Category Archives: Workers’ Compensation

Glasgow v. Associated Banc-Corp. – Exclusive Remedy Provision of Workers Compensation Act Bars Bank Tellers Common Law Claim for Injuries Suffered in Bank Robbery

Glasgow v. Associated Banc-Corp, 2012 Il App (2d) 111303, Hutchinson

Facts:  Plaintiff was a teller at a bank that was robbed and during the course of the robbery she suffered injuries.  She applied for and received workers compensation benefits.  She then filed a common law suit for injuries, arguing that the defendant knew or should have known that the branch could reasonably be expected to be robbed, and that the robbery was not accidental because the failure to implement increased security measures was a “direct invite” to rob.  The trial court dismissed the case on a joint motion to dismiss pursuant to 2-619.1, finding that the exclusive remedy provision of the Workers Compensation Act barred the claim.

Holding:  Once an employee has collected compensation on the basis that his or her injuries were compensable under the Act, the employee cannot then allege that those injuries fall outside the Act’s provisions.

Filed in Trial Book Under:  Workers Compensation – Exclusive Remedy Provision

Commentary:  It seems pretty clear from the case law that exceptions to the exclusive remedy provision are few and far between.  The exceptions are only when the employee can prove that the injury (1) was not accidental, (2) did not arise out of his or her employment, (3) was not suffered in the course of his or her employment, or (4) was not compensable under the Act.  See Meerbery, 139 Ill.2d at 463.  The plaintiff attempted here to argue that the failure by the branch to implement certain security measures was a “direct invite” to rob.  This seems like a pretty big stretch, but even  if the plaintiff could have plead and proven a valid exception to the exclusive remedy provision, she sunk her battleship by taking the money on the comp case.  This makes a lot of sense in that you can’t take the position that the Act covers your injuries while at the same time saying that it doesn’t.

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Rodriguez v. Frankie’s Beef/Pasta and Catering – Exclusive Remedy Provision of Workers Compensation Act Barred Claim by Employee Shot and Killed By Another Employee

Rodriguez v. Frankie’s Beef/Pasta & Catering, 2012 IL App (1st) 113115 (Harris)

Facts:  Plaintiff’s decedent was shot and killed by a co-worker and his estate brought suit against the employer alleging negligent hiring and retention.  The evidence, established from affidavits and the police report, revealed that the shooter had previously been the fry cook but had to leave for 2 months due to his father’s death in Mexico and when he returned another employee had been given his job.  The day before the incident there was a verbal altercation between the shooter and his 2 co-workers, including plaintiff’s decedent.  The manager sent the shooter home to “cool off” and the next day he returned with a gun and shot and killed the plaintiff’s decedent and another employee.  Defendant filed a motion for summary judgment arguing that the exclusive remedy provision of the Workers Compensation Act barred the claim against the employer.  The circuit court granted the motion and plaintiff appealed.

Holding:  The exclusive remedy provision of the Workers’ Compensation Act barred plaintiff’s action alleging that the employer of plaintiff’s decedent was negligent in hiring and retaining the employee who shot decedent in an altercation over job assignment.

Filed in Trial Book Under:  Workers Compensation – Exclusive Remedy; Hearsay -Police Reports

Commentary:  This is not a surprising result, and even if the claim was not barred it seems like it would be a very difficult case on the foreseeability of the criminal act of a third party.   An interesting point of this case was the appellate court’s acceptance of hearsay statements from the police reports in support of the motion for summary judgment.  The opinion recognizes that statements from police reports are usually inadmissible hearsay but points out that no objection was made to their use and “hearsay evidence admitted without objection us considered and given its natural probative effect.” Citing People v. Akis, 63 Ill. 2d 296, 299 (1976).  I doubt that it would have changed the outcome here but it’s always interesting when the appellate court makes a not so overt criticism of the attorneys by pointing out evidence that could have and should have been barred.

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Mendez v. Atlantic Painting Company, Inc. – Conflict of Laws Analysis Results in Application of Kentucky Substantive Law and Bars Claim of Third Party Liability by Employee of Sub-Contractor Against General Contractor

Mendez v. Atlantic Painting Company, Inc., 01-09-2888 (Neville)

Facts:  Plaintiff’s decedent, Jaime Mendez, was an employee of Eagle Painting and Maintenance which was a sub-contractor to the defendant, Atlantic Paining Company, on a job painting bridges over the Ohio River between Kentucky and Indiana.  Plaintiff died as a result of a fall due to faulty scaffolding.  The incident took place in Kentucky but Plaintiff was an Illinois resident, and both his employer and the defendant were Illinois corporations.  Plaintiff filed a workers compensation claim in Illinois and also a third party action against the the general contractor.  Defendant moved for summary judgment on the basis that Kentucky’s substantive law should apply to the case thereby barring the claim due to Kentucky’s workers compensation statute which allows for “up-the-ladder” immunity within its exclusive remedy provision.  Plaintiff argued that Illinois had the most significant relationship to the case and therefore Illinois substantive law should apply.  The trial court applied Kentucky law and granted defendant’s motion for summary judgment.

Holding:  Unlike Illinois, the Kentucky workers’ compensation statute does not permit third party claims by an employee of a sub-contractor against the general contractor and therefore pursuant to Section 184 of the Restatement (Second) of Conflict of Laws (1971), which pertains to cases in which workers’ compensation insurance covers an injured employee, Kentucky’s substantive laws govern the cause of action and thereby the claim against the general contractor was properly barred.

Filed in Trial Book Under:  Workers’ Compensation, Conflict of Laws

Commentary:  Illinois’ approach to third party cases in the construction setting seems to be an anomoly (and pro-plaintiff), as many states employ “up-the-ladder” immunity to the exclusive remedy provisions of their workers’ compensation statutes that serve to bar third party claims brought by a sub-contractor against the general contractor.  In this case, the plaintiff hoped to apply Illinois substantive law, which would have permitted the cause of action, and argued that Illinois law should apply because it has the most significant relationship to the case.  Although the appellate court disagreed with this argument and determined that Kentucky had the most significant relationship to the case, the crux of the opinion is the application of section 185 of the Restatement (Second) of the Conflict of Laws, which states:

Recovery for tort or wrongful death will not be permitted in any state if the defendant is declared immune from such liability by the workmen’s compensation statute of a state under which the defendant is required to provide insurance against the particular risk and under which (a) the plaintiff has obtained an award for the injury, or (b) the plaintiff could obtain and ward for the injury, if this is the state (1) where the injury occurred, or (2) where employment is principally located, or (3) where the employer supervised the employee’s activities from a place of business in the state, or (4) whose local law governs the contract of employment.

Even though the plaintiff did not bring the workers’ compensation claim in Kentucky, the fact that he could have done so is sufficient to have Kentucky’s substantive laws apply to this claim.  This is unfortunate because it sets the default on these cases to the state that is most restrictive of third party claims and therefore more protective to the business interest rather than that of the injured party.

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