9-25-2019; Shocking Record-High "Negligent Hiring" Verdict of $54M is Affirmed; New IL WC Commissioner Kathryn Doerries Appointed and More
/Synopsis: Shocking IL Appellate Ruling That Might Set the Trucking Risk and HR Industry on Its Ear When Your Rigs Cross Anywhere Near the Nutty Land O’ Lincoln!! This $54M verdict is an IL Auto Claim Record.
Editor’s comment: In Denton v. Universal Am-Can, Ltd., (Issued September 24, 2019), a Cook County jury has awarded more than $54 million to a man who sustained head, neck and knee injuries after a semitrailer rear-ended his vehicle on an Indiana interstate.
Plaintiffs James Denton and his wife, Theresa, of Oak Lawn, sued David L. Johnson, the truck driver, and Universal Am-Can Ltd., Universal Truckload Services Inc. and Louis Broadwell LLC, Johnson’s employers, in 2015, alleging Johnson was negligent when he failed to slow down to avoid a crash as traffic unexpectedly changed. As you will read, the verdict didn’t really come from a bad-driving claim—it morphed into a “negligent hiring” action that lead to boxcar numbers.
The verdict is comprised of $19,155,900 in compensatory damages and $35 million in punitive damages--it totaled $54,155,900. According to John L. Kirkton of the Jury Verdict Reporter, the total verdict is higher than any Illinois auto personal-injury verdict that has previously been reported,
Driver Johnson “failed to keep a proper lookout” and was driving at 40 miles an hour when he rear-ended Plaintiff Denton in his Jeep. Plaintiff very effectively argued Johnson should not have been hired or retained by Universal Am-Can because of his “checkered driving record” and a felony conviction in 2004 arising out of a road-rage incident. From my view, every single driving boo-boo by this driver was repeated to the jury, as if his employer encouraged all of it.
Plaintiff Denton was driving south on Interstate 65 near Rensselaer, Ind., on Feb. 8, 2011, when traffic abruptly slowed because of a wrong-way driver traveling north in the interstate’s southbound lanes. George Kallis, 88 (who passed away during the pending proceedings) was driving the wrong way on the highway shoulder at approximately 30 mph. He did not strike any vehicles or sustain any physical injuries.
Counsel for Plaintiff indicated other trucks on the highway were able to slow their rigs and bring them to a stop — except for Johnson. “(Johnson) didn’t become aware of the wrong-way driver until after the crash,” Plaintiff Attorney Napleton said.
The defense argued, through the use of crash reconstruction expert, that the sole cause of the crash was Kallis, the wrong-way driver. Counsel for Plaintiff disagreed.
The defense also argued Johnson encountered a “hard brake” situation where he had no room on either side of the highway to move to another lane. Plaintiff Denton sustained injuries to his knees, back and neck and had nine surgeries. He continues to claim chronic pain syndrome related to his neck and back injuries and has to take narcotics to control his pain. Denton was not able to return to work as a regional vice president for Mohawk Industries.
In January 2015, a three-justice panel of the 1st District Appellate Court ruled Denton was hurt in the final stage of a chain-reaction that started with Kallis’ wrong-way driving. That opinion, Denton v. Universal Am–Can Ltd., 2015 IL App (1st) 132905, also indicated the Dentons settled with Kallis’ estate for $100,000 prior to filing their Cook County suit.
Writing for the appeals panel, Justice Terrence J. Lavin (who was a former and very successful Plaintiff lawyer) noted the differences in allocating fault between Illinois and Indiana and how they could affect an eventual award. “In Illinois, all defendants found liable are jointly and severally liable for the plaintiff’s past and future medical expenses,” Lavin wrote. “Indiana, by contrast, maintains that defendants can only be held severally liable for their own percentage of fault. … Moreover, Indiana law allows a defendant to prove the negligence of an absent or settling tortfeasor.”
The appeals panel explained the defense could attempt to persuade the jury that Kallis, though a nonparty to this case, was responsible for setting the crash in motion. Ultimately the jury in this case did not apportion any fault to Kallis. Jurors apportioned 40 percent of fault to Johnson individually and as an agent of Louis Broadwell and Universal, and 60 percent of fault to Universal for negligent hiring and/or retention.
The problem for the Trucking Industry is the jury found that all Defendants were negligent and the trucking company was negligent in hiring and retaining its employee who was the driver of a semi who had been convicted of 9 traffic-related offenses in the 7 years prior to applying, and whose license was suspended at time of accident.
The Appellate Court found the trial court correctly barred testimony as to the reduced rates providers accepted for Plaintiff's medical treatment under the collateral source rule, and properly applied Illinois law to that issue and to issue of allocation of punitive damages award. The Court also confirmed there was sufficient evidence supporting the punitive damages award, as extensive evidence was presented as to driver's poor driving history prior to applying to trucking company, and company's internal safety policies.
The Appellate Court noted the jury's finding of zero percent fault on the part of the driver who was driving the wrong way reflected the jury's belief that Plaintiff was injured as a result of the negligent and willful and wanton conduct of Defendants.
My concern for the entire U.S. trucking industry is there aren’t enough solid drivers with CDL’s out there. You need bodies to drive semis (until autonomous trucks arrive). I am concerned some of the U.S. trucking HR people are taking on challenging hires, like the driver in this claim. When and if you make that mistake and someone gets hurt, even if you aren’t the true “cause” of the wreck, a bad driving record for the trucker involved may cause your exposures to get way into your excess layers. In short, you need to carefully consider hiring troublemakers and folks with poor driving records for lots of reasons, this verdict being one of them.
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Synopsis: The Secret Squirrels who run the IL WC Commission Replace Former Commissioner Lamborn with Kathryn Doerries. We wish both all the best in their new ventures.
Editor’s comment: One odd thing about IL WC Commission management—the HR secrecy level for openings is close to that of nuclear armament handling. No one ever lets the media or public know of an opening and no one knows who/how to apply for a position.
We just learned Kevin Lamborn who did a solid job as a management Commissioner in his years at the IWCC, has been quietly sacked by whoever sacks such folks.
The new appointee is a mild surprise to me. Having practiced at the IWCC since the Iron Age or thereabouts, I have never met nor heard of Ms. Doerries that I recall. The IWCC notice that she was appointed said virtually nothing about her or her qualifications. The national work comp media didn’t report it at all. It is my understanding she is married to a solid defense attorney who I do know and have great respect for. To learn anything—something about Ms. Doerries, I looked her up on the web and found this on www.linkedin.com which I did edit a little bit. It is odd in 2019 to read she served a chief of the “Industrial Commission Bureau” when the joint has been called the Workers’ Compensation Commission for a very long time. Either way, here are some details about our new appointee.
Kathryn Doerries Attorney
Wheaton, Illinois
About
Served as Bureau Chief of Industrial Commission Bureau (??) to lead attorneys specializing in Workers’ Compensation defense before the Illinois Workers’ Compensation Commission (IWCC).
First chair of numerous trials before the IWCC.
Cross-examined witnesses and deposed medical experts in complex cases.
Successfully resolved thousands of cases through negotiation and settlement or trial.
Restructured entire department to create efficiencies and ensure consistency.
Managed staff including hiring, mentoring and supervising.
Drafted Proposed Findings for arbitrators’ decisions, many adopted in toto.
Drafted and argued appeals before the IWCC.
EDUCATION & QUALIFICATIONS
J.D., The John Marshall Law School, Chicago, IL
B.A., University of Illinois at Champaign-Urbana, IL
Active Member, Illinois Bar
As I indicate above, I join with the defense team at KCB&A and the IL WC community to welcome our newest Commissioner.
Illinois Chamber of Commerce Conference 10/8/19
Agenda will include:
7:30 a.m.–8:30 a.m. Registration and Breakfast Networking – Expo is open
8:30 a.m.–8:55 a.m. Opening Remarks
Jay Shattuck, Executive Director Employment Law Council, Illinois Chamber of Commerce
Michael Brennan, Chairman, Illinois Workers’ Compensation Commission
8:55 a.m.–9:45 a.m. General Session – Medical and Recreational Marijuana in Illinois and the effect on WC Claims Handling
Shuaib Ahmed, ASA Law Group Shuaib Ahmed will dissect the Medical Cannabis Act, discuss both medical and recreational marijuana in Illinois and the challenges facing Employers navigating Workers’ Compensation claims.
9:45 a.m.–10:10 a.m. Morning Break & Visit Exhibitors
10:10 a.m. – 11:05 a.m. First Series of Workshops
Workshop #1: Shawn Biery, John Campbell and Bradley Smith, Keefe Campbell Biery & Associates
Impact and Implications of SB 1596 (Civil Action may be brought against Employer) Join John Campbell and Shawn R. Biery from Keefe, Campbell, Biery & Associates for a break out session discussing the impact and implications of SB 1596, as well as brainstorming strategies on how employers can best prepare to protect themselves. These veteran workers compensation defense attorneys will also cover relevant recent case law updates to provide guidance which will be helpful for anyone who deals directly or peripherally with workers’ compensation claims. Questions will be entertained throughout to drive the discussion toward specific avenues of interest from the audience.
Workshop #2: Michael Teti, Digistream Investigations in the Age of Geosocial Data
The current growth of geosocial data is changing the face of risk management and investigations. Learn what geosocial data is, and exactly how this type of information is used to uncover fraud and investigate insurance claims of all kinds. Understand how to gain eye-opening insight into accidents, site-security, workplace harassment, and high exposure incidents by locating social media photographs, videos and posts at specific locations and times anywhere in the world. The session examines successful real life cases, fascinating trends in social media, privacy and legal issues, as well as preserving, authenticating and presenting cyber evidence in court. Attendees will work with an understanding of best practices and ethical requirements for a successful geosocial investigation and how to add this new information into their already wide range of skills.
Workshop #3: Surbhi Saraswat Goyal and Charles Maring, Brady Connolly Masuda, P.C. Defending Work Injuries . . . Before They Happen!
In this workshop learn practical, low-cost strategies that employers can implement in-house to prepare for a work injury before it happens! Attorneys Surbhi Saraswat Goyal and Charles M. Maring, II reveal battle-tested strategies and helpful trial evidence that is beneficial in the defense of workers’ compensation claims. These strategies can help Employers, Human Resource and Safety Personnel meditate costs and protect the company’s interests. Know your rights as an employer and turn standard practices into assets!
11:10 a.m. – 12:05 p.m. Second Series of Workshops
Workshop #1: Brian Clay, MD, Illinois Bone & Joint Institute Standardizing a Return to Work Protocol for Back Injuries in the Workplace
Attendees will understand the markers of when a patient can return to work duty with low back pain, what to avoid, standard practices, and improvements in the process. By following a researched set protocol, return to work for low back injuries will be more efficient and economical. Attendees will also understand the insurance implications, cost saving, and improved return to work times for these patients by following a researched protocol.
Workshop #2: Steve Murdock and Jynnifer Cotharn, Inman & Fitzgibbons, Ltd. Best Tools for Defense; Strategic Use of IMEs, Record Reviews, Utilization Reviews, Impairment Ratings
Effective claims management often requires different strategies at different points in the litigation process. Understanding the tools that are available to help protect the insured’s interests is a critical part of claim handling. Should I get an IME? What are the benefits of obtaining a Utilization Review? How much weight is given to an impairment rating? In this seminar, we will address these questions along with four defense tools, their benefits and risks, and how each tool impacts cost and advancement of claims to closure.
Workshop #3: Jeffrey Risch, Smith Amundsen, LLC OSHA Obligations and Workers Compensation in Illinois
In this presentation, led by Labor & Employment Attorney Jeffrey Risch, attendees will receive the latest in employer OSHA obligations related to work related injuries and claims. From reporting and recording requirements, to drug testing rights and disciplinary options when an employee is involved with a work related injury due to an unsafe act or rule violation, attendees will hear the very latest on what employers must do, can do, shouldn’t do and can’t do when it comes to OSHA and work related injuries.
12:05 p.m. – 12:30 p.m. Visit Exhibitors & Networking Break
12:30 p.m.–1:30 p.m. Luncheon with Keynote Speaker
The Intersection of Rx Opioids & Medical Marijuana Mark Pew, Senior Vice President, Product Development & Marketing, Preferred Medical Medical cannabis as a substitute for prescription opioids continues to grow in the public (and private) discourse on pain management. Is that a surprise? For citizens of Illinois it should not be since last year’s introduction of the “Opioid Alternative Pilot Program”. But Illinois is not alone in the connection as per the January 24, 2019 blog post “Marijuana & Opioids” that listed three other states with an explicit connection (Colorado will officially make it five total in August 2019) and another six states with an implicit connection. While this connection is mostly political and anecdotal (based on personal stories and experiences) there is a growing amount of science (clinical studies) to substantiate the premise. This session will discuss the evolution in thought, present the anecdote and evidence behind the connection, highlight the implications for workplaces, and talk about how a drug-for-drug substitution might not be the full answer.
1:30 p.m.–2:30 p.m. Roundtable Discussion with Q&A
Moderator: Jay Shattuck, Exec Dir Employment Law Council, Illinois Chamber of Commerce • Panelist: Amy Bilton, Nyhan Bambrick Kinzie & Lowry
Panelist: Dr. David Fletcher, Safeworks Illinois
Panelist: Mike Brennan – Chairman, Illinois Workers Comp Commission
Implementation of SB904 and discussion of billing and payment problems in the WC system
2:30 p.m.– 3:00 p.m. Drawings for Prizes & Closing Remarks
3:00 pm Adjourn
Contact Information
Questions on this event or other IL Chamber Business Services events?
Contact the Business Services Coordinator,
Kirsten Constant
P: 217-522-5512 Ext. 227