August 2023 Case Notes & Comments

“Be Excellent to Each Other!” ~ Bill & Ted's Excellent Adventure

MONTHLY QUIZ: In the spring of 2021, Plaintiff-Student, a mentally and physically disabled minor, and his aide were picked up from student's Denton County, Texas home and loaded onto a bus for transport to school. The bus was operated by Defendant, an Illinois limited liability company, domiciled in Will County. Driver allegedly failed to properly secure Student and when the bus turned, Student's wheelchair tipped over and Student sustained injuries. Student's Guardians filed suit in Will County, Illinois and Company moved to dismiss on grounds of venue, pursuant to the doctrine of forum non conveniens. Company argued, among other things, that it should not be sued in Illinois based upon an accident that occurred in Texas. The circuit court denied Company's motion, allowing the case to continue. In adjudicating such venue motions, a plaintiff's choice of forum is ordinarily given deference. Illinois courts also consider a number of private factors (i.e. (1) convenience of the parties; (2) access to evidence; (3) availability of unwilling witnesses; (4) costs to obtain witnesses; (5) possibility of viewing the premises; and (6) practical considerations that make trial easy) and public factors (i.e. (1) court congestion; (2) unfairness of burdening jurors with unrelated cases; and (3) the interest in having controversies decided locally) in determining forum. Should this case have been brought in Texas? Which factors weigh in favor of a transfer? Which do not? You be the judge. (Answer Below).


LEF SUCCESSFULLY DEFENDS HOUSE GUEST, WHO WAS ALLEGED TO HAVE NEGLIGENTLY CAUSED A HOME FIRE THAT RESULTED FROM HIS IMPROPER DISPOSAL OF SMOKING MATERIALS. Robert Ostojic obtained a trial verdict for his client, a house guest, after a week-long trial. In 2016, Guest was visiting his son and daughter-in-law for Thanksgiving. A fire originated near the east wall of the attached garage, causing significant damages. Guest admitted to the disposal of pipe ashes at the area of fire origin. Homeowner’s insurer contended that the fire was caused by Guest’s negligent disposal of smoking material (i.e. pipe ashes) outside the rear of the garage, near the point of origin. At trial, Robert utilized NFPA 921 to successfully convince the jury that the insurer failed to prove the cause of the fire. The jury returned a verdict in favor of the client.


ILLINOIS GOVERNOR SIGNS PUBLIC ADJUSTER REFORM BILL: On June 30, 2023, Governor Pritzger signed into law Illinois Senate Bill 1495, amending the current Illinois statute regulating public adjusters, effective January 1, 2024. Of particular note, the bill provides that for claims arising out of damage to a personal residence, public adjusters’ commissions are capped at 10% of the amount paid on the claim for all losses. The statute previously only limited commissions on claims arising out of catastrophic events, although this limitation remains in place with respect to commercial property claims. The bill also requires that the public adjuster provide an exact copy of the contract with the insured to the insurer by email within 5 days of execution, and clarifies that any contract which violates the public adjuster statute is null and void. We believe this bill is a welcome and necessary step to curtail some of the more predatory public adjuster practices, including routinely requiring commissions of 20% or more on residential losses throughout the state. The total impact of the revisions will be more clear once they go into effect, but, at a minimum, we would expect to see a flurry of public adjuster activity toward the end of the year to secure agreements under the prior terms.


BAR-FIGHTING BIKERS' CLAIM AGAINST BAR CRASHES AND BURNS: Plaintiffs were shot by a member of a rival motorcycle club outside a late night bar, and brought premises liability claims against the bar and property owner. The trial court granted summary judgment for the defendants, and the First District Appellate Court affirmed on review. The Court first held that the plaintiffs were not "invitees" and, therefore, had no "special relationship" with the bar owner giving rise to liability. In support, the court noted that while one of the plaintiffs had been inside the bar, he went outside prior to the altercation with no intention to return inside. Further, the remaining plaintiffs, who had been called to the bar by the first plaintiff, never entered the bar, nor intended to do so. The Court also held that the shooting was not “reasonably foreseeable”, rejecting plaintiffs' argument that the bar was open late, had no security, and served intoxicated patrons, including members of motorcycle clubs. The Court noted that the evidence showed that there had been no physical altercation occurring inside the bar to put bar employees on notice of a potential shooting outside, there was no evidence of prior fights involving the subject participants, and there was no legal obligation that late-night bars provide security. Flores v. Ziemek Corp., 2023 IL App (1*) 221276-U(Mar.27, 2023).


WORKERS' COMPENSATION - SYLVESTER SETS FORTH PROPER METHOD OF CALCULATING AVERAGE WEEKLY WAGE (AWW): While working as a laborer in the warehouse for Appellant-Employer (Respondent), Appellee-Employee (Petitioner) was sitting on the floor with his back against a shipping crate eating his lunch when a forklift hit the shipping crate, pushing the crate and the claimant two to three feet. Petitioner testified that he was launched forward and sustained injuries to his low back and left ankle. Petitioner was hired three weeks prior to the alleged accident and worked a total of 32 hours – 24 of those hours at $47.35/hour and 8 hours at $94.70/hour. Petitioner testified that overtime was not mandatory. The Arbitrator calculated Petitioner’s AWW by multiplying $47.35 by 32, then dividing by the three total weeks Petitioner was employed resulting in an AWW of $505.07 and Petitioner appealed the calculation of AWW and other issues. The Commission modified the Arbitrator’s AWW finding to $1,894.00. The Commission relied on “unrebutted evidence that Petitioner worked eight hours per day.” They found that Petitioner earned $378.80 per eight hour work day, and multiplied $378.80 by five, to arrive at the AWW of $1,894.00. The circuit court affirmed the Commission decision. The appellate court reinstated the Arbitrator’s original AWW calculation of $505.07. They reasoned that the wage statement entered into evidence did not show that Petitioner’s regular work week was 40 hours. As Petitioner was also employed for less than 52 weeks prior to the accident, the third method of calculating AWW set forth in Sylvester (i.e. Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 234-37 (2001)) applied. Under this method, AWW is calculated by dividing Petitioner’s earnings by the number of weeks and parts thereof during which the employee actually earned wages. The Arbitrator correctly calculated AWW using this method in their original decision. Employoco USA, Inc., v. Ill. Workers’ Comp. Comm’n, 2023 IL App (1st) 220906WC-U (April 21, 2023).


ANSWER TO QUIZ: Company is right. This case should have been brought in Texas as the balance of factors strongly favored Texas. Although plaintiff's choice of forum is ordinarily given priority, it was given less deference here because the plaintiff was not a Will County resident and the accident occurred outside Will County. The appellate court noted that while Company was headquartered in Will County, Company argued that its critical witnesses were in Texas. The court found that the last private interest factor, practical considerations that make trial easy, expeditious, and inexpensive favored neither party. As to all of the remaining private interest factors (i.e. access to evidence, availability and compulsion of witnesses, the possibility of viewing the bus - in Texas, etc.), the court determined that factors favored dismissal and re-filing in Texas. As to the public factors, the court noted that although the case may be interesting, the location of Company's headquarters in Will County was not enough to justify the expense and burden of a jury on Will County residents and its judicial system where the alleged negligence and injuries took place in Texas. As to the factor of interest in having local controversies decided locally, the court reasoned that the accident took place in Texas, so there was an interest in having the controversy decided there, which favored dismissal. Remanded with directions to dismiss the action to allow for refiling in Texas. Larson v. Illinois Central School Bus, et al. 2023 IL App (3d) 220360 (Aug 16, 2023).


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