June 2017 Case Notes & Comments

"If you know the enemy and know yourself, you need not fear the result of a hundred battles. ~ Sun Tzu

MONTHLY QUIZ: Plaintiff-Surveyor is surveying at a construction site and sets several benchmarks. Subcontractor, who is also onsite, is hired to construct a temporary drywall corridor. Once the corridor is built and at the end of the work day, Subcontractor's employees stack drywall in the corridor. The next morning, Surveyor visits the site to check the benchmarks he had previously placed in the corridor. Believing one of his benchmarks to be behind the one of the stacks, Surveyor moves the drywall. The stack, however, continues to move and several sheets of drywall fall on Surveyor. Surveyor sues several constructors, including General Contractor (GC) and Subcontractor. The contracts show that each subcontractor is responsible for all labor, materials, tools, equipment, and supervision and to do all things necessary for the proper and complete performance of the work. While each subcontractor has control over the means and methods of their respective work performance, GC retains the general right to start, stop, and inspect the progress of the work. Surveyor claims that GC has retained sufficient control over the work, but GC moves for summary judgment. Is there sufficient evidence in the record as to control? Is GC entitled to summary judgment? You be the judge. (Answer below). 

EMPLOYER PROVIDES ADEQUATE JUSTIFICATION TO REVERSE SECTION 19(L) PENALTIES: Following a trial, Claimant was awarded benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2012), which award included TTD, PPD and "all medical expenses" as set forth in Claimant's trial exhibits. Neither Claimant nor her Employer filed a petition for review. Following trial, Employer's counsel reportedly requested Claimant's medical records from Claimant's counsel. Claimant subsequently filed a petition for penalties and fees pursuant to sections 19(l), 19(k), and 16 of the Act because more than 130 days had passed since the arbitration decision and Employer had yet to pay the award. Five days after the filing of Claimant's penalty/fee petition, Employer issued Claimant a check for the payment of the PPD portion of the award. Employer ultimately admitted that the PPD payment was late. Employer's counsel then made additional written demands to Claimant's counsel for Claimant's medical records. Shortly after receipt of the records, Employer paid Claimant's medical bills. Upon review of Claimant's penalty/fee petition, the Commission found that Claimant failed to prove that Employer acted in an unreasonable or vexatious manner and denied penalties or fees under Sections 19(k) and 16 of the Act. However, the Commission awarded Claimant section 19(l) penalties, in part, for Employer's failure to timely pay medical bills. Employer argued that it did not receive Claimant's medical records from opposing counsel until approximately 24 days after Claimant filed her penalty/fee petition. Claimant argued that her "written demand for payment of the medical expenses [as required by section 19(l) of the Act] was contained in the Request for Hearing form submitted by the parties at the beginning of the [a]rbitration hearing and that the medical expenses claimed at arbitration were admitted into evidence at trial." The trial and appellate courts rejected Claimant's argument that the request for hearing form constituted a sufficient written request for the payment of medical expenses under Section 19(l) of the Act. Furthermore, the trial and appellate courts found that counsel's failure to tender the bills to Employer constituted adequate justification for the late payment. Further, the appellate court expressly stated that Employer had no "duty to actively seek out a claimant's medical bills either through the use of a subpoena or some other method in order to comply with the requirements of section 19(l)." Accordingly, the Commission's award of section 19(l) penalties was against the manifest weight of the evidence. Reversal of Section 19(l) penalties affirmed. Theis v. Illinois Workers' Compensation Comm'n, 2017 IL App (1st) 161237WC  (Mar. 17, 2017)

LEF PRESENTS TO AMERICAN RENTAL ASSOCIATION OF CHICAGOLAND: David I. Walters recently conducted an educational seminar at the pre-convention Tabletop Show and Dinner hosted by the American Rental Association of Chicagoland, a nonprofit trade association for equipment rental businesses and manufacturers and suppliers of rental equipment.  The event was well attended by the owners and operators of equipment rental facilities throughout the Chicagoland area and Northern Illinois.  The seminar included an analysis of the recent amendments to the Illinois Theft Statute, which now make the theft of rental equipment and revenue a crime. Mr. Walters also provided a general overview and tutorial of the litigation process, with an emphasis on risk reduction and damage mitigation. 

PRIVILEGES: QUALITY ASSURANCE ACT / MEDICAL STUDIES ACT:  Nursing home Patient was injured during a fall. Witness statements were taken and a report was prepared as part of an internal investigation of the occurrence.  In Patient's negligence action against Nursing Home, Nursing Home withheld from discovery the statements and report, claiming they were privileged pursuant to the Quality Assurance Act and the Medical Studies Act. The trial court ordered the documents produced, and after Nursing Home refused, Nursing Home appealed the contempt order entered against it.  Noting that no Illinois appellate court opinion had yet interpreted the Quality Assurance Act (which applies to long-term-care facilities), the Appellate Court held that the Quality Assurance Act should be interpreted harmoniously with the Medical Studies Act (which applies to medical facilities such as hospitals). The Appellate Court affirmed the trial court, and ordered the statements and report to be produced.  In so holding, the Court noted that, although the report and statements were eventually reviewed by the quality assurance committee, because they were made prior to such peer-review committee meeting, the privilege did not apply. Lindsey v. Butterfield Health Care II, Inc., 2017 IL App (2d) 160042 (Feb.9, 2017). 

STATUTE OF FRAUDS: Parents owned various real estate in Chicago. Pursuant to a 2003 oral agreement with their Son, Son would manage the property. Son alleged that, pursuant to this 2003 oral agreement, in exchange for "the commitment of a lifetime of work", Parents agreed to make Son an equal partner in their real estate business.  In 2012, Parents brought suit against Son, alleging he breached his fiduciary duties to them. During the pendency of the action, Parents died, and their Daughter was substituted as a party in her capacity as executor of their Estate. Son then filed a counterclaim against Sister, alleging that she exerted undue influence over Parents and manipulated them to terminate the 2003 oral agreement. Son's counterclaim sought enforcement of the alleged 2003 oral agreement. The trial court dismissed Son's counterclaim on the basis that, because the contract was not one that could be performed within the space of one year, it was therefore unenforceable under the Statute of Frauds (740 ILCS 80/1).  Affirmed on appeal.  Church Yard Commons Limited Partnership v. Podmajersky, Inc., 2017 IL App (1st) 161152 (Mar. 28, 2017).

ANSWER TO QUIZ: General Contractor (GC) is entitled to summary judgment, Surveyor loses. Surveyor did not develop any evidence that GC directed the manner in which he surveyed, that GC was aware of Surveyor's presence on the morning of the accident, or that GC had any knowledge of the hazardous method Surveyor used to check for the benchmarks in the corridor. Surveyor also failed to establish that GC exerted sufficient control over Subcontractor's work because the evidence showed that Subcontractor was free to dictate the means and methods of its own work. Notably, summary judgment was also entered in favor of Subcontractor. Snow v. Power Construction Company, LLC,2017 IL App (1st) 151226 (May 4, 2017).

Past Publications

2024

March 2024
January 2024

2023

December 2023
October 2023
September 2023
August 2023
May 2023
March 2023
February 2023

2022

December 2022
October 2022
August 2022
July 2022
April 2022
March 2022
January 2022

2021

December 2021
October 2021
August 2021
July 2021
May 2021
April 2021
March 2021
January 2021

2020

December 2020
November 2020
October 2020
September 2020
August 2020
February 2020
January 2020

2019

December 2019
October 2019
September 2019
July 2019
May 2019
March 2019
February 2019
January 2019

2018

December 2018
October 2018
August 2018
June 2018
May 2018
April 2018
March 2018
February 2018

2017

December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
March 2017
February 2017

2016

December 2016
October 2016
September 2016
August 2016
July 2016
June 2016
March 2016
January 2016

2015

December 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015

2014

December 2014
October 2014
September 2014
July 2014
June 2014
April 2014
April 2014
March 2014
February 2014
January 2014

2013

December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
January 2013

2012

December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012

2011

December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011

2010

December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010

2009

December 2009