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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

By Robert J. Winston

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.

First District Appellate Court Assesses Cooperation Clause

October 2015

The First District appellate court recently addressed an insurer's duty to defend or indemnify. In American Access Casualty Company v. Farid Alassouli and Eileen Benson, 2015 IL App. 1st 141413, the Court held that: 1) American Access Casualty Company ("AACC") failed to act diligently to secure its insured's cooperation regarding an investigation of an accident, 2) AACC failed to present evidence that its insured's failure to cooperate was willful, and 3) AACC failed to present evidence that its insured's breach of a cooperation clause in the insurance policy substantially prejudiced AACC.

Background

On May 1, 2011, Farid Alassouli turned in front of Eileen Benson's car when she passed through an intersection. To avoid hitting Alassouli's car, Benson struck a car being driven by another motorist. Alassouli was ticketed for failing to yield to oncoming traffic.

Shortly thereafter, Benson made a claim for damages against Alassouli's AACC insurance policy. The claims adjuster for AACC, Cary Loseau, called Alassouli in order to obtain information regarding the accident. Alassouli initially answered the telephone call, but once Loseau told him he would be recording the statements, Alassouli hung up. Loseau then made another call and left a detailed voice message, advising Alassouli that it was important for him to return the call. Five days later, AACC called Alassouli and left a message with his roommate, again asking that Alassouli return the call. Alassouli did not return the second call. AACC then made two additional calls, leaving messages both times. However, Alassouli never returned the calls. AACC then had a skip trace conducted, but it did not reveal anything regarding Alassouli's whereabouts. AACC also retained a private investigator approximately two years after the accident to attempt to locate Alassouli. The investigator was unable to locate Alassouli or determine his current address.

U.S. Court of Appeals Upholds Findings of Four OSHA Violations

June 2015

By Andrew R. Makauskas

In DuKane Precast, Inc. v. Thomas E. Perez, Secretary of Labor and the Occupational Safety and Health Administration, No. 14-3156 (US Circuit 7th), DuKane appealed a determination by an administrative law judge of a penalty of $70,000.00 for four violations. Three of the violations were characterized as serious and one as willful.

The underlying incident occurred at a plant in Naperville, Illinois in February 2012. A worker, William Ortiz, was inside of a bin, 18 feet in height, that was used for storing sand. Mr. Ortiz was in the bin trying to scrape sand from its inside wall when the sand beneath his feet gave way, causing him to sink and to be engulfed by sand falling into the space created by his fall. He was buried up to his neck in the sand. Coworkers ran to the bin and started to dig him out. They were able to remove the sand pressing on him above his waist but were not able to free him completely. According to the decision, the plant manager was informed of the incident within about 10 minutes of it happening. He investigated the matter and allegedly determined that there was no emergency and left the accident scene, allowing the coworkers to attempt to free Mr. Ortiz. After being unable to free him, and after additional sand pressed on Mr. Ortiz, he asked the coworkers to call 911 for professional assistance. This request was not immediately granted. The plant manager later called 911. The Naperville Fire Department's technical rescue team arrived with specialized equipment and freed Mr. Ortiz. It was estimated he had been trapped in the bin for 1 ½ hours.

Appellate Court Holds Owners Not Responsible for Trip/Fall in Roadway

June 2015

By Molly P. Connors

In a recent case, Caracci v. Patel, 2015 IL App (1st) 133897, the First District Appellate Court upheld summary judgment in favor of the defendant strip mall owners on the plaintiff's premises liability claims. The plaintiff alleged she was injured when she tripped and fell in a pothole while walking to a store in the Grand Plaza strip mall in Franklin, Illinois. The plaintiff parked her car in an area adjacent to the strip mall, and she was in the process of crossing a common roadway when her accident occurred. The land on which she fell was owned by AVG Partners I, LLC ("AVG") and leased to Kmart Corporation ("Kmart"). The northern portion of the roadway was owned by SuperValu, Inc. ("SuperValu"). Defendants Nathu Patel, Ishwar Dhimar, and Amit Patel owned the strip mall.

The defendants had a contract with SuperValu. Pursuant to the contract, the defendants paid 22.5 percent of the maintenance costs for SuperValu's parking lot, and SuperValu allowed strip mall customers to park in the lot. The defendants did not have a contract with AVG, but AVG granted an easement on its part of the roadway for the general public and utilities. The easement was not granted specifically to the defendants. The lease between AVG and Kmart required AVG to maintain all driveways, sidewalks, streets, and parking areas in a safe condition.

  • 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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