September 2013 Case Notes & Comments

“Education is learning what you didn’t even know you didn’t know” ~ Daniel J. Boorstin

MONTHLY QUIZ:  Customer drives to Store and buys bricks. Customer is helping a Store employee load bricks into her car in Store’s parking lot, when Customer trips and falls and sustains injury. Customer sues Store for negligence alleging, among other things, that Customer’s injuries were caused by the “use” of her vehicle to load and unload bricks. Store tenders its defense and indemnity to Customer’s auto Insurer. Insurer determines that Store is not covered under Customer’s auto policy and refuses the tender of defense. Store files a declaratory action for coverage. Query: Is Store entitled to a defense under Customer’s auto policy? Who is right - Customer’s Insurer or Store? You be the judge. (Answer below)


WORKERS’ COMPENSATION - MAILBOX RULE: Claimant sought benefits under Illinois Workers’ Compensation Act for injuries allegedly sustained in the course and scope of employment. After a hearing, Arbitrator denied the claim finding a lack of causation and the Commission adopted the decision. Claimant sought judicial review of the Commission’s decision in the trial court. Section 19(f)(1) of the Workers’ Compensation Act (Act) (820 ILCS 305/19(f)(1)) requires claimants to file an action for judicial review within 20 days of the Commission’s decision. Though Claimant’s Attorney mailed the action for judicial review (i.e. and necessary documents) to the clerk of the trial court within 20 days of his receipt of the Commission’s decision, the action and documents were not stamped until 24 days after Attorney’s receipt of the decision. The appellate court, therefore, found that the trial court had never had subject matter jurisdiction. The trial court judgment was vacated and the appeal was dismissed.  In the employee’s appeal from the appellate court to the Illinois Supreme Court, Claimant argued for the application of the so-called “mailbox rule.” Agreeing with Claimant, the Illinois Supreme Court held that claimants have the right to rely on the mailbox rule when appealing decisions of the Commission to the trial court – which the high court found “most consistent with Illinois law.” EDITOR’S NOTE: The application of the “mailbox rule” in Gruszeczkaappears limited to Section 19(f)(1) of the Workers’ Compensation Act. Gruszeczka v. The Illinois Workers' Compensation Commission, 2013 IL 114212 (Aug. 1, 2013)


TRIP AND FALL DEFEATED BY DE MINIMUS RULE: After delivering to Defendants-Owner and Lessee’s loading bay, Plaintiff-Driver climbed out of his tractor-trailer; and after reaching the ground, while still facing the trailer, Driver stepped back. Driver’s heel caught a difference in elevation on the ground, which Driver estimated to be 1½ inches, fell and sustained injuries. In granting Defendants’ motion for summary judgment, the trial court held that the defect was de minimis and thus not actionable. On appeal, Driver argued that the defect was not de minimis; and, that the presence of aggravating factors precluded the application of a de minimis rule. Though there was no question that Owner and Lessee owed a duty to keep the premises in a reasonably safe condition, a 1½-inch defect located in an area not intended for pedestrian traffic, was a minor defect that fell within ambit of the de minimis rule. The appellate court also found that none of the claimed aggravating factors were sufficient to remove the defect from the de minimis rule. Morris v. Ingersoll Cutting Tool Company, 2013 IL App (2d) 120760 (Sep. 16, 2013)


CONSTRUCTION LAW - COURT CLARIFIES MINTON DOCTRINE: Developer and General Contractor (GC) built an 8-unit residential building and GC hired several subcontractors, including Mason. After GC completed the building, Developer sold the units but was involuntarily dissolved later that year. Soon thereafter, Unit Owners discovered leaks in the building. Since the Developer was insolvent, the Unit Owners sued GC and Mason under the Minton v. Richards doctrine - which allows homeowners in IL to sue subcontractors for latent defects despite a lack of privity if there is no recourse against the developers and/or general contractors. Mason successfully defended, and won the resulting appeal, on the grounds that since the GC was still solvent, Unit Owners’ claims against Mason could not proceed. But after about 3 ½ years of litigation, GC also became insolvent. Unit Owners filed amended pleadings against Mason, alleging that both GC and Developer were insolvent. On appeal, the Court determined that the proper time to determine the solvency of the developers and/or general contractors is the date of the last amended complaint alleging the insolvency of the GC. Court also held that “insolvency”, for the purposes of Minton claims “simply means that a party’s liabilities exceed the value of its assets, and that it has stopped paying debts in the ordinary course of business.” Therefore, the Unit Owners could sue the subcontractor, Mason.  1324 W. Pratt Condominium Association v. Platt Construction GroupInc., 2013 IL App (1st) 130744 (Sep. 19, 2013).


ANSWER TO QUIZ:  Store is covered under Customer’s auto policy. Store wins, Insurer loses. Customer’s policy defined an insured as “anyone using an insured vehicle with your permission or the permission of an adult relative.” Court found that Store was an insured since loading bricks into vehicle with Customer-Insured’s permission constituted a “use” of the vehicle. Menard, Inc. v. Country Preferred Insurance Co., 2013 IL App (3d) 120340(Jul. 18, 2013)

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