeited when the Act is not properly followed.

In CB Construction & Design, LLC v. Atlas Brookview, LLC, 2021 IL App (1st) 200924, contractor CB Construction & Design, LLC (CB), performed renovation work for premises owner, Atlas. CB claimed that it completed its work but was still owed more than $1 million under the contract. CB filed a mechanics lien. Upon receipt of the lien, Atlas served CB with a Section 34 demand to file suit within 30 days. CB filed suit for breach of contract and enforcement of mechanics lien naming Atlas and “other defendants yet to be determined.”

Atlas then filed a motion to dismiss, arguing that CB failed to name all necessary parties to the mechanics lien action. Specifically, Atlas noted that the property lender, TPG, and rent assignee, Wells Fargo, both had recorded security interests in the property. Yet, the complaint failed to include either entity as defendants.

The Court agreed and granted Atlas’ motion to dismiss. The Court held that Section 11 of the Act requires each claimant to make as parties the owner of the premises, the contractor, all persons in the chain of contract between the claimant and the owner, all persons who have asserted or may assert liens against the premises under the Act, and any “other person against whose interest in the premises the claimant can assert a claim.” These Section 11 entities are referred to as “necessary parties.” In this case, CB’s lawsuit requested sale of the property and a declaration that the lien was “senior and superior” to any interest of any other person or entity. Because both TPG and Wells Fargo held a security interest and rents from the property and would be impacted by such relief, the Court determined that CB was asserting a claim against them and both entities were plainly necessary parties.

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Exclusive Remedy Applies – Defendant Had Preexisting Legal Obligation To Pay Workers’ Compensation Benefits

June 2021

By: Andrew R. Makauskas

In Munoz v. Bulley & Andrews, LLC, 2021 IL App (1^st) 200254, Plaintiff was an employee of Bulley & Andrews Concrete Restoration, LLC (“Bulley Concrete”). He sustained a back injury arising out of and in the course of his employment. Workers’ compensation benefits, including medical bills exceeding $76,000.00, were paid by Bulley & Andrews, LLC (“Bulley LLC”), the general contractor for the project. Bulley Concrete was a wholly-owned subsidiary of Bulley LLC.

Plaintiff filed a lawsuit in circuit court against Bulley LLC and other defendants. Bulley LLC moved to dismiss, arguing that it was immune from the lawsuit under the exclusive remedy provisions of the Workers’ Compensation Act (“Act”) (820 ILCS 305/5(a), 11 (West 2018)).

Judge Gillespie agreed, and dismissed Plaintiff’s lawsuit as to Bulley LLC.

Plaintiff appealed, arguing that Bulley Concrete was his employer, not Bulley LLC. The workers’ compensation claim had been made against Bulley Concrete, not Bulley LLC. Plaintiff argued that a parent company is not shielded from a lawsuit filed by an employee of its subsidiary.

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