October 2011 Case Notes & Comments

I want to be in the lineup every day. Playing anywhere is better than playing the bench. ~ Albert Pujols

MONTHLY QUIZ: Legally blind Man, who habitually rides commuter train, is standing on the train platform in area where passengers board and alight from trains. Shortly before his train arrives, passengers waiting on the south platform are advised to cross over the tracks in order to board the train from the north platform. Man is struck and killed by a train as he attempts to cross from north platform to the south platform, where his train usually arrives. Illinois common carriers must exercise the highest degree of care with their passengers. Estate argues that Railway owed Man the same duty of care as one its passengers, the “highest duty of care.” Railway argues for a lower standard of care, contending that Man was a pedestrian, not a passenger, at the time of the accident. Was the Man merely a pedestrian? What is the standard of care owed by the Railway? Does it matter that Man had not yet boarded his train? You be the judge.  (Answer below)


TORT LAW / ASBESTOS EXPOSURE - PLAINTIFF’S BURDEN OF PROOF OUTLINED: Jury awarded Worker’s estate damages as a result of defendant-cable Manufacturer’s negligence in exposing Worker to asbestos-containing electrical cables. Manufacturer appealed, arguing Worker’s estate failed to prove that the cables were the cause of Workers’ mesothelioma. In a cause of action for negligence or strict product liability arising from alleged exposure to asbestos, a plaintiff must prove that exposure to asbestos caused the injury, and that it was the defendant’s asbestos-containing product which caused the injury. To prove exposure, a plaintiff must show that he was exposed to the asbestos through proof that he regularly worked in an area where the asbestos was frequently used and in sufficient proximity so as to come into contact with the asbestos product. To prove causation, Illinois courts have not required proof of exposure to an exact quantity of asbestos. Instead, one must show “frequency of the use of the product and the regularity or extent of the plaintiff’s employment in proximity thereto.” Verdict for Plaintiff upheld. Zickuhr v. Ericsson, 2011 IL App (1st) 103430 (1st Dist. Sept. 30, 2011)


WORKERS’ COMPENSATION / OCCUPATIONAL DISEASES ACT: Arbitrator denied Claimant benefits under Workers' Occupational Diseases Act (Act) (820 ILCS 310/1 et seq.(West 2008)). On appeal, Claimant argued that Commission’s decision that his condition of chronic obstructive pulmonary disease (COPD) did not arise out of and in the course of his employment was contrary to the weight of the evidence. To recover under the Act, while a claimant must prove that a causal connection exists between an occupational disease and his employment, the occupational activity need not be the sole or even the principal causative factor, as long as it is a causative factor in the resulting condition. In reversing the denial, the 4th District found that Claimant needed only prove that his inhalation of coal dust was a causative factor in his COPD, not that it was the only factor or that his cigarette smoking was not also a contributing factor. Gross v. Illinois Workers’ Comp. Comm’n, 2011 IL App (4th) 100615WC (4th Dist. Sept. 6, 2011)


WORKERS’ COMPENSATION:  Though Claimant arguably refused to accept work within his restrictions, Commission still awarded total disability (TTD) benefits pursuant to Workers’ Compensation Act (Act)(820 ILCS 305/1 et seq.(West 2006)). Commission determinations regarding entitlement to TTD benefits are reviewed under the manifest weight standard. In affirming Claimant’s award, the court noted that the Commission has discretion to terminate or suspend benefits in response to a refusal to accept work within restrictions. Otto Baum Co. v. Illinois Workers’ CompComm’n, 2011 IL App (4th) 100959WC  (4th Dist. Sept. 29, 2011)


INSURANCE LAW / UNINSURED MOTORIST: Illinois Insured involved in accident in Wisconsin with uninsured Wisconsin Resident.  Policy provided that uninsured motorists disputes were to be decided by arbitration, “within two years from the date of the accident.” Insured moved to compel arbitration, arguing suit limitation violated public policy since accident occurred in Wisconsin, which had a 3-year statute of limitations. Held: 2-year suit limitation provision violated Illinois public policy since it placed Insured in a substantially different position than if Wisconsin Resident had carried insurance. Country Preferred Ins. v. Whitehead 2011 IL App (3d) 110096 (3rd Dist. Aug. 30, 2011)

INSURANCE COVERAGE: Insured sent Plaintiffs unsolicited fax advertisements and was sued for violating the Telephone Consumer Protection Act (TCPA)(47 U.S.C.§ 227(2006). Insured tendered under Policy’s “advertising injury” provision. Without input from Insurer, Insured settled for $1,975,000, to be satisfied solely from the proceeds of the Policy. Appellate court found that Plaintiffs’ alleged injuries to privacy interests and rights of privacy triggered coverage and that Insurer breached its contract. The Court also declined to adopt any distinction between “natural” persons and corporations for the purposes of "advertising injury" coverage. Noting that the settlement was “subsequent” to the tender of defense and commenting that the Insured had been “abandoned”, court found that Insured did not breach the Policy’s "voluntary payment" provision.Pekin Insurance Company v. Xdata Solutions 2011 IL App (1st) 102769 (1st Dist. Sept. 30, 2011)


ANSWER TO QUIZ: Man became a “passenger” when he presented himself at the platform to catch his train and was, either expressly or impliedly, accepted by the Railway for transportation. Man was standing in a place provided for passengers and was under the sole control of Railway; and, Man intended to catch his regular train. Held: Railway owed Man the same duty of care as one its passengers, the “highest duty of care.” Eskew v. Burlington Northern & Santa Fe Railway Co. 2011 IL App (1st) 093450 (1st Dist. Sept. 30, 2011).