September 2020 Case Notes & Comments

"If you are working on something that you really care about, you don't have to be pushed. The vision pulls you." ~ Steve Jobs

MONTHLY QUIZ: After spending the day drinking beer and fixing cars at his repair shop, Plaintiff-Patron goes to Defendant-craft Brewery, where he continues drinking. Plaintiff later enters Brewery's restroom, where he slips on a wet surface and falls, causing serious injuries to his back. Patron sues Brewery and others. Bartender testifies at deposition that he checked the bathroom two hours before the fall and after the fall, but saw nothing. Bar Manager testifies that he checks the bathroom every half hour to an hour, as he did that day, but saw nothing. Plaintiff testifies that he does not know how long the wet substance was on the floor. Brewery moves for summary judgment arguing that Brewery had no notice of the alleged wet surface. Is Brewery entitled to summary judgment even though no one has testified to the length of time the alleged substance was on the floor? Should the trial court grant Brewery summary judgment? You be the judge. (Answer below). 

WORKERS' COMPENSATION - ILLINOIS SUPREME COURT CLARIFIES EMPLOYER DISTINCT RISK ANALYSIS IN FAVOR OF EMPLOYEE: Petitioner-Employee, a sous Chef for Respondent-Employer, Restaurant was responsible for cooking, preparing food and organizing the cooler. During his employment, Employee-Chef went into the cooler and knelt to look on lower shelves for a missing pan of carrots. When Employee-Chef stood up, his knee popped and locked up. On cross-examination, Employee-Chef agreed that the subject movement was similar to that he would have performed at home while looking for something under his bed. The arbitrator found a compensable accident and awarded benefits and penalties. The Commission set the decision aside and found petitioner had no accident. The Circuit Court agreed. The Appellate Court affirmed the decision. On review, the Illinois Supreme Court held that Employee-Chef's movement of bending and standing was distinct to his employment as he was the sous chef responsible for organizing the cooler. The high court reasoned that even though kneeling is considered a common bodily movement (as is bending, kneeling, twisting, standing, walking), Employee-Chef had a compensable accident as he was performing a job duty when it occurred and therefore no further analysis (i.e. whether the quality or the frequency was greater than that of the general public) was required. EDITOR'S NOTE: While the Illinois Supreme Court's decision limits the "no greater risk" defense, the category of risk (i.e. risks distinctly associated to employment, personal risk or neutral risk categories) should be identified early in the review and investigation of the claimKevin McAllister, Appellant, v. The Illinois Workers' Compensation Commission, et al., 2020 IL 124848 (IL.S.Ct. Sept. 24, 2020). 

COVID-19 - ILLINOIS FEDERAL COURT FINDS THAT ALLEGED CLOSURE DUE TO COVID-19 FAILED TO STATE CAUSE OF ACTION: Insured-Dentist, a business deemed "non-essential" under the Illinois Governor's COVID-19 order, was forced to shut down, resulting in an alleged  loss of revenue. The Insured-Dentist procured a property policy that provided for loss of "Business Income" sustained "due to the necessary ' suspension ' of your 'operation' during the 'period of restoration'" if "caused by [a] direct physical 'loss' to property at the 'premises.'" The Insured-Dentist did not allege that the coronavirus physically altered the appearance, shape, color, structure, or other material dimension of the property, but merely alleged financial losses as a result of the closure  orders . In dismissing the complaint, the court focused on the meaning of "direct physical loss," which it characterized as "critical policy language." According to the Court, under Illinois law, such policy language  unambiguously required some form of demonstrable, actual, physical damage to the insured's premises to trigger coverage, rather than a forced closure of the premises for reasons  extraneous to the premises themselves, or adverse business consequences that flow from such closure. Sandy Point Dental, P.C. v. Cincinnati Ins. Co., Case Bi, 20 CV 2160 (N.Dist. IL, Sept. 21, 2020). 

CONFLICT OF INTEREST - NO RIGHT TO INDEPENDENT COUNSEL BASED ON EXISTENCE OF EXCESS LIABILITY: Insurer was defending its insured in a lawsuit which potentially involved excess liability. Insured demanded independent counsel asserting that a conflict of interest was present. Insured's position was based on authority from the 7th Circuit Court of Appeals in R.C. Wegman Construction Company v. Admiral Insurance Co., 629 F.3d 724 (7th Cir 2011), where the court found that a conflict of interest was present where the insured was faced with a "non-trivial probability" of liability in excess of the liability limits. The First District Appellate Court rejected the Wegman conflict finding that Insurer's obligations included advising its Insured of the possibility of excess liability and Insured's right to retain independent counsel at its own expense. In rejecting that Insurer was required to relinquish control of the defense, the Illinois court acknowledged the widespread impact of finding such a conflict of interest where the minimum policy limits on automobile insurance are less than the jurisdictional value requirement for a law division case in Cook County. Joseph T. Ryerson & Son, Inc. v. Travelers Indemnity Company of America, 2020 IL App (1st) 182491 (Feb. 11, 2020). 

SUPREME COURT REJECTS ATTEMPT TO STACK LIABILITY LIMITS FOR MULTIPLE COVERED VEHICLES:  Following a two-car accident resulting in the death of three of the four occupants, the Illinois Supreme Court considered whether to allow stacking, or aggregating the bodily injury coverage limits in the applicable insurance policy.  The policy provided coverage for four separate vehicles, and listed separate premium amounts for each vehicle.  The first page of the declarations listed three vehicles, but only listed the limits of liability once.  The second page listed the fourth vehicle, with the same limits of liability.  The circuit and appellate courts found the multiple listing of liability limits ambiguous on the issue of anti-stacking, but the Supreme Court reversed.  The Supreme Court noted that there were no separate limits of liability attached to each vehicle, as was the situation in other cases permitting stacking.  Noting that the limits were listed once for the first three vehicles, and again on the next page for the fourth vehicle (as opposed to being listed separately for each vehicle), the only reasonable explanation for re-stating the liability limits on the second page was that the information for all four vehicles could not fit on one physical page.  The Court therefore held that the clear intent was not to aggregate the coverage for all four vehicles.  As there was no ambiguity, the policy should not be read as allowing stacking of liability coverage.  Hess v. Estate of Klamm, 2020 IL 124649 (Jan. 24, 2020).  

ANSWER TO QUIZ: Brewery wins, Patron loses. In Illinois, liability may be imposed upon a business invitee if it appears that the proprietor or his servant knew of its presence, or that the substance was there a sufficient amount of time that in the exercise of ordinary care its presence should have been discovered. Here, there was no evidence as to how long the alleged substance was on the floor before Patron's slip and fall - be it thirty seconds, two minutes, thirty minutes, or two hours. Summary Judgment was proper as the court could only draw reasonable inferences from evidentiary facts. Jorge Tafoya-Cruz, et al. v. Temperance Beer Co., LLC, et al., 2020 IL App (1st) 190606 (Jul. 29, 2020).

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