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Legal Recreational Use of Marijuana Is Coming What Employers Should Know
July 2019
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
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
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.
The Contribution Act Allows Contribution between Two Principals Vicariously Liable for the Negligence of a Common Agent
March 2019
By: Courtney Morso Driscoll
The Illinois Supreme Court recently held one principal could seek contribution from another principal, both of whom were held vicariously liable due to the acts of the same agent. In Sperl v. Henry, 2018 IL 123132 (IL), C.H. Robinson Company (“CHR”) and Toad L. Dragonfly Express, Inc. (“Dragonfly”) were both found vicariously liable due to the acts of DeAn Henry. CHR was a logistics company that contracted with licensed carriers to transport goods to its customers, one of which was Jewel Food Stores (“Jewel”). Henry leased a semi-tractor to Dragonfly, a federally licensed motor carrier. Through Dragonfly, Henry agreed to deliver goods for CHR to Jewel.
In the course of her delivery, Henry ran over multiple vehicles, killing plaintiffs, Joseph Sperl and Thomas Sanders, and seriously injuring plaintiff William Taluc. As a result of this accident, suit was filed against Henry, CHR, and Dragonfly for wrongful death, survival, and personal injuries.
Henry admitted negligence and liability. Dragonfly admitted liability and “united” negligence with Henry. CHR denied liability and filed a contribution action against Henry and Dragonfly. At trial, the jury found CHR was vicariously liable for Henry’s action because Henry was an agent of CHR. The jury awarded the plaintiff’s $23,775,000.00, finding CHR, Dragonfly, and Henry were jointly and severely liable for the damages.
Expert Testimony Not Necessary For Use Of Post-Accident Photographs
March 2019
Peach v. McGovern, 2019 IL 123156 (January 2019)
In this case, the Supreme Court of the State of Illinois finally put to rest whether or not expert testimony is required when using photographs of vehicle damage to argue no connection between an accident and claimed injuries. Plaintiff, Kevin Peach, was stopped at a stop sign in his Nissan pickup truck when he was rear-ended by defendant McGovern’s vehicle. Defendant testified she spaced out and let her foot slip off the brake; her car rolled forward and tapped his truck. She testified she never pressed the gas pedal once she had stopped.
Post-accident photographs showed that plaintiff’s back bumper was dented and the defendant’s front end was cracked, however, it was never determined if the accident caused the crack. Both parties testified photographs were accurate representations of the conditions of their vehicles immediately after the accident.
Employee Barred from Untimely Attempt to Intervene in Employer's Subrogation Suit
March 2019
In A&R Janitorial v. Pepper Constr. Co., 2018 IL 123220, the Supreme Court of Illinois was faced with the unique circumstance of an employee attempting to intervene in a subrogation lawsuit brought by her employer after the statute of limitations had expired for the employee to institute her own lawsuit. The Supreme Court of Illinois held that the employee could not intervene in the employer's lawsuit based on the doctrine of res judicata.
In addition to seeking workers' compensation benefits, an employee may file his or her own personal injury action against a third-party tortfeasor in order to recover damages for a work injury. Under Section 5(b) of the Illinois Workers' Compensation Act (the "Act"), the employer is entitled to reimbursement of its workers' compensation benefits out of the proceeds of any settlement or judgment obtained by the employee in that third party suit, less the payment of a 25% attorney's fee and pro rata share of costs. 820 ILCS 305/5(b). In addition, the employer has a right to intervene in the employee's action in order to protect its workers' compensation lien in all court orders entered after hearing and judgment. 820 ILCS 305/5(b). In most instances, the employee will timely file a lawsuit against the third-party and the employer will assert its lien rights by intervening in said action.
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