The Illinois Supreme Court recently held that an increased risk of future harm is not an injury; tossing a class action suit which sought damages related to the City of Chicago’s replacement of water meters and water main pipes. The named Plaintiffs had filed the case on behalf of all Chicago residents who had water mains or meters replaced or installed between January 2008 and January 2017. The suit alleged negligence and inverse condemnation against the City of Chicago.

Continue Reading <i>Increased Risk of Future Harm </i> is Not an Injury: Illinois Supreme Court Dismisses Lead Exposure Class Action Against City of Chicago

In a fact-intensive decision issued on October 22, 2020, the Illinois Supreme Court determined in Sergiu Tabirta v. James J. Cummings, et al. that the mere presence of an employee’s home office in Cook County was insufficient, by itself, to establish proper venue over his employer in the jurisdiction. Merely having an employee with a home office in the venue was insufficient under the circumstances to constitute “doing business” or maintaining an “other office” there to satisfy the requirements of Illinois’ venue statute.

The Case

Plaintiff’s underlying claims were unrelated to the employee’s home office in Cook County and instead arose out of a tractor trailer accident that occurred in Ohio between plaintiff and a truck driver employed by Gilster Mary Lee (GML). Despite the fact that the incident occurred in Ohio, the plaintiff filed a negligence action against both the driver and GML in Cook County, Ill. The driver and GML both filed motions to transfer venue pursuant to the Illinois venue statute,  735 ILCS 5/2-101, which provides that venue is proper in either (1) the county of residence of any defendant or (2) in the county where the transaction occurred. Pursuant to 735 ILCS 5/2-102(a), a corporation “is a resident of any county in which it has a registered office or other office or is doing business.” (emphasis added). The defendants argued that Cook County was an improper venue because the accident did not occur in Cook County and neither defendant was a Cook County resident.

It was undisputed that the accident took place in Ohio and that no part of the underlying transaction occurred in Cook County. The driver was not a Cook County resident and GML’s registered office was in Randolph County, Ill. Under the venue statute, then, venue could only be proper in Cook County if GML was deemed a resident there by way of having an “other office” or “doing business” in the jurisdiction.

Plaintiff argued both points, maintaining that venue was proper in Cook County because GML employed another individual, James Bolton, who maintained a home office in the county. According to plaintiff, the fact that this uninvolved employee maintained a home office in Cook County constituted an “other office” of the company and meant that GML was “doing business” there. The Circuit Court agreed, ruling in favor of the plaintiff and the appellate court affirmed the trial court’s decision.

Supreme Court Review

The Supreme Court’s review focused on the corporate residency requirements of (1) whether Bolton’s home office constituted an “other office” of GML and (2) whether corporate residency was established under the “doing business” prong of the venue statute.

“Other Office”

Relying on prior Illinois and Georgia case law, the Court adopted the definition that an “other office,” in the context of establishing venue, means a fixed place of business at which the affairs of the corporation are conducted in furtherance of a corporate activity. This “other office” may be a traditional office in which clerical activities are conducted but could also include any fixed location purposely selected to carry on an activity in furtherance of the corporation’s business activities.

Evidence from the trial court’s limited discovery showed that GML did not purposefully select a fixed location in Cook County to carry on its business activities. Rather, GML purposely selected Bolton, the individual who had extensive experience in the company’s industry, to provide service to certain customers regardless of his residence. GML did not pay any portion of Bolton’s mortgage, real estate taxes, utilities, cellphone bills, internet charges, office supplies, or any other expenses associated with his home office. The company had no ownership in Bolton’s personal residence and did not own, occupy, or lease any properties in Cook County. Nor did it ever disclose to any customers, or to the public, that Bolton’s residence was an office of GML.

The Court held that just because Bolton conducted work for GML in his home office, standing alone, was insufficient to corroborate the claim that this home office was an “other office” of GML.

“Doing Business”

The Court noted that to establish corporate residency under the “doing business” prong of the venue statute, the defendant must be conducting its usual and customary business within the county in which venue is sought. In determining this, the Court focused on the quantity or volume of business conducted by a GML in Cook County.

During the five-year period preceding plaintiff’s accident, GML’s sales to customers in Cook County never exceeded 0.47% of its total sales in any year, and in 2016, the same year of plaintiff’s accident, this number was only 0.19% of total sales. The Court was not convinced that the quantity or volume of business GML had in Cook County was sufficient enough to establish that the company intended to do business in the county.

Conclusion

In 2020, many employees made the abrupt shift from working in an office owned or leased by their employer to working remotely from home. In fact, several companies have even announced extended work-from-home policies allowing employees to work remotely, permanently. Despite the lack of clarity as to what work-life may look like following this pandemic, the holding in Tabirta should provide employers with some peace of mind that even should they consider adopting extensive work-from-home policies, they are not automatically exposing themselves to claims in foreign venues. The Tabirta Court cautioned, however, that the “examination of whether an employee’s home office meets that definition [of “other office”] must rely on the specific facts adduced in each case. A one-size solution does not fit all for purposes of [Illinois’] venue statute.”

On January 13, 2021, the Illinois General Assembly passed House Bill 3360 (Bill) which, if signed by Governor Pritzker, would impose a 9 percent per annum prejudgment interest rate in wrongful death and personal injury tort actions. Illinois law does not currently recognize prejudgment interest in such tort actions, only allowing a post-judgment interest rate of 9 percent per annum running from the date of the judgment’s entry through the date of satisfaction. 735 ILCS 5/2-1303(a). While 5 percent prejudgment interest is permitted in certain cases where liability is clear and damages are readily ascertainable, such interest has never been permitted in personal injury cases, as damages are too difficult to calculate in advance. Continue Reading Illinois Bill Imposing Prejudgment Interest Awaits Governor Pritzker’s Action

On August 24, 2020 in Ann Finch v. Covil Corp., 972 F.3d 507 (4th Cir. 2020), the Fourth Circuit Court of Appeals upheld a North Carolina federal district court’s decision, sustaining a $32.7 million verdict in favor of  the plaintiff in an asbestos-related wrongful death lawsuit against insulation contractor Covil Corporation. On appeal, Covil argued that the district court erred in instructing the jury as to proximate cause and refused to reduce the damages award, however the three-judge panel found no fault with the district court’s jury instructions or its rationale for refusing to reduce the jury verdict.

Continue Reading Fourth Circuit Refuses to Reduce Record-Breaking $32.7 Million Asbestos Verdict

On May 17, 2019, Illinois adopted legislation eliminating the state’s 25-year statute of repose under the Illinois Workers’ Compensation Act for latent diseases. The legislation overturned the prominent Supreme Court decision in Folta v. Ferro Engineering which established clear precedent that an employee’s exclusive remedy lies under either the Illinois Workers’ Compensation or Occupational Diseases Act. Recently, in Patton v. A.W. Chesterton, defendant McNulty Brothers Company (McNulty) attempted to challenge the constitutionality of the 2019 legislation when it moved to dismiss Mr. Patton’s lawsuit arguing his case was barred by the Illinois Workers’ Compensation Act. Mr. Patton allegedly worked as a carpenter at McNulty from 1969 through 1973. Mr. Patton alleged that he regularly worked with asbestos-containing ceiling tiles and around asbestos-containing joint compound while he was employed by McNulty. Mr. Patton was diagnosed with mesothelioma in September of 2019, four months after the amendment of the Illinois Workers’ Compensation Act. Mr. Patton subsequently filed his complaint in the Third Judicial Circuit of Madison County, Illinois on October 15, 2019. Continue Reading Latent Injury Exception to Illinois Workers’ Compensation Legislation Challenged

The first two remote asbestos jury trials showcase the unique challenges of trying cases remotely. Many Americans have become accustomed to working from home and the technology that comes with it. Most courts though are still hesitant to proceed with remote asbestos jury trials, which is likely for the best. If, however, remote asbestos jury trials become more prevalent, then courts and litigants must learn from the challenges presented in these early cases.

Continue Reading Remote Asbestos Jury Trials Face Challenges

The statute of limitations on asbestos claims was recently reevaluated by the Minnesota Supreme Court. In Palmer v. Walker Jamal Company, the court reinforces that the clock begins when the plaintiff learns they have an asbestos-related disease, rather than when they identify a specific product as a potential cause. Continue Reading Statute of Limitations on Asbestos Claims: MN Supreme Court Reinforces

In June, the New Jersey Supreme Court affirmed a 2018 Appellate Division ruling holding that manufacturers and distributors can be held strictly liable for damages caused by third party replacement parts containing asbestos. Continue Reading Manufacturers Liable for Third Party Replacement Parts Says NJ Supreme Court

Personal jurisdiction over a foreign corporation was asserted by The Minnesota Court of Appeals in a recent asbestos case. The court found that the company’s former asbestos-tile factory in the state provided sufficient minimum contacts for specific personal jurisdiction. Continue Reading Personal Jurisdiction Over Foreign Corporation Asserted By Minnesota Court of Appeals

A pending amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure obligates parties to “meet and confer” regarding subject matters for examination. Adopted and submitted to Congress by the U.S. Supreme Court in April, this good faith conferral serves to clarify matters for examination and facilitates collaborative efforts. If Congress does not reject, modify, or defer the amendment by December 1, it will become effective immediately.

Continue Reading Pending Amendment to Rule 30(b)(6) Includes Meet and Confer Obligation