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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

McKenna law Update & News December 2015


In This Issue...




On November 4, 2015, the Illinois Supreme Court filed its opinion in Folta v. Ferro Engineering, 2015 IL 118070 and in a 4-2 decision, held that an employee’s common law tort action against his employer is barred by the exclusive remedy provisions of the Workers’ Compensation Act and Workers’ Occupational Diseases Act (“the Act” or “the Acts”) even though no compensation is available under those Acts due to statutory time limits on the employer’s liability. This decision represents a major victory for employer defendants in asbestos-related personal injury cases. Previously, there has been a split, specifically between how judges handling asbestos dockets in Cook County and Madison County have ruled on this particular issue. There is now clarity for courts throughout the State of Illinois as to how they should rule when faced with this common factual situation.

In this case, the decedent, James Folta, was employed by Ferro Engineering from 1966-1970 and was allegedly exposed to asbestos. Mr. Folta was diagnosed with mesothelioma, an asbestos-related disease, in 2011. At that time, any potential workers’ compensation claim was barred by the Act’s 25-year statute of repose. Unable to pursue a workers’ compensation claim, Folta filed a common law tort claim against Ferro Engineering. Ferro’s motion to dismiss was granted by the circuit court, but subsequently reversed by the appellate court. A full discussion of the appellate court’s decision can be found HERE.

On appeal, Folta’s main argument was that the exclusive remedy provisions of the Acts should not apply to his claim because his claim is not compensable under the Acts. The Court rejected this argument for several reasons. First, the Court noted that the Acts were designed to provide financial protection for accidental injuries arising out of and in the course of employment. Specifically, the Acts were designed as a substitute for previous rights of action of employees against employers and to cover the whole ground of the liabilities of the employer. The Court stated that the exclusive remedy provisions were included as part of the quid pro quo which balances the sacrifices and gains of the employees and employers under the system. Clearly, the Court determined that the exclusive remedy provisions in the Acts are vital to the workers’ compensation framework, and allowing Plaintiff’s common law claim would undermine the framework of that system.

Second, the Court reviewed the case law in Illinois interpreting the phrase “non-compensable” under the Acts. The Court concluded that the case law stands for the proposition that whether an injury is compensable is related to whether the type of injury categorically fits within the purview of the Acts. See, e.g., Collier v. Wagner Castings Co. 81 Ill. 2d 229 (1980); Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455 (1990). This is contrary to the Plaintiff’s argument that an injury’s compensability is defined by whether there is an ability to recover benefits for a particular injury sustained by the employee. The Court noted that asbestos-related diseases are the types of diseases intended to fall within the purview of the Acts. The Workers’ Occupational Diseases Act specifically addresses asbestos-related diseases and numerous employees have recovered workers’ compensation benefits for injuries, disabilities or death arising out of workplace asbestos exposure. See, e.g., Kieffer & Co. v. Industrial Comm’n, 263 Ill. App. 3d 294 (1994). Further, the Court noted that it has applied the exclusive remedy provision in cases where there were limitations on the amount and type of recovery. See, e.g., Duley v. Caterpillar Tractor Co., 44 Ill. 2d 15 (1969).

Third, the Court looked at the language of the sections establishing the 25-year limitation for filing a workers’ compensation claim. Based on the plain language, these sections act as a statute of repose, creating an absolute bar to bringing a claim. The Court stated that the purpose of a statute of repose period is to terminate the possibility of liability after a defined period, and the fact that Folta was not at fault for failing to file a claim sooner due to the nature of his disease is irrelevant. According to the Court, to construe the scope of the exclusive remedy provision to allow for a common law action would mean that the statute of repose would cease to serve its function, contrary to the legislature’s intent.

Finally, the Court rejected Folta’s argument that Section 1(f) of the Act dictated that the proper recourse for his injury was under common law and that applying the exclusive remedy provisions of the Acts would violate the Illinois Constitution’s guarantees of equal protection. The Court rejected the Section 1(f) argument because that section has functioned as a temporal limitation on the availability of benefits and not as a basis to remove occupational disease from the purview of the Act. The equal protection argument was rejected because the Court found that all injured workers are treated equally in terms of the right to bring an action for damages. All injured workers are precluded from seeking common law damages.

Again, this decision represents a victory for employer defendants involved in asbestos-related personal injury cases throughout the State of Illinois. The workers’ compensation exclusive remedy defense is an argument we have successfully made on behalf of our clients in the past, and will certainly continue to make in the future.

For further information, contact Tim Hayes at 312.558.8325 or tmhayes@
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Illinois Supreme Court Rule 224 is a powerful discovery tool that the First District Appellate Court recently reviewed in the case of Low Cost Movers, Inc. v. Craigslist, Inc., 2015 IL App (1st) 143955. Rule 224 enables an entity to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible for their alleged damages.

In the Low Cost Movers matter, Low Cost, which had been advertising on Craigslist, believed that a competitor had been “flagging” their ads to get them removed from the website. Low Cost filed a petition under Rule 224 asking Craigslist to reveal the identity of anyone who had flagged its ads for removal since 2011. Craigslist agreed to the request but asked the court for a limited date range in an effort to save costs in the search. Low Cost failed to provide the narrower date range and the trial court dismissed the petition. Prior to dismissal, Craigslist had identified itself to Low Cost as one entity that had flagged its ads in 2014.

On appeal, Low Cost argued that the dismissal of its petition frustrated the purpose of Rule 224 by not permitting Low Cost to obtain a name of a potential defendant. Although Craigslist identified itself, Low Cost couldn’t sue Craigslist under its theories of tortious interference with prospective economic advantage or violation of the Illinois Consumer Fraud Act. Craigslist contended that the trial court properly dismissed the petition because Low Cost did in fact identify one party (Craigslist) that had engaged in the alleged wrongful activity.”

The Appellate Court opined that Rule 224 allows discovery of the identity of a potential defendant whose identity is not already known. However, once the identity of such a person or entity is ascertained, the purpose of Rule 224 has been achieved. The trial court must guard against “fishing expeditions.”

The Appellate Court reasoned that the true purpose of Rule 224 is to find the identity of one who may be responsible for damages. There is nothing in Rule 224 that allows a petitioner to continue with discovery until the identity of a party coincides with the petitioner’s cause of action. The Court found that the purpose of Rule 224 had been served by Craigslist identifying itself, despite the fact that Low Cost had no basis to sue Craigslist under its current theories of liability. The fact that the petition did not establish liability was inconsequential as the Rule was not designed for that purpose. As such, the Appellate Court affirmed the trial court’s dismissal of the Rule 224 petition.

For further information contact Paul Steinhofer at 312.558.3985 or psteinhofer@
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In Commonwealth v. Walters, 472 Mass. 680 (2015), the Supreme Judicial Court of Massachusetts recently found that activity on Facebook did not rise to the level of stalking. The incident arose when the victim and defendant, who were in a relationship for several years and owned a house together, broke up in 2007. The victim continued to reside at the house as she had nowhere else to go. The defendant told her he had been a sniper in the military and kept guns in the house, which she rarely saw until after the breakup. Sometimes she would see the defendant on a stump in the backyard with a rifle or cleaning the gun on the coffee table in the living room. She overheard him say “one shot, one kill” several times. She felt scared and threatened.

The defendant allegedly blocked her access to the driveway and garage, removed all of the appliances and left the house a mess, resulting in the victim obtaining restraining orders. When the house was placed on the market, the defendant posted a copy of the victim’s affidavit in support of her request for the restraining orders, with information not on the original affidavit, on Zillow, the website for the sale of the house. The restraining orders were later vacated as the victim moved to Rhode Island in 2009.

In January 2011, the victim’s new husband, Steven, a police officer, found out the defendant had sent emails to a member of the city council asking that Steven be investigated. Steven became concerned that defendant may be posting on the internet, so he checked the defendant’s Facebook page. Defendant’s profile picture was him, seated in a room with a slight smile on his face, holding a large gun across his lap. On a separate part of the page, next to an information box marked “Favorite Quotations” was the statement: “Make no mistake of my will to succeed in bringing you two idiots to justice.” Defendant’s profile picture appeared to have been uploaded on the day that Steven searched for and found the Facebook page. It is unknown when the quotes were added. The victim saw the Facebook page and it made her feel terrified.

Under the Massachusetts Stalking Statute, G.L. c. 265, §43(a), a person is guilty of stalking if he or she “(1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury.” The conduct, acts or threats may be accomplished by means of electronic communication. The Commonwealth argued the defendant’s Facebook page satisfied the threat element set forth in §43(a). The defendant argued that the Facebook page was ambiguous and temporally remote from the alleged harassment.

The Court agreed with the defendant, concluding that although the victim said she was terrified when she saw the page, her subjective reaction was not the crux of the inquiry. Rather, it was the content of the page in the context of the past and present relationship between the defendant and victim that determined whether there was sufficient evidence of the defendant’s intent to threaten the victim and whether the victim’s fear was reasonable.

The court found the profile photograph did not contain any evidence of the defendant’s intent to commit violence – there was nothing obviously menacing about his facial expression or the way he held the gun and there was no caption to suggest the photograph was intended to evoke violence. Although the defendant’s past actions might imply an intent to use guns to intimidate the victim, there was no evidence that the defendant ever used a gun for a violent purpose in her presence, pointed a gun at her or threatened physical violence toward her.

Further, because the photograph was uploaded to Facebook in 2011, approximately three years after the last time the victim saw the defendant with a gun, the relationship between the defendant’s past behavior and the photograph was tenuous. While it was reasonable to interpret the quote as referring to the victim and Steven, any particular violent message that may be attributed to the defendant from the presence of the photograph and the quote on the page is speculative. The Court found even though the page as a whole could have come across as vaguely ominous or disturbing, there was no evidence that the defendant created and intended to use the page to place the victim in imminent fear of bodily harm. The evidence of defendant’s intent concerning the creation of the Facebook profile was insufficient with respect both to whether the page constituted a threat within the scope of §43(a)(2) and to the reasonableness of the victim’s fear.

However, the Court cautioned when a threat on a Facebook page meets the requirements of the Massachusetts Stalking Statute and the defendant has engaged in a series of acts or pattern of conduct described in §43(a), the fact that the threat appeared on the Internet will not be a barrier to prosecution for stalking.

For further information, contact Kelly Purkey at 312.558.3906 or kpurkey@
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Recently, Bob Pisani successfully argued and won a motion for summary judgment on behalf of a major national retailer. The plaintiff filed suit in the Circuit Court of Cook County alleging malicious prosecution and false arrest. The store security personnel at the time were no longer employed by the defendant. Bob was able to get these former employees to cooperate. Despite plaintiff’s effort to create fact questions, Bob was able to get the court to focus on the dispositive issues and ignore the unrelated fact questions.

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