10-31-11; More Scary IL Legal Stuff

Web posted: 10/14/2011 Law firm sues confusingly named competitor, alleging trademark violations.

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o   THE LAW OFFICES OF PETER F. FERRACUTI, P.C. vs. DREW J. FERRACUTI, DREW FERRACUTI LAW FIRM, d/b/a FERRACUTI LAW FIRM

o   Case Number: 2011C7265   Type Of Case: Trademark Infringement

o   An Ottawa, Illinois based law firm is suing another law firm in the same city, alleging trademark violations.

o   We note Peter Ferracuti was licensed to practice law in Illinois in 1953. His son, Drew started as a lawyer in 1987. We understand Peter gave their last name to his son at birth without any fees, costs or non-compete contracts involved. We also note both lawyers are among the top of the practice in the central part of our state. We hope they can patch this up and continue to serve injured workers.

3.    The PPP opt-out form hit the web last week.

o   We continue to laugh about how long it took the powers-that-be to get a simple one-page form together.

o   We also laugh to see they used the word “declination” that will clearly be easy for Illinois workers to understand.

o   We can hardly wait for the powers-that-be to have it translated into Española and Polish and the other languages in regular use across Illinois. For you trivia buffs the word translates to declinación in Espanola!

o   We can hardly wait for the IL Department of Insurance to finally approve one PPP when they have had WC PPA’s in place for decades.

4.    We recently pointed out how difficult it will be for the attorneys who appear on the IL Workers’ Comp Advisory Board to appear before the Arbitrators who they recently selected.

o   We indicated a number of Arbitrators have “one-year” terms

o   It appears their terms are actually 8 month terms because they end on July 1, 2012.

o   Does anyone other than us feel this creates a conflict? Rule in my favor or you are out in eight months???

5.    Michael P. Latz is now a Commissioner. We were advised new Commissioner Latz is a “Double-Domer” or someone who attended Notre Dame for both college and law school.

o   He is admitted to the bars for the State of Illinois, the Federal District Court for the Northern District of Illinois, the Federal District Court for the Central District of Illinois, Federal District Court trial bar for the Northern District of Illinois, Federal District Court for the District of Colorado and the United States Court of Appeals for the Seventh Circuit. Mr. Latz served as a criminal prosecutor in the Cook County State's Attorney's Office in Illinois from 1989 to 1994. He was the lead attorney for the prosecution in many bench and jury trials and was attorney of record in over 50 cases reported in the official reporters for the Illinois Appellate and Supreme Courts, and Federal District Court, and the U.S. Court of Appeals.

o   Prior to becoming a Commissioner, his litigation practice focused on employment, civil rights and excess-exposure personal injury claims, as well as insurance coverage disputes. Mr. Latz concentrates his practice with a focus on the defense of municipalities and police agencies in employment and civil rights claims, and in other tort litigation.

o   Before beginning his career as an attorney, Michael Latz was a teacher and varsity wrestling coach at Fenwick High School in Oak Park, Illinois. Mr. Latz was as an adjunct instructor at Triton College and taught trial advocacy.

o   While joins a long list of folks who got jobs as WC Commissioners without any WC experience; with that resume, it looks like he will catch up quick. We wish him the best in his new position.

10-31-11; Subrogation, indemnification, contribution--is there a distinction in relation to Illinois Workers’ Compensation Act?

If it means possibly defeating the purpose of the Illinois Workers’ Compensation Act then “no” as found by the Illinois Appellate Court, 5th District in Enterprise Leasing Company of St. Louis v. Hardin, 2011 IL App (5th) 100201 (September 8, 2011). Defendant collided with a median while driving a rental car in Kentucky during business trip; her two passengers, who were her co-workers, were injured.

The Appellate Court found the rental car company's claim is barred by the IL Workers' Compensation Act, which gives employees immunity from liability for negligence that injures their co-workers. The Court ruled co-worker immunity bars indemnification claims by third parties.  

Plaintiff Enterprise argued their indemnity claim was not barred by the Illinois Workers’ Compensation Act because it is a claim sounding in indemnification and not subrogation. The Illinois Appellate Court 5th District disagreed, citing factual similarities with both Ramsey and Kotecki rulings noted Section 5 of the Illinois Workers’ Compensation Act provides co-workers with immunity that prevails over the right to contribution and it is a bar to third party contribution claims against co-workers.  

What continues to be confusing is the Court at first admits contribution, subrogation and indemnification are distinct causes of action yet by contrast, both indemnification and subrogation place the entire burden for a loss on the party ultimately liable or responsible for it and by whom it should have been discharged. So are they distinct causes of action?

We think the Appellate Court’s own words sums up this confusing topic:

Requiring the Defendant to bear the cost of the claims paid by the Plaintiff for which she would have been immune from liability if sued directly would shift the burden of these work related injuries from the employer to the co-worker and we also note that claims could exceed the limits placed on the employer’s liability by the Illinois Workers’ Compensation Act which would defeat the purpose of the Illinois Workers’ Compensation Act just as surely as allowing a third-party contribution claim under similar circumstances.

This article was researched and written by Michael J. Danielewicz, J.D. If you would like to discuss this article further Michael can be reached at mdanielewicz@keefe-law.com or office 312-756-3703 or cell 312-907-8220.

10-31-11; Why the Illinois judiciary in workers’ compensation and basically everything remains so wildly pro-Petitioner/Plaintiff. While we are certain the legislature just made lots of...

We were stunned, dazed and amazed to learn our Appellate Court, Workers’ Compensation Division recently flipped not one but two rulings, finding the decisions of the IL Workers’ Compensation Commission were “against the manifest weight of the evidence.” If you aren’t sure, the last statement of the Illinois Supreme Court on this topic was to rule the reviewing courts were not to do this, ever. In these two confusing rulings, dissents were filed pointing out there were facts supporting the Commission’s rulings below and asserting the decisions should have been quickly affirmed.

How does judicial fund-raising affect Illinois workers’ compensation? Well, Justice Kilbride and the members of our highest court select the five members of the Appellate Court, Workers’ Compensation Division. By leaving members on this division of the Appellate Court for years and years, it is possible for those appellate justices to focus their campaign fund-raising efforts on the claimant bar. If you aren’t sure, lawyers on the claimant bar will repeatedly donate lots and lots of money to the justices before whom they appear. Yes, it remains our opinion justice is for sale in this state.

We caution all of our readers to understand all of it is perfectly legal. One thing we truly hate and will continue to hate about Illinois law and jurisprudence is the fact a claimant lawyer who gives thousands of dollars to a justice has no duty to divulge such contributions to anyone before or after a ruling is issued. The problem with changing any or all of it is the justices affected have to support such changes—we still laugh about a state law which tried to limit judges and justices to working until age 75; once it passed, the judges found it unconstitutional!!!

We have now learned there is a striking report on the web from three nonpartisan legal reform groups who did the research and note Illinois Supreme Court Chief Justice Thomas Kilbride's November 2010 retention race was the nation's costliest retention election in 25 years. This report "The New Politics of Judicial Elections 2009-10" by the Justice at Stake Campaign, the Brennan Center for Justice at NYU School of Law and the National Institute on Money in State Politics confirms the retention election cost almost $3.5 million, with Justice Kilbride raising $2.8 million.

The report indicates Justice Kilbride was the "target of the nation's costliest retention fight since Rose Bird and two fellow justices were forced off the California Supreme Court in 1986." The report notes several business groups were angered by Justice Kilbride's vote to help strike down a ceiling on Illinois medical malpractice awards--they financed a $688,000 challenge to his retention. Those defense groups included the U.S. Chamber of Commerce, the American Justice Partnership (affiliated with the National Association of Manufacturers) and the American Tort Reform Association.

In response to the monies raised by the business side of the matrix, the report indicates the Illinois Trial Lawyers and the Illinois Democratic Party accounted for half of the $2.8 million raised by Justice Kilbride, according to the report with Justice Kilbride receiving contributions by major plaintiffs' law firms routed through the party. The $1.5 million donated by those law firms "almost identically matched the $1.4 million that the party gave to Kilbride," the report states. The report indicates  Justice Kilbride's own contributions "showed almost no money from plaintiffs' lawyers, enabling him to avoid direct links to special-interest money." Please note the monies raised by Justice Kilbride to remain in office were about four times the amount raised by the defense groups. In this ongoing battle, ITLA and its millionaires almost always win.

The report’s Executive Summary states:

State judicial elections have been transformed during the past decade. The story of America’s 2000–2009 high court contests—tens of millions of dollars raised by candidates from parties who may appear before them, millions more poured in by interest groups, nasty and misleading ads, and pressure on judges to signal courtroom rulings on the campaign trail—has become the new normal. For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way. Many Americans have come to fear that justice is for sale. Unlike previous editions, which covered only the most recent election cycle, this fifth edition of the “New Politics of Judicial Elections” looks at the 2000–2009 decade as a whole. By tallying the numbers and “connecting the dots” among key players over the last five election cycles, this report offers a broad portrait of a grave and growing challenge to the impartiality of our nation’s courts. These trends include:

??The explosion in judicial campaign spending, much of it poured in by “super spender” organizations seeking to sway the courts;

?? The parallel surge of nasty and costly TV ads as a prerequisite to gaining a state Supreme Court seat;

?? The emergence of secretive state and national campaigns to tilt state Supreme Court elections;

?? Litigation about judicial campaigns, some of which could boost special-interest pressure on judges;

?? Growing public concern about the threat to fair and impartial justice—and support for meaningful reforms.

It can be located on the web at: http://www.brennancenter.org/content/resource/the_new_politics_of_judicial_elections. We appreciate your thoughts and comments.