April 2011 Case Notes & Comments

“The pen is mightier than the sword, and is considerably
easier to write with.”~ Marty (Martin Alan) Feldman

MONTHLY QUIZ: Section 2-622 of the Code of Civil Procedure requires plaintiffs or their attorneys to obtain an affidavit from a health professional “with the same class of license as defendant prior to filing a medical malpractice lawsuit. Plaintiff’s decedent undergoes foot surgery but dies, allegedly due to complications. Plaintiff’s medical Expert, who originally graduated as a doctor of podiatric medicine and later became a doctor of osteopathy, practices in WI, which allows licensed physicians to engage in podiatric medicine as part of their practices. At the time he authors affidavit, Expert does not have current podiatric license but obtains one shortly before his deposition. Defendants move to dismiss on the ground that Expert is not properly licensed, as required by section 2-622 of the Code of Civil Procedure. Who wins? You be the judge. (Answer below).


CONSTRUCTION LAW - APPLICABILITY OF RESTATEMENT § 414 (“RETAINED CONTROL” EXCEPTION) NARROWED: School District (District) hired Defendant as the “Construction Manager” for construction of new school building. As construction manager, Defendant allegedly drafted construction contracts for District, handled construction bids, and reviewed the trades’ safety programs. Owner (i.e., not Defendant) selected and contracted with the various contractors and sub-contractors. In appealing grant of summary judgment to Defendant, Plaintiff, who was allegedly injured in an onsite incident, argued that under Section 414 of the Restatement (Second) of Torts, a question of fact existed as to the degree of control exerted by Defendant over the jobsite. The general rule is that an employer of an independent contractor is ordinarily not liable for the independent contractor’s acts and/or omissions. Section 414 is an exception to the general rule and provides that “one who entrusts work to an independent contractor, but who retains control of any part of the work” may be subject to liability for harm caused by “his failure to exercise his control with reasonable care.” In affirming the trial court, First District held that since it did not actually select the contractors or subcontractors and had no direct contracts them, Defendant could not have entrusted them with any work. Thus, the Section 414 exception did not apply and Defendant’s summary judgment was affirmed. Liability under Section 343 of the Restatement (Second) of Torts also analyzed and discussed. O’Connell v. Turner Const. Co.,-- N.E.2d--, 2011 WL 1124004 (1st Dist. Mar. 25, 2011)


TRANSPORTATION LAW - DRIVER FOUND AGENT OF LOGISTICS COMPANY DESPITE AGREEMENT TO THE CONTRARY: Defendant- Logistics Company, a federally licensed freight broker providing transportation services, held vicariously liable for multiple deaths and injuries based on agency relationship between the company and the Driver. At the time of accident, Defendant did not own or lease the tractor, was not a licensed motor-carrier and did not employ any drivers. While the carrier agreement contract between Defendant and Motor Carrier provided relationship was “solely that of an independent contract,” the label given by the parties was not dispositive of employment status. In considering control of the work, the Court looked a number of factors, such as special instructions given to Driver, the equipment, timing, scheduling and work requirements imposed by Defendant, as well as other factors, such as method of payment. Held – evidence sufficient to support jury’s $23.77 million verdict. Sperl v. C.H. Robinson Worldwide, Inc.,--N.E.2d--, 2011 WL 1346918 (Mar. 30, 2011)


WORKERS COMPENSATION: Claimant suffered injury to his back and filed a worker’s compensation claim, which included a claim of permanency.  While that claim was pending, claimant suffered another back injury and filed a separate claim, also claiming permanency.  The claims were consolidated for hearing, and the claimant was awarded permanency compensation on both claims.  The appellate court reversed, finding that, where a claimant has sustained two separate and distinct injuries to the same body part, unless some evidence presented at the consolidated hearing permits apportionment of the extent of permanency attributable to each accident, it is proper to consider all of the evidence, which, here, showed no permanency as to the first injury. City of Chicago v. Illinois Workers’ Comp. Comm’n (1st Dist. Apr. 11, 2011).


NOTICE PROVISION - AGREEMENT WITH PRODUCER TO “WAIT AND SEE” CREATES ISSUE OF FACT: In August 2005, Defendant-Employee, driving his personal car, was involved in a collision on the way to visit Employer’s customers. Employee had only $20k in liability coverage. Unbeknownst to him, Employee was also covered under Employer’s Policy with Insurer, which included liability coverage for autos “owned by [Employer’s] employees” while being used for business purposes. Within days of the accident, Employer’s President notified insurance Producer of the accident. According to Employer, President and Producer discussed the collision and jointly agreed to “wait and see” instead of filing a claim with Insurer. Producer denied making such an agreement. In August of 2007, Plaintiff filed suit and in January 2008, notified Employer. In March 2008, Employer notified Insurer of the suit, who in turn, issued a reservation of rights letter stating Employer failed to comply with Policy provision requiring “prompt notice” of any accidents. Court reasoned in reversing grant of summary judgment, (i.e. regardless of whether Producer was Insurer’s agent or an “authorized representative”) that since the evidence as to the “wait and see” agreement was disputed, the Court could not conclude as a matter of law that Employer’s 29-month delay in notice to Insurer was unreasonable. Detailed discussion of broker/agency law in the insurance context also included. First Chicago Ins.Co. v. Molda, --N.E.2d--, 2011 WL 1205480 (1st Dist. Mar. 29, 2011) SEE ALSOWest Am. Ins. Co. v. Yorkville Nat’l Bank, et al., 238 Ill.2d 177, 939 N.E.2d 288 (2010)(Held - Insurer still had duty to defend despite insured’s 27-month delay in written notice


ANSWER TO QUIZ: Defendants win. Section 2–622 requires that the author of the affidavit must hold a current podiatric license when the defendant in the case is a licensed podiatrist, and it is not sufficient for the author to be licensed only as a physician. In this case, Expert was licensed as an osteopathic physician in WI at the time that he authored the affidavit, did not hold a podiatrist's license and therefore, was not a health professional licensed in the same profession, “with the same class of license” as Defendants within the meaning of section 2-622. Christmas v. Hugar, --N.E.2d--, 2011 WL 1366470 (1st Dist. Apr. 5, 2011)