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Application of the Affirmative Defense of Comparative Negligence in Non-Traditional Scenarios

April 2020

By: Dylan R. Besser

  1. Introduction
  2. Two recent Federal courts interpreted Illinois law regarding the affirmative defense of comparative negligence in unique scenarios outside the typical personal injury lawsuit. The first case involved medical malpractice. Clanton v. United States, 18-3060 (7th Cir. 2019) (“Clanton”). The second case alleged breach of fiduciary duty.  Federal Deposit Insurance Corp. v. Chicago Title Insurance Co., No. 12-CV-05198 (Dec. 3, 2019), (“FDIC”), While the defendants in both cases argued that the plaintiff’s own comparative negligence should act as a defense to the plaintiff’s claims, the courts came to different conclusions.

Illinois Supreme Court Holds Primary Jurisdiction No Longer Grants Circuit Courts Authority to Stay Pending Workers’ Compensation Claims

April 2020

By: W. Scott Trench

The Illinois Supreme Court recently addressed the interplay between circuit courts and the Illinois Workers’ Compensation Commission in the context of an insurance coverage dispute.  In West Bend Mutual Insurance Company v. TRRS Corporation, et al., 2019 IL 124690, West Bend filed a declaratory judgment action in circuit court seeking a determination that it owed the petitioner’s employer no coverage for an underlying workers’ compensation claim.  West Bend argued the employer failed to give timely notice of the workers’ compensation claim in violation of the policy’s notice requirements.

Which Workers’ Compensation Policy Applies  When Two Entities Merge?

April 2020

By: Jeffrey F. Clement

In Ill. Ins. Guar. Fund v. Priority Transp., 2019 IL App (1st) 181454, the Appellate Court of Illinois, First District, was asked to determine a workers’ compensation insurance coverage issue in the instance where two corporate entities entered into a legal merger.  The issue came to a head because the workers’ compensation carrier for the original corporation because insolvent.  Therefore, the question became whether benefits should be provided under the Illinois Insurance Guarantee Fund (Fund) or by the workers’ compensation carrier of the surviving entity in the merger.   

Legal Recreational Use of Marijuana Is Coming What Employers Should Know

July 2019

By: W. Scott Trench

W. Scott Trench

The Cannabis Regulation and Tax Act (the "Act"), signed by Illinois Governor J.B. Pritzker on June 25, 2019, becomes effective on January 1, 2020. The Act legalizes the recreational use of marijuana for adults 21 years or older. What does this mean for employers in Illinois? In short, perhaps not all that much. The Act includes important protections for employers which are summarized below.

Zero Tolerance/Drug Free Workplace Policies

The Act does not prohibit an employer from adopting zero tolerance or drug free workplace policies, including employment policies concerning drug testing. Accordingly, Illinois employers with existing zero tolerance, drug free work place and drug testing policies may continue to enforce these policies when recreational use of marijuana becomes effective on January 1, 2020, as long as these policies are applied in a non-discriminatory manner.

The Exclusive Remedy Provision of The Workers' Compensation Act Must be Considered When Determining Coverage for Additional Insureds

June 2019

By: W. Scott Trench

W. Scott Trench

General contractors in the construction industry typically require subcontractors to procure insurance naming the general contractor as an "additional insured" on the subcontractor's commercial general liability policy. The scope of coverage afforded to the general contractor as an additional insured depends on the policy language, which often times attempts to limit coverage to liability caused by the acts or omissions of the subcontractor. In Illinois, courts will generally compare the allegations in the complaint to the policy language in determining whether a general contractor is covered by the subcontractor's policy of insurance. What if the subcontractor is not named as a defendant in the underlying complaint? Does an insurer have a valid basis to deny coverage because the complaint has no allegations that the general contractor's liability was caused by an act or omission of the subcontractor? The Illinois Court of Appeals (4th District) recently addressed these questions in Core Construction v. Zurich American Insurance, 2019 IL App (4th) 180411.

Core Construction (Core) was a general contractor for the construction of a building and subcontracted with Schindler Elevator Corporation (Schindler) to install escalators at the project. Schindler was required to name Core as an additional insured on its commercial general liability policy issued by Zurich American Insurance Company (Zurich). An employee of Schindler was injured at the project and filed suit against Core.

Another Victory for Snow Removal Contractors

Jordan v. Kroger Co., 2018 IL App (1st) 180582

June 2019

By: William F. Moore

William F. Moore

On December 18, 2018, snow removal contractors in Illinois scored another victory in their never ending battle against slip-and-fall claims. The First District of Illinois Appellate Court affirmed summary judgment in favor a snow removal contractor finding that business invitees are not third-party beneficiaries of snow and ice removal contracts.

In Jordan v. Kroger Co., 2018 IL App (1st) 180582, the Plaintiff slipped and fell on a formation of black ice outside of a grocery store. Without any evidence to establish that the black ice was an unnatural accumulation caused or created by the landowner or snow removal contractor, the Plaintiff turned to the contract between the landowner and a local snow removal contractor in an attempt to create a question of fact and survive summary judgment. Relying on Section 324A of the Restatement (Second) of Torts, the Plaintiff argued that both the landowner and the snow removal contractor voluntarily undertook a duty to remove both natural and unnatural accumulations of snow and ice on the property and, therefore, they both may be held liable in tort to third parties for negligently failing to fulfill their assumed duties and allowing black ice to form in the parking lot.

Relying on Wells v. Great Atlantic & Pacific Tea Co., 171 Ill.App.3d 1012 (1st Dist 1988), where the injured party was similarly unable to present any evidence that the ice she slipped on was an unnatural accumulation, but argued nonetheless that the snow removal contractor could still be held liable based on its failure to completely remove all snow from the premises as required under its contract with the landowner, the Court restated its long held position that merely entering into a snow removal contract does not create a duty on the part of the contracting parties to protect third parties from natural accumulations of snow and ice where the third party does not actually rely on the contract.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
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St. Louis, MO 63102
Phone: 314-300-0527
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