11-7-11; We are happy to see the most liberal of Illinois Appellate Districts issue a ruling that closely follows the law and provides Illinois businesses needed protection...

All staffing, logistics and employee leasing companies in Illinois should carefully review this important ruling—we are sure these facts will repeat themselves in the months and years to come. This year, Illinois amended and clarified parts of our Workers’ Compensation Act but arguably it is still not the clearest piece of legislation. Attorneys continually attempt to dispute the plain language of the act, specifically, Section 5(a) providing an exclusive remedy to the injured employee for work-related injuries that do not involve third-party tortfeasors.

In Mason v. John Boos & Company, Plaintiff worked as a temporary worker and sustained amputation of the thumb and most of the four fingers on the right hand in a machine allegedly lacking safety features. Such an undisputed injury has a high workers’ comp cost but an explosive third-party exposure. Petitioner entered into a global WC settlement agreement and signed a release of all claims against Defendants. Plaintiff later filed a negligence action against both the loaning and borrowing employers alleging potentially millions in damages unavailable in the workers’ compensation setting.

The Circuit Court and now the Fifth District barred the claim based on the fact Plaintiff received a workers’ compensation settlement which was the exclusive remedy under Section 5(a) providing in pertinent part no common law or statutory right to recover damages from the employer other than the compensation under the Act.

 

The primary rule of statutory construction is to ascertain and give effect to the legislature's intent. Here, the purpose of the Workers' Compensation Act is to provide a speedy recovery without proof of fault for accidental injuries. Approximately 90% of all Illinois workers’ compensation claims are settled at or during arbitration. Again, if the case is likely to settle anyway, a speedy settlement resolution often is best for both sides, the injured worker gets a fast settlement, in this case more than $90,000, and the employer prevents a common law action.

 

Second, and more important the Circuit Court and the Fifth District on appeal barred the claim because the terms of settlement contract released all claims. We stress the importance of attaching similar terms or riders into all settlement contracts as follows:

 

In full, final and complete settlement of any and all claims of any nature whatsoever, including but not limited to past, present, and future time losses, medical, surgical and hospital expenses and for any and all permanent disability of whatever nature, allegedly arising out of an accident on or about the “specific date of loss” and all known and unknown injuries and sequelae which allegedly resulted or will result from said accident Petitioner agrees that this settlement shall include all other claims of accident or injury, either by a specific accident or repetitive trauma, for all dates of work by Petitioner for Respondent not limited to the above date of loss.

 

Plaintiff alleged Defendants allowed him to operate a machine without adequate training, allowed him to operate a machine without a "kill" switch, and allowed him to operate a machine without safety guards and if all true would likely result in an award for pain and suffering, lifelong medical bills, and permanent disability. Again, the fact the employer settled all potential claims quickly and with specific protective language in the contract probably prevented a multi-million dollar jury claim or verdict. Please note the aforementioned “lifesaving” settlement terminology is used in all KC&A settlement contracts to protect the best interests of our clients. We do caution some Arbitrators are reluctant to approve contracts for “all other claims of accident.”

Third, Plaintiff attempted to dispute the exclusive remedy due to the temporary staffing agency which hired him failing to register as an employee leasing company.  Our analysis of the applicable Illinois Leasing Act rule confirms the employee leasing company must:

 

·         Register with the Illinois Department of Insurance;

·         Secure coverage with the borrowing employee under a master policy;

·         Indicate the policy provides coverage for leased employees;

·         Limit the named insured's employees leased to the clients;

·         Indicate the experience of employees leased to client(s) will be separately maintained by the Employee Leasing Company;

·         Maintain accounting and employment records relating to all employee leasing arrangements for minimum of four calendar years;

·         Maintain addresses of each office it maintains at the principal place of business;

·         Separately maintain the experience of employees leased to clients;

·         Maintain sufficient data by client to permit calculation of experience rating modification for each client;

·         Provide modification or payroll and loss information to a client upon request;

·         Notify its insurer any terminated employee leasing arrangement within 30 days before termination or upon termination.

 

Under the Illinois Leasing Act the insurer is required to:

 

·         Provide proof of coverage to the employee leasing company and its clients within 30 days of coverage being effected or changed;

·         Audit policies within 90 days of effective date;

·         Conduct additional audits thereafter;

·         Compare a client's experience rating modification to the employee leasing company's experience rating modification at the inception of the employee leasing arrangement;

·         Report separate client data to NCCI after termination of Employee Leasing arrangement;

·         Report subsequent or corrected client data to NCCI for the continuance of experience rating.

 

The Fifth District still barred the common law claim because failure to register as an employee leasing company did not negate exclusivity of remedy. The purpose of the Leasing Act is to ensure an employer properly obtains insurance coverage and the only remedy for a violation to register is to deny or revoke registration. Therefore, in the event a company fails to register, that company is not eligible to receive workers' compensation and employers' liability insurance policies and has no bearing on the exclusivity of the Act.

We are happy to see the Fifth District follow the both the letter and spirit of the law. However, the fact this case is one of first impression increases the likelihood of further appeal. We will keep a close watch on further appeals or developments. Please contact our firm with any questions or concerns regarding settlement language and with strategy for speedy resolution. Full disclosure, we want our readers to know we represent John Boos & Company for some of their claims but not the one in question—it is not our intention to affect the outcome of this litigation in any way; we are simply reporting the facts as we understand them.

This article was researched and written by Nathan S. Bernard, J.D. who can be reached at nbernard@keefe-law.com. Please send your thoughts and comments or post them on our award-winning blog.

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.