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Second District Appellate Court Overturns Trial Court’s de minimis Finding

June 2018

By Andrew R. Makauskas

Bartkowiak v. City of Aurora, 2018 Ill. App. (2d) 170406, arose out of a fall at the parking lot of the Route 59 train station in Naperville. The plaintiff caught her toe in a depression in a pavement seam in a driving aisle as she crossed the aisle to get to her car. She alleged the defendant failed to maintain the asphalt surface of the parking lot in a reasonably safe condition. She also contended the defendant failed to provide adequate artificial lighting in the parking lot so that pedestrians could see potential defects that existed therein (the latter allegation was eventually dropped, as experts from both sides agreed that lighting was not an issue).

ILLINOIS APPELLATE COURT AFFIRMS TRANSFER BASED ON FORUM NON CONVENIENS DESPITE DEFENDANTS’ BUSINESS PRESENCE IN COOK COUNTY

April 2018

By Jeffrey F. Clement

In Schuster v. Richards, et al., 2018 IL App (1st) 171558, the First District Appellate Court affirmed the trial court’s ruling transferring the case from Cook County to Kane County under the doctrine of forum non conveniens. In Illinois, the doctrine of forum non conveniens allows a trial court, which otherwise has proper jurisdiction over a cause, to transfer it to another forum if the other forum can better serve the convenience of the parties and the ends of justice.

In the Schuster case, the plaintiff alleged, while a pedestrian, she was struck by defendant Richards’ automobile while Richards was driving in the course of her employment. Plaintiff sued Richards, Richards’ employer and the lessor of the automobile. The employer and lessor (hereinafter the “corporate defendants”) were sued solely under a theory of respondeat superior/vicarious liability. In other words, the plaintiff alleged Richards was an agent of the corporate defendants and that, as principal, they were responsible for Richards’ negligent acts and omissions. There were no allegations of direct negligence against the corporate defendants.

FIRST DISTRICT DENIES COVERAGE TO AN ADDITIONAL INSURED DUE TO UNFORGIVING EMPLOYEE EXCLUSION

April 2018

By Courtney Morso Driscoll

In Vivify Construction, LLC v. Nautilus Insurance Company, 2018 IL App (1st) 170192, the First District Appellate Court found an employee exclusion within the subcontractor’s policy barred coverage to the general contractor for a personal injury lawsuit even though the general contractor was an additional insured under that policy.

In Vivify, a construction worker, Pablo Vieyra, was injured when he fell from a second story scaffold. Vierya was employed by Victoria Metal Processor (“Victoria”), and the general contractor was Vivify Construction, LLC (“Vivify”). Vieyra filed a lawsuit against Vivify for failing to properly supervise the work site. Vivify then filed a third-party complaint against Victoria, claiming Victoria’s negligence led to Vieyra’s injury.

ANGELA ANTONICELLI, Appellee, v. DANIEL JUAN RODRIGUEZ et al. (Karl Browder et al., Appellants), 2018 IL 121943 (2018)

April 2018

By Robert J. Winston

On November 2, 2013, Angela Antonicelli, was a passenger in a vehicle traveling eastbound on I-88 near Naperville. Defendant Karl Browder was operating a semi-tractor and trailer on behalf of Chicago Tube and Iron Company and Trillium Staffing, d/b/a Trillium Drivers Solutions (hereinafter the Browder defendants), traveling eastbound behind Antonicelli's vehicle.

Defendant Daniel Rodriguez, under the influence of cocaine, was traveling westbound and made an improper U-turn through the median on I-88 and collided with Antonicelli's vehicle. Browder was unable to stop his semi and slammed into the passenger side door of Antonicelli's vehicle. Antonicelli suffered severe permanent injuries.

Impact of the Insured's Contractual Waiver of Subrogation on its Insurance Carrier's Workers' Compensation Lien

March 2017

By Jeffrey F. Clement

We have recently seen an increase in contractual provisions which seek to limit subrogation rights for losses covered by workers' compensation insurance. Most often, these provisions are contained in construction subcontract agreements between a general contractor and subcontractor. A typical provision might require the subcontractor to waive subrogation claims against the general contractor for losses covered by the subcontractor's workers' compensation insurance. The contract may further require the subcontractor to provide a waiver of subrogation endorsement in favor of the general contractor which waives subrogation rights against the general contractor regarding workers' compensation.

Let's assume an employee of the subcontractor is injured on a construction project giving rise to the payment of workers' compensation benefits. Let's further assume the employee files a third-party civil lawsuit against the general contractor on the project for his or her injuries. Ordinarily, pursuant to Section 5(b) of the Illinois Workers' Compensation Act, the subcontractor's workers' compensation carrier has a statutory lien on plaintiff's recovery against the general contractor in an amount of 75% of its workers' compensation payments, less pro rata share of expenses. If the employee does not file a lawsuit, the Act also gives the subcontractor the right to file a direct subrogation lawsuit against the negligent third-party (here, the general contractor) for the employee's injuries. However, does the aforementioned waiver of subrogation provision have any impact on the ability of its workers' compensation carrier to enforce its statutory lien or file a subrogation lawsuit?

Laid-Off Carpenter Fails to Establish Discharge in Retaliation for Workers' Compensation Claim

March 2017

By W. Scott Trench

In Illinois, employers should tread carefully when considering whether to terminate an employee who has exercised his or her rights under the Illinois Workers' Compensation Act. Illinois recognizes a cause of action for retaliatory discharge in which a successful plaintiff may recover not only actual damages but punitive damages as well. An employer with a legitimate business reason to terminate an employee who has claimed or received workers' compensation benefits often faces a difficult decision. Retaliatory discharge actions typically boil down to one issue: the employer's motive for discharging the employee. When the employer establishes a valid nonpretextual reason for termination, the employer can mount a successful defense to retaliatory discharge claims. A recent decision from the Illinois Appellate Court First District,Vulpitta v. Walsh Construction Co., 2016 IL App (1st) 152203, provides a good example of one employer's successful defense.

In Vulpitta, the court affirmed summary judgment in favor of Walsh Construction Company (Walsh) finding the plaintiff failed to establish he was terminated in retaliation for seeking workers' compensation benefits. The plaintiff was a carpenter for Walsh who suffered a work-related injury in March of 2008 for which he filed a workers' compensation claim. The plaintiff had a second work-related injury in August of 2011, but was released to return to work with no restrictions the following day and no workers' compensation claim was filed at that time. In December of 2011, the plaintiff rejected an offer to settle his workers' compensation claim for the March 2008 accident. A Walsh supervisor testified the plaintiff was laid off on May 24, 2012, due to lack of work.

  • 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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