April 2018 Case Notes & Comments

"Every company, organization or group with the ability to inspire starts with a person or small group of people who were inspired to do something bigger than themselves." ~ Simon Sinek.

MONTHLY QUIZ: After working as a part-time nurse for Employer for about ten years, Employee files an application for adjustment of claim pursuant to the Workers' Compensation Act, seeking benefits for a shoulder injury that Employee claims she sustained in the course and scope of her employment. Specifically, Employee claims that when adjusting an obese patient, she injured her shoulder and experienced a sharp stabbing pain. At arbitration, however, Employee testifies that she sustained a fall at home about a month prior. Employee explains that she fell straight on her bottom and that the one-stair fall only caused soreness in her shoulder, but no acute pain. The medical testimony is conflicting. Initially, Employee's treating physician offers an opinion that causally relates claimant's right shoulder and arm condition to her work for Employer. Later, Employee's treating physician significantly qualifies his opinion in a letter and during his deposition. Ultimately, both Employer and Employee's medical experts opine that the history and mechanism of injury was not a reasonable or likely cause of the right shoulder condition. Is Employee's claim a compensable, work-related injury? You be the judge. (Answer below).

MARITIME LAW: JURY AWARDS EMPLOYEE $70.6 MILLION IN DAMAGES ARISING FROM A SEXUAL ASSAULT: A Florida jury recently awarded the Plaintiff, a marine stewardess employed by Island Girl Ltd. working on the luxury yacht Endless Summer, $70.6M in damages arising from a physical assault and rape by an intoxicated fellow crew member who returned to the yacht drunk and forced his way into her cabin. Plaintiff convinced the jury that her employer was negligent in its failures to conduct adequate background checks and to protect employees. Plaintiff further contended her employer knew that the communication system on the boat was inoperable, which prevented her from calling for help. The jury awarded the Plaintiff-employee $70,000 for past lost wages, $4.2 million in future lost wages, $290,500 for past and future medical expenses, $6 million for past pain and suffering and $60 million for future pain and suffering. EDITOR'S NOTE: The Baca case underscores the specific importance of monitoring the medical / psychological care of an injured crew member and more generally, preparing witnesses. Under maritime law, a plaintiff may seek punitive damages for failure to pay maintenance and cure. Here, the jury was reportedly upset by Employer-Boat Owner's perceived lack of sympathy for the psychological trauma suffered by Plaintiff. Although the jury did not actually award punitive damages, it is clear by the amounts that the verdict was intended to punish the Employer-Boat Owner with respect to his cavalier attitude toward Plaintiff's rape. Baca v. Island Girl, Case No. 16-003324 (Fla. 17th Cir. Ct. Jan. 29, 2017).

LEF OBTAINS DECISION AWARDING NEARLY $1MILLION FOR CLIENT UNDER CARMACK AMENDMENT FOR MINING EQUIPMENT DAMAGED IN TRANSIT: Congratulations to Steven B. Belgrade, who recently won summary judgment on behalf of the client, an Insurer-Subrogee, arising from damages caused when a railcar full of sheet metal collided with a railcar loaded with Manufacturer's mining equipment. Pursuant to its policy, Insurer paid Manufacturer $1,686,194.67 for the damaged mining equipment, which was subsequently salvaged for $763,250.00, thereby reducing Insurer's total damages to $922,944.67. Insurer filed suit against two Railroads under the Carmack Amendment, 49 U.S.C. §14706(a)(1)-(2) ("Carmack"). Under Carmack, Insurer was required to prove delivery of the goods to the shipper in an undamaged condition, arrival of the goods in damaged condition and damages. When these are proven, the burden then shifts to the carrier to demonstrate that it was free of negligence and that the damages were due to an act of God, public enemy, an act of the shipper, public authority, or the nature of the goods themselves. When these elements were proved, Railroads argued that they had limited their liability to $25,000.00 through a private rate agreement between Railroads and Manufacturer. Mr. Belgrade successfully demonstrated to the United States District Court that the parties had let the rate agreement lapse and that Railroads had failed to follow the necessary steps to effectively limit their liability. Starr Indemnity & Liability Co. v. BNSF Railway Co., et al., Case No. 1:15-cv-1068 (C.D.Il, Mar. 14, 2018).

INSURANCE COVERAGE - ANTI-STACKING PROVISION DINSTINGUISHED FROM OTHER INSURANCE CLAUSE: Plaintiff-Mother, whose Daughter was killed by a hit-and-run Driver, brought suit against Insurer to recover uninsured/underinsured ("UM/UIM") motorist coverage under two separate auto policies issued by Insurer for two separate automobiles. Both policies contained the identical "Other Vehicle Insurance" provision, which stated that "[i]f this policy and any other vehicle insurance policy issued to you or a relative by one of our companies apply to the same accident, the maximum limit of our liability under all the policies will not exceed the highest applicable limit of liability under any one policy," as well as an anti-stacking provision that was "nearly identical" to a provision the Illinois Supreme Court previously found to be enforceable and unambiguous. The trial court, however, found that the policies' anti-stacking provision was ambiguous when read together with the "Other Vehicle Insurance" clause and ordered Insurer to pay policy limits under both policies. Though it initially affirmed the trial court order, the appellate court subsequently reversed and remanded on rehearing, with direction to enter summary judgment in Insurer's favor. The Appellate Court held that the anti-stacking provision in the policies was unambiguous on the bases that 1) the "Other Insurance" clause did not contemplate other insurance provided by the same insurance company because it referenced apportionment of loss; and 2) reading the "Other Insurance" clause to include other insurance provided by the same insurance company would render the anti-stacking provision meaningless. In so ruling, the Appellate Court confirmed that anti-stacking provisions do not violate Illinois' "premium rule" where a separate premium has been paid under a separate policy. Busch v. Country Financial Insurance Company, 2018 IL App (5th) 140621 (Feb. 22, 2018) (J. Goldenhersh dissenting).

ANSWER TO QUIZ: Employer won, by contending that Employee failed to prove that she sustained an accident arising out of and in the course of her employment and that Employee's current condition of ill-being was casually related to her Employment - but it was close. The Arbitrator awarded benefits and the Commission reversed. The trial court reinstated the award but the appellate court reversed, supporting the Commission's denial of benefits. According to the appellate court, the record contained disputed facts and the Commission resolved them in favor of Employer. The disputed facts included a finding that Claimant was not credible and a finding that medical experts of both parties mainly agreed that given the history, the mechanism of injury was not a reasonable or likely cause of the right shoulder condition . As such, there was sufficient support for Commission's decision and the Commission's decision was not against the manifest weight of the evidence. Rechenberg v. Illinois Workers' Compensation Comm'n, 2018 IL App (2d) 170263WC (Mar. 9, 2018).


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