September 2014 Case Notes & Comments

"We have met the enemy and they are ours..." U.S. Commodore, Oliver Hazard Perry's dispatch after The 1813 Battle of Lake Erie

MONTHLY QUIZ: While visiting the Zoo, Plaintiff trips and falls on pavement. After almost two years, Plaintiff sues the Zoo alleging that Zoo's negligent acts and omissions in maintaining and operating the premises proximately caused her fall, causing "severe and personal" injuries. Zoo moves to dismiss Plaintiff's complaint, arguing that the Illinois Tort Immunity Act's (745 ILCS 10/8-101(a) (West 2010)) one-year statute of limitations applies since Zoo is a "not-for-profit corporation organized for the purpose of conducting public business." Zoo argues that that it operates on land owned by the Forest Preserve District of Cook County (District) and presents an agreement between the Zoo and District, which states that Zoo "was organized to operate... for the instruction and recreation of the public." Plaintiff disputes that Zoo is a local public entity and contends that operating a zoo is not "public business" within the meaning of the Act. Is Zoo conducting public business? Is Zoo entitled to immunity under the Act? You be the judge. (Answer below).  

WORKERS' COMPENSATION: While working as a laborer/driver for Employer, Employee claimed that he sustained an injury to his right shoulder. About a month later, Employee sustained a work-related accident to his left hand and in treatment, gave no indication of any continuing right shoulder injury. While still treating for his left hand, Employee was terminated for cause as he was performing unauthorized "side jobs" with company equipment. After termination, Employee filed an application for adjustment of claim and upon recommendation of his attorney, sought treatment again for his right shoulder. Throughout treatment and between several physicians, Employee gave several inconsistent and conflicting histories as to the timing and mechanism of his right shoulder injury. After hearing, the arbitrator denied the claim for benefits finding that the right shoulder injury was not causally related to his employment. The Commission reversed and awarded benefits. On review, the Trial Court reversed, in large part due to its conclusion that Employee had no credibility. On appeal, the Appellate Court reversed and reinstated the Commission's award of benefits, noting that even in this "close case," the award was not against the manifest weight of the evidence and that credibility is the responsibility of the Commission. Do Right In Landscaping v. Illinois Workers' Compensation Commission, 2014 IL App (1st) 130410WC (Jul. 28, 2014)

PERSONAL INJURY/HEALTH CARE LIENS - CHIROPRACTOR'S LIEN REDUCED TO $0: Driver suffered personal injuries in an automobile collision and was treated for those injuries by Chiropractor, who rendered $2,777 worth of services. Driver instituted a claim against Tortfeasor and settled without the need to file a lawsuit. Prior to the settlement, Chiropractor notified Driver and her attorney of his lien on any settlement proceeds Driver might receive under the Illinois Health Care Services Lien Act (the Act) (770 ILCS 23/1 et seq. (West 2010)). Following settlement, Driver's attorney filed a petition to adjudicate liens pursuant to the Act and sent a copy to Chiropractor. Chiropractor, however, failed to appear at the hearing. On review, the Appellate Court affirmed the trial court's entry of default against Chiropractor and found that the reduction of Chiropractor's lien to $0 was proper. Smith v. Hammel, 2014 IL App (5th) 130227 (Jul.12, 2014)

INSURANCE COVERAGE - ORDER FINDING NO DUTY TO DEFEND VACATED SINCE INSURER, A NECESSARY PARTY, WAS NOT NAMED IN DECLARATORY ACTION: Following a worksite accident, Plaintiff sued property Owner and Subcontractor. In response to a tender by Owner's Carrier (Insurer #1), Subcontractor's Insurer (Insurer #2) filed an action seeking a declaration that it had no duty to defend Owner in Plaintiff's personal injury suit. In its declaratory action, Insurer #2 named Owner, but not Owner's Insurer. When Owner did not appear, Insurer #2 moved to default Owner. Though it had knowledge of the default motion, Insurer #1 did not intervene or otherwise respond to the motion since it was not named. Instead, Insurer #1 filed its own action against Insurer #2 to "protect its own interests." Shortly thereafter, the court in Insurer#2's declaratory action entered an order defaulting Owner and stating that Owner was not an insured party. Consequently, Insurer #1 filed a motion to intervene in the declaratory action and a Section 2-1401 petition, seeking to vacate the default judgment. The trial court allowed Insurer #1 to intervene and vacated the default as Insurer #1 was a necessary party since the judgment affected Insurer #1's rights and interests. Despite what it called the "odd procedural choices" of the parties, the appellate court agreed the intervention was proper, that the default judgment properly vacated and that Insurer #1 was a necessary party. Pekin Insurance Company v. Rada Dev., LLC, 2014 IL App (1st) 133947 (Jul. 28, 2014)

ANSWER TO QUIZ: Plaintiff wins, Zoo loses. While the Agreement states that Zoo was organized to operate a zoo for the instruction and recreation of the public, the zoo's furtherance of the public's interest is not synonymous with conducing public business within the meaning of the Act. In order for the Tort Immunity Act to apply, Zoo would have had to demonstrate that it was "tightly enmeshed with the government through direct government ownership or the local government's operational control." Since Zoo failed to show government ownership or control, the Act did not apply. Zoo's dismissal reversed and remanded. O'Toole v. The Chicago Zoological Society, 2014 IL App (1st) 132652 (Aug.28, 2014)

Case Notes & Comments is intended for general information purposes and is not intended to serve as legal advice. For legal questions, or if you would like additional information as to how applicable law may relate to specific facts or circumstances, please contact the Leahy, Eisenberg & Fraenkel, Ltd. attorney with whom you regularly work, or Roland Keske at or (312) 368-4554.