Synopsis: Illinois’ Legal System Continues to Get More Judicial “Hell-Hole-y.”
Editor’s comment: The American Tort Reform Association puts out a Rotten Tomatoes-type ranking of U.S. litigation systems they call Judicial “Hell-Holes.” Their goal is to let you, me and your friends know what things in our courts start to smell of limburger cheese. In my view, what just happened to our State stinks to high heaven. Now we have to wait and see what our wacky Illinois courts do with this new and shocking concept. Please also remember the terms in this legislation like “latent injury” and “statutes of repose” aren’t truly defined other than in the minds of the Plaintiff bar—in my view, if the judiciary blindly accepts this legislation, without requiring clarity, they are going a very long way toward appearing to me to be the minions of their campaign benefactors.
As a caveat to my readers, I strongly recommend you contact your insurance brokers and ask what to do about insurance coverage for this new and unprecedented risk. All U.S. General Liability Insurance policies have a standard exclusion for claims by an employee, and all Work Comp insurance policies have a standard exclusion for civil claims against the employer—because civil claims were very limited in our State until this new law was enacted. In my view, and in the view of many commentators, current IL business insurance coverage leaves these sorts of claims in a Never-Land. The reason for my Never-Land comment is this shocking new exposure didn’t exist in this goofy State until last Friday! Don’t be caught in the lurch whatever you do.
I also have an article by an excellent legal scholar who feels this mess is going to either be declared unconstitutional or be allowed to exist but the concept won’t start for 25 more years—if you want that article, send me a reply. Either way, please assume the fun people at ITLA or the IL Trial Lawyers Ass’n who are behind this concept are going to find some Sad Sack claimant to trot in front of favorable judges and then our Appellate/Supreme Court justices to see if they can get the courts to make this new idea work the way they want it to work so they can cash in giant legal fees in doing so.
Either way, on May 17, 2019, IL Governor JB Pritzker signed SB 1596 into law. ITLA or the IL Plaintiffs’ Bar introduced legislation in both the Illinois House and Senate (SB1596) to override the Illinois Supreme Court’s decision in Folta v. Ferro Engineering,2015 IL 118070 (2015), where the Supreme Court held the IL Worker’s Compensation Act and Occupational Diseases Act was the exclusive remedy for Illinois workers who suffered exposures, also confusingly called “latent injuries” for conditions such as asbestosis and mesothelioma. Ed Matushek wrote the position paper of the IARDTC or Illinois Association of Defense Trial Counsel opposing this unnecessary legislation, and testified in opposition before both the Illinois Senate Judiciary Committee and the House Judiciary – Civil Committee. The Illinois Senate and House both voted to approve along party lines, without even considering any alternative to keep such claims in the IL worker’s compensation system.
SB 1596 is supposed to be legislation that helps workers who develop what are called “latent illnesses or injuries” after coming in contact with asbestos or other toxic but supposedly hidden substances in the workplace. Legal scholars feel this is impermissible special legislation that will eliminate strict liability of employers for only these injuries under the long-established work comp program and increase the threshold of proof required by a special class of injured workers in order to obtain recovery. SB 1596 basically doubles the amount of attorneys’ fees to be paid by the injured worker from the statutory 20% under the worker’s compensation system by moving the worker’s claim against the employer to the civil tort system, where the trial lawyers can assess their attorneys’ fees at 40% or more of the recovery.
One source indicates campaign contributions by our wealthy trial lawyers seeking this new law gave Illinois politicians and judges nearly $40 million during the past 17 years. We always feel judges/justices who accept campaign donations from Plaintiff lawyers trying to make new law should recuse themselves when the laws are brought to them to analyze their constitutionality.
KCB&A’s top liability lawyer, Bradley Smith was quoted in several national news sources to say:
This new law, if used as its advocates intend it to be used, will revive claims in the civil suit arena that were already barred by the Worker’s Compensation Act and the corresponding Illinois Occupational Disease Act’s statute of repose, he said. Employers should be ready to attack those potential claims aggressively from the onset. This is because the constitutional viability of applying this law retroactively is questionable at best. Bradley Smith said he was confident the law would face numerous legal challenges.
Please note this law is being jammed down the throats of the IL State Chamber and other great advocates on the management side of IL business with no negotiations or counter-balance in costs being offered by IL labor. This is not an “agreed bill,” which is the genteel way such things used to get done with give and take from both sides of the aisle. In the People’s Republic of Illinois, I can sadly forecast more gloomy news for our employers and business leaders, as the Plaintiff bar seeks to cash in.
An alternative to achieve a legislative goal of insuring some recovery for the injured employee would have been to lengthen or even abolish what is being called the WC “statute of repose” period for “latent injury” claims but always keep recovery in the longstanding system of Illinois work comp. That is not what SB 1596 does. Removing the exclusive jurisdiction of such claims from the Illinois WC Commission has consequences that may hurt the constituents our Legislature seeks to assist by creating unlimited and possibly business-busting tort liability for Illinois employers in our court system for such claims, and may have the effect of eliminating any existing insurance coverage for such claims, as I outline above. This can and will drive even more Illinois businesses and employers out of our State or into bankruptcy protection.
SB 1596 ignores the rationale for the exclusive remedy provisions of the Illinois Work Comp Act and the Workers’ Occupational Diseases Act. These Acts impose liability without fault upon the employer and, in return, prohibit expensive and unpredictable common law suits by employees against the employer. The exclusive remedy provision found in Section 5 of the Acts is part of the grand exchange in which sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, the company is also relieved of the the cost of defense and business-busting jury verdicts.
Reasonable legislation would have extended the length of the twenty-five repose period under the Acts and keep the employee’s remedy in the worker’s compensation system. Instead, this new bill places recovery for such injury in the civil tort system, where the worker relinquishes the advantage of strict liability of the employer, and as a practical matter, doubles the amount of attorneys’ fees that will be paid by the injured worker. Most important, all Illinois employers will be surprised to find that they may be suddenly uninsured for claims under this law. The practical effect of this law is to subject Illinois employers to unlimited liability for employees’ “latent injury” claims, and at the same time strip Illinois employers of their insurance for such claims. SB 1596 will adversely affect the Illinois economy, and likely reduce or eliminate the likelihood of a viable recovery by the injured worker, defeating the supposed purpose for this legislation.
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Synopsis: The Defense Team at KCB&A Welcome Chicago’s Amazing New Mayor Lori Lightfoot.
Editor’s comment: Ms. Lori Lightfoot was inaugurated as our City’s Mayor today. She called for unity, not divisions, returning to a mantra of, “We are each other’s business.” She even mentioned our late Mayor Harold Washington, saying she felt his spirit in the room.
Mayor Lightfoot’s biggest applause came when she called for an end to the city’s legendary political corruption, most—not all—at the aldermanic rather than mayoral level.
She said: “Stopping [corruption] isn’t just in the city’s interest. It’s in the City Council’s own interest. No official in the City of Chicago, elected or appointed, should ever profit from his or her office. For years, they've said Chicago ain't ready for reform. Well, get ready, because reform is here."
Assuming she wins an initial City Council organizing vote next week and has a working majority, Lightfoot’s biggest task will be to find billions to fill a gaping hole of at least $740 million in the pending 2020 City budget. Lightfoot had better hope all of those new committee chairs she named feel they owe her, because she’ll need their votes on some very, very difficult fiscal matters that will come up quite soon.
Where will the money come from? There are no answers yet, but lots of expectations from many who voted for Lightfoot for more spending on things such as anti-gang-violence efforts, affordable housing, expanded mental health services and the like. And looming are negotiations with the Chicago Teachers Union over another new contract, and the union seems to be gearing up for another never-ending, never-satisfied war. They later indicated they want at least $2 billion that isn’t in the budget and those evil wealthy people better be ready to pony up.
From my perspective, Mayor Lightfoot is a crystal clean lawyer and solid business woman. I don’t know what her true genius is but she also has lots of geniuses around her, which is twice as good. She is, for the first time in recorded memory trying to bring in an actual City risk manager who will watch and manage GL, WC and other claims, like cities and small governments across our country have been doing for decades. We hope to see the end of the incredibly odd way such things have been managed for decades.
I have offered her team my best thoughts and ideas for the City to transition to
Preventing/stopping and then investigating all incidents,
Managing claims when the unforeseen happens,
Getting injured workers back to sedentary and light work asap,
Trying to slow or stop litigation where possible, and
Bringing the City of Chicago into a new age of great GL and WC claims management.
I will try to keep my readers posted as this process continues.
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