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J&B Blog Archives

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 »

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 »

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 »

Tendering Claims: Court Ruling Underscores Why Sooner Is Better

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 seeking contribution from that defendant for a settlement paid by the company in an underlying action. The   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 »

Illinois Supreme Court Rejects Employee’s Direct Action Against Employer for Claimed Asbestos Related Illness

In a much anticipated opinion, on November 4, 2015 the Illinois Supreme Court found that the provisions of Illinois’ Workers’ Compensation Act and the Workers’ Occupational Diseases Act (“the Acts”) barred an employee from bringing a direct civil action against his employer for injuries allegedly caused by exposure to asbestos. In Folta v. Ferro Engineering,   Continue Reading »

First District Illinois Appellate Court Allows For Direct Common-Law Action Against Employer For Asbestos-Related Disease

On June 27, 2014, in a case of first impression, the Illinois Appellate Court, First District, delivered a decision allowing an employee to sue his employer outside of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act (“the Acts”) where the employee first learned of his injury after the expiration of the statute of   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 »

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 »

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 »

JURISDICTION OVER A FOREIGN DEFENDANT -- RECENT ILLINOIS DECISION WILL IMPACT COMPONENT PARTS MANUFACTURERS

I.  Synopsis Illinois Supreme Court in Russell v. SNFA, 2013 IL 113909 (April 18, 2013) finds specific jurisdiction over a foreign component part manufacturer, finding that its products were part of the marketing plan of the seller’s product.  What does this mean for component part manufacturers that have integrated marketing plans with the seller’s product?   Continue Reading »

PRODUCT LIABILITY CASE EVALUATION AND TRIAL STRATEGY CONSIDERATIONS - Part Three

In the final installment of his in-depth analysis of case evaluation and trial strategy, Johnson & Bell Shareholder, Charles P. Rantis, focuses on the sole proximate cause argument in product liability cases – withdrawing all affirmative defenses and trying the case on damages alone. (Read Part One and Part Two) Trial Strategy: Withdrawal of Affirmative Defenses   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 »

PRODUCT LIABILITY CASE EVALUATION AND TRIAL STRATEGY CONSIDERATIONS – Part Two

Following up his analysis of case evaluation and trial strategy in Part One of his three-part series, Johnson & Bell Shareholder, Charles P. Rantis, explores the potential benefits and challenges of using plaintiff’s contributory fault defenses in product liability cases. (Part Three) Trial Strategy: Defense Based on Plaintiff’s Contributory Fault The extent to which plaintiff’s   Continue Reading »

ILLINOIS SUPREME COURT PROVIDES (SOME) CLARITY ON START OF STATUTE OF LIMITATIONS FOR LOSSES BY INVESTORS

Determining the start date for any statute of limitations can be difficult.  This is particularly true in cases of alleged financial exploitation or fraud.  In such cases, the damages themselves can often be difficult to determine, let alone pinpointing the moment in time when they began.  In the recentKhan v. Deutsche Bank AG decision, the Supreme   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 »

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 »

THE CHALLENGES OF LEGACY EQUIPMENT

American and European product manufacturers face many challenges operating in the international marketplace.  Foremost is the product liability lawsuit, which can challenge a manufacturer’s every decision, from the design and development stage, through sale of the product, and even for an undefined period thereafter.  A manufacturer’s potential liability for legacy equipment, i.e., older or prior   Continue Reading »

Product Liability Case Evaluation and Trial Strategy Considerations -- Part One

In the first of three installments of his in-depth analysis of case evaluation and trial strategy, Johnson & Bell Shareholder, Charles P. Rantis, explores the critical importance of weighing intangible factors of a given case.  He argues that these factors can impact defense counsel’s trial strategy and tactics as much as a mathematical methodology assessment of   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 »

PRODUCT MANUFACTURERS' POTENTIAL LIABILITY FOR USERS' ALTERATIONS OF THE PRODUCT

Under Illinois law, a manufacturer’s liability for an allegedly defective product is determined by the condition of the product at the time that it left the manufacturer’s possession and control. Augenstine v. Dico Co., 135 Ill.App.3d 273, 481 N.E.2d 1225 (1985). Defects existing in the product at the time it leaves the manufacturer’s possession and   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 »

THE SEVENTH CIRCUIT CONFIRMS THE REQUIREMENT FOR EXPERT TESTIMONY UNDER THE "CONSUMER EXPECTATIONS" TESTS

A recent opinion from the United States Court of Appeals for the Seventh Circuit affirmed a district court’s order granting summary judgment in favor of a defendant-manufacturer when the plaintiffs failed to present expert testimony in support of their design defect case, prosecuted under the “Consumer Expectations” test. In Show v. Ford Motor Co., 2011 U.S.   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 »

JOHNSON & BELL NEWS OF NOTE

Practice group co-chair and shareholder Kevin G. Owens recently presided as Chairman of the ALFA International Product Liability Practice Group at the group’s seminar in Nashville, Tennessee.  The program, “Is the Next Verse the Same as the First…or Has the Tune Changed,” presented a variety of timely topics, including Enforcement of Indemnity Agreements with Foreign   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 »

UNITED STATES SUPREME COURT DECISION ON FEDERAL PREEMPTION AIDS GENERIC DRUG MANUFACTURERS

On June 23, 2011, in a 5-4 decision, the United States Supreme Court held that federal statutes and FDA regulations governing the labeling of generic drugs preempt state law tort claims against generic drug manufacturers for failure to provide adequate warning labels.  In Pliva, Inc., v. Mensing the court determined that it was impossible for   Continue Reading »

THE ILLINOIS SUPREME COURT EXAMINES THE RISK-UTILITY TEST IN DESIGN DEFECT CASES

A recent Illinois Supreme Court ruling of major significance examines the risk-utility test as a method of proof in product liability cases premised on a design-defect theory.  The holding in the case, which includes a rejection of a post-sale duty to warn, merits the special attention of the product liability defense bar. Jablonski v. Ford Motor   Continue Reading »

RECENT U.S. SUPREME COURT DECISIONS ON PERSONAL JURISDICTION BENEFIT FOREIGN PRODUCT MANUFACTURERS

The first step in any litigation involving a corporate defendant that is foreign to the selected forum is determining whether the court can exercise jurisdiction over the defendant.  There are two different types of personal jurisdiction that a court can exercise over a defendant – general and specific.  A state court may assert general jurisdiction   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 »

PRESS RELEASE: CONSTRUCTION FATALITIES DECLINE BY NEARLY 10 PERCENT BETWEEN 2009 AND 2010 AS INDUSTRY CONTINUES FOCUS ON WORKPLACE SAFETY

Industry-Led Efforts Contributed to Nearly 40 Percent Reduction in Fatalities Since 2006 The number of construction fatalities declined by nearly 10 percent between 2009 and 2010, and by almost 40 percent during the past five years, according to an analysis of new federal data prepared by the Associated General Contractors of America. Association officials pointed   Continue Reading »

SEVENTH CIRCUIT BARS PLAINTIFFS LAST MINUTE CHANGE IN THEORY OF PRODUCTS CASE

In Aldridge v. Forest River, Inc., et al., 635 F.3rd 870 (2011), plaintiff filed a strict product liability lawsuit arising out of injuries allegedly sustained while the plaintiff was descending the steps of her recreational vehicle.  Throughout the course of the litigation, plaintiff had maintained that it was a step controller, installed on the vehicle, which   Continue Reading »

"LEGACY" EQUIPMENT - WHAT IS THE MACHINE MANUFACTURER'S DUTY ONCE THE MACHINE LEAVES THE PLANT?

The answer to the question: “what is a product manufacturer’s duty” relative to its products once they leave the plant, is not one that is easily answered.  In Illinois, a manufacturer has no duty to issue post-sale warnings or to retrofit its products to remedy defects first discovered after a product has left its control.  To the   Continue Reading »

SUPREME COURT FURTHER ERODES FEDERAL PREEMPTION DOCTRINE

In the recent case of Williamson v. Mazda Motor of America, 562 U.S.__(2011), the United States Supreme Court has held that the 1989 version of Federal Motor Vehicle Safety Standard 208 (FMVSS 208) giving vehicle manufacturers a choice to install either a lap belt or a lap and shoulder belt in a rear inner seat of a motor   Continue Reading »

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