2-5-2018; Matt Ignoffo on Surprising WI "Exclusive Remedy" Ruling; Diversity/Inclusion/Mental Health and Substance Abuse CLE's Now Req'd for IL Lawyers; Shawn Biery's New + Free IL WC Rate Sheet
/Synopsis: Surprising Wisconsin Court of Appeals WC/GL Decision!!!! - Temp Employees Can Bring Tort Claims Against Their Temp Employers.
Editor’s Comment: This unexpected holding was filed recently in In Re the Estate of Carolos Esterley Cerrato Rivera v. West Bend Mutual Insurance Company and Alpine Insulation, No. 2017AP142 (issued January 9, 2018). The facts involve a single-vehicle accident where Decedent Rivera and two other individuals died. Rivera was a passenger in a vehicle owned by Alpine Insulation and insured by West Bend. At the time of the crash, the vehicle was traveling from one Alpine job site to another. Rivera was employed by Alex Drywall, which provided him to perform work for Alpine Insulation. The vehicle’s driver was a temporary employee of Alpine. This was a single-vehicle accident and the driver’s negligence was alleged to be the cause of the accident.
Decedent Rivera’s estate brought a wrongful death lawsuit against Alpine Insulation and its insurer, West Bend. It does not appear the Estate sought, or was paid, workers’ compensation death benefits. In the Circuit Court, Alpine and West Bend moved for summary judgment arguing Alex Drywall, Rivera’s employer, was a temporary help/employment agency. They asserted due to the fact Rivera was an employee of a temporary help agency, the Estate was prohibited from bringing a tort action against Alpine, the temporary employer. The Circuit Court agreed and granted summary judgment in favor of Alpine and West Bend. The Estate appealed.
The Court of Appeals noted, while the exclusive remedy provision applies to claims by an employee against his or her “employer,” it does not prohibit an employee from pursuing claims against third party tortfeasors. If Alpine had been Rivera’s “employer” under the WI Act at the time of his death, the exclusive remedy provision would unquestionably bar the Estate’s tort claims against Alpine and West Bend.
It is undisputed that Rivera’s “employer,” was Alex Drywall, the temporary help agency that Alpine Insulation compensated for Rivera’s services. The exclusive remedy provision therefore prohibits the Estate from bringing tort claims directed against Alex Drywall. However, the Court held it does not prohibit the Estate from pursuing tort claims against Alpine and West Bend.
Next the Court addressed the section of the WI Act stating, “…No employee of a temporary help agency who makes a claim for compensation may make a claim or maintain an action in tort against any of the following: Any employer that compensates the temporary help agency for the employee’s services” (emphasis added by the Court of Appeals). The Court stated the necessary implication of this bolded language is that a temporary employee who does not make a claim for compensation under the WI Act is not prohibited from bringing a tort claim against his or her temporary employer.
Alpine and West Bend argued the exclusive remedy provision should shield employers from tort liability whenever an employee has the right to make a worker’s compensation claim.
The WI Appellate Court indicated to adopt such an interpretation would require it to either:
1. Read words into the statute that currently aren’t there—specifically, the words “has the right to make”; or
2. Read the phrase “who makes a claim for compensation” out of the statute entirely.
The WI Appellate Court’s conclusion is that because the Estate had not made any claim for workers’ compensation medical or death benefits, it was not barred from pursing tort claims against Alpine and West Bend.
Wisconsin employers need to recognize this significant development. Unless this legal concept is overturned on further appeal, they have exposure for tort liability where prior to this decision they likely presumed exclusive remedy protection. General liability carriers likewise would not have anticipated this exposure and premiums may need to be adjusted and agreements revised.
We have a unique set of facts here where WC benefits were apparently not paid and the driver who was at fault just happened to be an employee of the temporary employer. Remember this was a single-vehicle accident. The first issue that came to mind when reading the fact pattern is what would have been the result had Alex Drywall offered and paid death benefits under the WI WC Act, and why didn’t it? If it had automatically paid would the Decedent’s Estate therefore have made a claim for compensation, precluding it from bringing the tort action?
We would not be surprised if this is further appealed to the Wisconsin Supreme Court or if the legislature steps in to address the Court’s holding. Stay tuned.
This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C., who is licensed and practices in Illinois and Wisconsin. Matt is one of KCB&A’s top Medicare Set-Aside experts. Please feel free to contact Matt on a 24/7 basis at mignoffo@keefe-law.com.
Synopsis: Warning to IL Lawyers—Diversity/Inclusion/Mental Health and Substance Abuse CLE Courses are Now Required to Keep Your License!
Editor’s comment: For the past decade, the Illinois Supreme Court has encouraged attorneys to take diversity CLE courses and mental health and substance abuse CLE courses and activities to fulfill part of their professional responsibility requirement. Over that decade, the percentages of those courses offered and taken in Illinois remained practically unchanged.
Due the lack of response, our highest Court recognized what they feel is the profession’s challenges in the diversity/inclusion along with concerns in the mental health and substance abuse arena. To reverse what they felt was a “trend,” the Court adopted the recommendation of the Illinois Supreme Court Commission on Professionalism requiring Illinois attorneys to now take one hour of diversity and inclusion CLE and also one hour of mental health and substance abuse CLE during each two-year reporting period. This adoption comes in light of national efforts, particularly by the American Bar Association, to encourage all states to require lawyers to take courses in diversity and mental health and substance abuse.
As a veteran IL WC attorney, I would comment our IL Workers’ Compensation Commission is not particularly diverse or inclusive, in my opinion. I hope they start to hear this message. I would further opine, with due respect, the IL Appellate Court, WC Division is about the least diverse group of justices I can remember in almost four decades of practice. To my knowledge, the IL Supreme Court controls appointments to that panel and one might hope our highest Court’s members would work to make that group of justices more diverse and/or inclusive.
I may start working up a course on these important topics for interested attorneys and the public. Watch this space for developments.
FAQs for Attorneys
1. What is the new diversity/inclusion and mental health/substance abuse CLE requirement? Under Amended IL Supreme Court Rule 794(d), Illinois attorneys will be required to take one hour of diversity and inclusion CLE and one hour of mental health and substance abuse CLE as part of their six hour professional responsibility requirement. The amended Rule describes the substantive areas in slightly different language than used in current 794(d) and the new language will be referred to in these FAQs as “diversity/inclusion” and “mental health/substance abuse.”
2. What is the rationale for this new requirement? In Supreme Court Rule 794(d), the Supreme Court requires Illinois lawyers to take six hours of professional responsibility CLE, which includes, as two of five optional areas, the topical issues of both diversity and mental illness and substance abuse. Data collected by the Illinois Supreme Court Commission on Professionalism supposedly demonstrates few attorneys take courses focused on either of those two areas. The new requirement will use education as a tool to encourage attorneys to seek more information and engagement on diversity and mental health and substance abuse issues.
3. When does the new requirement go into effect? The Rule’s effective date was July 1, 2017 and begins with the two-year reporting period ending June 30, 2019. No courses offered or activities taken prior to July 1, 2017 will be eligible for the new diversity/inclusion and mental health/substance abuse CLE requirement.
4. Who will administer the new requirement? The Illinois Supreme Court Commission on Professionalism will continue to administer the entire professional responsibility requirement.
5. Do newly-admitted attorneys have to fulfill this requirement? No, this new requirement will not apply to newly-admitted attorneys. New attorneys will continue to have to complete their newly-admitted attorney requirement.
6. Does completing the Supreme Court’s lawyer-to-lawyer mentoring program meet the diversity and mental health and substance abuse CLE requirement? Yes. Under Amended Rule 794(d)(2), completing the Court’s mentoring program as a mentor or mentee will fulfill the new CLE requirement. Attorneys can find out more information about the mentoring program on the Illinois Supreme Court Commission on Professionalism’s website.
7. What courses will qualify for diversity/inclusion or mental health/substance abuse CLE credit? The provider offering the course will identify the course as offered to fulfill the diversity/inclusion or mental health/substance abuse CLE credit, in the same way that courses are currently identified for professional responsibility CLE credit. The Commission on Professionalism will continue to review and approve the content of such courses as fulfilling the professional responsibility CLE requirement. The Commission on Professionalism’s Professional Responsibility Education Guide explains courses geared to promoting diversity, inclusion, and increased mental health and preventing substance abuse are approved by the Commission (and will continue to be approved) for professional responsibility CLE credit.
8. Do out-of-state courses qualify for diversity/inclusion or mental health/substance abuse CLE credit? Yes. Under Rule 795(c)(5), attorneys can receive Illinois CLE credit for CLE courses taken outside of Illinois as long as the provider did not seek Illinois credit for the program. Attorneys seeking credit for a professional responsibility course must first complete an MCLE Board application. Once they receive approval from the Board, they must then complete a professional responsibility out-of-state CLE 3 application with the Commission on Professionalism and request diversity and inclusion or mental health and substance abuse CLE credit.
9. Do non-traditional courses qualify for diversity/inclusion or mental health/substance abuse CLE credit Yes. Under Rule 795(d), attorneys can receive CLE credit by attending or participating in certain “nontraditional” courses or activities. To request diversity/inclusion or mental health/substance abuse CLE credit, attorneys must complete a professional responsibility non-traditional CLE application and request such CLE credit.
10. How can attorneys locate courses offered for diversity/inclusion or mental health/substance abuse CLE credit? Attorneys can locate courses through their customary providers, including the Lawyers Assistance Program and the Commission on Professionalism, or use the MCLE Board Course Search to search for courses that offer diversity/inclusion or mental health/substance abuse CLE credit.
11. Are there any free online diversity/inclusion or mental health/substance abuse CLE courses? The Lawyers’ Assistance Program offers several one-hour mental health/substance abuse online courses. The Illinois Supreme Court Commission on Professionalism offered a one-hour diversity and inclusion online course that began in summer 2017.
We appreciate your comments. Please post them on our award-winning blog.