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Country Mutual Insurance Company V. Charles Dahms, 12 CH 43692

September 2016

The Appellate Court for the First District in the above captioned matter held Country Mutual Insurance Company ("Country Mutual") had a duty to defend its insured, Charles Dahms, ("Dahms") in a civil suit filed by Terry Enadeghe, ("Enadeghe") wherein Enadeghe pleaded causes of action for negligence and battery stemming from an altercation which occurred on October 10, 2011. Enadeghe pulled his taxi up to a crosswalk near Dahms. Dahms' briefcase made contact with the windshield of the taxi. Enadeghe left his taxi and pursued Dahms on foot, a scuffle ensued, and Dahms struck Enadeghe with his briefcase.

The trial court found Country Mutual had a duty to defend Dahms because Dahms had filed an affirmative defense of self defense in the civil case. The trial court found the duty to defend arose the day Dahms filed his answer and affirmative defenses.

The Appellate Court held Country Mutual owed a duty to defend Dahms in the tort action and that duty arose the moment the tort lawsuit was filed and not on the date Dahms filed his affirmative defenses. The Appellate Court further held Country Mutual's duty to defend terminated on the date Dahms was convicted of aggravated battery as his conduct fit within the policy's criminal acts exclusion.

Forty-One Years After Exposure, Illinois Supreme Court Finds Mesothelioma Claim Is Barred By The Exclusive Remedy Provision

March 2016

By Molly P. Connors

In a recent case, Folta v. Ferro Engineering, 2015 IL 118070, the Illinois Supreme Court held that an employee's lawsuit against his employer was barred by the exclusive remedy provisions of the Workers' Compensation Act and the Workers' Occupational Diseases Act, even when he was diagnosed with an occupational disease after the statute of repose in the Workers' Occupational Diseases Act had run. The plaintiff alleged he was exposed to products containing asbestos during the four-year period he worked for the defendant, from 1966 to 1970. Forty-one years later, the plaintiff was diagnosed with mesothelioma; one month later, he filed a complaint against Ferro Engineering ("Ferro") and 14 other defendants, seeking damages stemming from the asbestos exposure he experienced while working at Ferro.

Ferro filed a motion to dismiss the plaintiff's complaint, arguing that his claims were barred by the exclusive remedy provisions of the Workers' Compensation Act and the Workers' Occupational Diseases Act. In response, the plaintiff asserted that because his symptoms did not manifest until after the 25-year limitation period in the Workers' Occupational Diseases Act had expired, his claims were not compensable under the acts. Therefore, he concluded, the acts' exclusive remedy provisions did not apply. The circuit court granted Ferro's motion to dismiss. The appellate court reversed, finding that the exclusive remedy provisions do not apply when the employee's claim is not compensable, and the plaintiff's claim was not compensable because he did not have an opportunity to pursue his claim before the expiration of the statute of repose.

Appellate Court Affirms Summary Judgment In Favor Of City Of Chicago And Contractors In Construction Negligence Suit

March 2016

By W. Scott Trench

A recent decision from the First District Appellate Court, Cabrera v. ESI Consultants, Ltd., 2015 IL App (1st) 140933, addresses several noteworthy issues which can arise in construction negligence lawsuits. The decision discusses a municipality's tort immunity, contractor liability under Restatement (Second) of Torts §414 and the proper scope of expert opinions. The Appellate Court affirmed summary judgment on behalf of all defendants.

The plaintiff was injured while working at a construction project on the Washington Street Bridge in the City of Chicago. His employer, Valdivia Contractors, was hired by the City of Chicago to perform certain work including sandblasting and painting the bridge. The plaintiff alleged the City of Chicago had a presence on the project, controlled the work, and had authority over means and methods and jobsite safety. A civil engineer for the City of Chicago, testified his duties included construction management, supervising a construction consultant and the various contractors.

The trial court granted summary judgment to the City of Chicago holding it was entitled to absolute immunity under Section 2-201 of the Illinois Tort Immunity Act which grants immunity to municipalities against liability for discretionary decisions.

First District Allows Waiver Of Workers' Compensation Lien And Denies Petition For Attorneys' Fees

March 2016

By Andrew R. Makauskas

In Cozzone v. GARDA GL Great Lakes, Inc. et al., 2016 IL App (1st) 151479, the First District presided over a very interesting case. The matter involved a settlement between the plaintiff and direct defendants and an assignment of the defendants' contribution claims against the employer.

The decedent, Anthony Cozzone, was a roofer employed by Fellows Roofing, Ltd. ("Fellows"). He tripped and fell through a skylight on a commercial rooftop in Broadview, Illinois and died the same day. He is survived by two sons. He was not married to the children's mother. The Estate filed a wrongful death and survival action against the owner and tenant of the building. The mother filed a workers' compensation claim against the employer. The Illinois Workers' Compensation Commission found the case compensable and ordered weekly benefits in the amount of $466.13 to be paid for the benefit of the sons until they reach adulthood. Fellows asserted a workers' compensation lien against the corresponding civil litigation case. The estate entered into settlement negotiations with the tenant and building owner in the civil case. A settlement was reached and as part of the settlement, the defendants assigned their contribution claims against Fellows to the estate.

The Estate proceeded to trial against Fellows and obtained a verdict with Fellows 100% at fault. After the verdict, Fellows waived the workers' compensation lien and moved to dismiss the contribution claims based upon the waiver. The Estate objected and asked that Fellows pay the full amount from its contribution liability. The Trial Court denied the Motion and granted the dismissal, finding that Fellows could waive its lien even after the unfavorable jury verdict. The Court entered judgment against Fellows for only $35,892.01, representing the difference between what had been paid in the workers' compensation case at the time of the settlement in the civil case and the amount of additional workers' compensation liability Fellows had incurred up to the end of the civil trial.

First District Addresses Admissibility of Photograph and Prior Injuries

October 2015

In Kayman v. Rasheed, 2015 IL App (1st) 132631, the First District Appellate Court recently upheld a decision of Circuit Court Judge Lynn Egan. The case involved a claim for lost income, admissibility of a photograph of defendant's vehicle and whether prior complaints of back pain could be raised at trial for impeachment purposes.

The case involved a rear-end accident. Janice Rasheed's vehicle struck the rear of Marilyn Kayman's vehicle. The defendant admitted negligence, but disputed the extent to which the 2009 collision caused plaintiff's alleged injuries.

The first issue presented to the appellate court was whether the plaintiff could make a claim for lost wages related to time spent attending physical therapy sessions, even though plaintiff lost no salary. Plaintiff alleged she had "lost the time" spent attending the physical therapy sessions. The trial court found there was no compensable loss of income or benefits and granted the motion. The appellate court held it is well settled there can be no recovery of speculative or unproven damages. They ruled, as plaintiff did not identify any cognizable economic damages arising from the physical therapy sessions, the trial court did not abuse its discretion in precluding the wage loss claim.

Corporate Parent Not Entitled to Exclusive Remedy Protection

October 2015

By W. Scott Trench

In Burge v. Exelon Generation Company, LLC, 2015 IL App (2d) 141090, the plaintiff filed suit against Exelon Generation Company, LLC, (Exelon) alleging personal injuries sustained as a result of an unsafe condition while working at Exelon's facility. The plaintiff was employed by Exelon Nuclear Security, LLC (ENS). The plaintiff filed and settled a workers' compensation claim against ENS. ENS was a Delaware limited liability company, under which Exelon was the company's sole member.

The trial court dismissed plaintiff's complaint against Exelon, holding that his claims were barred by the exclusive remedy provision of the Illinois Workers' Compensation Act, 820 ILCS 305/1, et seq. In support of the motion, Exelon submitted an affidavit from the workers' compensation claims manager of the benefits department for "the entire Exelon-related system of workers' compensation benefits." According to the affidavit, Exelon used a third-party administrator which paid benefits to the plaintiff. In turn, Exelon funded the ENS account from which those benefits were paid.

  • 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
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Normal, IL 61761
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St. Louis, MO 63102
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