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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.

Brady, Connolly & Masuda, P.C. Wins for General Contractor Before Appellate Court

June 2015

On March 20, 2015, the Appellate Court of Illinois, First District, affirmed summary judgment in favor of general contractor, F.H. Paschen, S.N. Nielsen, Inc., (Paschen) in Kevin E. O'Gorman v. F.H. Paschen, S.N. Nielsen, Inc., et al. 2015 IL App (1st) 133472. Paschen was represented by attorney W. Scott Trench in the trial court and on appeal. Paschen contracted with the City of Chicago to act as a general contractor for the conversion of a former police station into a custodial youth center. The plaintiff, a general foreman of general trades for the City of Chicago, accessed the roof of the building through a roof hatch to inspect a heating and air conditioning unit. The plaintiff stepped on a piece of wood with an embedded nail as he exited the roof hatch. While attempting to remove the piece of wood from his foot, the plaintiff fell through the roof hatch 13 to 15 feet to the floor below and suffered a herniated cervical disc. The plaintiff alleged the wood was construction debris from Paschen's masonry subcontractor, Old Veteran, which was performing work adjacent to the roof hatch. The plaintiff argued Paschen, in its contract with the City of Chicago, was responsible for job site safety and housekeeping. The trial court granted summary judgment in favor of Paschen, holding that Paschen delegated the responsibility for safety and housekeeping to its subcontractor, Old Veteran, based on the language in Paschen's subcontract and, therefore, owed no duty to the plaintiff pursuant to Restatement (Second) of Torts, §414.

Alleged Joint Venturer Subject to Vicarious Liability After Waiving Exclusive Remedy Defense on Appeal

May 2015

By W. Scott Trench

In Hiatt v. Western Plastics, et al., 2014 IL App(2d) 140178, the plaintiff was employed by Western Plastics, Inc. (Western) and sustained injuries when his arms were caught in a machine used to produce plastic sheets. The plaintiff filed suit against Illinois Tool Works, Inc., (ITW), alleging that ITW and Western were engaged in a joint venture and, therefore, ITW was vicariously liable under agency principles for the negligent acts or omissions of Western. ITW and Western entered into a manufacturing agreement, under which Western agreed to manufacture plastic sheets for ITW and to work with Western to achieve improvements in the manufacturing process and in product designs. The manufacturing agreement also included a specific provision stating that Western was an independent contractor and neither Western nor ITW were "the agent of the other for any purpose whatsoever."

The trial court granted summary judgment in favor of ITW finding no joint venture relationship existed between ITW and Western. On appeal, the Illinois Appellate Court for the Second District reversed, finding a question of fact existed as to the existence of a joint venture relationship between the two companies based on ITW's contributions to the manufacturing process, exercise of control over product specifications, and agreement to share any financial gains with Western resulting from cost improvements.

Seventh Circuit Finds No Retaliation or Discrimination

May 2015

By Andrew R. Makauskas

Sklyarsky v. Harvard Maintenance, Inc., 14-2768 (7th Cir. 2015), involved claims brought by a custodian, Yaroslav S. Sklyarsky, a custodian at a Chicago office building. In April of 2010, he began working for Harvard Maintenance when that company was awarded the building's contract for janitorial services. Sklyarsky was disciplined five times between August 2010 and his firing in January 2013. Discipline was administered for the following alleged activities:

  • Insubordination after being assigned extra work on a day the staff was short-handed;
  • Insubordination when he searched for a seniority list in Harvard's office despite being told to stay out;
  • Poor performance for not adequately cleaning desks in the offices;
  • A one-day suspension for inadequate cleaning and for being "loud and disrespectful;"
  • Discussing personal matters on the job.

  • 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
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Phone: 312-425-3131
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