January 2010 Case Notes & Comments

“Be always at war with your vices, at peace with your neighbors and let each new year find you a better man."
~ Benjamin Franklin – 1706-1790

MONTHLY QUIZ: CONTACT SPORTS EXCEPTION: Plaintiff was employed at a hockey rink as an athletic trainer when he entered the bench area of a hockey rink where a team was “sniping” – shooting pucks at water bottles on the bench. Plaintiff was hit in the eye by a puck, and sued the team and the player in ordinary negligence. Defendants now move to dismiss based upon the contact sports exception, which provides that participants in contact sports may be held liable to a co-participants only for willful and wanton misconduct, but not for ordinary negligence. Was plaintiff a “co-participant” for purposes of the contact sports exception? You be the judge. (Answer below).


PATTI DEUEL JOINS LEAHY, EISENBERG & FRAENKEL, LTD: We are pleased to announce that Patti Deuel has joined Leahy, Eisenberg & Fraenkel, Ltd. as a partner. Patti specializes in insurance coverage litigation.


ILLINOIS SUPREME COURT: CONSUMER FRAUD CLAIMS REQUIRE ACTUAL DECEPTION: Plaintiff brought a claim under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)) and contended that such claims could be supported by “indirect deception” (i.e. misrepresentations and/or omissions to third parties). In reversing the denial of summary judgment, the Illinois Supreme Court held that a plaintiff cannot maintain an action under the Illinois Consumer Fraud Act when the plaintiff does not receive, directly or indirectly, communication or advertising from the defendant and demonstrate that she was actually deceived. DeBouse v. Bayer, --- N.E.2d ---, 2009 WL 4843362 (Dec. 17, 2009)


FOURTH DISTRICT: NOTICE PROVISION UPHELD DESPITE PLACEMENT BEFORE INSURING AGREEMENT: Defendant argued that notice provision was ambiguous because it appeared before the “Agreement” section of the policy and was not expressed in mandatory terms. The Fourth District held that neither the placement nor the wording rendered the notice provision ambiguous and specifically commented that the notice provision “was part of the contractual agreement of [the] … insurance policy.” American Standard Ins. Co. of Wisconsin v. Slifer, 2009 WL 5112329, 1 (Ill.App. 4 Dist.) (Ill.App. 4 Dist.) (Ill.App.4th Dist., 2009)


APPELLATE COURT CLARIFIES MULTIPLE WORKERS’ COMPENSATION ISSUES: InThe Illinois Department of Healthcare and Family Services Ex. Rel. Elizabeth A. Black v. Bartholomew, 2009 WL 47567079, 1 (Ill.App. 4th Dist.) Fourth District held that Section 15(d) of the Income Withholding for Support Act trumps Workers Compensation Act and allows the employee’s funds to be used to pay arrearage. In Greene Welding and Hardware v. Illinois Workers’ Compensation Com’n, 2009 WL 5159751, 1 (Ill.App. 4th Dist.) the court affirmed an award of penalties and attorney fees since there was no dispute that the amputation injury arose out of and in the course of employment; and therefore, the employer is not afforded a “grace period” and payment should have been “immediate[ ] and promptly forthcoming.”


ANSWER TO QUIZ: No – plaintiff was not playing the game, and therefore his case survives the motion to dismiss. Weisberg v. Chicago Steel, ____Ill.App.3d____, (Second District No. 2-08-0789, December 31, 2009.)