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Illinois Amends Construction Statute of Repose To Exclude Asbestos Claims, But Amendment Not Be Retroactive In Certain Cases

Amendment Excludes Asbestos Claims

In December, 2014, former Governor Pat Quinn signed Public Act 98-1131, § 5, into law, adding Subsection (f) to Illinois’ Construction Statute of Repose (735 ILCS 5/13-214) to exclude claims based on personal injury, disability, disease, or death resulting from the “discharge into the environment of asbestos.”  All other language of the statute remains unchanged.  The relevant text of the statute, as amended, reads as follows:

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Contractual Provisions Minimizing Exposure/Losses in Missouri and Illinois

Parties entering into commercial contracts in Missouri and Illinois have available to them a number of risk limiting and shifting devices. However, in order to be enforceable, they must be drafted with care. Courts are often reluctant to allow an unconscionable result occur in the enforcement of an agreement, but generally allow parties to freely contract; even to enter into a “bad bargain,” if they are sophisticated consumers. This article reviews a few of these devices, on a high level, and shows how certain language is either enforced or interpreted by the courts.  Read more

Missouri’s Spoliation Doctrine and the Rule on Subsequent Remedial Measures

Despite its difficulty in application, the evidentiary spoliation doctrine—not to be confused with the independent tort of spoliation—is a fairly common sense doctrine at heart.  Boiled down to its most basic terms the spoliation doctrine prevents parties from destroying relevant evidence and using its absence to support their position.  The spoliation doctrine prevents parties from benefitting from their intentional destruction of evidence by allowing the other parties to make an adverse inference to the jury that the destroyed evidence would have been favorable to their position.

On the other hand, the rule on subsequent remedial measures seeks to encourage a party to repair a dangerous or injury-causing condition after an accident has occurred.  The public policy behind this rule encourages parties to make repairs where necessary to prevent the same injury from recurring. This rule provides that any action taken after an injury-causing event that, if undertaken before the event, would have reduced the likelihood of injury, is inadmissible to establish the manufacturer’s negligence. Read more

Updates To Illinois Personal Jurisdiction Law After In re Plavix Related Cases and its Applicability to Illinois Asbestos Cases

In the recent case of In re Plavix Related Cases, 2014 WL 3928240 (2014), the Court narrowed the scope of personal jurisdiction in Illinois for out-of-state residents attempting to file a claim in Illinois courts. Specifically, In re Plavix Related Cases deals with the situation of several non-Illinois residents suing non-Illinois corporations in Illinois courts.

The In re Plavix Related Cases court began with a review of general jurisdiction. “Personal jurisdiction is a court’s power to bring a person into its adjudicative process.” In re M. W., 232 Ill. 2d 408, 415 (2009). To be valid, the exercise of personal jurisdiction must be authorized by state law and consistent with state and federal due process. Illinois law authorizes courts to exercise jurisdiction over non-resident defendants to the full extent permitted by the Illinois and federal Constitutions, 735 ILCS 5/2-209(c), and Illinois due process is satisfied when federal due process requirements are met. See Russell v. SNFA, 987 N.E.2d 778, 785 (2013). Therefore, the only issue the Court need decide is whether the exercise of jurisdiction in this case comports with due process under the Fourteenth Amendment to the United States Constitution. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853 (2011). Read more

Missouri High Court Strikes Down Punitive Damages Cap in Common Law Actions Existing Before 1820

In the case of Lillian M. Lewellen v. Chad Franklin and Chad Franklin Auto Sales North LLC, No. SC92871, (Mo. banc Sept. 9, 2014), the Supreme Court of Missouri recently struck down Missouri’s statutory cap on punitive damages (Mo. Rev. Stat. § 510.265) for all common law causes of action that existed before Missouri’s Constitution was adopted.  In short, the Court held the cap on punitive damages was unconstitutional as applied to all causes of action existing at common law before 1820.  The Court previously held the statutory cap applied to causes of action created after 1820 (i.e. claims created by statute).  See Lewellen, at *8, fn 9. Read more

The Three Million Dollar Question: Are Method of Service and Proof of Service Synonymous?

Western District Court of Appeals finds that Plaintiffs Failed to Prove Proper Service Upon Insurer Before Taking Default Judgment

On April 29, 2014, the Missouri Court of Appeals affirmed a Boone County trial judge’s order setting aside a three million dollar default judgment more than two years after the default judgment was entered. The Plaintiffs, Ray Charles and Sue Bate, were parties injured in a motor vehicle accident. They sued the insurer of Ray Charles Bates’ employer, Greenwich, alleging that he was entitled to underinsured motorist benefits under the employer’s policy. Plaintiffs attempted to serve Greenwich pursuant to the process set forth in R.S.Mo. §375.906. A sheriff served a copy of the Plaintiff’s lawsuit against Greenwich upon an agent of the Missouri Department of Insurance. That agent then mailed the lawsuit to Greenwich using regular, first class mail which did not provide any verification that Greenwich would be actually served with the lawsuit. Read more

PS Wins Motion on Statutory Co-Employee Immunity Under 287.010

Pitzer Snodgrass recently obtained a dismissal of a case involving statutory co-employee claims, with the Court finding there was no duty owed. Plaintiff’s cause of action arose from an incident that occurred in 2010, while he was working at a trucking company’s facility in St. Charles County, Missouri. At the time of this incident, plaintiff was an employee of the trucking company. Defendant was also an employee of the same company at the time of the alleged incident.   Read more

New Amendments to the Missouri Workers’ Compensation Act Impact Asbestos Litigation

Beginning on January 1, 2014, the Missouri Workers’ Compensation Act applies to mesothelioma and other toxic exposure. On July 11, 2013, Missouri Governor Jay Nixon signed Senate Bill 1, which amended the Missouri Workers’ Compensation Act, modifying the Act’s language regarding the Second Injury Fund and occupational diseases. For the purposes of this article, we will focus on the changes to the Act made to occupational diseases under Senate Bill 1. Read more

Social Media and Electronic Devices in the Courtroom – A Clash of New and Old

Virtually everyone has an iPhone, iPad, Blackberry, or some other electronic device. Most, if not all, of these devices have the capability to snap photographs, upload messages, create a blog, and post a multitude of items on the World Wide Web.  Whether it is a statement on Twitter, a picture posted to Facebook or a simple text message or email to a friend or client, we live in a world where anything and everything can be part of the public domain in a matter of seconds.  With the advent of social networking sites and one’s ability to research people instantly on the internet, caution is needed when understanding the ramifications of these devices in the legal arena. While mobile devices provide great benefits to society, they can cause great harm in and out of the courtroom.  A recent gaffe by “Today” weatherman Al Roker, for instance, provides a good example how simple and easy it is to utilize the internet, potentially improperly. Read more

Local Fire Protection District Prevails on Summary Judgment

The Monarch Fire Protection District (“The District”), and two members of its Board of Directors (“Directors”), recently prevailed on a Motion for Summary Judgment prepared and filed by Pitzer Snodgrass. District Court Judge Rodney W.  Sippel, issued an Memorandum Order on August 6, 2013, dismissing the pending Complaint, filed by three former chief officers of the District.

 Basic Facts:

The Plaintiffs were terminated in the wake a sexual harassment lawsuit which resulted in a verdict against the District. The Plaintiffs were the top ranking officers of the District at the time that the alleged acts of discrimination and harassment took place. The Board of Directors of the Monarch Fire Protection District voted to terminate the three Plaintiffs, and a fourth officer who was not a party to the instant lawsuit, when the jury verdict against the District in the sexual harassment suit was affirmed in the Missouri Court of Appeals. The Plaintiffs were not members of the local union bargaining unit and did not have a written employment contract with the District. All three Plaintiffs testified that they did not request a pre or post termination hearing from the District or the Directors. Read more