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LABOR & CONSTRUCTION LAW UPDATES

These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented.  Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
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OCTOBER 2020

Inside This Issue

1.    Illinois Employee Voting Rights Statute

2.    Can Companies Be Liable To Family Members Of Their Employees Who Become Ill As A Result Of An Employee Who 

       Contracted Covid-19 During Employment ?

3.    Do Contractors On Jobsites Owe A Duty To Injured  Employee Of Another Contractor?

4.    Illinois Supreme Court Narrows Definition Of Injury “Arising Out Of” Employment

​5.    When Is Duty To Defend Triggered?

​6.    Conspiracy To Defraud Is Not Separate Tort From Fraud

Illinois Employee Voting Rights Statute

REMINDER:  Illinois has an employee’s voting rights statute.  The statute provides that any person is entitled to vote in any election on the day of the election for a period of two hours while the polls are open.  The statute does not appear to accommodate early voting days as we have in Illinois.  It is recommended that if an employee wants to vote early and provides the minimum notice, which is the day before the employee wishes to vote, allowance should be provided.

Employees are to be paid for the two hours off.

Can Companies Be Liable To Family Members Of Their Employees Who Become Ill

As A Result Of An Employee Who Contracted Covid-19 During Employment ?

​The courts appear to be split over the issue which will undoubtedly be raised in subsequent lawsuits that the negligence of employer caused workers to become ill with Covid-19 and the employee then passed on the Covid-19 virus to family members.  Get ready for more litigation.

Last August, the daughter of an employee who worked for Aurora Packing Company alleged that she contracted Covid-19 from her father, an employee of Aurora.  The suit was filed in Kane County, Illinois. 

A similar lawsuit was filed in Will County, Illinois and the plaintiff alleges her husband gave her Covid-19 because his employer had inadequate safety policies which led to the disease to be brought home.  The issue in these cases is whether or not the employer implemented and enforced adequate safety measures to keep Covid-19 from spreading. 

Note that these Covid-19 liability suits by family members are not subject to a cap on liability as under the Illinois Workers’ Compensation laws.  Employers would be prudent to check their insurance policies to make certain coverage is in place.

Do Contractors On Jobsites Owe A Duty To Injured  Employee Of Another Contractor?

The 7th Circuit U.S. Court of Appeals was asked to decide whether contractors on a jobsite owed a duty to a rental crane operator under the contracts, common law or under OSHA. The facts are relatively simple in that a crane operator fell seven feet while on a 13-inch catwalk on his crane with no guard rail while checking fluid levels.  The crane operator fractured both his feet and his back.

The 7th Circuit cited several reasons why the other jobsite contractor did not breach any duty to the crane operator.  The Court first noted that an independent contractor who does not control the contractor’s working conditions, usually does not owe the contractor’s employees any duty of protection.  The Court next noted there was no contractual agreement between the crane operator’s employer and the other contractors on the job.  The Court went on to say there is no implied duty in a general contractor and a construction manager to the employees of their independent contractors. 

The Court rejected the argument since the crane operator’s company had a duty to protect the crane operator as a result of the subcontractor’s contract to provide crane services.  It was the crane operator’s employer that violated OSHA, and OSHA regulations cannot be used to expand common law duties. 

The Court rejected the vicarious liability argument on the part of the other jobsite companies and none of the other jobsite companies were agents of the crane operator’s employer.  (The case is Jeffords v. BP Products.)

Illinois Supreme Court Narrows Definition Of Injury “Arising Out Of” Employment

​​In McAllister V. The Illinois Workers’ Compensation Commission the Court was asked to decide whether a sous-chef is entitled to Workers’ Compensation benefits for a knee injury that claimant sustained while standing up from a kneeling position while working.  The question is whether the acts that caused the injury, namely kneeling down on the floor of the restaurant’s walk-in cooler to look for a pan of carrots misplaced by a coworker, and then standing up again, were acts which arose out of claimant’s employment and were acts claimant’s employer might reasonably expect him to perform in fulfilling his assigned job duties, which included checking in orders, arranging the walk-in cooler, making sauces, prepping food, and cooking. 

After the arbitrator granted compensation, the employer sought review of the arbitrator’s decision before the Commission.  The Commission, with one commissioner dissenting, set aside the arbitrator’s decision, finding that claimant failed to prove that his knee injury “arose out of” his employment because he “was subjected to a neutral risk which had no particular employment or personal characteristics.”  The Commission found that claimant’s knee injury did not result from an employment-related risk but rather from a neutral risk of standing up from a kneeling position, which has no “peculiar” employment characteristics.  The Commission determined that claimant had not established that he was exposed to this neutral risk to a greater degree than the general public. 

The history of the proceedings is important.  The arbitrator awarded workers’ compensation benefits to claimant, but the Illinois Workers’ Compensation Commission (Commission) reversed the decision, finding that the injury did not “arise out of” the claimant’s employment.  The circuit court of Cook County affirmed the Commission’s decision, and the Appellate Court affirmed the judgment of the circuit court.  The Illinois Supreme Court reversed and held that the Commission’s finding, that the claimant’s accidental knee injury did not arise out of his employment, is against the manifest weight of the evidence.  The Illinois Supreme Court reversed three appellate court decisions and redefined the term “arose out of” employment to the detriment of Illinois employers.

​When Is Duty To Defend Triggered?

​Insurance companies often refuse to defend claims of third parties in the construction setting.  The 7th Circuit U.S. Court of Appeals discussed the rule that the insurer owes a duty to defend if the underlying complaint discloses potential coverage and does not otherwise foreclose such coverage. In Scottsdale v. Columbia, the court was faced with a construction site accident when the subcontractor’s employee fell from one floor to another while performing HVAC work.  The mechanical subcontractor contracted with the building owner and the general contractor to provide the HVAC services.  The mechanical contractor was insured by Columbia whose commercial general liability policy named the owner and the general contractor as additional insureds by endorsement providing them coverage for their liability arising out of the ongoing construction operations. The contract between the mechanical contractor and the owner provided that the mechanical contractor assumed their liability when doing the subcontractor’s work, agreeing to hold them harmless and indemnify and defend them.  The owner and general contractor were insured by Scottsdale. 

The injured employee sued the owner and the general contractor stating they failed to supervise the HVAC contractor’s work and caused unsafe conditions.  Columbia refused to defend the general contractor and owner so Scottsdale defended them and filed a declaratory judgment action against Columbia claiming Columbia should defend. 

The 7th Circuit Court of Appeals ruled that the additional insurance indorsement triggered coverage.

​Conspiracy To Defraud Is Not Separate Tort From Fraud

In Metropolitan Capital Bank v. Definer, the 1st Illinois Appellate Court decided on September 18, 2020 that the practice of bringing a two count complaint, one for common law fraud and another for conspiracy to defraud, are not separate causes of action.

The Appellate panel stated that misrepresenting the status of collateral in a loan agreement required a plaintiff had to prove the fraud in order to recover any damages.  The panel went on to say the defendant’s misrepresentations could have easily been discovered by an investigation of the loan application, which was apparently omitted.  The plaintiff argued that they proved a conspiracy; therefore, plaintiff is entitled to damages. The panel rejected the plaintiff’s argument because the plaintiff must first prove fraud, which plaintiff did not.

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Law Offices of Stanley E. Niew, P.C.