Governor Pritzker Vetoes Pre-Judgment Interest Legislation- Revised Bill to be Sent to the Governor

April 2021

By: Jeffrey F. Clement

As BCM reported previously in January, the Illinois Legislature passed HB3360, which would have imposed 9% per annum pre-judgment interest on all categories of damages in a personal injury action running from the date the alleged tortfeasor has notice of the injury. In our prior alert, we highlighted many issues with the Bill, including its broad reach and punitive nature. We can now report that Governor Pritzker has vetoed HB3360. However, the Governor did indicate he would consider compromised legislation.

Indeed, compromised Senate Bill 72 has now been submitted to the Governor. Under Senate Bill 72, pre-judgment interest would (1) be at lower rate of 6% per annum, (2) be cut off at five years in all events, (3) start running from the date of the filing of the Complaint, (4) be tolled in the event of a voluntary dismissal and (5) not apply to claims against public entities. Senate Bill 72 is also markedly different from HB 3360 because it provide a mechanism for settlement offers. Specifically, if the defendant does better at trial than an offer made within a certain time prior to trial, interest is not applied. It also provides that interest does not apply to punitive damages, sanctions, statutory attorney’s fees, statutory costs and the amount of the highest timely-written settlement offer. However, Senate Bill 72 retains the provision allowing pre-judgment interest on non-economic damages.

Read More

Commissioner Appointments and Realignment of Commission Panels; Arbitrator Reassignment

March 2021

On March 19, 2021, Governor Pritzker announced the following appointments to the Commission. The following biographies come from the Governor's press release.

Deborah Baker will serve on the Workers' Compensation Commission as a Labor Commissioner. Baker was previously Assistant Deputy Chief Legal Counsel and Ethics Officer at the Illinois Department of Corrections. Prior, she was Litigation Counsel and Compliance Counsel at UpRight Law and served as Assistant Attorney General at the Office of the Illinois Attorney General. Baker earned her bachelor's from the University of New Mexico and Master of Arts and Juris Doctor from Loyola University Chicago.

Barbara Flores will continue to serve on the Workers' Compensation Commission as a Public Commissioner. Flores was previously an Arbitrator at the Illinois Workers' Compensation Commission. Prior, she was Corporate Counsel at Alden Management Services, Inc., and served as Final Agency Decision Writer at U.S. Postal Service, National Equal Employment Opportunity Investigative Services Office. She has extensive legal experience as a Law Clerk and is actively involved in scholarship and professional organizations. Flores earned her Bachelor of Science from the University of Illinois at Urbana-Champaign and Juris Doctor from the Chicago-Kent College of Law.

Christopher Harris will serve on the Workers' Compensation Commission as an Employer Commissioner. Harris was previously an Arbitrator at the Illinois Workers' Compensation Commission. Prior, he was Owner and Managing Attorney at Shield Law Firm LLC. Harris has additional legal experience as general counsel. Harris earned his Bachelor of Arts from the University of Illinois at Urbana-Champaign and Juris Doctor from the University of Illinois at Urbana-Champaign College of Law.

Read More

“Good Faith” Requirement in Settlement Contracts as Applied in Two Recent Cases, Koziol and Hartley

"Good Faith" Requirement in Settlement Contracts as Applied in Two Recent Cases, Koziol and Hartley

March 2021

By: Dylan R. Besser

Introduction

Imagine a familiar, somewhat common civil lawsuit scenario: Plaintiff, a construction worker, was injured on the job site when he fell through an opening on a catwalk. Plaintiff files suit alleging negligence against the project’s general contractor, the owner of the premises, and the subcontractor who erected the catwalk. A third-party complaint for contribution is then filed by these defendants against plaintiff’s employer, with standard allegations of failure to train, failure to supervise, and the like. Plaintiff then settles directly with the third-party defendant, his employer, and the third-party defendant files a “motion for good faith finding.” What could go wrong?

Legal Standard

The “‘good faith’ of a settlement is the only limitation which the Joint Tortfeasor Contribution Act (the “Act”) places on the right to settle and it is the good-faith nature of a settlement that extinguishes the contribution liability of the settling tortfeasor.” Johnson v. United Airlines, 203 Ill. 2d 121, 128 (2003) (emphasis added); 740 ILCS 100/2(d).

Read More

Torts — Recent Tort Litigation Pertaining to Transportation Network Providers Act

March 2021

By: Christapher L. Clanin

In the last 10 years, it is hard to imagine a sector of the economy that has undergone a more transformative reformation than that of the transportation industry. Early on, many states struggled to adapt to the fast paced changes caused by the now well-known industry disruptors, Uber and Lyft. In many ways, the linchpin that kept the system moving was the adoption of laws accommodating these companies, now known as “transportation network providers.” In Illinois, the Transportation Network Provider Act (“TNPA”) provided the basic framework for working as a transportation network provider in Illinois.

In Doe v. Lyft, Inc., the appellate court waded through the TNPA to answer two important questions: (1) whether the TNPA exempts ridesharing companies from the heightened duty of care and standard of vicarious liability that apply to common carriers and (2) if so, whether the TNPA violated the Illinois Constitution's ban on special legislation. 2020 IL App (1st) 191328, ¶ 1.

Read More

A Rock-Solid Contract Comes in Handy on an Icy Night

Hughes v. Southwest Airlines Company, 961 F.3d 986 (7th Cir. 2020)

March 2021

By: Jeffrey F. Clement

When counseling our clients on proper drafting of contracts, our attorneys emphasize the need to foresee potential disputes with customers or vendors and prepare appropriate contract language to mitigate against future exposure. One way this is done is through liability limitation clauses. Another way, as exemplified in the recent decision of Hughes v. Southwest Airlines Company, 961 F.3d 926 (2020), is to contractually specify the remedy and/or course of action to be taken in the event one party is unable to perform the contract. 

The Hughes decision shows how this can be done effectively. Plaintiff, Brian Hughes, purchased a Southwest Airlines (“Southwest”) ticket for transportation from Phoenix to Chicago on February 11, 2018. Southwest had to cancel the flight and informed Mr. Hughes it might be several days before it could be rescheduled. Mr. Hughes asserted the real reason the flight was cancelled was because Southwest “ran out of de-icing fluid in Chicago, leading the airline to cancel hundreds of flights out of and into Midway Airport.” 

Read More

Illinois Legislature Passes Bill Allowing 9% Pre-Judgment Interest for Personal Injury Lawsuits

January 2021

By: Jeffrey F. Clement

On January 13, 2021, the Illinois Legislature passed HB 3360. The Bill subjects personal injury actions in Illinois to 9% per annum pre-judgment interest accruing “on the date the defendant has notice of the injury from the incident itself or a written notice.” As to personal injuries/wrongful deaths occurring before the effective date, the interest runs from the effective date of the Act or the date the alleged tortfeasor has notice of the injury, whichever is later. The Bill was clearly designed to benefit the plaintiff’s trial bar who have complained that Covid-19 has resulted in defendants/insurers delaying on resolving or paying out personal injury actions. 

Having passed the Illinois Legislature, the Bill heads to Governor Pritzker for signature and/or veto.

Read More