12-14-11; Courts are starting to take judicial notice of Google maps to calculate distances

We have been advising clients for some time to use Google maps to calculate mileage to IME’s in the IL WC system. We are now noting other courts are using this internet search for the same purpose.

Judicial notice is a doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. Federal Rule of Evidence 201(b) provides a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

According to the recent opinion of the United States District Court for the Eastern District of New York in United States v. Sessa, 2011 WL 256330 (E.D.N.Y. 2011), relied on Google maps in a relatively racy mob murder trial.

The U.S. District Court in its ruling outlined any court may take judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. R. 201(b). "Courts commonly use internet mapping tools to take judicial notice of distance and geography."

We appreciate your thoughts and comments.

12-14-11; Premium-shifting WC policy plan upheld in Federal Court

In Wausau Underwriters Insurance Co. v. Pronto Staffing Services, No. 1:11-cv-00928, N.D. Ill., issued December 2, 2011, Defendant Pronto Staffing purchased workers’ compensation insurance policies from Plaintiff Wausau Underwriters Insurance Company. The policies at issue in this case had a retrospective premium endorsement that allowed Wausau to adjust the premium up or down based on Pronto’s claim activity.

The record indicates Wausau adjusted the premiums up for three policies running from April of 2007 through April of 2010, and billed Pronto for $229,012.00. Pronto Staffing alleged their WC claims were mishandled and refused to pay the heightened amounts. In our review of this federal decision, we do not see clear evidence of mishandling of claims were presented—the Court appears to have been made aware of a single claim being objected to by Defendant Pronto Staffing.

After Pronto refused to pay the retro increases, Wausau filed suit. In response, Pronto filed affirmative defenses and a two-count counterclaim alleging that Wausau had breached the insurance contracts (Count I) and was liable for a breach of fiduciary duty based on its allegedly negligent adjustment of claims, which wrongfully caused Pronto’s premiums to go up (Count II).

The U.S. District Court judge ruled no fiduciary duty exists in the contractual relationship between an insurer and its insured under state law. Accordingly, she granted dismissal.

If you want the web location of the ruling, please send a reply. We appreciate your thoughts and comments.

12-14-11; Former IWCC Chairman Jerry Jutila passed away last week

The lawyers and staff of Keefe, Campbell & Associates join the entire IL WC community in mourning the passing of Mr. Jutila.

Jerry was honorably discharged from the U.S. Air Force Security Service, where he served as Staff Sergeant and Intelligence Analyst. He was licensed to practice law in this state in 1975 and was a strident proponent of the interests of Illinois’ injured workers.

Our sympathies go to Jerry's wife, Barb and their friends and family.