August 2011 Case Notes & Comments

“Education is not preparation for life; education is life itself.” ~ John Dewey

MONTHLY QUIZ: Sherriff’s Deputy-Claimant is assigned to the northwest patrol area of the County. During his shift, Deputy drives three miles into the neighboring county on purely personal errand. In violation of department rules and regulations, Deputy fails to notify Dispatch that he is out of the County or request permission to leave his patrol area. While on his errand, Deputy receives a call from Dispatch to assist an officer on a non-emergency call. Deputy immediately responds but is involved in vehicular accident just over a mile from the County line. Deputy is injured and claims workers’ compensation (WC) benefits. County argues that Deputy was not acting in the course and scope of his employment. An arbitrator awards benefits. The WC Commission reverses. A trial court reinstates benefits. Who is right? Was Deputy acting in the course and scope of his employment? Is Deputy entitled to benefits even if he violates work rules? You be the judge. (Answer below).

LEF WINS INSURANCE APPEAL: In a case handled by Patti Deuel, appellate court affirmed ruling that claimant's right to recovery was limited to the insurance covering the truck involved in the accident. The insured had separate policies covering her truck and car. The court ruled that the “two or more cars insured” provision and the regular use exclusion barred coverage under the car policy. Court rejected the claimant’s argument that the exclusion from the car policy had been waived by not being included in the reservation of rights which was issued with respect to the defense provided under the truck policy. West v. American Standard Ins. Co of WI, 2011 IL App 101274 (1st Dist. Jul 26, 2011) 

NEGLIGENCE & SPECIAL INTERROGATORIES: Patient, a blind, paranoid schizophrenic living in Nursing Home was eventually admitted to a secured 5th floor, for mentally ill patients. While Patient suffered from a number of physical ailments, expressed delusional behavior and told several witnesses on multiple occasions that he did not like living at Nursing Home and wanted to “go home” or “get out,” Patient had no history of self-harm or escape and was never found to be a suicide risk. When Nursing Home employee went into Patient’s room, she noticed the window open and discovered Patient lying on the ground below. Several witnesses testified as to whether the fall was unintentional, or suicide. At trial, Nursing Home proffered a special interrogatory asking whether it was foreseeable that Patient would “commit suicide or act in a self-destructive manner,” to which the jury answered “no.” Still, the jury entered a general verdict against Nursing Home. Based on the special interrogatory answer, Trial Court entered judgment in favor of Nursing Home. In IL, a special interrogatory will reverse a general verdict if the two are clearly and absolutely irreconcilable with one another. In affirming, the Appellate Court held that the special interrogatory was irreconcilable with the general verdict reasoning that, without foreseeability there could be no negligence.  Garcia v. Seneca Nursing Home, Case No. 1-10-3085, 2011 WL -- (1st Dist. Aug. 16, 2011)

INSURANCE COVERAGE: Starting in 1959, Owner leased property to Company 1, a manufacturer of industrial coatings and equipment. In ’98, Company 2 purchased the industrial coatings business and with Owner’s consent, Company 1 assigned the lease for the property to Company 2. Under the purchase agreement, Company 2 was assigned “all the benefits, including rights to defense and indemnity coverage, under any and all policies” issued to Company 1. Owner discovered that, between 1959 and 1998, the property became contaminated. Owner sued Company 1, Company 2 and others. Insurer-Defendants issued liability policies to Company 1 that were in effect at the time of the alleged contamination. Insurers defended Company 1, but not Company 2. In a subsequent declaratory action, Company 1 sought reimbursement for all defense costs and damages, arguing that Insurers owed a duty to defend. In view of a no-assignment clause, Insurers argued that polices were not assignable without consent, which was not given. Held: Since occurrence-based policies provide coverage for occurrences within a policy period, regardless of when the claims are pursued, the assignment did not increase Insurers' risk and no consent was needed. Illinois Tool Works v. Commerce & Industry Ins. Co, Case No. 1-09-3084, 2011 WL -- (1st Dist. Aug. 16, 2011)

USE OF SPEAKERPHONE NOT EAVESDROPPING: Defendant was charged with criminal harassment of his Wife by telephone. Evidence included a phone call to Wife who activated her cell phone’s speakerphone during call so that a friend could hear the conversation. Defendant moved to exclude from evidence the content of the alleged harassing phone call on the basis that it was obtained in violation of the Illinois eavesdropping statute.  In a decision with broad application in both criminal and civil cases, the Appellate Court found that using the speakerphone feature did not transform the cell phone into an eavesdropping device, because the speakerphone did not functionally alter the cell phone’s ability to transmit and receive sounds, merely amplifying the audible sounds it normally transmitted. People v. Armbrust, Case No. 2-10-0955, 2011 WL -- (August 23, 2011)

ANSWER TO QUIZ: Deputy wins. In IL, an employee’s injury is only compensable if it arises out of and in the course of the employment. However, a deviation for purely personal reasons takes an employee out of the course of his employment. Here, it was undisputed that at the time of the collision, Deputy was responding to a call from Dispatch. Under the circumstances, the appellate court found that Deputy had completed his deviation and resumed a course of conduct related to his job as a Deputy, notwithstanding the fact that he violated several rules of his employment. Johnson v.IL Workers’ Comp. Com’n,2011 IL App (2d) 100418WC (2nd Dist. Aug. 15, 2011)

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