November 2017 Case Notes & Comments

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MONTHLY QUIZ: Employee, who has worked in Employer's candy factory for 27 years, also serves as a pastor at a local church. Employer knows that Employee is a pastor, but does not know that Employee receives $600 per week from the church, as a housing allowance. While lifting a box of taffy at the factory, Employee injures his back and undergoes surgery. Shortly after returning to work, Employee re-injures his lower back pushing candy down the assembly line, ultimately causing him to quit his factory position. Employee files a claim and is awarded TTD benefits, TPD benefits, and medical expenses. Employee also seeks wage differential benefits under section 8(d)(1) of the Workers’ Compensation Act (820 ILCS 305/8(d)(1)), arguing that his average weekly wage calculation should include both his factory salary and his pastor's salary. Employer contends that Employee's average weekly wage calculation excludes the pastor's salary. Who is right? Is Employer's level of knowledge significant? You be the judge. (Answer below).

LEF WINS FIRST-PARTY ARSON CASE: In October 2017, Thomas J. Finn prevailed on behalf of Allstate Insurance Company (“Allstate”). In the summer of 2015, the Gary Fire Department responded to a 911 call and a fire at Plaintiff’s home. Plaintiff testified that he left the home at 12:40 a.m. to spend the night at his girlfriend’s residence and that the home was locked and secured when he left. Allstate’s investigation indicated that the fire was intentionally set and denied Plaintiff’s claim. Plaintiff sued, alleging that Allstate did not have any reasonable grounds to deny Plaintiff’s claim and that Allstate’s denial was a breach of the insurance contract. Though Plaintiff denied any involvement, Mr. Finn successfully convinced the jury that the fire was set with Plaintiff’s consent and authority and that Plaintiff made material misrepresentations regarding his insurance claim. Specifically, Tom elicited testimony from the Gary Fire Department, who testified that the doors to the home were closed, but unlocked at the time of the fire. Tom also presented expert testimony indicating two separate areas of origin in the home, as well as evidence showing that Plaintiff’s Akita dog was later found in the rear yard, unharmed. The jury returned a verdict in favor of Allstate, found no breach and awarded Plaintiff no damages. The case was tried before the Honorable Magistrate Judge Andrew P. Rodovich in the United States District Court for the Northern District of Indiana. Davion Allen v. Allstate Insurance Company, 2:16 CV 003110 (U.S. Dist. Ct. N.D.Ind., Hammond, October 2, 2017 through October 4, 2017). 

PREMISES LIABILITY - CONSTRUCTIVE NOTICE: Plaintiff filed personal injury action seeking damages for injuries she sustained when she stepped on a catch basin in a backyard and the lid gave way. The trial court granted summary judgment in favor of Defendants-Property Owners, finding that Plaintiff did not present expert testimony concerning the duration of the defect, and that the photographs of general defects (i.e., corroded concrete and rusty lid) were insufficient to impute notice on the Property Owners without evidence of the specific defect. The appellate court reversed, finding that Plaintiff presented sufficient evidence to create a material issue of  fact about whether Property Owners had constructive notice of the dangerous condition of the catch basin. According to the appellate court, a jury could infer from the documents, testimony and photographs that the deteriorated condition of the catch basin and surrounding area (i.e., the cracked concrete surface, corroded concrete lip, and rusty lid) existed for a sufficient duration that Property Owners should have discovered the dangerous condition in the exercise of reasonable care. Moreover, the appellate court rejected the argument that expert testimony was required to establish the duration of the defect, as it is not within the sole province of an expert witness to conclude that such a deteriorated condition must have occurred over an extended period of time.  Nguyen v. Lam, 2017 IL App (1st) 161272 (Nov. 2, 2017).

ILLINOIS GENERAL ASSEMBLY REPEALS LAW MANDATING ARBITRATION OF SMALL-CLAIM AUTO SUBROGATION CLAIMS:  The Illinois Generally Assembly recently repealed a portion of the Illinois Insurance Code, 215 ILCS 5/143.24d, which required mandatory arbitration between all auto carriers for physical damage subrogation claims between insurers for property damage with a value less than $2,500.

ANSWER TO QUIZ: Employee loses. Employer's level of knowledge is critical in determining whether concurrent wages are included in an average weekly wage calculation. The basis for computing a claimant's average weekly earnings is governed by Section 10 of the Act. Under Section 10, Employee's wages earned as a pastor must be included as wages earned from Employer only if Employer knew that Employee received payment for his work as a pastor.  Since there was no evidence that Employer knew that Employee was paid through the ministry, the exclusion of the pastor's salary from Employee's average weekly wage calculation was not against the manifest weight of the evidence. Bagwell v. Illinois Workers' Compensation Comm'n, 2017 IL App (4th) 160407 WC (Sept. 8, 2017).

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