March 2024 Case Notes & Comments

"Truth will ultimately prevail where there is pains to bring it to light." ~ George Washington

MONTHLY QUIZ: The Chief of Village Police decides that the Village will benefit from TASER training classes and sends a member of the Village force to get certified as an instructor. Village ultimately sets up TASER training classes, which are taught by Village Instructor and attended by local cops - including an Officer from a neighboring city. As part of the training, attendees are tased by the Village Instructor. During Officer's exposure, Instructor inadvertently electrocutes one of the Village Spotters, who loses control of and drops Officer. As a result, Officer falls and lands on carpeted concrete, suffering shoulder injuries. Officer sues the Village and Instructor for negligence. At the close of Officer's case, the Village and Instructor move for a directed verdict on the grounds that the City and its instructors are entitled to discretionary immunity pursuant to Sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2, et seq. “Act”). Sections 2-109 and 2-201 of the Act, read together, immunize public entities from injuries sustained as a result of a public entity's conduct, including both negligent and willful and wanton conduct, if the act or omission resulting in injury involved a determination of policy or the exercise of discretion. Public officials are not, however, immune from ministerial acts, which are generally defined as acts performed in a prescribed manner, in obedience to the mandate of legal authority, and without reference to the official’s discretion. Finding that Instructor and Village failed to follow established TASER guidelines, the trial court concludes that the Village and Instructor are not entitled to immunity under the Act. Is the trial judge correct? Were Village and Instructor involved in the commission of discretionary or ministerial acts? Are the Village and Instructor entitled to tort immunity under the Act? You be the judge. (Answer below).

WORKERS' COMPENSATION - MEAT PROCESSING PLANT LABORER'S INJURY WAS NO MIS-STEAK: Appellant-Employee (Petitioner), a laborer, appealed the Circuit Court’s determination that his torn labrum (shoulder) was not related to Petitioner's work for Appellee-Employer (Respondent, Meat Processing Plant). One of Petitioner’s jobs, setting up the meat grinders, required him to slide three to six 500-800 pound augers suspended by a crane into meat grinders each morning, which Petitioner had performed since 2010. In November 2020, Petitioner reported to a supervisor that he felt shoulder soreness and requested he temporarily stop setting up the grinder to see if his shoulder would improve. His manager accommodated him for a month before Petitioner resumed setting up the grinders. In March 2021, Petitioner alleged a sharp pain in his shoulder while setting up a grinder, which his supervisor witnessed and later corroborated. However, Petitioner never mentioned an acute event to his treating doctors. Petitioner was diagnosed with a labral tear, though his treating physician attributed the shoulder injury to the repetitive motions involved in setting up the grinders. Respondent’s Section 12 physician opined that Petitioner’s MRI revealed age-appropriate fraying, but no tear. The Section 12 physician diagnosed a frozen shoulder and declined to relate it to Petitioner’s work activities, but rather speculated that it was related to Petitioner’s hyperthyroidism. Petitioner brought the claim before an Arbitrator and alleged a repetitive-trauma induced injury. The Arbitrator found in favor of the Respondent. The Commission reversed the Arbitrator’s decision, finding that the injury was acute rather than repetitive, thus a “chain of events” theory supported the shoulder injury was caused by a specific event in March 2021. The circuit court reversed the Commission and reinstated the Arbitrator’s decision based on the treating doctor’s opinion being clearly erroneous because he was not subject to cross examination. The Appellate Court reversed the circuit court and reinstated the Commission’s decision. The Respondent argued that Petitioner failed to reach his burden in proving that his injury was caused by repetitive work activities. However, the Appellate Court found that Petitioner and his supervisor’s testimony of an acute accident was enough to support an acute injury despite Petitioner never alleging an acute event to his treating doctor. Therefore, the Appellate Court did not apply repetitive trauma analysis. They found the lack of pre-accident treatment, supervisor's corroborating testimony witnessing the acute injury followed by new symptoms, and the treating physician’s causal connection opinion, were sufficient to demonstrate a compensable and causally connected injury. Additionally, the appellate court disagreed with the circuit court’s analysis, that the treating doctor must be subject to cross examination when the report is admitted into evidence. Smithfield Foods, Inc. v. The Illinois Workers’ Compensation Commission, 2024 IL App (2d) 230114WC-U.

AMENDED VIOLATION OF LAW EXCLUSION APPLIES TO BIPA SUIT: A class action suit alleging violations of the Biometric Information Privacy Act (“BIPA”) as a result of the practice of requiring employees to scan their fingerprints for time-keeping purposes was filed against National Fire Insurance Company of Hartford’s (National) insured, Visual Pak. National denied coverage and filed a declaratory judgment action relying on various exclusions, including the Violation of Law exclusion. The exclusion provided that the insurance does not apply to personal injury arising out of a violation of the Telephone Consumer Protection Act, the Can-Spam Act or the Fair Credit Reporting Act. The exclusion also contained a “catch all” provision for other laws addressing the printing, dissemination, disposal, collecting, recording, sending, transmitting, communicating or distribution of material or information.” The Illinois Supreme Court in West Bend v. Krishna previously found that BIPA claims were not within the catch all clause of a prior version of the exclusion as the Act was not of the “same kind” as the listed statutes and did not address methods of communication as specified by the exclusion title. Pointing to the new title “Recording and Distribution of Material or Information in Violation of Law” and a broader catch all provision which added the “disposal, collecting, [ and] recording” of material or information, the appellate court held that the catch all provision now encompassed a BIPA violation. According to the court, BIPA and the referenced statutes share a common theme of “personal privacy”, rejecting arguments that its interpretation was too broad, conflicted with other provisions or rendered the insurance illusory. A petition for leave to appeal to the Illinois Supreme Court has been filed. National Fire Insurance Company of Hartford v. Visual Pak, 2023 IL App (1st) 221160.

POLICY APPRAISAL - MICHIGAN COURT FINDS THAT APPRAISAL IS AN APPROPRIATE FORUM TO RESOLVE DISPUTE OVER IMPROVEMENTS AND BETTERMENTS: Under Michigan lawmatters of coverage under an insurance agreement are generally determined by the courts, while the amount and method(s) for determining a loss are matters reserved for the appraisal. Following a fire loss in an insured's kitchen, which the parties agreed was a covered event, the Insured began submitting estimates of the items in need of repair and related costs, and months later, the Insured began making claim payments. During the adjustment, Insurer and Insured disagreed over whether the Insured sufficiently demonstrated that the items were tenant "improvements and betterments," or landlord owned "building items," which would not be covered. When Insurer rejected these items in the proof of loss, Insurer filed a complaint invoking the policy's appraisal provision. The policy's appraisal provision, which is required in fire insurance policies in Michigan, matched Michigan's required statutory language and generally provided that if plaintiff and defendant failed to agree on the value of the property or the amount of loss, the policy permitted either party to make a written demand for appraisal. See MCL 500.2833(1)(m). Insurer argued that the dispute over whether the various items constituted betterments and improvements was a coverage question, not appropriate for appraisal. The trial court determined that appraisal was the appropriate forum. The appellate court affirmed, reasoning that Insurer had admitted that the claimed damages were generally covered by the subject insurance policy and thus, should not be characterized as a "a coverage dispute. Instead, the dispute concerns "the scope of [the Insured]’s loss, and whether plaintiff is entitled to reimbursement for every item." As such appraisal was an appropriate forum to resolve the parties' disagreement. In addition to the appraisal question, the appellate court found that the Insurer waived the 60-day proof of loss requirement as Insurer had extended the deadline more than once and made advance payments prior to receiving the proof of loss. Cantina Enters. II Inc. v. Property Owners Ins. Co., 2024 Mich. App. LEXIS 463, (Mich. Ct. App. Jan. 18, 2024).

ANSWER TO QUIZ: The Village and Instructor are entitled to immunity under the Act. Here, the decision to offer TASER training classes and Instructor's position involved an exercise of discretion as the Village was not required to conduct such training. Additionally, Instructor exercised his personal judgment and deliberation in determining how to run the TASER classes. Even if Village and Instructor failed to follow multiple TASER guidelines, the TASER guidelines were established by TASER, but not adopted or mandated by any legal authority. Judgment reversed. Chavez v. Village of Kirkland, 2023 IL App (2d) 230009-U(Feb. 14, 2024).

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