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J&B Blog Archives

In Biegert, Seventh Circuit Ruling Sustains Use of Lethal Force When Officers Face Immediate Threats of Serious Harm

When are police officers legally justified to use lethal force? In Estate of Biegert by Biegert v. Molitor, the Seventh Circuit held that an officer was justified in shooting a man who had stabbed another officer in the arm, and, with the knife, stepped toward the officer who shot him. Claims of excessive force are   Continue Reading »

OSHA GUIDANCE ON RETURNING TO WORK IN THE CONSTRUCTION INDUSTRY

Recently, the Occupational Safety and Health Administration (OSHA) released additional information for employers in its “Guidance on Returning to Work” publication.  Although it does not create new legal duties for employers, it does contain recommendations for employers, as well as some standards that should be mandatory in the workplace. OSHA noted that its guidance was   Continue Reading »

Seventh Circuit Appellate Ruling Sheds Additional Light on Facts Deemed Relevant in Construction Negligence Disputes

Recently, the United States Court of Appeals for the Seventh Circuit decided the case of Victoria Jeffords as Administrator of the Estate of Donald Jeffords v. BP Products North America, Inc., et al., which was an appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 19-1533 (June 29,   Continue Reading »

THE ILLINOIS MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CONFIDENTIALITY ACT: Sword or Shield

The Illinois Mental Health and Developmental Disabilities Confidentiality Act (“the Act”), 740 ILCS 110/1 et seq.,[1] was passed in 1992 by the Illinois legislature to provide heightened privacy protections to recipients and providers of mental health services.  The Act has carved out a unique exception to our legal system’s principles of liberal discovery, strictly prohibiting   Continue Reading »

New EEOC Reporting Timeline

On May 7, 2020, the EEOC stated that due to COVID-19, data collection will be delayed for both the 2019 EEO-1 (Employer Information Report) Component 1, 2020 EEO-3 (Local Union Report), and EEO-5 (Elementary-Secondary Staff Information Report). The EEOC stated that covered employers should prepare to file EEO-1 reports for both 2019 and 2020 in   Continue Reading »

Attorney Client Privilege Under Attack: Disclosing Defendant Physicians as 213(f)(3) Witnesses

An issue has arisen in the context of disclosing direct defendant physicians as 213(f)(3) witnesses. Certainly, a party fits under the plain language as 213(f)(1) and 213(f)(3). Recently, in Cook County, Plaintiff’s attorneys have sought discovery production of communication between direct defendant physicians who are disclosed as (f)(3) witnesses and his/her attorneys. The position that   Continue Reading »

Defense Dodges $8M Verdict in Negligent Misrepresentation of Insurance Coverage Lawsuit

The recent Seventh Circuit decision, Turubchuk v. Southern Illinois Asphalt Co., et al., No. 18 – 3507 (7th Cir. 2020), addressed the disclosure of available insurance coverage in discovery responses.  The case presents a good defense result in an unusual set of facts but is a reminder about the perils of providing incorrect insurance coverage   Continue Reading »

The Illinois Cannabis Regulation and Tax Act: Business Formation, Licensing and More

I. Social Equity in the Cannabis Industry In late May 2019, the Illinois House and Senate approved the Cannabis Regulation and Tax Act (the “CRTA”), which Illinois Governor J.B. Pritzker has already signed into law. The CRTA is set to go into effect on January 1, 2020. The CRTA creates a social equity program to   Continue Reading »

Probable Cause Existed and Plaintiff’s Retaliatory Arrest Claim Against Two Officers Gets Tossed.

Overview:  In 2014, plaintiff was arrested during “Arctic Man,” a week-long winter sports festival held in the remote Hoodoo Mountains near Paxson, Alaska.  The event is known for both extreme sports, as well as extreme alcohol consumption. Police officers spend most of the weekend responding to snowmobile crashes, breaking up fights and policing underage drinking.   Continue Reading »

In Construction Site Insurance Coverage Dispute, Silence on Subcontractor’s Potential Negligence Sufficient to Create Duty to Defend

Overview: The general contractor for a construction project at a corporate office site hired a subcontractor to work on escalators at the construction project. The subcontract agreement required that the subcontractor name the general contractor and the owner of the corporate office as additional insureds under its insurance policy. Subsequently, an employee of the subcontractor   Continue Reading »

A Municipality “Moment:” FOIA Request for Police Department Videotapes Denied by Trial Court and Affirmed on Appeal

Overview: In 2016, the plaintiff, who worked as a reporter, submitted four Freedom of Information Act (FOIA) requests to obtain videotapes from 2013 of police interviews of several individuals accused of murder. The defendant (a municipality) denied those requests claiming unwarranted invasion of personal privacy, interference with actual or pending law enforcement proceedings, and disclosure   Continue Reading »

SCOTUS Cracks Down on Excessive Seizures by Police Departments, Municipalities

The U. S. Supreme Court has curbed the power of cities and states to levy fines and seize property under the Eighth Amendment of the US Constitution.  In a recent case, Timbs v. Indiana, the Court ruled that the seizure of a $42,000 Land Rover was excessive compared to the criminal activity that carried a   Continue Reading »

ARDC Complaint Almost Comes Back to Haunt Village President

The President of a municipality tried a novel approach to blunting the activities of a local painting contractor – submitting a “request for investigation” to the Attorney Registration and Disciplinary Commission (ARDC) – normally a path to pursue grievances against a licensed attorney. The contractor appeared to be organizing other local contractors in an effort   Continue Reading »

Appellate Court Rules District Court Sidestepped Jury Process in Dispute Over Non ADA-Compliant Courthouses in Illinois

For the hundreds of municipalities in Illinois – many with older courthouses and other public buildings – this ongoing dispute over non-ADA-compliant buildings should be of interest. Overview: The plaintiffs, five wheelchair-using detainees, attended court about once per month in connection with their individual criminal cases. Their court appearances were held in several different court   Continue Reading »

Vehicle Legroom Accommodation Dispute Ends with Appellate Court Affirming In Favor of Employer

Employers face a constant struggle to assess and accommodate employees with temporary or long-term health conditions.  In this case, the Seventh Circuit Appellate Court affirmed a district court’s decision granting the defendant-employer’s motion for summary judgment in plaintiff-employee’s Americans with Disabilities Act (ADA) accommodation claim. The plaintiff alleged that defendant improperly failed to grant his   Continue Reading »

Internal Quality Control Documents Granted Privilege in Med Mal Dispute

Hospitals face this issue on a regular basis: whether documents used for internal quality control review sessions are privileged.  In this particular medical malpractice lawsuit alleging wrongful death, the hospital asserted privilege, under the Medical Studies Act, to certain internal quality control documents requested in discovery. Overview: The decedent, while under general anesthesia, allegedly suffered   Continue Reading »

Court Rules Paramedic Did Not Violate Decedent's Fourth Amendment Rights

Court of the Appeals for the Seventh Circuit ruled that the district court erred in denying paramedic’s motion for summary judgment in plaintiff-decedent’s section 1983 action. Plaintiff’s estate alleged that paramedic had violated plaintiff-decedent’s Fourth Amendment rights when the paramedic administered sedative to decedent to calm decedent down after decedent was discovered by police lying   Continue Reading »

New Developments In Insurer Liability For Excess Judgments In Illinois

On March 15, 2018, the United States Court of Appeals for the Seventh Circuit issued its opinion in Hyland v. Liberty Mutual Fire Insurance Company, Case No. 17-2712. In Hyland, the dispute involved insurer liability — the amount an insurance carrier was responsible to pay where the insurer denied coverage without seeking a declaratory judgment   Continue Reading »

Illinois Spoliation of Evidence Law -- A Comprehensive Explanation

I.  Elements/definition of spoliation of evidence: Is it an “intentional or fraudulent” threshold or can it be negligent destruction of evidence. Illinois law does not recognize a separate and independent tort for spoliation of evidence. Dardeen v. Kuehling, 213 Ill. 2d 329, 821 N.E.2d 227 (2004); Boyd v. Travelers Ins. Co., 166 Ill. 2d 188,   Continue Reading »

Ruling Raises Questions About OSHA Worksite "Controlling Employer" Policy

An interesting legal development in Texas might prove significant for construction companies and other employers within the jurisdiction of the U.S. Court of Appeals for the Fifth Circuit – and any other jurisdiction that follows its view. The ruling should also encourage employers in other jurisdictions to challenge their circuit court’s rulings on “multiemployer/controlling employer”   Continue Reading »

Can The Underlying Plaintiff Collect More Than The Amount of the Underlying Judgment in Third Party Failure to Settle Cases?

In the typical third party bad faith case, the underlying plaintiff’s attorney makes a policy limits settlement demand, the insurer does not agree to pay its limits, or does not do so in the time the plaintiff’s attorney thinks it should, and the plaintiff then obtains a verdict substantially in excess of the policy limits.   Continue Reading »

Risk Management: Avoiding Unnecessary Litigation in the Enforcement of Sign Codes

INTRODUCTION Signs used by citizens to convey messages to the public are generally regulated by local town codes and ordinances. Restrictions on the use of such signs can create constitutional issues that municipalities must be wary of when enforcing the provisions of their particular code. Sign use restrictions in an Arizona town’s code were recently   Continue Reading »

Illinois Supreme Court Restricts Construction Negligence and Premises Liability Theories of Recovery in Illinois

Defense attorneys and their clients received a boost in personal injury cases involving construction accidents thanks to a recent Illinois Supreme Court ruling.  On October 20, 2016, the Supreme Court of the State of Illinois released its opinion in the case of Patrick Joseph Carney v. Union Pacific Railroad Company, 2016 IL 118984.  Plaintiff Carney   Continue Reading »

The GST Trust Tax Trap

The issues faced by trust and estate lawyers sometimes include complex tax analysis. One of those issues arises when an irrevocable trust skips a generation with trust assets going directly to grandchildren. That event may trigger a tax that is known as the federal generation-skipping transfer (GST) tax. The GST tax can be partially avoided   Continue Reading »

Know Your Adversary: Rules for Claims Against Federally Funded Health Centers

In 2014 alone, more than 1,300 federally funded health centers employed more than 11,200 physicians and more than 9,000 medical staff workers who treated approximately 23 million patients. Today, one in every fourteen people living in the United States relies on a federally funded health center for primary medical care. Further, the United States Department   Continue Reading »

Court Finds Municipality Used Arrest Record to Wrongfully Terminate Employment

In Murillo v. City of Chicago, the First District Appellate Court was asked to interpret a section of the Illinois Human Rights Act (Act) (775 ILCS 5/2-103(A) that prohibits employers from “[using] the fact of an arrest” as a basis to discriminate in employment.  Plaintiff, after about three years working as a janitor for a   Continue Reading »

Supreme Court Holds Fourth Amendment Requires a Warrant for Blood Testing

The Supreme Court recently weighed in on state laws that require a motorist suspected of driving under the influence to submit to blood testing. Birchfield v. North Dakota (No. 14-1468, June 23, 2016)[1]. The holding of Birchfield has far reaching implications for the many states that require a person to submit to warrantless blood tests.   Continue Reading »

OSHA Issues New Rules for Electronic Reporting

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule on electronic reporting of workplace injuries and illnesses, which directly impacts employer recordkeeping. The revised regulations impose a new obligation that requires many employers to annually submit certain electronic injury and illness data directly to OSHA. This information will then   Continue Reading »

Supreme Court Ruling Expands First Amendment Municipal Liability

Ruling Focuses on Employer’s Motivation Rather than the Employee’s Intent — Even Where Employer Was Mistaken Regarding the Employee’s Behavioral Intent The Supreme Court recently expanded potential municipal liability in Heffernan v. City of Patterson, New Jersey (No. 14-1290, Apr. 26, 2016)1. The plaintiff, Jeffrey Heffernan, is a police officer working in the Police Chief’s office in   Continue Reading »

Tendering Claims: Court Ruling Underscores Why Sooner Is Better

Tendering claims as soon as possible is always a good practice.  Here is a case in point. In February of 2016, the Illinois Appellate Court held that untimely notice by a company holding a certificate of insurance as an additional insured under a defendant’s policy barred coverage under the policy and precluded the company from   Continue Reading »

New Procedure for Setting Trial Dates in Cook County Circuit Court Law Division Cases, Including Construction Injury Cases

On March 23, 2016, the Honorable Judge James Flannery, the Presiding Judge of the Law Division of the Circuit Court of Cook County, handed down a General Administrative Order 16-2 that specifies a new procedure for the setting of trial dates relative to cases pending in the Law Division. All cases currently pending in the   Continue Reading »

Using the Affordable Health Care Act to Mitigate Future Medical Damages

In personal injury cases, is there a defensible strategy to significantly reduce claims for future medical damages through application of the Affordable Care Act?  Time will certainly tell, but it does appear possible. In its simplest terms, the Affordable Care Act (“ACA”) provides that all persons in the United States be afforded health insurance, regardless   Continue Reading »

Ransomware Attacks – Health Care Institutions an Emerging Target?

Several news media outlets are reporting a recent cyber-attack assault on Hollywood Presbyterian Medical Center in Los Angeles, California.  According to authorities, the hospital was the victim of a cyber-attack on February 5 that locked the hospital out of its computer systems using ransomware to infect their network. According to reports in this case, the unknown   Continue Reading »

Discovery Depositions Are Not Available for Media Use During Pending Litigation.

As you may have heard, Pam Zekman of CBS Channel 2 has run a television segment relating to a pending lawsuit against Palos Community Hospital.  In the segment, plaintiff’s counsel, Jim Ball, is interviewed along with the parents of a child that suffered brain damage after the hospital allegedly failed to properly treat the mother’s   Continue Reading »

Electronic Monitoring Comes to Illinois Nursing Homes

Lights! Camera! Electronic monitoring comes to Illinois nursing homes in 2016.  Shareholder Lynn M. Reid outlines the issues in a recent blog post.

Federal District Judge Upholds Chicago PD Rule Limiting Tattoos

In June of 2015, the Chicago Police Department (CPD) issued changes to its uniform policy. Under the new policy, on-duty CPD officers are required to cover tattoos on the hands, face, neck, and other areas not covered by clothing, with skin tone adhesive bandages or tattoo covers. Soon after the policy went into effect, three   Continue Reading »

Rapid Response to Data Breach Required to Avoid Liability

American companies have been slow to realize that they are a potential target of a cyber-attack.   Last year, FBI Director, James Comey remarked that “there are two kinds of big companies in the United States.  There are those who’ve been hacked….and those who don’t know they’ve been hacked…” But the risk of cyber-attack is not   Continue Reading »

Protection Reflection: The Supreme Court Rules Allow Partners to Limit Their Liability

The future ain’t what it used to be. — Yogi Berra Many lawyers are still unaware that effective July 1, 2003, our Supreme Court promulgated rules which conferred protection from professional liability in certain circumstances. Illinois Supreme Court Rules 721 and 722 allow lawyers in Illinois to protect themselves against vicarious liability for legal malpractice   Continue Reading »

The Continuing Controversy Over Custody Rights to Frozen Embryos in Illinois

As assisted reproduction technology continues to outpace the law intended to regulate it, the Illinois courts are faced, for the first time, with the question of which gamete donor has superior custodial rights over surplus frozen embryos resulting from the in vitro fertilization process.  William G. Beatty’s article, discussing the Szafranski case, presently before the   Continue Reading »

Making Hotels Safer For Their Guests

Hotel guests have high expectations of luxury with respect to the services and products they receive during their stay at a hotel.  In particular, they have high expectations about the quality of their room and the customer service provided to them.  Hotel guests also expect excellent hotel safety and security.  But no matter how luxurious   Continue Reading »

Debt Collectors Beware: Venue Provision of FDCPA Reinterpreted

Neither a borrower nor a lender be …   -Shakespeare   Recent federal court decision reinterprets the Fair Debt Collection Practices Act (FDCPA) and may create venue defense for current or future debtor defendants in debt collection suits. In Suesz v. Med-1 Solutions, LLC, 2014 U.S. App. LEXIS 12562 (7th Cir. 2014), the Seventh Circuit recently reinterpreted the   Continue Reading »

HACKER PREVENTION: KEEPING CLIENT-SENSITIVE ELECTRONIC INFORMATION CONFIDENTIAL

I’ve looked at clouds from both sides now   From up and down and still somehow       It’s cloud’s illusions that I recall      I really don’t know clouds at all …                       Judy Collins Back in July of 2011, we warned of a then popular e-mail/fraudulent check scheme whereby lawyers would receive e-mails from alleged potential   Continue Reading »

RECENT DEVELOPMENTS WITH ILLINOIS EMPLOYEE CLASSIFICATION ACT

On May 27, 2014, the Illinois Supreme Court resolved the issue of whether the Illinois Employee Classification Act was unconstitutional due to alleged defects in procedure. The Act, which is directed at the classification of construction employees, became effective on January 1, 2008 to address the practice of misclassifying employees as independent contractors. Consistent with   Continue Reading »

NOT ONLY SHAREHOLDERS GET PIERCED

Omittance is no quittance.          Shakespeare How many lawyers assist a client in forming a corporation, but merely assist in filing the annual reports and do nothing else?  Failure to advise of the risk associated with this minimal approach may now more likely result in veil-piercing to reach the client for individual   Continue Reading »

Will Your Independent Contractors Come Back to Haunt You? Illinois Supreme Court Upholds the Illinois Employee Classification Act

On May 27, 2014 the Illinois Supreme Court issued a modified opinion in Bartlow v. Costigan, 2014 IL 115152 (Ill. 2014). The case involved constitutional challenges to the Illinois Employee Classification Act, 820 ILCS 185/1 et seq.  The opinion should give pause to any company employing independent contractors. The Plaintiffs in the case were the   Continue Reading »

Illinois Appellate Court Confirms Lender's Remedies in Mortgage Foreclosure Action

A recent Illinois Appellate Court decision from the first district settled the question of whether or not a party to a mortgage may sue under the promissory note and separately under a mortgage foreclosure action.  The Court in Turczak v. First American Bank, 2013 IL App (1st) 121964 applied principles of res judicata to determine   Continue Reading »

ILLINOIS’ LIMITED LIABILITY IS UNLIMITED

In a case of first impression, a First District Panel of the Appellate Court of Illinois issued an opinion confirming immunity from liability arising from fraud under the Illinois Limited Liability Company Act (“LLC Act”) (805 ILCS 180/10-10). Careful lawyers must consider the Illinois law before forming an LLC in another state.  In Dass v.   Continue Reading »

Attorney Client Privilege: Dead Men Tell No Tales, But Their Agents Might

Estate planning often involves multiple professionals who must exchange confidential information regarding their clients’ affairs. The Illinois Court of Appeals provides an insightful opinion regarding when such privileges terminate, who can waive them after the client’s death, and what actions, if any, would put confidential information “at issue” and thus make discoverable.  (This article also   Continue Reading »

Are Plaintiff's Class Action Lawyers Already Setting Up Shop For Violations of New CFPB Rules?

New Rule Affects Title Companies, Lenders, Mortgage Brokers and Borrowers As Consumer Financial Protection Bureau Finalizes “Know Before You Owe” Mortgage Forms. A final regulation that combines mortgage disclosures required under the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA), finalized by the Consumer Financial Protection Bureau (CFPB), was released today. The   Continue Reading »

OSHA CLARIFIES REGULATIONS REGARDING "WALKAROUND REPRESENTATIVE"

Section 657(e) of the Occupational Safety and Health Act prescribes that employees have a right, subject to the Secretary of Labor’s regulations, to have a representative of their choosing accompany the OSHA compliance officer during a workplace inspection (a walkaround representative).  A prior letter of interpretation from Milan Racic to OSHA, dated March 7, 2003,   Continue Reading »

MODIFICATION TO FORM CONTRACT AND CONSTRUCTION MANAGER'S CONDUCT, COLLAPSES DEFENSE

On Aug. 16, 2013, the First District of the Illinois Appellate Court affirmed an adverse jury verdict entered against a construction manager and in favor of plaintiffs stemming from an accident on a construction project where the construction manager was not a constructor.  Liability was found based upon a modification to a standard American Institute   Continue Reading »

Self-Insured Retentions and High Deductibles: Their Impact on Insurers and Policyholders

In the current economic climate, first-dollar coverage has become a luxury that many commercial insureds can no longer afford. Although policies with large self-insured retentions and deductibles have always been available, they were frequently overlooked in the past when bottom lines were healthier and insurance premium costs were subject to less scrutiny. As more insureds   Continue Reading »

MECHANICS LIEN ACT AMENDED - CYPRESS CREEK DECISION OVERTURNED

Illinois Governor Pat Quinn has signed into law House Bill 3636 overturning the Illinois Supreme Court’s decision in Cypress Creek.    On Feb. 25, 2011, a divided Illinois Supreme Court decided an important case affecting the priority of mechanics lien holders and construction loan lenders when the proceeds of a foreclosure sale are not sufficient to   Continue Reading »

OBAMACARE COMES TO CONSTRUCTION

Under President Obama’s Healthcare Reform Law (Obamacare), companies with 50 or more full-time employees/equivalents (FTEs) must provide their workers with health insurance in less than a year, or face tax penalties. Thus, it is imperative that government contractors implement a health insurance strategy now.  Contractors who bid and work on projects subject to prevailing wage   Continue Reading »

A COOK COUNTY FIRST MUNICIPAL DEPARTMENT PRIMER

Many lawyers have found themselves slightly confused while appearing in courtroom 1501 of the Richard M. Daley Center for the first time.  Courtroom 1501 is responsible for handling all First District Municipal cases in which a jury demand has been filed. These cases are typically personal injury lawsuits arising from motor vehicle accidents.  Unlike the   Continue Reading »

HOSPITALS’ LIABILITIES/RESPONSIBILITIES WHEN RESPONDING TO LAW ENFORCEMENT’S REQUEST FOR INFORMATION

Imagine that you are a hospital administrator.  Law enforcement shows up at the hospital with a grand jury subpoena or a request of some kind for information.  Can you comply? In many jurisdictions, if protected medical information is sought, when faced with a grand jury subpoena, the answer is no, despite penalties that may arise   Continue Reading »

GOV. QUINN SIGNS BILL FOR HIGHER FEES IN MED MAL CASES

On Jan. 18, 2013, Illinois Gov. Pat Quinn signed into legislation House Bill 5151, which increases the amount that plaintiff’s attorneys in medical malpractice cases can collect, while eradicating the right of these attorneys to petition trial courts for enhanced fees in certain cases. With the signing of the bill into law, plaintiff’s attorneys will   Continue Reading »

THE ILLINOIS SUPREME COURT CLARIFIES THE APPLICATION OF ARBITRATION AGREEMENTS IN NURSING HOME CONTRACTS

On September 20, 2012, the Illinois Supreme Court filed its opinion in the Carter v. SSC Odin Operating Co. case, 2012 IL 113204. In the case, the Court revisited the issue of whether arbitration agreements contained within nursing home contracts are enforceable. The Court upheld the general applicability of such agreements within the nursing home context but   Continue Reading »

EMAIL COMMUNICATIONS BETWEEN ATTORNEY AND EMPLOYEE ON EMPLOYER-ISSUED COMPUTER USING PERSONAL WEB-BASED ACCOUNT ARE PRIVILEGED

Employees’ use of personal email accounts (e.g., Yahoo, Gmail, etc.) on employer-issued computers is standard practice in most work environments.  These email accounts come with personal identifications and passwords that are generally only known by the employee.  What many employees do not realize is that copies of nearly every web page they visit on their   Continue Reading »

HOUSE BILL 3636 WILL OVERTURN CYPRESS CREEK DECISION ON MECHANICS LIENS

On Febr. 25, 2011 a divided Illinois Supreme Court decided an important case impacting the priority of mechanics lien holders and construction loan lenders when the proceeds of a foreclosure sale are not sufficient to satisfy all claims.  The majority opinion, delivered by Justice Garman, was joined by Chief Justice Kilbride and by Justices Thomas,   Continue Reading »

THE ILLINOIS PREVAILING WAGE ACT ADDS TEETH

Recent changes to the Illinois Prevailing Wage Act (“IPWA”) and the law interpreting it have broadened its reach and toughened the requirements and penalties such that contractors and governmental bodies must become aware of these changes.  The IPWA was designed to ensure that laborers on public works projects were paid as much as the local   Continue Reading »

UNITED STATES COURT OF APPEALS FOR SEVENTH CIRCUIT AFFIRMS OSHA CITATION BASED ON EVIDENCE THAT WHILE CONSIDERED "SUBSTANTIAL" WAS NEITHER PRECISE, ACTUAL OR CONSIDERABLE

K.S. Energy Services, LLC v. SOLIS, 2012 U.S. App. Lexis 25442 On December 13, 2012, the United States Court of Appeals for the Seventh Circuit affirmed a repeat violation citation issued by OSHA to KS Energy Services, LLC in connection with its purported failure to comply with OSHA’s 1926 Subpart P: Excavations Requirements for Protective   Continue Reading »

IMPORTANT INSURANCE COVERAGE CASES FOR CONTRACTORS

Introduction Insurance coverage issues arise in almost all construction cases.  Several rather recent cases that have a direct impact on tenders of defense and pursuit of coverage from subcontractors have been decided and two of them are discussed in some detail below.  First in Westfield Ins. Co. v. FCL Builders, the First District of the   Continue Reading »

PROBABLE CAUSE FOR ARREST VS. PROBABLE CAUSE TO INITIATE CRIMINAL PROCEEDINGS - HOW THE STANDARD DIFFERS BASED ON THE CLAIM

In federal civil rights litigation, two of the most common claims brought against police officers and municipalities are those for false arrest and malicious prosecution.  For a plaintiff in a false arrest case to prove his claim, he must show, among other things, that the defendant police officer who arrested him did not have probable   Continue Reading »

MINNESOTA COURT ALLOWS RETROACTIVE EXCEPTION TO CONSTRUCTION STATUTE OF REPOSE

The Minnesota Supreme Court recently rendered a decision that has serious potential consequences for contractors working in Minnesota, and for contractors working in other States if those States follow suit. The 2007 collapse of the I-35 bridge in Minneapolis resulted in 13 deaths. Despite a statutory $1 million limitation on its liability, the state of   Continue Reading »

INSURERS BEWARE: ILLINOIS' FIFTH DISTRICT SCRUTINIZES POLICY LIMIT SETTLEMENT ISSUES

On May 22, 2012, Illinois’ Fifth District issued an opinion that insurers across the state should take immediate notice.   The opinion, entered in Kirk v. Allstate Insurance Co., No. 5-10-0573 (Ill. App. 5th Dist. 2012), highlights the importance of securing proper releases which fully protect their insureds from personal liability in matters involving policy limit payments.   Continue Reading »

"BAD FAITH": WHAT DOES IT MEAN? AN OVERVIEW OF BAD FAITH/FAILURE TO SETTLE THIRD PARTY ACTIONS UNDER ILLINOIS LAW

You are an insurance claims representative attending a pre-trial settlement conference in a medical malpractice lawsuit. The plaintiff’s attorney makes a demand that is within policy limits, but you consider it unreasonable and not consistent with the nature of the injury claimed. You make an offer that is more consistent with your assessment of the   Continue Reading »

SOMETIMES DOING LESS IS BETTER - ANWAR OSHANA V. FCL BUILDERS, INC., ET. AL

In early 2012, the Illinois Appellate Court held that an off-site steel fabricator could not be held liable for an injury to an employee of its subcontractor because it did not retain supervisory or contractual control over its subcontractor’s steel erection work.  In rendering its decision, the Illinois Appellate Court determined that the conduct of   Continue Reading »

HOLD ONTO YOUR HARDHATS: 2011 Brings Major Changes to the Illinois Workers’ Compensation Act

In 2011, the Illinois Workers’ Compensation Act was significantly revised.  While all of the changes are worth a thorough review, this article will summarize some of the major reforms, which have the greatest significance to the construction industry. There are often disputes between an employer and its employee as to what constitutes reasonable and necessary   Continue Reading »

NIOSH LENDS HELPING HAND TO NAIL GUN USERS

Nail guns are efficient and convenient to use.  However, they’re also sending users to the emergency room.  According to the U.S. Centers for Disease Control (CDC) and Prevention, 37,000 people each year are treated for nail-gun injuries, with foot and hand punctures being the most common. While construction workers account for just over half of these   Continue Reading »

RECENT NORTHERN DISTRICT DECISION IMPACTS CONFLICT OF INTEREST CASES IN ILLINOIS

When Does a Conflict of Interest Exist Between an Insurer and Its Insured Under Illinois Law? Under Illinois law, when a conflict of interest exists between an insurer and its insured, the insurer must decline to defend the insured and, instead of participating in the defense, the insurer must pay for independent counsel for the   Continue Reading »

THE NEXT GENERATION OF LEED

The U.S. Green Building Council (USGBC) is in the process of LEED 2012 development. The proposed changes focus on increasing the technical rigor of the rating system and expanding the market sectors that are able to use LEED.  According to the USGBC, the proposed technical changes have been developed based on market data, stakeholder ideas,   Continue Reading »

THE PECULIARITY AND RELEVANCE OF RESPONDENTS IN DISCOVERY

In recent years, plaintiff attorneys in medical malpractice lawsuits have increasingly utilized the statute allowing for respondent in discovery (RID).  735 ILCS 5/2-402 involves persons and entities designated as RIDs.  However, RIDs are not parties.  RIDs are identified in complaints and are required to participate in discovery, including answering written discovery and sitting for a   Continue Reading »

LAW UPDATE: TRANSFER ON DEATH JUST BECAME EASIER IN ILLINOIS

Effective January 1, 2012 – HB 1153 (Bradley/Wilhelmi) P.A. 97-0555 creates the Illinois Residential Real Property Transfer on Death Instrument Act. The Act will establish procedures for the non-testamentary transfer of residential real estate upon the death of the owner. The act defines Residential real estate to include one to four housing unit properties; condominium   Continue Reading »

ILLINOIS SUPREME COURT APPOINTS MARCONI TO ADVISE DISCOVERY COMMITTEE

Effective January 1, 2012, the State of Illinois’ Supreme Court appointed Johnson & Bell, Ltd. Shareholder Joseph R. Marconi as Advisor to the Judicial Conference Committee on Discovery Procedures.  Mr. Marconi is the chair of the Business Litigation/Transactions group at the firm. The Committee is comprised of circuit and appellate court judges from around the state and   Continue Reading »

CHICAGO TO RESHAPE MINORITY CONTRACTING

Chicago Mayor Rahm Emanuel recently announced plans to carve out construction projects under $3 million for small businesses and give city contractors credit for the minority hiring they do in the private sector under a plan to bolster minority contracting.  Instead of maintaining the legally shaky “Target Market” program that allows minorities and women to   Continue Reading »

PROOF WITHOUT A "PROOF OF LOSS"

Any insurance policy you come across these days will contain a suit filing deadline, but in Illinois that deadline is more often than not tolled by section 143.1 of the Illinois Insurance Code.  215 ILCS 5/143.1 (West 2006).  Section 143.1 is a statutory restriction on contractual limitation provisions that was designed to prevent insurance companies   Continue Reading »

PRESSURE ULCERS: AVOIDABLE OR UNAVOIDABLE?

Skin breakdown or pressure ulcers are a common topic in geriatric litigation across the country.  These cases are not just found in the realm of nursing home litigation.  At an increasing rate, plaintiff’s attorneys are filing wound cases against anyone who may have cared for the wound which can include:  long term care facilities, assisted-   Continue Reading »

Nursing Home's Health Care Arbitration Agreement Held Invalid...

… But Door Left Open for Future Arbitration Agreements to be Upheld On Aug. 18, 2011, the Fifth District Court of Appeals held that the arbitration agreement at issue in this Illinois Nursing Home Care Act and Wrongful Death case was invalid as it lacked mutuality making it unenforceable.  However, the court left the door   Continue Reading »

IT OCCURRED, SO THERE IS AN "OCCURRENCE", RIGHT? NEW ILLINOIS APPELLATE COURT DECISION GIVES DIRECTION ON MEANING OF "PROPERTY DAMAGE" AND "OCCURRENCE" IN COMMERCIAL GENERAL LIABILITY POLICIES

Lawsuits against contractors often allege defective workmanship and subsequent damage to a structure and/or damage to property within that structure. Commercial general liability policies are not always clear, however, in just what kinds of damage would be covered in such scenarios. Obviously, the definition of terms such as “property damage” and “occurrence” within the language   Continue Reading »

REVISIONS TO OSHA STANDARDS REGULATING SLINGS CLARIFIES COMPLIANCE WITH LOAD CAPACITY REQUIREMENTS

Prior to June 8, 2011, The U.S. Department of Labor’s Occupational Safety and Health Administration Standards regulating load capacities for slings were pursuant to tables developed and based on the 1971 ANSI B30.9 Standards.  In revising the standards, OSHA found that the load-capacity tables contained duplicative, inconsistent and outdated information that confused compliance requirements.  The   Continue Reading »

FIRST DISTRICT REVISITS COOPERATION ISSUES IN RECENT THIRD PARTY LIABILITY CASE

Illinois’ First District in Founders Ins. Co. v. Shaikh, 405 Ill.App.3d (1st Dist. 2010) recently examined various issues and obligations surrounding the duty to cooperate in a third- party liability defense case.  Specifically, the Shaikh decision highlights the existence of dual cooperation obligations placed on the insurer and the insured, and provides a fairly detailed historical overview of   Continue Reading »

ILLINOIS SUPREME COURT RULING BRINGS TORT IMMUNITY ACT BACK TO FULL STRENGTH

Over the years, the protections afforded to municipalities and public employees by the Illinois Tort Immunity Act have eroded somewhat due to various decisions extending the willful and wanton conduct exception found in 745 ILCS 10/2-202 to other provisions of the act.  For instance, in Doe v. Calumet City, 161 Ill.2d 374 (1994), the Illinois Supreme Court   Continue Reading »

HEALTH PROFESSIONAL REPORTS UNDER 735 ILCS 5/2-622: FIRST DISTRICT APPELLATE COURT DECISION FURTHER CLARIFIES STATUTORY REQUIREMENTS IN CHRISTMAS V. DR. DONALD W. HUGAR, LTD., ET AL.

The much-publicized 2010 Illinois Supreme Court ruling in LeBron v. Gottlieb Memorial Hospital is most well-known for its impact on Illinois’ efforts at tort reform.  However, this decision also served to change, and in some critics’ minds further complicate, Illinois law on the issue of the requirements of 735 ILCS 5/2-622.  Recently, in an effort to further   Continue Reading »

Johnson and Bell

Johnson and Bell