May 2021 Case Notes & Comments

"If you are in a spaceship that is traveling at the speed of light, and you turn on the headlights, does anything happen?" ~ Stephen Wright

MONTHLY QUIZ: Driver (McHenry County resident) and Passenger are driving in Kane County in Father's (Cook County resident) vehicle. While driving, the vehicle collideswith a semi-truck traveling in the opposite direction. At the time of the collision, the semi is being driven by Trucker (Kane County resident) and is owned and maintained by Company (Kane County resident). Passenger's Estate (McHenry resident) files suit in Cook County against Driver, Father, Trucker and Company, alleging negligence. Potential trial witnesses, including Passenger’s relatives, police officers, and medical personnel are dispersed throughout Cook, Kane, DuPage, McHenry, and Lake counties, as well as the states of Ohio and Indiana. Even though venue is statutorily proper, Trucker and Company move to transfer the case on intrastate forum non conveniens grounds, which the trial court denies. Trucker and Owner appeal. In adjudicating such venue motions, a plaintiff's choice of forum is ordinarily given deference. However, IL courts also consider a number of private factors (i.e. (1) convenience of the parties; (2) access to evidence; (3) availability of unwilling witnesses; (4) costs to obtain witnesses; (5) possibility of viewing the premises; and (6) practical considerations that make trial easy) and public factors (i.e. (1) court congestion; (2) unfairness of burdening jurors with unrelated cases; and (3) the interest in having controversies decided locally) in determining forum. Which factors weigh in favor of a transfer? Which do not? Should the trial court have granted the motion to transfer venue? You be the judge. (Answer Below).

ILLINOIS PRE-JUDGMENT INTEREST BILL SIGNED INTO LAW: On May 28, 2021, Illinois Governor JB Pritzker signed Senate Bill 72, which amends 735 ILCS 5/2-1303, providing for pre-judgment interest in certain actions. The controversial bill, opposed by business interests, joins Illinois with 46 other states that impose some form of pre-judgment interest. The provision goes into effect on June 21, 2021. Pre-judgment interest will be assessed at 6%, per annum, for all damages set forth by judgment, including past and future lost wages, past and future medical expenses, pain and suffering, but does not include punitive damages, sanctions, attorneys’ fees, and costs. The statute will apply to personal injury or wrongful death actions, whether alleging negligence, willful and wanton misconduct, intentional conduct, or strict liability. Pre-judgment interest can be reduced or eliminated by a qualifying settlement offer.

LEF OBTAINS SUMMARY JUDGMENT IN FAVOR OF BAR/RESTAURANT: Matthew J. Kowals recently secured a summary judgment in Kosciusko County, Indiana on behalf of a restaurant and bar. The plaintiff claimed that she fell down a step leading to the bar seating area of the restaurant. She filed suit alleging that the step constituted a dangerous condition and that the bar/restaurant had failed to warn her of the condition and safeguard against it. The plaintiff alleged that her fall caused fractures to her left ankle and right shoulder, in addition to a right shoulder rotator cuff tear, and necessitated open reduction/internal fixation surgery to the right shoulder as well as right rotator cuff repair. LEF convinced the judge that the step constituted a known and obvious condition and that the bar/restaurant had not breached any duty to the plaintiff. The order granting summary judgment was entered May 27, 2021. Case No. 43D04-1910-CT-000071 (Kosciusko County, Indiana).

EMPLOYER ENTITLED TO SETOFF FOR INSURANCE PAYMENTS AFTER VALID ASSIGNMENT. Employee was injured in the course of his work for Employer, a fire-sprinkler piping subcontractor working on the construction of a big box retail store, and sued the property owner-retailer (Owner), general contractor (GC) and electrical subcontractor (Electrician) for his injuries. Employer was required in its subcontract with GC to name both GC and Owner as additional insureds, which it did. Defendants then filed contribution claims against Employer. Employee settled with all direct defendants, but Employer did not contribute. In the settlement, defendants assigned their contribution claims against Employer to Employee, which the trial court approved as a good-faith settlement. At the trial on the contribution claims, the jury allocated 92.5% of the fault to Employer and 7.5% to the GC. On appeal, Employer argued, among other things, that the assignments of the contribution claims to Employee were invalid and that Employer was entitled to a set-off. On review, the appellate court found the assignment of contribution claims valid and in good faith, while acknowledging that defendants paid more than their pro rata share in settlement. The appellate court reasoned that the assignment of contribution claims did not constitute double recovery, but merely assured an equitable apportionment of damages. Employer was entitled to a setoff, however, because Employer was required under its subcontract to indemnify Owner and GC from liability arising from Employer’s work, and Employer’s insurance policy, which named Owner and GC as additional insureds, funded a portion of the settlement on behalf of Owner and GC. Thus, Employee was only entitled to contribution against Employer for amounts paid in excess of the indemnity payments. Accordingly, the court reduced the judgment against Employer by the amount already paid by Employer’s insurer. Barnai v. Wal-Mart Stores, Inc.,2020 IL App (1st) 191306 (Mar. 31, 2021).

WORKERS’ COMPENSATION – UNSUCCESSFUL HURDLE OF CHAIN FENCE NOT A WORK ACCIDENT: Petitioner-Employee, an administrative assistant hired on a temporary basis for Respondent-Employer, a University, alleged her right elbow injury arose out of her employment. Petitioner worked in the campus library and, at the direction of her supervisor, would work outside of the library on occasion. Respondent required Petitioner to submit her time cards every other Friday to the Personnel Service Building, also on campus. On September 9, 2016, Petitioner arrived on campus and headed to the Personnel Service Building to turn in her time card before work. Instead of walking on the sidewalk, Petitioner chose to hop over a chain barrier and caught the heel of her shoe on the chain, fell, and injured her elbow. The Arbitrator found the incident did not arise out of Petitioner's employment, as the record supported the finding that Petitioner's act of hopping over the barrier was a personal risk. The Commission affirmed with changes, and the Circuit Court affirmed the Commission decision. On appeal the Fourth District Appellate Court also affirmed the decision, finding Petitioner’s accident did not arise out of her employment as choosing to hop over the chain barrier was a personal risk having no benefit to Respondent. The court noted Petitioner admitted the walkway was safer, the act of stepping over the chain saved her only seconds versus taking the walkway, and no defect or obstruction prevented her from using the walkway. Emily Purcell vs. The Illinois Workers’ Compensation Commission, 2021 IL App (4th) 200359 (Apr. 27, 2021).

COURT REAFFIRMS PURPOSE AND SCOPE OF PRE-SUIT DISCOVERY UNDER RULE 224 – IDENTIFICATION OF POTENTIAL DEFENDANTS: Petitioners allege that three unidentified individuals made or affirmed defamatory statements about the petitioners to the respondent, and that, based on these statements, respondent terminated at-will contracts with the petitioners. Because respondent refused to identify these three individuals, petitioners filed a petition for discovery, pursuant to Illinois Supreme Court Rule 224, seeking to secure from respondent their identifies in order to pursue defamation claims against them. The trial court dismissed the petition, concluding that, because petitioners knew the identity of at least several potential defendants (namely, the respondent and its attorneys), the purpose of Rule 224 was therefore satisfied. Plaintiffs appealed, and the First District Appellate Court reversed. The Court noted that Rule 224 permits discovery “to ascertain the identity of multiple persons and entities who may be responsible in damages” before filing suit. The Court further noted that the permitted discovery is limited to the identification of responsible persons and entities, rather than information establishing liability, and that once a potential defendant’s identity is learned, the petitioner can then file a case and use other discovery provisions to conduct full discovery in that new action. Here, because the information of the unidentified individuals pertained only to their potential for liability, and not to actual liability, such disclosure did not exceed the scope of Rule 224. The Court further rejected the assertion that once the identity of at least one potential defendant is disclosed, Rule 224 did not permit further discovery to identify other potential defendants. (The Court noted, in any event, that because respondent and its attorneys were not the ones who made the allegedly defamatory statements, they were not among the potential defendants in a defamatory claim.) Dent v. Constellation NewEnergy, Inc., 2020 IL App (1st) 191652 (Nov. 25, 2020).

ANSWER TO QUIZ: Trucker and Company are right. The case should have been transferred as the balance of factors strongly favored Kane County. Whileplaintiff's choice of forum is ordinarily given priority, it was given less deference here because the Estate was not a Cook County resident and the accident occurred outside Cook County. Here, since two of the four Defendants resided in Kane County, the Court found that the first private factor (i.e. convenience of the parties) favored a transfer. While it found all other private factors neutral, the Court reasoned that since the accident occurred in Kane County, the fifth private factor (i.e. viewing the scene) also favored a transfer. Additionally, the Court determined that all of the public interest factors (i.e. (1) court congestion; (2) unfairness of burdening jurors with unrelated cases; and (3) the interest in having controversies decided locally) weighed in favor of a transfer. Remanded with directions to transfer to Kane County. Matthiesen v. Greenwood Motor Lines, et al. 2021 IL App (1st) 200405-U (May 28, 2021).

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