January 2022 Case Notes & Comments

"I donít know where Iím going from here, but I promise it wonít be boring." ~ David Bowie

MONTHLY QUIZ: Plaintiff-Customer slips and falls in the gas station food-mart. Customer, who claims multiple injuries, sues store Owner and parent Company for their alleged breaches of their duty to maintain the premises in a reasonably safe condition. Customer's original complaint, which is file-stamped two days after the expiration of the statute of limitations because the pleading was initially rejected due to an electronic filing error, alleges that Customer "slipped and fell on unremoved ...ice" when she was exiting the store. Owner and Company move to dismiss based on the statute of limitations and for failure to state a claim. The Court finds good cause for the delay and allows Customer to re-plead. In the amended complaint, Customer alleges that she slipped and fell on an "unnatural accumulation of ... water on the floor" while shopping inside the store. Owner moves to dismiss, arguing that the allegations in the amended complaint were filed after the statute of limitations and do not relate back to the original complaint. Customer argues that the amended allegations are "sufficiently-close" to the initial allegations. Are the allegations in the amended complaint sufficiently similar that they relate back to the original complaint? Should the Court dismiss the amended complaint as time-barred? Who is correct? You be the Judge. (Answer below).

THIRD DISTRICT CONFIRMS LIMITS TO TERMINATION OF DISABILITY TOLLING STATUTE: A disabled person suffered a fall while at a hospital. Following discharge from the hospital and admission to a rehabilitation center, the disabled person suffered a second fall. Plaintiff, as special administrator of the disabled person, filed suit against the hospital. Three years later, the complaint was amended to also add the rehabilitation center. The rehabilitation center moved to dismiss, arguing that the action against it was barred by the statute of limitations. Defendant conceded that the disability tolling statute (735 ILCS 5/13-211) tolls the statute of limitations during the pendency of the disability, but argued that the tolling should be deemed to have terminated upon the filing of the original complaint, which pled actual knowledge of the rehabilitation center’s involvement. After granting and then denying the motion, the trial court certified the question for appeal. The 3rd District Appellate Court, noting that disabled persons are favored persons in the eyes of the law and that courts have a special duty to protect their rights, followed the majority of jurisdictions, and rejected defendant’s argument. The court emphasized that the tolling due to a disability terminates only upon the occurrence of one of two events: either the death of the disabled person or the removal of the disability, regardless of actual notice or the appointment of a guardian. As a practical result, during the life of the disabled person, there is no limitation (by way of statutes of limitations or repose) on when a cause of action can be brought. Gavlin v. Adventist Bolingbrook, 2022 IL App (3d) 200282 (January 3, 2022).

WORKERS’ COMPENSATION - ILLINOIS SUPREME COURT RULE 103(B) DOES NOT TRUMP SECTION 19(F)(1) STRICT REQUIREMENT TO FILE PETITION WITHIN 20 DAYS: Section 19(f)(1) of the Workers’ Occupational Diseases Act (i.e. 820 ILCS 310/1 et seq.) and the Workers’ Compensation Act (i.e. 820 ILCS 305/1 et seq.) both require that, “[a] proceeding for review shall be commenced within 20 days of the receipt of the decision of the Commission.” Therefore, in order to perfect jurisdiction under either statute, an appellant must file a written request for summons within 20 days after receiving the Commission’s decision. On the due date for filing his petition, a pro se Petitioner attempted to file his petition for judicial review through the courthouse e-file clerk. The e-file clerk advised that Petitioner’s documents would be rejected and refused to file them on the grounds that Respondent’s mailing address had not been properly affixed to “the complaint document.” Petitioner returned the next day with corrected versions, which were filed one day late. The court dismissed the petition as untimely. On appeal, Petitioner argued that he exercised “reasonable diligence toward making a timely filing” pursuant to Illinois Supreme Court Rule 103(b) (“Rule 103(b)”). Despite Petitioner’s claim of “reasonable diligence”, the Commission’s decision to dismiss the petition was affirmed. On appeal, the Court held that Rule 103(b) is not applicable to the jurisdictional requirements of Section 19(f)(1) of the Diseases Act, but rather, sets forth a due diligence requirement for service of process upon a defendant after a civil complaint has been timely filed. Because Petitioner failed to follow the strict requirements of Section 19(f)(1), the petition was therefore properly dismissed. John Dan Bumphus JR. v. The Illinois Workers’ Compensation Commission et al., 2021 IL App. 5th 190498WC-U (Ill.App.Ct.2021).

INSURANCE COVERAGE - SEVENTH CIRCUIT CONCLUSIVELY DETERMINES THAT BUSINESS INCOME LOSS AS A RESULT OF COVID-19 ORDERS IS NOT COVERED UNDER ILLINOIS LAW: In four separate decisions which were issued concurrently, the United States Court of Appeals for the Seventh Circuit found that loss of business income due to business closures during the pandemic is not covered under traditional commercial property policies, on a number of separate concurrent bases. In Sandy Point Dental, P.C. v. Cin. Ins. Co., 2021 U.S. App. LEXIS 36399 (7th Cir. Dec. 9, 2021), the Court upheld the dismissal of suits filed by three Illinois businesses seeking loss of business income as a result of Governor Pritzker’s COVID-19 closure orders. As a primary matter the Court held that the mere loss of use of the insured properties, without any allegation of physical alteration, did not qualify as “direct physical loss or damage” under Illinois law. In Bradley Hotel Corp. v. Aspen Specialty Ins. Co., 2021 U.S. App. LEXIS 36398 (7th Cir. Dec. 9, 2021), the Court adopted the holding in Sandy Point on the issue of “direct physical loss,” and additionally, held that the “loss of use” and “law and ordinance” exclusions separately applied to bar coverage. In Crescent Plaza Hotel Owner, L.P. v. Zurich Am. Ins. Co., 2021 U.S. App. LEXIS 36396, (7th Cir. Dec. 9, 2021), the Court, applying Illinois law to a Texas loss, again adopted Sandy Point and, alternatively, held that coverage was barred by an exclusion for losses caused by “microorganisms.” Finally, in Mashallah, Inc. v. West Bend Mut. Ins. Co., 2021 U.S. App. LEXIS 36400 (7th Cir. Dec. 9, 2021), the Court held that the “virus” exclusion also precluded coverage for COVID-19 related closures. While positions adopted by the Court had previously been applied at the trial level, the existence of binding appellate authority is a significant positive development for the industry and should provide clarity in the handling of any remaining COVID-19 related claims, especially given the comprehensive nature of the decisions.

ANSWER TO QUIZ: Owner wins, Customer loses. The trial court found the amended complaint time-barred and granted Owner's motion to dismiss and the Appellate Court affirmed. In Illinois, the 'relation back' doctrine (735 ILCS 5/2-616(b)) allows amended pleadings to be filed after the statute of limitations if the amended pleadings relate back to an original, timely-filed pleading and the amendment grew out of the same transaction or occurrence. Courts have concluded that “relation back is appropriate where a party seeks to add a new legal theory to a set of previously alleged facts,” but have held otherwise where an amendment “states an entirely new and distinct claim for relief based on completely different facts.” A new claim will be considered to have arisen out of the same transaction or occurrence and will relate back if the new allegations as compared with the timely filed allegations show that the events alleged were close in time and subject matter and led to the same injury. Here, the original complaint alleged a slip and fall on ice (that defendants had not removed) while Customer exited the store. In the amended complaint, however, Customer alleged that she slipped and fell on water inside the store while she was shopping. The material facts changed in that Customer alleged slipping on two different substances in two different locations. Thus, the injury alleged in the amended complaint did not grow out of the same occurrence as alleged in the original complaint. Johnson-Jordon v. Citgo Petro. Corp. et al., 2022 IL App (2d) 210209 (Jan. 21, 2022)

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