Matushek Nilles LLC helped support the partnership of the Illinois Association of Defense Trial Counsel (IDC) and the Illinois Manufacturers’ Association (IMA) at the 2019 Synergy Forum on April 11, 2019 at The Itasca Country Club in Itasca, Illinois. The Forum featured presentations on hot topics facing the manufacturing community and their defense counsel. Danielle Luisi, senior associate at Matushek Nilles LLC, was a featured speaker on the environmental panel: “It’s a Jungle Out There! – Evolving Illinois Environmental Regulatory Scheme.” Ms. Luisi contributed to the discussion with an analysis of the recent ethylene oxide litigation in Illinois and pending legislative proposals.
Articles under General
Plaintiffs’ Bar Drives Passage of Legislation to Eliminate Exclusive Remedy Defense to Illinois Employers
The Asbestos Plaintiffs’ Bar wasted no time after the inauguration of the Illinois Governor to introduce legislation in both the Illinois House and Senate to override the Illinois Supreme Court’s decision in Folta v. Ferro Engineering, 2015 IL 118070 (2015), where the Court held that the Worker’s Compensation Act and Occupational Diseases Act was the exclusive remedy to Illinois employees who suffered latent injuries such as mesothelioma. Ed Matushek wrote the position paper of the Illinois Association of Defense Trial Counsel opposing this legislation, and testified before the Illinois Senate Judiciary Committee on Tuesday, March 5, 2019 in opposition. Ignoring the fact that SB 1596 is a radical change in Illinois public policy, the Senate Judiciary Committee immediately voted 8-2 to call to bill in the Senate. The Senate passed the bill the next day on a strict party line vote of 41-16 with minimal debate, and sent SB 1596 to the House on the same day for First Reading. The bill was assigned the next day to the Commercial Law Subcommittee of the House Judiciary – Civil Committee, and set for hearing on Wednesday morning, March 13, 2019. Ed Matushek again appeared to testify in opposition. The Subcommittee voted 5-2 to pass the bill to the Judiciary Committee, which voted along party lines, 8-4-1, to pass the bill to the House. The Illinois House placed it on third reading the next day and immediately voted to approve, again along party lines, 70-40-1, without addressing an alternative to keep such claims in the worker’s compensation system. The bill now awaits the Governor’s signature.
SB 1596 purports to be a bill that helps workers who have developed latent illnesses or injuries after coming in contact with asbestos or other toxic substances in the workplace. In reality, it is impermissible Special Legislation that will eliminate strict liability of employers for these injuries under the long-established worker’s compensation system and increase the threshold of proof required by a special class of injured worker in order to obtain a recovery. SB 1596 also doubles the amount of attorneys’ fees that will be paid by the injured worker from the statutory 20% under the worker’s compensation system by removing the worker’s claim against the employer to the civil tort system, where the trial lawyers can assess their attorneys’ fees at 40% of the recovery. Not surprisingly, the sponsors of the bill are heavily financed by campaign contributions from the Illinois Trial Lawyers Association PAC and individual trial lawyer contributions, as are the legislators who have voted in favor. Indeed, campaign contributions by trial lawyers to Illinois politicians and judges total nearly $40 million during the past 17 years.
Urge the Governor to veto Senate Bill 1596
The Illinois Association of Defense Trial Counsel, an organization whose members are committed to protecting and improving civil justice in Illinois, opposes SB 1596 which would create an exception to the workers’ compensation system allowing civil actions to be brought against Illinois employers in latent injury cases.
An appropriate alternative to achieve the legislative goal of recovery for the injured employee would have been to lengthen the statute of repose period for latent injury claims, and keep the worker’s recovery in the longstanding system of Illinois worker’s compensation. That is not what SB 1596 does, however. Removing the exclusive jurisdiction of such claims from the Illinois Worker’s Compensation Commission will have unintended consequences that will hurt the very constituents the Legislature seeks to assist by creating unlimited liability for Illinois employers in the civil tort system for such claims, and have the practical effect of eliminating existing insurance coverage for such claims. This will drive even more Illinois business out of state or into bankruptcy protection.
SB 1596 ignores the rationale for the exclusive remedy provisions of the Illinois Workers’ Compensation Act and the Workers’ Occupational Diseases Act. The Acts impose liability without fault upon the employer and, in return, prohibit common law suits by employees against the employer. The exclusive remedy provision found in the Acts is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts.
Reasonable legislation would have extended the length of the twenty-five repose period under the Acts and keep the employee’s remedy in the worker’s compensation system. Instead, this Bill places recovery for such injury in the civil tort system, where the worker relinquishes the advantage of strict liability of the employer, and as a practical matter, doubles the amount of attorneys’ fees that will be paid by the injured worker. Most importantly, all Illinois employers will be surprised to find that they are suddenly uninsured for claims under this law – all General Liability Insurance policies have a standard exclusion for claims by an employee, and all Worker’s Compensation policies have a standard exclusion for any civil claims against the employer. The practical effect of these bills is to subject Illinois employers to unlimited liability for employees’ latent injury claims, and at the same time strip Illinois employers of their insurance for such claims. It is manifestly unjust to do so, and a shame that our Legislators voted in lock step without regard for the consequences. SB 1596 will adversely affect the Illinois economy, and likely reduce or eliminate the likelihood of a viable recovery by the injured worker, defeating the supposed purpose for this legislation.
To contact the Governor’s Office, please use the following information via the State Web site:
https://www2.illinois.gov/sites/gov/contactus/Pages/VoiceAnOpinion.aspx
or call the Office of the Governor to express your opinion on SB 1596:
Springfield
Office of the Governor
207 State House
Springfield, IL 62706
Phone: 217-782-6830 or 217-782-6831
Chicago
Office of the Governor
James R. Thompson Center
100 W. Randolph, 16-100
Chicago, IL 60601
Phone: 312-814-2121
Governor’s Office of Constituent Affairs Help Line:
- Phone: 217-782-0244
Matushek Nilles LLC Prevails in Seventh Circuit Appeal
Matushek Nilles attorneys Mike Martinez and Vincenzo Chimera recently prevailed in the Seventh Circuit Court of Appeals in a case alleging their client, a national telemarketing firm, illegally solicited donations on behalf of a “sham charity” in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). Spiegel v. Associated Community Services, Inc., 733 Fed. Appx. 311 (7th Cir. 2018).
Plaintiff Marshall Spiegel had sued telemarketing firm Associated Community Services, Inc. (“ACS”) in an attempted class-action lawsuit alleging violations of the “Do Not Call” provision of the TCPA, which prohibits businesses from calling numbers listed on the national Do Not Call Registry to solicit “the purchase or rental of, or investment in, property, goods, or services,” unless the call is made by or on behalf of a “tax exempt nonprofit organization.” 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(14)(iii).
Summary judgment was entered on behalf of ACS because ACS’ telephone calls to Spiegel’s residence were made on behalf of BCS, which the district court found was recognized at all relevant times as a § 501(c)(3) tax-exempt organization by the Internal Revenue Service. Spiegel appealed to the Seventh Circuit Court of Appeals, arguing the district court erred in granting summary judgment to ACS because was BCS not a true “nonprofit” organization but rather a “sham charity” not subject to the exemption.
Mike Martinez was retained to defend ACS on appeal and, with the assistance of associate Vincenzo Chimera, successfully argued that the district court’s entry of summary judgment in favor of ACS should be upheld because district courts lack authority to overturn IRS tax-exempt designations and because plaintiff Spiegel failed to properly preserve his arguments for appeal. Following oral arguments on July 6, 2018, the Seventh Circuit panel issued a unanimous decision affirming summary judgment in favor of ACS. Spiegel v. Associated Community Services, Inc., 733 Fed. Appx. 311 (7th Cir. 2018).
Despite this victory, litigation under the TCPA continues to spin out of control, having “blossomed into a national cash cow for plaintiff’s attorneys specializing in [such] disputes.” Bridgeview Health Care Ct., Lt.d. v. Clark, 816 F.3d 935, 941 (7th Cir. 2016). Due largely to the prospect of uncapped statutory damages, TCPA litigation has spiked in recent years, particularly actions against small businesses not engaged in the telemarketing industry. The risk of TCPA liability has intensified in recent years with the emergence of new communications technologies, such as text messaging, which did not exist when the TCPA was enacted in 1991.
Although we succeeded in preventing the plaintiffs’ bar from further expanding the scope of liability in this Seventh Circuit case, it is expected that TCPA plaintiffs will continue seeking to expand TCPA liability by re-litigating the issue of whether district courts can overturn IRS designations of tax-exempt nonprofit status in cases where waiver cannot be claimed as a defense. If your business is facing the prospect of harassing TCPA litigation, or is uncertain of its exposure in this area of law, the attorneys at Matushek Nilles are available to discuss your options and defenses.
For additional information on this decision, the TCPA or appellate practice in the Seventh Circuit Court of Appeals and appellate courts of Illinois, Indiana and Missouri, please contact Mike Martinez or Vincenzo Chimera.
Illinois Appellate Court Reverses Denial of Motion to Dismiss for Lack of Jurisdiction
On May 18, 2018, the Illinois Appellate Court for the First District reversed Judge Clare McWilliams’ denial of a defendant’s motion to dismiss for lack of personal jurisdiction. The plaintiff was a resident of Alabama and worked in numerous states and for a short time at the former Republic Steel in Illinois, but failed to allege actual exposure to the defendant’s products occurred in Illinois. The defendant, a New York corporation, filed a motion to dismiss on the basis that the plaintiff’s complaint failed to allege sufficient facts to confer personal jurisdiction upon it, arguing that it did not consent to the circuit court’s jurisdiction, the court had no general personal jurisdiction exists over it, and no specific personal jurisdiction existed because the plaintiff did not allege that he was exposed to asbestos from its products in Illinois. The plaintiff countered by asserting in part that Illinois has “jurisdiction by necessity” because the plaintiff was exposed to asbestos in multiple states and there is no single forum in which he could sue every defendant. Read More »
Missouri Supreme Court Applies Daimler to Find No Jurisdiction Over Out-of-State Defendant
The Supreme Court of Missouri recently issued a decision that may stem the increased flow of out-of-state toxic tort cases being filed in St. Louis City Court. State Ex Rel. Norfolk Southern Railway Company v. The Honorable Colleen Dolan, issued February 28, 2017, upheld the dismissal of a railroad defendant on a lack of personal jurisdiction, finding that specific jurisdiction wasn’t present because the tort occurred outside Missouri, and that the defendant wasn’t subject to general jurisdiction under the U.S. Supreme Court’s opinion in Daimler.
Indiana Appellate Court clarifies premises liability in Indiana asbestos cases, expanding scope of liability for negligence of independent contractors
For the second time this year, an Indiana appellate court has expanded the scope of asbestos liability in the Hoosier state. Hot on the heels of the Indiana Supreme Court’s invalidation of the state’s Product Liability Act statute of repose in asbestos cases in Myers v. Crouse-Hinds Division of Cooper Industries, Inc., 53 N.E.3d 1160 (Ind. 2016), the Indiana Court of Appeals has issued another opinion arising out of the Larry Myers case, this time bearing on premises liability and the scope of the general rule of non-liability for the negligence of independent contractors. Read More »
Illinois Supreme Court Restores Twelve-Person Juries in Civil Cases
The Illinois Supreme Court held on September 22, 2016 in Kakos v. Butler, 2016 IL 120377, that the right to trial by jury includes the right to demand a 12-member jury. The change to Illinois’ jury system to reduce the size of juries in civil cases was proposed by the plaintiffs’ bar and had passed the Illinois legislature without much real debate in the waning days of former Gov. Patrick J. Quinn’s time in office, and became effective June 1, 2015. The Court held PA 98-1132 which reduced civil juries to only six members, and the statute it amended, 735 ILCS 5/2-1105(b), was facially unconstitutional. Because the provision regarding jury size could not be severed from the Act, the Court held the entire Act invalid. The 5-0 decision was authored by Justice Garman, with Justices Thomas and Kilbride taking no part. Read More »
Attempt by plaintiff to circumvent the Supreme Court’s Folta decision rejected by Morgan County Court.
In a victory for the asbestos defense bar, Randy Smith and Mike Martinez of Matushek Nilles LLC secured summary judgment for Brand Insulations, Inc. in the case of Rex Hill (Morgan County, Illinois, Case No. 13 L 21). Randy and Mike convinced Judge Christopher R. Reif to reject a novel attempt by the plaintiff to circumvent and nullify the effect of Folta v. Ferro Engineering by pursuing claims of secondary exposure between coworkers. Read More »
Illinois Defense Ruling on Lack of Jurisdiction
The U.S. District Court for the Northern District of Illinois on November 4, 2015 granted our motion to dismiss defendant Blain Supply, Inc. for lack of personal jurisdiction. This is a significant victory not only for our client, but for the entire defense bar. We argued that the court lacked general jurisdiction under Daimler AG v. Bauman because Blain Supply was a Wisconsin corporation with its principal place of business in Wisconsin. In response to our motion, the plaintiffs had argued that Blain Supply consented to jurisdiction because it was registered to do business in Illinois and had an Illinois registered agent for service of process, and therefore could not avail itself of our due process argument. We replied that such an analysis was irrelevant post-Daimler and Judge Kocoras agreed with our position and ruled that the fact that a non-resident corporation that is merely registered to do business in Illinois and has a registered agent here does not subject that corporation to general jurisdiction in Illinois. Read More »
Illinois Supreme Court Restores Exclusive Remedy Defense to Illinois Employers in Asbestos Cases
The Illinois Supreme Court has reversed the recent decision of the Illinois Appellate Court, First District, which had created unlimited tort liability for Illinois employers of asbestos plaintiffs. In Folta v. Ferro Engineering, 2015 IL 118070, released November 4, 2015, the Court held that it was the responsibility of the State Legislature, not the courts, to modify the language of the Illinois Workers’ Compensation Act, and restored the exclusive remedy defense to Illinois employers of asbestos plaintiffs. Ed Matushek had joined in an amicus brief filed in the Supreme Court on behalf of three of our employer-clients and we are pleased to report that their cooperation contributed to our success in overturning a very dangerous decision by the appellate court that had adopted the reasoning of the Pennsylvania courts in Tooey. Read More »