Considerations That Employers Should be Mindful of as Employees Return to the Office

In light of employees returning to the office, the Equal Employment Opportunity Commission (“EEOC”) provided comprehensive guidance through its Frequently Answered Questions (“FAQs”). These FAQs provide valuable insight on how employers should navigate these uncharted territories, while also leaving employers with questions. This article highlights the major takeaways from the EEOC guidance, yet the overarching theme that employers should consider when implementing a policy for returning to work is that there likely will not be any hard and fast rules that will apply to all employees—this will likely need to be an interactive process in which fact specific inquiries may be necessary to accommodate employees’ circumstances. More »

A Win for Policyholders Seeking Coverage in a BIPA Class Action Suit

As practitioners across the state are well aware, Illinois has become a hotbed for litigation concerning the protection of biometric information, as companies of all shapes and sizes have found themselves defendants in lawsuits seeking to recover for alleged violations of Illinois’ Biometric Information Privacy Act (“BIPA”). Naturally, the availability of insurance coverage in these cases has become an equally compelling legal issue. The recent $36 million settlement of the class action BIPA lawsuit, Rosenbach v. Six Flags Entertainment Corporation, highlights the importance of insurance coverage in this area.  More »

Reasonable Disagreement or Fraud? Competing Estimates of Property Damage in First Party Claims

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Absent an outright disclaimer of coverage, a disagreement regarding the scope and amount of covered damages represents the very heart of virtually every disputed first-party property claim. While certainly not all claims presented by policyholders (or their public adjusters) are unreasonable, any lawyer who has defended first-party lawsuits can offer examples of claims with extremely minor damage that quickly turn into five and six figure demands based on estimates that call for repairs or replacement to virtually every element of a home. Take, for example, a minor water leak underneath a single kitchen cabinet that is quickly discovered by the homeowner and repaired, but leaves some minor water staining and warping to that single cabinet. Often, by the time a demand is presented to the carrier, that minor water damage claim has turned into a demand for a complete kitchen overhaul to include replacement of all kitchen cabinets, countertops, flooring, painting, etc. More »

Malpractice Mayhem: An Insurer's Standing to Sue Counsel Retained to Defend Its Insured

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Recently, the Florida Supreme Court opined on the ability of an Insurer to bring suit against counsel it hired to defend its Insured and affirmed that an Insurer has not only the right, but the standing to do so, in certain circumstances.

In the matter of Arch Insurance Company v. Kubicki Draper, LLP, SC19-673, the Florida Supreme Court reviewed and heard argument as to why Arch should or should not be allowed to sue Kubicki Draper for malpractice after Kubicki Draper represented and settled a suit for one of Arch’s insureds. In Arch, the trial court and Fourth District Court of Appeal both found that Arch did not have standing to sue Kubicki Draper as it was not in privity of contract with the firm; however, the Fourth District Court of Appeal certified the following question of great public importance: Whether an Insurer has Standing to Maintain a Malpractice Action Against Counsel Hired to Represent the Insured Where the Insurer has a Duty to Defend. More »

Prejudgment Interest Now a Reality in Illinois

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The Governor of Illinois signed into law Public Act 102-0006 on May 28, 2021. The effective date of the act is July 1, 2021. The act applies to all wrongful death and personal injury action arising out of negligence, willful and wanton misconduct, intentional conduct, or strict liability. More »

Florida NIL Legislation: What to Expect in the Coming Weeks

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With name, image and likeness (NIL) legislation set to take effect in Florida in less than a couple of months, intercollegiate athletes will soon be able to receive compensation for the use of their NIL’s. But where will that compensation come from? Who are the likely sponsors? Typically, when one thinks of athlete endorsements, one imagines a professional athlete on television promoting products from cars to shoes to insurance and countless other products. While some very well-known intercollegiate athletes might be able to land such high-profile sponsorships, the more likely source will be smaller scale with the focus on social media advertising. More »

Texas Supreme Court Clarifies Medical Billing Affidavit Procedure

Chapter 18 of the Texas Civil Practice and Remedies Code (“CPRC”), which creates a procedure for tort plaintiffs to prove past medical expenses by affidavit and without the need for live expert testimony at trial, has long been the focus of controversy as to its scope and effect. The statute, which the Texas Supreme Court describes as “a purely procedural statute that is designed to streamline proof of the reasonableness and necessity of medical expenses.”[1], has been turned into a weapon against defendants, with many intermediate courts holding that a defendant’s failure to satisfy the statute’s requirements for a counter-affidavit meant that a defendant could not contest the cost or necessity of treatment at trial. On May 7, 2021, the Texas Supreme Court put an end to this extreme court-created penalty for non-compliance with the statute’s procedural details. More »

Michigan Tenant's Successful Use of Frustration of Purpose Doctrine to Avoid Paying Rent to Landlord During the Pandemic

On April 7, 2021, in United States District Court for the Eastern District of Michigan lawsuit Bay City Reality, LLC v. Mattress Firm, Inc., 20-CV-11498, Mattress Firm, Inc., a commercial tenant (“Tenant”), successfully relied on the common law defense of Frustration of Purpose to defeat Bay City Realty, LLC’s (“Landlord”) breach of contract lawsuit after Tenant admittedly refused to pay monthly base rent to Landlord for April and May 2020 while Tenant could not open to the public due to Governor Whitmer’s prior Executive Orders. More »

Placebo Effect: How Illinois’ COVID Tort Immunity Fails to Immunize Medical Professionals and the Healthcare Industry

At a time when COVID-19 vaccinations are on the rise and there is renewed focus on reopening the state, Illinois’ attempt to immunize its medical professionals and healthcare industry from COVID-19 related civil liability ironically may be failing. Over the last fifteen months, medical professionals have strived tirelessly to provide care to their patients while protecting them from the unprecedented circumstances created by a novel and deadly virus. Recognizing the risks faced by medical professionals, many states implemented immunity provisions to protect healthcare workers from civil liability, with the goal of ensuring that medical professionals and their facilities could not be sued based upon a hindsight argument. In Illinois, Governor J.B. Pritzker provided civil immunity for medical professionals and facilities as part of his Executive Order 2020-19 dated April 1, 2020. The order states that medical professionals and facilities “shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission” of the care provider or facility in “rendering assistance” to the State in its efforts to prevent the spread of COVID-19.[1] The Executive Order discusses various ways in which facilities can “render assistance” to the state and provides an immunity exemption for injuries caused by willful and wanton conduct. The immunity provision appears to be a direct and unequivocal limit on medical professional liability; however, Illinois plaintiffs’ attorneys have already begun to chip away at the meaning of the executive order, transitioning it from an immunity provision to just another tool to attack medical professionals through a reasonable cause analysis. More »

Canela V. Sky Chefs – How To Make A Light Duty Offer

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On April 8, 2021, New York’s Appellate Division, Third Department, rendered a decision in Canela v. Sky Chefs. This decision sheds light on the issue of labor market attachment and on the importance of a well written light duty offer letter. More »

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