Employer’s Liability for an Employee’s Auto Accident

June 2022

Emma L. Knowles

Where vicarious liability for its employee’s conduct is admitted by an employer, can that employer also be held directly liable for its own negligence in a separate cause of action, even if its employee’s conduct is not negligent? According to the recently decided Illinois Supreme Court case, McQueen v. Green, 2022 IL 126666, the answer is yes, if there are allegations against the employer which are not rooted in the employee’s conduct.

At its heart, a claim brought under the theory of respondeat superior is a derivative claim, meaning that an employer’s liability flows, or derives, from the conduct of its employee. But what happens when an employer’s conduct is allegedly negligent in a manner that is completely separate from its employee’s conduct? This opinion leaves no doubt that in certain circumstances, Illinois employers will be exposed to additional liability for their own conduct.

Prepping for Winter

June 2022

Catherine L. Carlson

While basking in the summer sunshine, it’s the perfect time to relax by the pool and contemplate all the frozen fun of winter. The Illinois Appellate Court in the Third District recently issued an opinion about the treats that Jack Frost leaves behind.

In the matter of Gore v. Pilot Travel Centers, LLC, the Appellate court affirmed the summary judgment in favor of the defendant premises owner on the basis that plaintiff failed to provide any evidence that defendant’s ice removal efforts created an unnatural accumulation of ice on the sidewalk where he fell. In this case, Plaintiff Gore fell on the sidewalk at a gas station owned by the Defendant, Pilot Travel Centers. The plaintiff introduced evidence that there had been wintery precipitation a few days prior to the incident. On the date of the incident, he alleged that the gas station failed to remove snow and ice from the sidewalk where the plaintiff fell in the afternoon on December 19, 2016, when the temperatures were a chilly 15°F.

Illinois Prejudgment Interest Act Ruled Unconstitutional by Cook County Judge

June 2022

Jeffrey F. Clement

Judge Marcia Maras of the Circuit Court of Cook Country recently issued a ruling finding the Illinois prejudgment interest act to be unconstitutional. The ruling is welcome for multiple reasons, including the impending June 30, 2022 deadline in many cases for defendants to make a settlement offer to potentially avoid the imposition of prejudgment interest.

As background, effective July 1, 2021, the Illinois legislature amended 735 ILCS 5/2-1303 to provide for the awarding of prejudgment interest at a rate of 6% per annum in all actions to recover damages for personal injury or wrongful death resulting from or occasioned by negligence, willful and wanton misconduct, intentional conduct or strict liability. The only way to avoid interest was to make a written settlement offer which ends up being equal to or greater than the ultimate judgment. The written settlement offer must be made within 12 months of July 1, 2021 or the filing of the action, whichever is later.

Update to the Workers’ Compensation Medicare Set-Aside Reference Guide

February 2022

By: Carolyn P. Murray & Surbhi Saraswat Goyal

Key Takeaways:

The Centers for Medicare and Medicaid Services (CMS) has updated its Workers’ Compensation Medicare Set-Aside (WCMSA) Reference Guide to directly address the insurance industry's frequent use of Evidence Based MSA and Non-Submit MSA.
There is an inherent contradiction in CMS maintaining that the MSA process is voluntary and yet strongly advocating for CMS approval of MSAs.
CMS’s implementation of this new change remains to be seen.

On January 10, 2022, CMS issued an updated WCMSA Reference Guide, Version 3.5. The updated WCMSA Reference Guide only included one change; however, it is causing a ripple throughout the Medicare industry.

Section 4.3: The Use of Non-CMS-Approved Products to Address Future Medical Care now states as follows:

Average Weekly Wage: Are Overtime Hours Really Mandatory Or Consistent?

November 2021

By: Markeya A. Fowler

Properly calculating average weekly wage is essential to any claim and can often pose a challenge based on the types of compensation received by an employee. In a year, an employee often earns regular wages, overtime wages, bonuses and additional earnings for working holidays. An issue often in dispute between parties that can significantly affect the average weekly wage calculation is whether overtime hours worked are mandatory, or, if not mandatory, consistently worked?

It is well established under case law and the Illinois Workers’ Compensation Act that average weekly wage is calculated generally to exclude overtime and bonuses. Section 10 of the Illinois Workers’ Compensation Act states that:

“Compensation shall be computed on the basis of the average weekly wage which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee's last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52.”

So what exactly does this mean? Since the enactment of the current version of Section 10, the Appellate Court has interpreted the statute to determine the legislature’s intentions and what should be classified as overtime.

Collateral Estoppel Applied in Case Involving Workers’ Compensation Settlement

Armstead v. Natl’l Freight, Inc., 2020 IL App (3d) 170777

Dylan R. Besser

I. Introduction

Question 1 – If, in the underlying workers’ compensation claim, a claimant only establishes injury to his knee, can this claimant then, in a subsequent civil lawsuit, claim injuries above and beyond what was established in said workers’ compensation claim? Based on Armstead v. Nat’l Freight, Inc., 2020 IL App (3d) 17077, the answer is no.

Question 2 – What is the proper doctrine for moving for summary judgment on a plaintiff’s tort claim in a situation like the above? Would Plaintiff’s tort claim be barred under the doctrines of (1) collateral estoppel, (2) res judicata, or (3) judicial admission? The appellate court ruled Plaintiff’s claim was barred under collateral estoppel.