BSCR Firm News/Blogs Feedhttps://www.bscr-law.com/?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=10en-us05 Jul 2022 00:00:00 -0800firmwisehttps://blogs.law.harvard.edu/tech/rssAdmitting agency no longer bars direct negligence theories in Illinois.https://www.bscr-law.com/?t=40&an=124545&format=xml05 May 2022Illinois Law Blog<p>An effective tool in attempting to limit recovery and the scope of discovery in Illinois may be gone. In <i>McQueen v. Green,</i> a tractor-trailer accident case involving personal injuries, the Illinois Supreme Court overruled Illinois&rsquo; application of Missouri&rsquo;s &ldquo;McHaffie Rule&rdquo; &nbsp;(<i>McHaffie v Bunch, 891 S.W.2d 822 (Mo. banc 1995)) </i>which bars theories of &ldquo;direct&rdquo; negligence against a principal if the principal admits it is vicariously liable for the acts or omissions of its agent.&nbsp; The rationale of the Missouri Supreme Court in <i>McHaffie</i> is that once vicarious liability is admitted, additional liability theories are extraneous.&nbsp;&nbsp; The practical effect of this rule is that it limits the scope of relevant evidence.&nbsp;&nbsp; It also eliminates the potential of duplicative awards of damages, that is, a jury awarding damages for a theory based on negligent operation of a truck and a theory based upon a principal&rsquo;s failure to train for which damages are indivisible.</p> <p>Unfortunately, the <i>McQueen</i> opinion will probably ensure most lawsuits arising out of tractor-trailer accidents will include not only vicarious liability theories against motor carriers, but also claims of negligent hiring, retention and entrustment, even though the carriers fully complied with FMCSA regulations.&nbsp; &nbsp;</p>https://www.bscr-law.com?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=10Illinois Appellate Court Rules that BIPA Applies to Healthcare Employee Biometric Informationhttps://www.bscr-law.com/?t=40&an=121955&format=xml10 Mar 2022Illinois Law Blog<p>Since its enactment, numerous questions have arisen involving the Illinois Biometric Information Privacy Act (&ldquo;BIPA&rdquo;), including which statute of limitations applies to the Act, whether employees are able to pursue BIPA lawsuits against their employers, the amount of damages available to plaintiffs in BIPA lawsuits, and when BIPA causes of action accrue, among others. As previously discussed <a href="/?t=40&amp;an=120395&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a> and <a href="/?t=40&amp;an=120553&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, Illinois courts are poised to address several of these issues in 2022.&nbsp;For example, in February, the Illinois Supreme Court resolved the issue of whether the Illinois Workers&rsquo; Compensation Act precludes employees from filing BIPA lawsuits against their employers. &nbsp;The court determined that the Workers&rsquo; Compensation Act&rsquo;s exclusivity provision does not apply to BIPA lawsuits.&nbsp;&nbsp;</p> <p>On February 25, 2022, the Illinois First District Court of Appeals addressed another long-standing issue involving the scope of BIPA:&nbsp;specifically, whether an exclusion in BIPA for biometric information collected, used, or stored for healthcare treatment, payment, or operations under HIPAA applies to biometric information collected by a healthcare provider from its employees.&nbsp;In the case <i>Mosby v. Ingalls Mem. Hosp.</i>, 2022 IL App (1st) 200822, the First District concluded that the exception does not apply to this situation.</p> <p>The plaintiff in <i>Mosby</i> worked for the defendant Northwestern Memorial Lake Forest Hospital as a registered nurse.&nbsp;She alleged that as a condition of her employment, she was required to scan her fingerprint to gain access to a medication dispensing system.&nbsp;The plaintiff filed suit against her employer, alleging that it violated BIPA by:&nbsp;1) not informing the plaintiff in writing of the specific purpose and length of time for which her biometric information was being collected, stored, and used; 2) failing to provide a publicly available retention schedule and guidelines for permanently destroying her biometric information; 3) failing to obtain a written release from the plaintiff to collect, store, or otherwise use her biometric information; and 4) failing to obtain the plaintiff&rsquo;s consent before disclosing disseminating her biometric information to a third party.</p> <p>The defendant moved to dismiss the plaintiff&rsquo;s lawsuit pursuant to an exclusion contained in Section 10 of BIPA.&nbsp;That exclusion states that biometric information and identifiers of the type protected by BIPA do not include:&nbsp;1) information captured from a patient in a healthcare setting; or 2) information collected, used, or stored for healthcare treatment, payment, or operations under HIPAA.&nbsp;740 ILCS 14/10.&nbsp;The defendant argued that the exclusion applied because the plaintiff&rsquo;s biometric information that was collected was used for healthcare treatment, payment, or operations pursuant to HIPAA.&nbsp;The circuit court denied the motion to dismiss, finding that the Section 10 exception applies only to information taken from a patient, prompting the defendant to appeal.</p> <p>On appeal, the defendant argued that the plain language of the Section 10 exclusion in BIPA demonstrates that employee biometric information used in medication dispensing systems is not protected by BIPA.&nbsp;More specifically, the defendant maintained that the collection, use, and storage of healthcare workers&rsquo; biometric information is for &ldquo;health care&rdquo; and &ldquo;treatment&rdquo; and that those terms are expressly defined by HIPAA.&nbsp;The defendant further argued that the biometric information collected through the medication dispensing system was used for &ldquo;health care operations&rdquo; and &ldquo;payment&rdquo; because the system provided an audit trail and aided in patient safety, quality of care, and accurate billing.&nbsp;Finally, the defendant argued that the use of the word &ldquo;or&rdquo; in Section 10 indicates that it applies to two different situations; the first being biometric information obtained from a patient in a healthcare setting, and the second being biometric information collected for healthcare treatment, payment, or operations under HIPAA.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>The appellate court rejected the defendant&rsquo;s arguments, finding that the Section 10 exclusion applies to:&nbsp;1) biometric information collected from a patient in a healthcare setting; and 2) biometric information that is already protected under HIPAA.&nbsp;According to the court, the use of the term &ldquo;or&rdquo; in Section 10 means that patient biometric information and biometric information protected by HIPAA are alternatives that are to be considered separately.&nbsp;HIPAA did not protect the plaintiff&rsquo;s biometric information HIPAA applies only to patient information and she was an employee, not a patient.&nbsp;&nbsp;</p> <p>The court also rejected the defendant&rsquo;s proposed interpretation of the Section 10 exclusion.&nbsp;The defendant argued that the exclusion should be read as applying when biometric information is collected, used, or stored for the type of &ldquo;health care&rdquo; and &ldquo;treatment&rdquo; defined by HIPAA.&nbsp;While both of those terms are defined in HIPAA, the court explained that the Section 10 exclusion uses the phrase &ldquo;under HIPAA,&rdquo; not &ldquo;as defined by HIPAA.&rdquo;&nbsp;Moreover, the court indicated that the biometric information of employees is not defined or protected &ldquo;under HIPAA.&rdquo;&nbsp;Thus, the court concluded that the plain language of section 10 does not exclude healthcare employee biometric information from BIPA&rsquo;s protections because they are neither patients nor protected under HIPAA.&nbsp;</p> <p>Finally, the court noted that if the Illinois legislature intended to create a wide-ranging exemption under BIPA for hospitals, it would have done so in the blanket exclusion provision of BIPA.&nbsp;Section 25 of BIPA excludes from the Act&rsquo;s coverage financial institutions subject to Title V of the Gramm-Leach-Bliley Act and employees, contractors, or subcontractors of local government or the State.&nbsp;</p> <p>While the First District Appellate Court&rsquo;s opinion temporarily resolves this issue, as with many other questions involving BIPA, we expect the Illinois Supreme Court ultimately will address this issue.&nbsp;</p>https://www.bscr-law.com?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=10Illinois Supreme Court Workers' Compensation Act is Exclusive Remedy Only Against "Immediate Employers"https://www.bscr-law.com/?t=40&an=121910&format=xml07 Mar 2022Illinois Law Blog<p>The Illinois Supreme Court recently <a href="https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/e20f0eb7-bc24-4c81-95b3-eaf1a5ae4f95/Munoz%20v.%20Bulley%20&amp;%20Andrews,%20LLC,%202021%20IL%20127067.pdf">held</a> that the Workers&rsquo; Compensation Act&rsquo;s exclusive remedy provision does not extend immunity to a general contractor who paid workers&rsquo; compensation insurance premiums for its subcontractor (a wholly-owned subsidiary) and the subcontractor&rsquo;s employees. Only an employee&rsquo;s &ldquo;immediate employer&rdquo; is entitled to immunity under the Act&rsquo;s exclusive remedy provision. The Court held that the general contractor was not the &ldquo;immediate employer&rdquo; of the subcontractor&rsquo;s employees within the meaning of the Act, and was therefore not entitled to immunity from suit.</p> <p><b>Factual Background</b></p> <p>This case involved a fairly familiar arrangement for construction projects. The project owner, RAR2-222 South Riverside, LLC (&ldquo;222 South Riverside&rdquo;), contracted with Bulley &amp; Andrews, LLC (&ldquo;B&amp;A&rdquo;), to act as general contractor on the project. The contract between 222 South Riverside and Bulley &amp; Andrews required B&amp;A to maintain several lines of insurance coverage, including coverage for, among other things: workers&rsquo; compensation claims; claims for bodily injury or death of the contractor&rsquo;s employees; and claims for bodily injury to any person other than the contractor&rsquo;s employees.</p> <p>B&amp;A used its wholly-owned subsidiary called Bulley Concrete, LLC to perform concrete work on the project, but the two companies did not enter into a subcontract or other joint venture agreement. B&amp;A and Bulley Concrete operated as totally separate corporate entities, and Bulley Concrete employed its own laborers, including caulkers and concrete finishers.</p> <p>Munoz was a concrete laborer employed and paid (including all tax withholding) by Bulley Concrete. During the project Bulley Concrete used blankets to cover wet concrete to prevent the concrete from freezing as it cured. While Munoz was removing a blanket, he injured his back and incurred more than $75,000 in medical bills. Munoz filed a claim for workers&rsquo; compensation against Bulley Concrete, who was an insured under B&amp;A&rsquo;s workers&rsquo; compensation policy. Due to a large deductible, B&amp;A paid Munoz&rsquo;s claim.</p> <p>In 2019, Munoz filed a personal injury law suit against B&amp;A and others, alleging that as the general contractor, B&amp;A had a non-delegable duty to maintain the safety of the worksite. The Circuit Court granted B&amp;A&rsquo;s motion to dismiss, finding that it was immune from suit under the Act&rsquo;s exclusive remedy provisions. The Court of Appeals affirmed.</p> <p><b>Supreme Court Decision</b></p> <p>The Supreme Court described the Workers&rsquo; Compensation Act as a <i>quid pro quo</i> between employers and employees, wherein employers give up common law defenses to liability, and in exchange, employees give up their right to bring common law suits. The role of the Courts is to give effect to the legislative intent in that bargain. Generally, where the Act covers a workplace injury, compensation under the Act is the employee&rsquo;s sole and exclusive remedy.</p> <p>Turning to the Act&rsquo;s exclusivity provisions, the Court of Appeals found that there was no doubt that Munoz was an &ldquo;employee&rdquo; under the Act. However, the essential question was whether B&amp;A was Munoz&rsquo;s &ldquo;employer,&rdquo; and thus immune from suit. Under the Act&rsquo;s exclusivity provision, Section 5(a): &ldquo;No common law or statutory right to recover damages from the employer &hellip; for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available &hellip;.&rdquo; Section 1(a)(2) of the Act defines an &ldquo;employer&rdquo; as &ldquo;Every person, firm, public or private corporation &hellip; who has any person in service or under any contract for hire, express or implied &hellip; for which compensation <i>under this Act may be claimed</i>&rdquo; (emphasis added).&nbsp;</p> <p>Under Section 1(a)(2), B&amp;A would seem at first to be an employer. However, Section 1(a)(3) states that any employer is one who is &ldquo;liable to pay compensation to his own immediate employees.&rdquo;&nbsp;The Supreme Court relied on its prior holding from a 1976 case, which held: &ldquo;[W]e must interpret section 5(a) as conferring immunity upon employers only from common law or statutory actions <i>by their immediate employees.</i>&rdquo; <i>Laffoon v. Bell &amp; Zoller Coal Co.</i>, 65 Ill. 2d 437, 447 (1976). In a situation involving a parent and a subsidiary, the question is whether the companies operated as separate entities, in which case <i>only</i> the immediate employer is entitled to immunity.</p> <p>The Supreme Court evaluated the relationship between B&amp;A and Bulley Concrete and found them to be completely separate entities. The companies were separate LLCs, with separate leadership, different tax ID numbers, and employed different workers. Because Bulley Concrete paid Munoz, Bulley concrete was his &ldquo;immediate employer,&rdquo; and B&amp;A was not. Even though B&amp;A was liable for paying workers&rsquo; compensation under its contract with 222 South Riverside, it not liable to pay Munoz&rsquo;s bills as his &ldquo;immediate employer,&rdquo; was not an &ldquo;employer&rdquo; under the Act from whom &ldquo;compensation <i>under this Act</i> may be claimed&rdquo; under Section 5(a), and was thus not entitled to immunity. The Supreme Court also rejected B&amp;A&rsquo;s argument that it and Bulley Concrete were a joint venture (and thus entitled to immunity under a separate exception) because the companies did not have a contract to operate as a joint venture.</p> <p>The Act permits employees of a subcontractor to pursue claims against a third-party general contractor. In the end, B&amp;A was simply a general contractor on the project and Bulley Concrete a subcontractor. The Court reversed the trial court and the Court of Appeals and remanded for further proceedings.</p>https://www.bscr-law.com?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=10Illinois Supreme Court Closes the Door on Workers' Compensation Exclusivity Defense in BIPA Cases and Opens the Floodgates for Employee Lawsuitshttps://www.bscr-law.com/?t=40&an=120553&format=xml14 Feb 2022Illinois Law Blog<p>As previously discussed <a href="/?t=40&amp;an=120395&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, the Illinois Biometric Information Privacy Act (&ldquo;BIPA&rdquo;) looms large over the Illinois legal landscape in 2022. Specifically, the Illinois Supreme Court and the Illinois Appellate Court are set to resolve important questions regarding when claims arise under BIPA, which statute of limitations governs certain types of BIPA claims, and whether the Illinois Workers&rsquo; Compensation Act prohibits employees from filing suit against their employers under BIPA.&nbsp;</p> <p>On February 3, 2022, the Illinois Supreme Court resolved the workers&rsquo; compensation question.&nbsp;In the case <i>McDonald v. Symphony Bronzeville Park, LLC</i>, 2022 IL 126511, the court affirmed a judgment of the Illinois First District Court of Appeals, concluding that the exclusivity provisions of the Illinois Workers&rsquo; Compensation Act did not preempt the plaintiff from pursuing a BIPA lawsuit against her former employer.&nbsp;The Illinois Workers&rsquo; Compensation Act contains two exclusivity provisions.&nbsp;Those provisions state, in relevant part, the following:&nbsp;</p> <p style="margin-left: 40px;">No common law or statutory right to recover damages from the employer *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act&hellip;</p> <p>820 ILCS 305/5(a).</p> <p style="margin-left: 40px;">The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer&hellip;</p> <p>820 ILCS 305/11.</p> <p>Based upon those provisions, Illinois courts have repeatedly explained that the Workers&rsquo; Compensation Act generally provides the exclusive means by which an employee can recover against an employer for a work-related injury.&nbsp;There are exceptions to the exclusivity provisions, however.&nbsp;Specifically, an employee can avoid application of the provisions if the employee establishes that the injury:&nbsp;1) was not accidental; 2) did not arise from his or her employment; 3) was not received during the course of employment; or 4) was not compensable under the Workers&rsquo; Compensation Act.</p> <p>In <i>McDonald</i>, the plaintiff alleged that while she was employed by Bronzeville, the company used a biometric information system, which required the plaintiff to scan her fingerprint for authentication and timekeeping purposes.&nbsp;According to the plaintiff, Bronzeville violated BIPA by failing to obtain the plaintiff&rsquo;s consent to store her biometric information and notify her of the purpose and length of time for which her biometric information would be stored.&nbsp;The plaintiff sought liquidated damages of $1,000 per each negligent violation of BIPA pursuant to Section 20(1) of BIPA, and her reasonable attorneys&rsquo; fees and litigation expenses pursuant to Section 20(3) of BIPA.&nbsp;</p> <p>Bronzeville filed a motion to dismiss, arguing that the exclusivity provisions of the Illinois Workers&rsquo; Compensation Act barred the plaintiff from pursuing her BIPA lawsuit against it.&nbsp;The Circuit Court of Cook County rejected Bronzeville&rsquo;s argument and denied its motion.&nbsp;The First District Court of Appeals similarly concluded that the Act&rsquo;s exclusivity provisions did not bar the plaintiff&rsquo;s claims for statutory, liquidated damages under BIPA.&nbsp;</p> <p>On appeal, Bronzeville argued to the Illinois Supreme Court that despite BIPA providing &ldquo;a right of action in a [s]tate circuit court,&rdquo; the Workers&rsquo; Compensation Act&rsquo;s exclusivity provisions precluded the plaintiff from maintaining the lawsuit because her alleged injury occurred in the course of her employment.&nbsp;Bronzeville cited to a 1958 Illinois Supreme Court opinion in which the court determined that the workmen&rsquo;s compensation statute in effect at that time barred an employee&rsquo;s statutory lawsuit filed against his employer pursuant to the scaffold statute.&nbsp;In the 1958 case, the court reasoned that the employee&rsquo;s lawsuit arose out of injuries he sustained while climbing to a scaffold in the course of his employment, thus triggering the exclusivity provisions.&nbsp;</p> <p>The court indicated that the case raised the question of whether the fourth exception to the exclusivity provisions (<i>i.e.</i>, whether the plaintiff&rsquo;s alleged injuries were &ldquo;compensable&rdquo; under the Workers&rsquo; Compensation Act) applied.&nbsp;Resolution of the issue required a determination of the type of injury the plaintiff allegedly sustained.&nbsp;Bronzeville argued that <u>any</u> injury arising out of and in the course of employment triggers the exclusivity provisions, while the plaintiff contended that the provisions applied only to claims alleging physical or psychological injuries.&nbsp;&nbsp;</p> <p>According to the court, the test for whether an employee suffers a compensable injury is &ldquo;whether there was a harmful change in the human organism &ndash; not just its bones and muscles, but its brain and nerves as well.&rdquo;&nbsp;The court found this test consistent with provisions of the Workers&rsquo; Compensation Act that indicate the Act applies to injuries that affect an employee&rsquo;s capacity to perform employment-related duties and the Act&rsquo;s &ldquo;main purpose&rdquo; of providing financial protection for injured workers&rsquo; until they can return to the workforce.</p> <p>Turning to the plaintiff&rsquo;s alleged injuries, the court first noted that the type of injuries caused by a violation of BIPA are &ldquo;personal and societal&rdquo; and, thus, different in nature and scope from the physical and psychological work injuries compensable under the Workers&rsquo; Compensation Act.&nbsp;The court indicated that the plaintiff specifically sought damages for the lost opportunity to &ldquo;say no&rdquo; to the storage of her biometric information by withholding consent.&nbsp;Stated differently, the plaintiff alleged that Bronzeville violated her right to maintain her biometric privacy.&nbsp;According to the court, the plaintiff&rsquo;s loss of the ability to maintain her privacy rights did not constitute a psychological or physical injury compensable under the Workers&rsquo; Compensation Act.&nbsp;Therefore, the exclusivity provisions did not bar her claims under BIPA.</p> <p>The court next ruled more broadly that a violation of BIPA does not cause the type of injury that fits within the purview of the Workers&rsquo; Compensation Act.&nbsp;Thus, an injury resulting from a BIPA violation is not compensable under the Workers&rsquo; Compensation Act.&nbsp;In reaching this conclusion, the court cited to prior court opinions that indicated a compensable injury requires &ldquo;demonstrable medical evidence&rdquo; and that the purpose of workers&rsquo; compensation laws is to redress an injured employee&rsquo;s impaired earning capacity.&nbsp;While not expressly stated, the court seemingly contrasted McDonald&rsquo;s impaired privacy right, which did not cause her physical injury or an impaired earning capacity, with the type of physical and psychological injuries discussed in the prior court opinions.</p> <p>The court also seemed to close the door on future efforts to bring BIPA claims within the scope of the Workers&rsquo; Compensation Act.&nbsp;For example, in <i>McDonald</i>, the plaintiff sought the statutory, liquidated damages provided for by Section 20(1) of the Act.&nbsp;BIPA, however, allows a plaintiff to recover either the $1,000 in liquidated damages or actual damages, whichever is greater.&nbsp;It appears that McDonald did not allege any actual, concrete injury or economic damages due to Bronzeville&rsquo;s alleged violations of BIPA.&nbsp;Had she instead alleged that she suffered some type of actual injury and damages, such as emotional injury and economic damages due to a breach of her biometric information, perhaps Bronzeville may have had a stronger argument that she suffered a compensable injury.&nbsp;In fact, in a concurring opinion, Justice Burke noted that the plaintiff abandoned a claim for mental anguish that she originally included in her complaint.&nbsp;Justice Burke believed that plaintiff&rsquo;s claim for mental anguish would have triggered the Workers&rsquo; Compensation Act&rsquo;s exclusivity provisions.&nbsp;The majority of the court, however, determined that the plain language of BIPA supports a conclusion that the Illinois legislature did not intend for BIPA to be preempted by the Workers&rsquo; Compensation Act.&nbsp;Consequently, it appears that the Illinois Supreme Court believes that the exclusivity provisions do not preempt BIPA claims, regardless of the type of damages sought.</p> <p>Finally, the court addressed the argument that allowing employees to pursue BIPA claims against their employers could expose employers to potentially devastating class actions that could result in &ldquo;financial ruin.&rdquo;&nbsp;The court explained that it was cognizant of the &ldquo;substantial consequences&rdquo; the Illinois legislature intended as a result of BIPA violations.&nbsp;According to the court, in enacting BIPA, the Illinois legislature adopted a strategy to limit the risks posed by the growing use of biometrics by businesses and the difficulty in providing meaningful recourse once a person&rsquo;s biometric information has been compromised.&nbsp;Specifically, the Illinois legislature included a provision in BIPA subjecting private entities that fail to follow the Act&rsquo;s requirements to substantial potential liability regardless of whether or not actual damages can be shown.&nbsp;The court believed that the legislature intended for the damages provision to have &ldquo;substantial force.&rdquo;&nbsp;To the extent a different balance should be struck under BIPA, however, the court noted that this was an issue to be addressed by the legislature, not the courts.&nbsp;&nbsp;</p> <p>Ultimately, the Illinois Supreme Court&rsquo;s ruling is not entirely surprising.&nbsp;As the court noted in its opinion, it believes that the Illinois legislature intended for BIPA to have substantial force.&nbsp;In <i>McDonald</i>, the court repeatedly and favorably cited to its landmark BIPA opinion, <i>Rosenbach v. Six Flags Ent. Corp.</i>, 2019 IL 123186, where the court found that a plaintiff does not need to allege an actual injury or economic damages to pursue a BIPA claim.&nbsp;The consequences of this case, however, are likely to be felt by businesses throughout Illinois as the scope of BIPA seems ever widening.</p> <br /> <p>&nbsp;</p>https://www.bscr-law.com?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=10TRO Puts Illinois Judicial Circuit Redistricting to a Halthttps://www.bscr-law.com/?t=40&an=120475&format=xml07 Feb 2022Illinois Law Blog<p>The Judicial Circuits Districting Act of 2022 (&ldquo;The Act&rdquo;) is at issue in the recent temporary restraining order (&ldquo;TRO&rdquo;) granted by Sangamon County Judge Ryan Cadigan on January 24, 2022. The Act was signed by Illinois Governor, J.B. Pritzker, on January 7, 2022.&nbsp;The last census illustrated that redistricting was needed and has been in the works for quite some time. It will increase the number of subcircuits in Cook County from 15 to 20 and requires that their boundaries be redrawn based on Census data every 10 years.&nbsp;The Act itself spans 388 pages and impacts all Judicial Circuits in Illinois. The Act has been described as a way to create a more diverse bench and provide minority communities with a larger voice in the election.&nbsp;</p> <p>Prior to The Act, the Third Judicial Circuit (which encompasses Madison and Bond Counties in Illinois) had 5 circuit-wide judgeships and 4 resident judgeships (with the resident judgeships including 3 from Madison County and 1 from Bond County).&nbsp;The Act redistricts the Third Judicial Circuit into 4 Subcircuits: 1st Subcircuit- West side of Madison County, which will have 3 judgeships; 2nd Subcircuit - the Center of Madison County, which will have 3 judgeships; 3rd Subcircuit - the East side of Madison County, which will have 2 judgeships; and 4th Subcircuit - Bond County, which will 1 judgeship.&nbsp;Now, intertwined with the innerworkings of The Act are two judicial vacancies of the Honorable David Dugan and the Honorable Richard Tognarelli, which have been assigned to the 1st Subcircuit.&nbsp;The suit was filed by State&rsquo;s Attorney Thomas Haine, including Madison County, Illinois, on behalf of the County and the People of Madison County, and Bethalto, Illinois resident, Christina Wiley, pro se, as plaintiffs, and names the Illinois State Board of Elections; its members, in their official capacities; Governor J.B. Pritzker; and the Cynthia A. Grant, the Supreme Court Clerk of Illinois, as defendants.&nbsp;In his Complaint, Haine argues that this new redistricting is an infringement on separation of powers and violates the Illinois Constitution in that &ldquo;it converts all at-large circuit judgeships in Madison County to resident judgeships, and the Act requires that all future vacancies will be assigned to specific judicial subcircuits for election and retention.&nbsp;Never again will there be an at-large election to fill a judicial vacancy in Madison County.&rdquo;&nbsp;Haine has also spoken publicly stating, that &ldquo;[t]his is not a partisan issue, it is a Constitutional issue.&rdquo;&nbsp;</p> <p>Further, in his Complaint, Haine states that &ldquo;[b]y eliminating all at-large circuit judgeships in Madison County, the Defendants have unconstitutionally barred residents of the 2nd and 3rd subcircuits from voting on a circuit judge vacancy for a minimum of two election cycles, and barred them entirely, from electing or retaining a circuit judge out of the 1st subcircuit.&rdquo; &nbsp;To put into perspective, it is argued that it would prevent Madison County residents, like plaintiff Christina Wiley, from voting on the two judicial vacancies in the November 2022 general election, and beyond, as she does not live in the 1st Subcircuit, the effect of which means that she, and others, will not have the ability to vote for the judges that will preside over their criminal matters, personal injury cases, divorce cases, property disputes and any other matter which might be brought in front of their local judiciary.&nbsp;Haine noted that 2022 Voter Registration Cards have already been designed and reviewed for error, and do not include the subcircuits, would which to correct under such limited time, could undermine the validity of the 2022 circuit judge elections.</p> <p>On January 24, 2022, Judge Ryan Cadigan of the 7th Judicial Circuit, encompassing Sangamon County, granted the plaintiffs the TRO.&nbsp;Thereafter, on January 27, Attorney General, Kwame Raoul, filed an appeal to reverse and dissolve the TRO on behalf of Illinois Governor, J.B. Pritzker and Illinois Clerk of the Supreme Court, Cynthia Grant.&nbsp;Raoul set out many issues with the TRO including - that it orders Ms. Grant to recertify the 2 judicial vacancies, of which he argues she has no authority to do so, and that the TRO invalidates The Act in its entirety, not just in Madison County which is overly broad and an abuse of discretion.&nbsp;Further, Raoul argues that the TRO does not preserve the status quo, as it ruled on a law prior to the law taking effect.&nbsp;Haine responded to Raoul&rsquo;s appeal on January 31, stating that Judge Cadigan made it clear he would confine his order to Madison County, Illinois.</p> <p>The preliminary injunction hearing is currently set for February 15, 2022. We will continue to monitor and advise of any developments related to the currently scheduled hearing and appeal to the Fourth District.&nbsp;&nbsp;</p>https://www.bscr-law.com?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=10Happy Data Privacy Day! A Look at the State of Data Privacy Legislation and Court Rulings in Illinoishttps://www.bscr-law.com/?t=40&an=120395&format=xml28 Jan 2022Illinois Law Blog<p>January 28, 2022, marks a variety of holidays, including International Lego Day, National Blueberry Pancake Day, National Kazoo Day, and Rubber Ducky Day, among others. Perhaps the most important holiday for businesses, however, is National Data Privacy Day.&nbsp;To commemorate National Data Privacy Day, the Baker Sterchi Illinois Law Blog reviews data privacy legislation proposed in Illinois in 2021, data privacy legislation that may be enacted in Illinois in 2022, and important Illinois court opinions related to data privacy likely to be issued in 2022.</p> <p><b><u>2021</u></b></p> <p><b>Proposed Amendments to the Biometric Information Privacy Act</b></p> <p><a href="/?t=40&amp;an=120021&amp;format=xml&amp;stylesheet=blog&amp;p=5258">The Illinois Biometric Information Privacy Act (&ldquo;BIPA&rdquo;) continues to attract nationwide attention and form the basis for a flood of lawsuits</a>.&nbsp;In 2021, three bills were introduced in an effort to reduce the number of BIPA lawsuits.&nbsp;Currently, however, the bills have failed to pass, instead stalling in committee assignments.&nbsp;</p> <p><a href="https://www.ilga.gov/legislation/billstatus.asp?DocNum=559&amp;GAID=16&amp;GA=102&amp;DocTypeID=HB&amp;LegID=128636&amp;SessionID=110">House Bill 559</a> and <a href="https://www.ilga.gov/legislation/billstatus.asp?DocNum=330&amp;GAID=16&amp;GA=102&amp;DocTypeID=SB&amp;LegID=131693&amp;SessionID=110">Senate Bill 330</a> would amend BIPA to allow private entities to obtain written &ldquo;consent&rdquo;, rather than a written &ldquo;release,&rdquo; to obtain a person&rsquo;s biometric information.&nbsp;Additionally, the bills would amend BIPA so that a private entity in possession of biometric information need only make its written policy governing the retention/destruction of biometric information available to the person from whom biometric information is collected, rather than to the general public.&nbsp;The bills would further require an aggrieved person, before filing suit, to provide a private entity 30 days&rsquo; written notice identifying the specific provisions of BIPA the aggrieved person believes the entity violated.&nbsp;If, within 30 days, the entity cures the noticed violation and provides the aggrieved person an express written statement that the violation has been cured and no further violation will occur, the person will not have the right to file suit against the entity.&nbsp;If the private entity continues to violate BIPA in breach of the written statement provided to the aggrieved person, the aggrieved person may initiate suit against the entity within one year after the cause of action accrued.&nbsp;Finally, the bills would limit an aggrieved person&rsquo;s damages to: 1) their actual damages for negligent violations, or their actual damages plus liquidated damages up to the amount of actual damages for willful violations; 2) reasonable attorneys&rsquo; fees and costs; and 3) other relief, such as an injunction.&nbsp;The last action taken on House Bill 559 was on April 23, 2021, and the last action taken on Senate Bill 330 was on April 16, 2021. &nbsp;</p> <p><a href="https://www.ilga.gov/legislation/billstatus.asp?DocNum=560&amp;GAID=16&amp;GA=102&amp;DocTypeID=HB&amp;LegID=128637&amp;SessionID=110">House Bill 560</a> would amend BIPA so that any violation that results from the collection of biometric information by an employer for employment, human resources, fraud prevention, or security purposes would no longer give rise to a private right of action, but instead would be subject to enforcement by the Department of Labor.&nbsp;The bill further provides that any other violation of BIPA would constitute a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, subject to enforcement by the Illinois Attorney General or appropriate State&rsquo;s Attorney.&nbsp;The bill also includes some proposed amendments included in House Bill 559 and Senate Bill 330.&nbsp;The last action taken on this bill was on March 27, 2021.</p> <p><b>Consumer Privacy Act</b></p> <p><a href="https://www.ilga.gov/legislation/BillStatus.asp?DocNum=3910&amp;GAID=16&amp;DocTypeID=HB&amp;LegID=132996&amp;SessionID=110&amp;SpecSess=&amp;Session=&amp;GA=102">House Bill 3910</a> would create the Illinois Consumer Privacy Act.&nbsp;Under this bill, a consumer would have the right to request that a business the collects the consumer&rsquo;s personal information disclose to the consumer the categories and specific pieces of personal information the business has collected.&nbsp;The bill would require a business to, at or before the point of collection, inform a consumer of the categories of personal information to be collected and the purposes for which the categories of personal information would be used.&nbsp;Consumers also would have the right to request that businesses delete any personal information about the consumers, with some exceptions.&nbsp;Additionally, consumers would have the right, at any time, to opt out of the sale of their personal information to third parties.&nbsp;Businesses would be prohibited from discriminating against consumers who exercise any of the rights established by the Act.&nbsp;Finally, the bill would allow for private rights of action in certain circumstances and for enforcement actions by the Illinois Attorney General.&nbsp;The last action taken on this bill was on March 27, 2021.</p> <p><b>Right to Know Act</b></p> <p><a href="https://www.ilga.gov/legislation/BillStatus.asp?DocNum=2404&amp;GAID=16&amp;DocTypeID=HB&amp;LegId=131162&amp;SessionID=110&amp;GA=102">House Bill 2404</a> would create the Illinois Right to Know Act.&nbsp;Under this bill, an operator of a commercial website or online service that collects personally identifiable information through the Internet about individual customers residing in Illinois who use or visit its commercial website or online service must notify those customers of certain information relating to its personal information sharing practices.&nbsp;The bill would further require an operator of a commercial website or online service to make available certain information upon disclosing a customer&rsquo;s personal information to a third-party, and to provide an e-mail address or toll-free telephone number through which customers may request or obtain that information.&nbsp;The bill also would allow for private rights of actions to customers whose rights are violated.&nbsp;Finally, any waiver of the provisions of the Act or any agreement that does not comply with the Act would be void and unenforceable.&nbsp;The last action taken on this bill was on March 27, 2021. &nbsp;&nbsp;</p> <p><b>Automatic Listening Exploitation Act</b></p> <p><a href="https://www.ilga.gov/legislation/BillStatus.asp?DocNum=2080&amp;GAID=16&amp;DocTypeID=SB&amp;LegID=&amp;SessionID=110&amp;SpecSess=&amp;Session=&amp;GA=102">Senate Bill 2080</a> would make it unlawful for a person, which is defined to include partnerships, corporations, associations, and other entities, who provides any smart service through a proprietary smart speaker to: 1) store or make a recording or transcript of any speech or sound captured by a smart speaker, or to use any storage or recording or transcript of any voice interaction by a user with the voice-user interface; or 2) transmit such a recording or transcript to a third-party, for any purpose, without first obtaining consent and permitting the user to require the deletion of any recording, transcript, or sound recorded by the speaker at any time.&nbsp;The bill also would make it unlawful for a person who provides any security monitoring or other service through a proprietary video doorbell to: 1) store or make a recording of any video, image, or audio captured by the video doorbell&rsquo;s camera; or 2) use any storage recording of any video, image, or audio captured by the video doorbell&rsquo;s camera, or transmit such a recording to a third-party.&nbsp;The bill would allow enforcement by the Illinois Attorney General or a State&rsquo;s Attorney.&nbsp;The last action taken on this bill was on April 26, 2021.</p> <p><b>Keep Internet Devices Safe Act</b></p> <p><a href="https://www.ilga.gov/legislation/BillStatus.asp?DocNum=2082&amp;GAID=16&amp;DocTypeID=SB&amp;SessionID=110&amp;GA=102">Senate Bill 2082</a> provides that a private entity may turn on/enable, cause to be turned on/enabled, or otherwise use a digital device&rsquo;s microphone to listen for or collect information, including spoken words or other audible or inaudible sounds, if the private entity makes specified disclosures in its customer agreement or an incorporated addendum.&nbsp;If a private entity collects, stores, or transmits any information collected through a digital device&rsquo;s microphone concerning an Illinois resident, the entity must implement and maintain reasonable security measures.&nbsp;A violation of this Act would constitute an unlawful practice under the Illinois Consumer Fraud and Deceptive Business Practices Act, which allows for a private right of action.&nbsp;The last action taken on this bill was on February 26, 2021.</p> <p><b>Cybersecurity Compliance Act</b></p> <p><a href="https://www.ilga.gov/legislation/BillStatus.asp?DocNum=3030&amp;GAID=16&amp;DocTypeID=HB&amp;LegID=131952&amp;SessionID=110&amp;SpecSess=&amp;Session=&amp;GA=102">House Bill 3030</a> would create an affirmative defense to any tort action that alleges that the failure to implement reasonable information security controls resulted in a data breach concerning personal information.&nbsp;The affirmative defense would be available to every covered entity that creates, maintains, and complies with a written cybersecurity program that contains administrative, technical, and physical safeguards for the protection of either personal information or both personal information and restricted information and that reasonably conforms to an industry-recognized cybersecurity framework.&nbsp;A covered entity is defined as a business that accesses, maintains, communicates, or processes personal information or restriction information in or through one or more systems, networks, or services located in or outside of Illinois. &nbsp;Finally, the bill sets forth certain requirements the cybersecurity program must meet in order to qualify for the affirmative defense.&nbsp;The last action taken on this bill was on March 27, 2021.</p> <p><b>Insurance Data Security Act:</b></p> <p><a href="https://www.ilga.gov/legislation/BillStatus.asp?DocNum=3040&amp;GAID=16&amp;DocTypeID=HB&amp;LegID=131962&amp;SessionID=110&amp;SpecSess=&amp;Session=&amp;GA=102">House Bill 3040</a> required any person licensed, authorized to operate, or registered as an insurer in accordance with the insurance laws of Illinois to conduct a risk assessment of cybersecurity threats, implement appropriate security measures, and no less than annually assess the effectiveness of the safeguards' key controls, systems, and procedures.&nbsp;&ldquo;Person&rdquo; is defined to include individuals and any non-governmental entities.&nbsp;The bill also sets forth certain requirements for licensees, which is defined as any person licensed, authorized to operate, or registered as an insurer, or required to be licensed, authorized, or registered in accordance with the insurance laws of Illinois.&nbsp;Under the bill, licensees must:&nbsp;1) develop, implement, and maintain a written information security program based on the licensee's risk assessment; 2) establish a written incident response plan designed to promptly respond to, and recover from, any cybersecurity event that compromises the confidentiality, integrity, or availability of nonpublic information in its possession, the licensee's information systems, or the continuing functionality of any aspect of the licensee's business or operations; 3) licensees domiciled in Illinois must annually submit a written certification of compliance to the Director of Insurance; and 4) notify the Illinois Director of Insurance as promptly as possible, but not later than 72 hours from a determination that a cybersecurity event has occurred in specified circumstances.&nbsp;The bill further provides standards and procedures for risk management, data security, and notification and investigation of cybersecurity events resulting in unauthorized access to, disruption of, or misuse of nonpublic data.&nbsp;The Director of Insurance would be granted authority to investigate and determine whether a licensee has been engaged in any conduct in violation of the Act, and any materials or documents obtained pursuant to the Act would be confidential, privileged, and not subject to the Freedom of Information Act.&nbsp;The last action taken on this bill was on March 27, 2021.&nbsp;&nbsp;</p> <p><b><u>2022</u></b></p> <p><b>Protecting Household Privacy Act</b></p> <p>The <a href="https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=4212&amp;ChapterID=2">Protecting Household Privacy Act</a> passed on May 31, 2021, and became effective on January 1, 2022. &nbsp;Under the Act, law enforcement agencies may not obtain household electronic data or direct the acquisition of such data from private third parties, unless: 1) the agencies first obtain a warrant under the Illinois Criminal Code of Procedure; 2) a specified emergency situation exists; or 3) the owner of the household electronic device or person in actual or construction possession of the device provides lawful consent.&nbsp;If a law enforcement agency obtains household electronic data, the agency must destroy all information obtained within 30 days, subject to limited exceptions.</p> <p><b>Geolocation Privacy Protection Act</b></p> <p>This <a href="https://www.ilga.gov/legislation/BillStatus.asp?DocTypeID=HB&amp;DocNum=3453&amp;GAID=16&amp;SessionID=110&amp;LegID=132429">bill</a> provides that a private entity that owns, operates, or controls a location-based application on a user&rsquo;s device may not disclose geolocation information from a location-based application to a third-party unless the private entity first receives the user&rsquo;s express consent after providing a specified notice to the user.&nbsp;A violation of the Act would constitute an unlawful practice under the Illinois Consumer Fraud and Deceptive Business Practices Act, enforceable by the Illinois Attorney General.&nbsp;The last action taken on this bill was on January 11, 2022, when it was assigned to the Cybersecurity, Data Analytics, and IT Committee.&nbsp;</p> <p><b>Do Not Track Act</b></p> <p><a href="https://www.ilga.gov/legislation/BillStatus.asp?DocNum=3081&amp;GAID=16&amp;DocTypeID=SB&amp;LegId=137710&amp;SessionID=110&amp;GA=102">Senate Bill 3081</a>, introduced on January 11, 2022, would prohibit a party to a user action from tracking another user whenever the party receives a do-not-track signal indicating a user preference not to be tracked, with some exceptions.&nbsp;A &ldquo;user action&rdquo; is defined as a deliberate online action by a user, via configuration, invocation, or selection, to initiate a network interaction.&nbsp;Examples of user action include selection of a link, submission of a form, and reloading a page.&nbsp;A party may disregard a user&rsquo;s do-not-track signal when the user has given express affirmative consent to track.&nbsp;Under the bill, an organization may process data for specified uses if the organization: 1) limits the amount of identifiable data collected; 2) limits the retention of identifiable data to no longer than what is reasonably necessary for the permitted uses; 3) uses anonymous data; 4) processes the data separately from the systems that are used for purposes other than the permitted uses; and 5) does not process the data beyond the permitted used.&nbsp;The bill also would require an organization that engages in tracking to describe, in understandable language and syntax such that an ordinary user can comprehend, its practices with respect to do-not-track signals in its privacy statement or similar notice, available through a clear and prominent link on the home page of its website.&nbsp;Parties also would be prohibited from blocking a user&rsquo;s do-not-track signal.&nbsp;Finally, the Act would be enforceable by the Illinois Attorney General, although a user whose identifiable information has been processed in violation of the Act would have the right to a private action.&nbsp;</p> <p><b><u>Anticipated Illinois Court Opinions</u></b></p> <p>On December 7, 2021, the Seventh Circuit Court of Appeals issued an opinion in the case <i>Cothron v. White Castle Sys.</i>, No. 20-3202, 2021 U.S. App. LEXIS 37593 (7th Cir. Dec. 20, 2021).&nbsp;There was much anticipation for the court&rsquo;s ruling, as the Seventh Circuit was set to determine whether claims asserted under Sections 15(b) and 15(d) of BIPA accrue only once upon the initial collection or disclosure of a person&rsquo;s biometric information, or each time an entity collects or discloses biometric information.&nbsp;At the district court level, White Castle argued that the plaintiff&rsquo;s claims were time-barred because they accrued in 2008, when her fingerprint was first scanned after BIPA went into effect.&nbsp;The plaintiff argued that each scan of her fingerprint in violation of BIPA constituted a new, separate violation of the Act, meaning that a new claim accrued with each scan.&nbsp;Despite the anticipation, the Seventh Circuit declined to rule on the merits, instead certifying the issue to the Illinois Supreme Court.&nbsp;The Illinois Supreme Court accepted certification on December 23, 2021.</p> <p>On December 15, 2021, the Illinois First District Court of Appeals addressed this issue in the case <i>Watson v. Legacy Healthcare Financial Services, LLC</i>, 2021 IL App (1st) 210279.&nbsp;In that case, the court determined that claims under Section 15(b) of BIPA accrue &ldquo;each and every&rdquo; time a defendant captures and uses biometric information.&nbsp;A petition for leave to appeal is currently pending with the Illinois Supreme Court.</p> <p>The Illinois Supreme Court also appears poised to address the statute of limitations for BIPA claims in 2022.&nbsp;In September 2021, the Illinois First District Court of Appeals determined that claims under Sections 15(c) and 15(d) have a one-year statute of limitations.&nbsp;The court explained that these claims involve publication of biometric information and, therefore, equated the claims to violations of the right of privacy, which have a one-year limitation period.&nbsp;By contrast, the court concluded that claims under Sections 15(a), 15(b), and 15(e) of BIPA do not involve publication and, therefore, are governed by Illinois&rsquo; five-year &ldquo;catch-all&rdquo; statute of limitations.&nbsp;<i>Tims v. Black Horse Carriers, Inc.</i>, 2021 IL App (1st) 200563.&nbsp;On January 26, 2022, <a href="https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/24943c19-d707-4109-ac69-7cb0b14e3ec4/012622.pdf">the Illinois Supreme Court granted a petition for leave to appeal</a>.&nbsp;The Illinois Third District Court of Appeals also should weigh in on this issue in 2022.&nbsp;Pending before it is the case <i>Marion v. Ring Container Techs., LLC</i>, No. 3-20-0184 (Ill. App. Ct., 3d Dist.).&nbsp;&nbsp;&nbsp;</p> <p>Finally, the Illinois Supreme Court is likely to resolve whether the Illinois Workers&rsquo; Compensation Act bars a claim for statutory damages under BIPA by an employee against an employer.&nbsp;In 2020, the Illinois First District Court of Appeals determined that such claims do not involve the type of injury that fits within the purview of the Workers&rsquo; Compensation Act and, therefore, the exclusivity provisions of the Workers&rsquo; Compensation Act do not bar employees from pursuing claims for statutory damages under BIPA against their employers.&nbsp;<i>McDonald v. Symphony Bronzeville Park, LLC</i>, 2020 IL App (1st) 192398.&nbsp;The Illinois Supreme Court heard oral arguments in this case in September 2021, but it has yet to issue a ruling.</p> <p><b><u>Conclusion</u></b></p> <p>As illustrated above and discussed in prior blog posts <a href="/?t=40&amp;an=103063&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, <a href="/?t=40&amp;an=101833&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, <a href="/?t=40&amp;an=106833&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, <a href="/?t=40&amp;an=107271&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, <a href="/?t=40&amp;an=109297&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, <a href="/?t=40&amp;an=109595&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, <a href="/?t=40&amp;an=111214&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a> and <a href="/?t=40&amp;an=116953&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, Illinois poses unique risks and challenges to businesses due to its expansive data privacy legislation and court opinions relating to BIPA.&nbsp; For employers, it is particularly important to be aware of Illinois data privacy legislation and case law, as telework and the use of biometric technology for employee monitoring appears to be the new normal due to the COVID-19 pandemic.&nbsp; <a href="https://findstack.com/remote-work-statistics/">For example, the number of employees working from home has risen by 159 percent since 2009, and approximately 62 percent of employees aged 22 to 65 work remotely at least occasionally</a>.&nbsp; <a href="https://www.businessinsider.com/remote-work-telecommuting-permanent-labor-market-recovery-coronavirus-economy-2022-1">While the number of U.S. employees teleworking has decreased from 24.3 percent in August 2020 to 11.1 percent in December 2021, this decrease appears to have plateaued</a>, suggesting the permanent role teleworking may play in the post-pandemic U.S.&nbsp; <a href="https://www.bloomberg.com/news/articles/2022-01-18/work-from-home-is-becoming-a-permanent-part-of-how-jobs-are-done">In December 2021, 42.4 percent of workdays in the U.S. were worked from home</a>.&nbsp; Looking ahead, <a href="https://www.forbes.com/sites/ashiraprossack1/2021/02/10/5-statistics-employers-need-to-know-about-the-remote-workforce/?sh=64ef326d655d">75 percent of professionals expect telework to become the new standard, while 97 percent of employees indicate a preference for the flexibility to both telework and work in an office</a>.&nbsp;</p> <p>The increase in telework has given rise to the increased use of biometric technology for employee monitoring.&nbsp; <a href="https://www.morningbrew.com/hr/stories/2022/01/19/employee-surveillance-is-exploding-with-remote-work-and-could-be-the-new-norm">One study determined that 60 percent of companies with at least 1,000 employees had adopted the use of biometric technology for employee monitoring, compared to only 30 percent prior to the COVID-19 pandemic</a>.&nbsp; <a href="https://www.washingtonpost.com/technology/2021/09/24/remote-work-from-home-surveillance/">This number is expected to increase to 70 percent within the next three years</a>.&nbsp;</p> <p>Overall, with the convergence of new data privacy legislation, the increase in telework, and the continued expansion of biometric technology in the workforce, businesses operating in Illinois must remain vigilant to avoid the many pitfalls associated with biometric and data collection.&nbsp;Businesses should use this National Data Privacy Day as an opportunity to evaluate their current operations and policies and determine if they are in compliance with Illinois law.&nbsp;</p>https://www.bscr-law.com?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=102021 Highlights from the Illinois Courtshttps://www.bscr-law.com/?t=40&an=120353&format=xml26 Jan 2022Illinois Law Blog<p>In this 2021 year-end summary, the Illinois Law Blog analyzes several of the most impactful decisions from the Illinois courts. This past year was a dynamic one in The Prairie State marked by several significant appellate decisions affecting insurance defense, medical malpractice, patient privacy, school teacher tenure rights, and the power of the Illinois Educational Labor Relations Board. As with most states, Illinois continued to see a substantial number of COVID-19 exposure claims. The integrity of Governor Pritzker&rsquo;s executive order shielding COVID-19 responsive health care facilities from liability may be compromised by decisions in both the Northern and Southern District of Illinois.&nbsp;<br /> <b><br /> Biometric Information Privacy Act</b></p> <p>In <i>West Bend Mutual Insurance Company v. Krishna Schaumburg Tan, Inc.</i>, 2021 IL 125978, a customer filed a class action lawsuit against West Bend Mutual Insurance Company&rsquo;s insured, Krishna Schaumberg Tan, Inc. The customer alleged Krishna violated Illinois&rsquo; Biometric Information Privacy Act, 740 ILCS 14/1, <i>et seq</i>., (BIPA) by scanning customers&rsquo; fingerprints and disclosing biometric information containing those fingerprints to an out-of-state third-party vendor. Krisha tendered the lawsuit to West Bend, which had issued to businessowners&rsquo; liability policies to Krishna, and requested a defense.</p> <p>West Bend filed a declaratory judgment action contending that it did not owe a duty to defend Krishna against the class action lawsuit. West Bend argued that the class action complaint did not allege a publication of material violative of privacy rights because the Illinois Supreme Court has defined publication as communication to the public at large, not to a single party, as had occurred here. West Bend alternatively argued that the policies&rsquo; &ldquo;violation of statutes&rdquo; exclusion applied and barred West Bend from having to provide coverage to Krishna for the BIPA violations. Krisha argued that sharing biometric identifiers and biometric information with a single party is a publication covered by the policies. Further, Krishna argued that regardless of whether the violation of statutes exception applied, the policies also provided coverage for a violation of BIPA under the policies&rsquo; Illinois data compromise coverage endorsement.</p> <p>The trial court entered summary judgment in Krishna&rsquo;s favor on its counterclaim, finding that &ldquo;publication&rdquo; simply means the dissemination of information and that the sharing of biometric identifiers constitutes a publication within the purview of the policies. The trial court also found that the exclusion for violation of statutes does not apply because the exclusion only applies to statutes that regulate methods of sending information and not the collection, retention, disclosure, and destruction of biometric identifiers and information. The First District Appellate Court affirmed. The Illinois Supreme Court then allowed West Bend&rsquo;s petition for leave to appeal and affirmed the entry of summary judgment for Krishna.</p> <p>The West Bend policies defined &ldquo;personal injury&rdquo; as an injury &ldquo;other than a bodily injury&rdquo; that arises out of an &ldquo;oral or written publication of material that violates a person&rsquo;s right of privacy.&rdquo; The Supreme Court found the complaint alleged a &ldquo;personal injury,&rdquo; other than a &ldquo;bodily injury&rdquo; in that it alleged emotional upset, mental anguish, and mental injury when Krishna disclosed biometric identifiers and biometric information in violation of the right to privacy under BIPA.</p> <p>The Court then looked to whether Krishna&rsquo;s sharing of biometric identifiers and biometric information with the out-of-state third-party vendor was a &ldquo;publication&rdquo; that violated the customers&rsquo; right to privacy. The West Bend policies did not define &ldquo;publication.&rdquo; The Supreme Court, after considering dictionaries, treatises, and the Restatement, concluded that the term &ldquo;publication&rdquo; has at least two definitions and means both the communication of information to a single party and the communication of information to the public at large. When a term has multiple reasonable definitions or is subject to more than one reasonable interpretation within the context in which it appears, it is ambiguous. The Court, therefore, strictly construed the term against West Bend, as the insurer who drafted the policies. Accordingly, the Court adopted the construction used by Krishna as the insured and construed the terms publication to include a communication with a single party, like the out-of-state vendor.</p> <p>The West Bend policies also failed to define the term &ldquo;privacy.&rdquo; BIPA codifies (1) an individual&rsquo;s right to privacy in their biometric identifiers (such as fingerprints, retina or iris scans, voiceprints, or scans of hand or face geometry), and (2) an individual&rsquo;s right to privacy in their biometric information. The Supreme Court found that BIPA protects a secrecy interest &ndash; the right of an individual to keep his or her personal identifying information like fingerprints secret. Disclosing a person&rsquo;s biometric identifiers or information without their consent or knowledge, therefore, necessarily violates that person&rsquo;s right to privacy in biometric information. Accordingly, the allegation that Krisha shared biometric identifiers and information with the third-party vendor alleged a potential violation of the right to privacy within the purview of West Bend&rsquo;s policies.</p> <p>Having made all these findings, the Court concluded that West Bend had a duty to defend. This did not, however, end the Court&rsquo;s inquiry in that West Bend asserted the policies&rsquo; &ldquo;violation of statutes&rdquo; exclusion barred coverage because the exclusion applies to statutes that prohibit the communicating of information and BIPA limits the communication of information. The exclusion, however, specifically listed certain statutes to which the West Bend policies do not apply &ndash; the TCPA (which regulates the use of certain methods of communication), CAN-SPAM (which regulates electronic mail) and statutes &ldquo;other than&rdquo; the TCPA or CAN-SPAM that prohibit or limit the communication of information. The Court construed the violation of statues exclusion to apply only to statutes like the TCPA and the CAN-SPAM act, i.e., those which regulate methods of communication. BIPA, however, does not regulate methods of communication but rather the collection, use, safeguarding, handling, storage, retention, and destruction of information, which is fundamentally different from the two statutes mentioned in the policies&rsquo; exclusion. The exclusion, therefore, is inapplicable.</p> <p><b>Medical Negligence</b></p> <p>In <i>Steed v. Rezin Orthopedics and Sports Medicine</i>, 2021 IL 125150, plaintiff Glenn Steed suffered a partial tear of his Achilles tendon. He sought treatment from Dr. Stephen Treacy at Rezin Orthopedics. Glenn was 42 years old and borderline obese. Dr. Treacy&rsquo;s treatment plan included placing Glenn&rsquo;s lower right leg in a plantar flexion position, set in a plaster cast for six weeks. Dr. Treacy memorialized his recommendation for Glenn to return for a follow-up appointment in two weeks in an invoice and directed the receptionist to schedule a two-week follow-up appointment. The receptionist scheduled Glenn&rsquo;s casting appointment for at another office on that same day, but did not schedule a two-week follow-up appointment as Dr. Treacy had directed. After Glenn&rsquo;s leg was casted, another receptionist scheduled Glenn&rsquo;s follow-up appointment for a date more than three weeks after his initial appointment. About 6 days before that three-week appointment, Glenn experienced discomfort and achiness in his leg and one day experienced pain in his thigh. One day after experiencing thigh pain and 4 days before that three-week follow-up appointment, Glenn experienced a deep vein thrombosis and died of a pulmonary embolism.</p> <p>Glenn&rsquo;s wife, Susan Steed, filed suit against defendants Rezin Orthopedics and Sports Medicine, S.C. and Stephen H. Treacy, M.D., alleging medical negligence for failing to prevent a deep vein thrombosis and resulting pulmonary embolism that caused Glenn's death. The negligence claim brought against Rezin Orthopedics centered on its failure to timely schedule a follow-up appointment within two weeks of the casting of the decedent&rsquo;s leg pursuant to the physician&rsquo;s order. The plaintiff claimed that, as a direct and proximate result of that failure, the deep vein thrombosis and resulting pulmonary embolism were not discovered, diagnosed, and/or treated, resulting in the decedent&rsquo;s death. Plaintiff&rsquo;s expert testified that the risk of developing a deep vein thrombosis is low, that a blood clot in the leg is not life threatening, and that had the decedent been examined and diagnosed within two weeks as ordered, he likely would have survived.</p> <p>Rezin Orthopedics presented expert testimony that whether the decedent&rsquo;s follow-up appointment was scheduled within two weeks or three weeks was inconsequential.&nbsp;It also presented expert testimony that the decedent was not high risk for the development of a DVT; that the incidence of DVT formation following an Achilles tendon rupture is very low, less than 3%, probably less than 1%; and that virtually none of those incidents result in a fatal pulmonary embolism.</p> <p>The case was tried and the jury returned a defense verdict. Plaintiff chose to appeal only the verdict in favor of Rezin Orthopedics. The appellate court reversed with directions to enter judgment notwithstanding the verdict in favor of the estate, but the Illinois Supreme Court reinstated the verdict. In an opinion written by Justice Overstreet, the Court reiterated the&nbsp;<i>Pedrick</i>&nbsp;standard, which provides that judgment&nbsp;notwithstanding the verdict&nbsp;should be granted only when &ldquo;all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [a] movant that no contrary verdict based on that evidence could ever stand.&rdquo;&nbsp;<i>Pedrick v. Peoria &amp; Eastern R.R. Co.</i>, 37 Ill. 2d 494, 510 (1967).&nbsp;The court found that the evidence in this case supported a conclusion that Rezin Orthopedics&rsquo; failures did not proximately cause Glenn&rsquo;s death. Accordingly, Glenn&rsquo;s death was not a reasonably foreseeable result of Rezin Orthopedics&rsquo; failure to schedule his follow-up appointment within two weeks of his initial appointment and a judgement notwithstanding the verdict was improper.</p> <p><b>Disclosure of Protected Health Information</b></p> <p>In <i>Haage v. Zavala</i>, 2021 IL 125918, the Illinois Supreme Court decided liability insurers are prohibited from using or disclosing protected health information (PHI) for any purpose other than the litigation at issue and are required to return or destroy the PHI at the conclusion of the litigation.</p> <p>In each of two automobile personal injury actions, plaintiffs moved for entry of a qualified protective order (QPO) pursuant to the Health Insurance Portability and Accountability Act (HIPAA), and its implementing regulations (45 C.F.R. 160, 164) (Privacy Rule). Plaintiffs&rsquo; proposed QPOs ordered: 1) that the PHI may not be disclosed for any reason without the party&rsquo;s prior written consent or by way of court order specifying the parameters of the disclosure; and 2) that the PHI be destroyed or returned within 60 days after the conclusion of the litigation. State Farm, the liability insurer for the named defendants in each case, intervened in each lawsuit and sought entry of its own protective order, which expressly allowed insurance companies to use, disclose, and maintain PHI for purposes beyond the litigation and expressly exempted insurers from the &ldquo;return or destroy&rdquo; requirement.</p> <p>In both cases the circuit court granted the plaintiffs&rsquo; motions and entered the plaintiffs&rsquo; proposed QPOs. The Cook County standard protective order, however, permits insurers to disclose, maintain, and use PHI for purposes&nbsp;<i>beyond litigation</i>&nbsp;and further exempts insurers having to return or destroy the PHI at the conclusion of the case. For these two reasons, the trial court found that the Cook County standard protective order violated HIPAA.&nbsp;The appellate court and Illinois Supreme Court affirmed.</p> <p>The Illinois Supreme held that the Privacy Rule applies to State Farm and any other insurer &ndash; the reason being that an insurer, while not the disclosing party, is the party seeking Plaintiffs&rsquo; PHI and can only do so by complying with a QPO containing the &ldquo;use and disclosure&rdquo; prohibition and &ldquo;return or destroy&rdquo; requirement. As a result, the Court held that the Cook County standard protective order conflicted with HIPAA and was preempted by the Privacy Rule. The Court similarly rejected State Farm&rsquo;s arguments that Illinois insurance law mandates the use, disclosure, and retention of PHI. Instead, the Court noted that in order to comply with state law, all State Farm would have to do is maintain a copy of the QPO in the file, which would explain why the documents (medical records and bills) were no longer in the file &ndash; because it is not permitted to be kept following the close of litigation.</p> <p><b>Illinois School Code</b></p> <p>In <i>Board of Education of the City of Chicago v. Moore</i>, 2021 IL 125785, an action arising from disciplinary proceedings to terminate the employment of a tenured Chicago school teacher, the Supreme Court addressed whether the School Code authorized the Board of Education of the City of Chicago to opt for suspension rather than either dismissal or reinstatement. In a unanimous decision, the court interpreted the applicable statutory provisions in the School Code to provide the board with the implied power and authority to issue alternative sanctions when a teacher&rsquo;s conduct is determined to be negligent but remediable.</p> <p>The CEO of the Chicago Public Schools approved dismissal charges against the teacher, Daphne Moore, following an incident in which she allegedly did not respond appropriately to a student&rsquo;s overdose on medication in the classroom. Moore was suspended without pay pending the outcome of a dismissal hearing. Finding that Moore had alerted the administration of the incident and that, contrary to the charges, she did not lie during the investigation, a hearing officer concluded that the board did not establish cause for the teacher&rsquo;s dismissal. The board partially rejected the hearing officer&rsquo;s findings; it found that Moore should have taken additional steps to meet the standard of satisfactory conduct. In the board&rsquo;s view, the circumstances called for a suspension and a reduction in the back pay Moore would receive, but not dismissal.</p> <p>Moore challenged the authority of the board to impose discipline short of dismissal where the board commenced termination proceedings and contended that the proceedings could end only in dismissal or reinstatement. Administrative review led to an appellate decision reversing the board&rsquo;s decision. The appellate court concluded that no provision in the School Code empowered the board, after exercising its statutory power to seek termination, to act other than to dismiss or to reinstate Moore with full back pay.</p> <p>The Supreme Court reached the opposite conclusion and found that the School Code, 105 ILCS 5/34-85, provided the board with the implied authority to suspend tenured teachers with less than full back pay at the conclusion of a disciplinary action seeking dismissal. The court rejected the notion that the legislature required a second, separate action. The court found no conflict in two other sections of the School Code addressing different sanctions&mdash;dismissals and suspensions. A harmonious reading of the cited sections of the statute, rather than a reading of portions of the Code in isolation, supported the board&rsquo;s authority to manage its school system by protecting both the safety of students and the rights of tenured teachers. The Supreme Court also found satisfactory the board&rsquo;s articulation of its findings and no statutory prohibition of the board&rsquo;s reduction of back pay. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p><b>Employment Law</b></p> <p><i>Western Illinois University v. Illinois Educational Labor Relations Board</i>, 2021 IL 126082, involved a 2017 arbitrator finding that Western Illinois University violated its collective bargaining agreement with respect to layoffs. In 2018, the arbitrator entered a supplemental award, finding that the University failed to comply with the earlier award. The Illinois Educational Labor Relations Board then found that the University committed an unfair labor practice in violation of the Illinois Educational Labor Relations Act, 115 ILCS 5/14(a)(1), (8), by failing to comply with the two arbitration awards. The Act requires that public education employers arbitrate disputes arising under a collective bargaining agreement. Refusal to comply with the provisions of a binding arbitration award is an &ldquo;unfair labor practice&rdquo; under the Act. The appellate court vacated the Board&rsquo;s decision.</p> <p>At issue was whether the arbitrator was within his rights to issue a supplemental award in March 2018, after he found the university failed to implement the terms of his earlier award in July 2017. The arbitrator was weighing the University Professionals of Illinois Local 4100's grievances challenging the university's layoffs of ten bargaining unit members.</p> <p>During the appellate court oral arguments, it was argued that the arbitrator did not exceed either his statutory or his contractual authority when he retained jurisdiction over the implementation of the July 2017 award. The board reasoned that the statute didn't deprive arbitrators of their &ldquo;widely accepted&rdquo; authority to retain jurisdiction over an award's implementation, and it properly deferred to his interpretation of the collective bargaining agreement. The board further contended that both the arbitrator and the board each properly performed their statutory functions here.</p> <p>The University argued that it is &ldquo;statutorily predetermined&rdquo; that a party's refusal to comply with an award is an unfair labor practice within the board's jurisdiction. It further argued that an arbitrator can retain jurisdiction in some regard and weigh in if there is an error in the award or if clarification is needed, but the responsibility belongs to the Labor Board with respect to who decides whether an employer has complied with a binding arbitration award.</p> <p>The Illinois Supreme Court agreed with the University. An arbitrator in the public educational labor relations context exceeds his authority by reviewing a party&rsquo;s compliance with his own award in contravention of the Act, which vests exclusive primary jurisdiction over arbitration awards with the Board. The Board may not limit the evidence it will consider in an unfair labor practice proceeding under the Act to the evidence before the arbitrator. Under the Act, arbitrators retain limited jurisdiction of the awards for the sole purpose of resolving remedial issues that may arise from the award itself.</p> <p><b>COVID-19 Direct and Indirect Exposure</b></p> <p><i>Direct Exposure Claims</i></p> <p>Over the last year, Illinois courts also faced questions over the extent to which Governor Pritzker&rsquo;s Executive Order No. 17 shielded nursing homes from liability against COVID-19 litigation.&nbsp;According to Section 3 of that Order, during the pendency of Governor Pritzker&rsquo;s disaster proclamation related to COVID-19, health care facilities shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission by the health care facility, if the injury or death occurred at a time when the health care facility was engaged in the course of rendering assistance to the State by providing health care services in responsive to the COVID-19 outbreak, unless the injury or death was caused by gross negligence or willful misconduct.&nbsp;On April 1, 2021, the District Court for the Northern District of Illinois declined to dismiss a lawsuit based upon Executive Order No. 17 immunity.&nbsp;</p> <p>In&nbsp;<i>Claybon v. SSC Westchester Operating Co.</i>, 20-cv-04507, 2021 U.S. Dist. LEXIS 64067 (N.D. Ill. Apr. 1, 2021), the plaintiff alleged that while the decedent resided at the defendant&rsquo;s nursing home, members of the nursing staff began to show symptoms of COVID-19, one staff member tested positive, and one staff member was hospitalized for the virus.&nbsp;According to the plaintiff, despite these developments, the defendant instructed its employees to report to work.&nbsp;Plaintiff&rsquo;s decedent died after developing a dry cough, fever, and shortness of breath.&nbsp;Plaintiff alleged defendant was liable for decedent&rsquo;s death because it required symptomatic employees to report to work, failed to provide adequate PPE, and failed to implement pandemic-related guidelines issued by the Center for Medicare &amp; Medicaid Services.&nbsp;</p> <p>The defendant nursing home moved to dismiss the complaint, asserting immunity under Section 3 of Executive Order No. 17.&nbsp;In rejecting defendant&rsquo;s argument, the court explained that the &ldquo;problem&rdquo; with the defendant&rsquo;s argument was that whether it was assisting the State in response to the pandemic when it committed the allegedly tortious conduct was a question of fact that could not be resolved at the pleadings stage.&nbsp;Moreover, the plaintiff died on March 30, 2020, but the Executive Order upon which the defendant relied was not filed until April 1, 2020, and it was unclear whether the Order applied retroactively.</p> <p>In a related case, the Northern District of Illinois again declined to dismiss a complaint against the same nursing home defendant based upon immunity under Executive Order No. 17.&nbsp;In&nbsp;<i>Brady v. SSC Westchester Operating Co.</i>, 20CV4505, 2021 U.S. Dist. LEXIS 68920 (N.D. Ill. Apr. 9, 2021), the court explained that Section 3 immunity applies when a healthcare facility is engaged in the course of rendering assistance to the State; thus, immunity applies where a facility spreads COVID-19 while affirmatively treating or trying to prevent its spread, but does not apply where a facility allows the virus to spread through inaction.&nbsp;The court determined that it was unclear from the face of the plaintiffs&rsquo; complaint, where plaintiff alleged that Westchester failed to protect its residents from infected nursing staff spreading the virus, whether plaintiffs&rsquo; claim triggered the immunity provision.</p> <p>The Northern District also found that the plaintiffs&rsquo; claim survived because they sufficiently alleged a willful and wanton misconduct claim, which are specifically excluded from the immunity provisions of the Executive Order.&nbsp;The court found the plaintiffs sufficiently alleged that the defendant knew about the risks of exposing its residents to infected nursing staff by mid-March 2020 and, despite that knowledge, required employees who had tested positive for, or were displaying symptoms of, COVID-19 to report to work.&nbsp;The court rejected Westchester&rsquo;s argument that it could not have known the symptoms of COVID-19 so early in the pandemic.&nbsp;According to the court, by March 2020, at least two of the defendant&rsquo;s employees had tested positive for the virus, so it had objective knowledge that members of its staff were carrying the virus, and official guidance issued by mid-March 2020 listed symptoms of a respiratory infection (<i>e.g.</i>, fever, cough, shortness of breath, or sore throat) as signs of the virus, all symptoms reported by staff members who were nevertheless required to report to work.</p> <p>The District Court for the Southern District of Illinois also allowed a similar COVID-related lawsuit to proceed beyond an initial review.&nbsp;In&nbsp;<i>Brown v. Watson</i>, 21-cv-00138-JPG, 2021 U.S. Dist. LEXIS 65560 (S.D. Ill. Apr. 5, 2021), the plaintiff claimed he developed COVID-19 due to conditions at the jail, including being forced to sleep in proximity to COVID-positive inmates.&nbsp;According to the complaint, jail staff were provided with masks and gloves to prevent infection, but inmates were not.&nbsp;Additionally, incoming inmates were not tested for COVID-19, separated from one another, or allowed to use protective gear.&nbsp;The plaintiff alleged that a COVID-19 outbreak occurred due to conditions at the jail, resulting in 300 inmates testing positive for the virus.&nbsp;Finally, the plaintiff claimed that he was denied adequate testing and medical care for COVID-19.&nbsp;The plaintiff asserted claims against the St. Clair County Sheriff and the jail&rsquo;s doctor.</p> <p>Under federal law, the court was required to conduct what is known as a preliminary review to filter out non-meritorious claims.&nbsp;<i>See</i>, 28 U.S.C.&sect; 1915A.&nbsp;The court determined that the plaintiff satisfied the conditions necessary to survive a preliminary review by setting forth allegations suggesting that each defendant acted objectively unreasonable or deliberately indifferent to the conditions of his confinement and/or medical condition.&nbsp;</p> <p>In another Northern District of Illinois case, several McDonald&rsquo;s employees and their relatives filed suit alleging negligence and public nuisance arising from its decision to remain open during the pandemic without implementing certain health and safety standards.&nbsp;The plaintiffs sought injunctive relief in the lawsuit, including that McDonald&rsquo;s provide its employees with certain protective equipment and implement various workplace safety measures.&nbsp;McDonald&rsquo;s subsequently filed suit against its insurer Austin Mutual, arguing that it owed a duty to defend McDonald&rsquo;s in the underlying lawsuit.&nbsp;On February 22, 2021, the District Court for the Northern District of Illinois denied Austin Mutual&rsquo;s motion to dismiss, finding that the complaint in the underlying lawsuit potentially gave rise to coverage.&nbsp;<i>McDonald&rsquo;s Corp. v. Austin Mut. Ins. Co.</i>, No. 20C5057 (N.D. Ill. Feb. 22, 2021).&nbsp;The primary issue in that case was whether the underlying lawsuit sought &ldquo;damages because of bodily injury.&rdquo;&nbsp;Austin Mutual argued that the underlying case did not trigger coverage because the plaintiffs sought injunctive, not monetary relief.&nbsp;In response, McDonald&rsquo;s argued that if it was forced to expend money to comply with injunctive relief granted in the underlying case, such would constitute &ldquo;damages&rdquo; that would only arise because the plaintiffs in the underlying case contracted COVID-19, a &ldquo;bodily injury.&rdquo;&nbsp;Noting that the case was a &ldquo;very close call,&rdquo; the District Court concluded that if the plaintiffs in the underlying lawsuit succeeded in obtaining injunctive relief, it would only be because they contracted a bodily injury.&nbsp;The court found that an alternative avenue for coverage existed; namely, that exposure to COVID-19 is itself a bodily injury that McDonald&rsquo;s would be forced to expend &ldquo;damages&rdquo; to remedy.</p> <p><i>Secondary Exposure Claims</i></p> <p>In&nbsp;<i>Erika Iniguez v. Aurora Packing Co.</i>, 20-L-372, the Circuit Court of Kane County dismissed the plaintiff&rsquo;s complaint with prejudice.&nbsp;In that case, the plaintiff alleged that the decedent&rsquo;s husband worked for the defendant, contracted COVID-19 at work, and passed the disease on to the decedent, resulting in her death.&nbsp;The court found that the defendant did not owe a duty of care to the decedent.&nbsp;In reaching that conclusion, the court explained that the decedent and the defendant did not stand in a &ldquo;special relationship&rdquo; that would give rise to a duty of care.&nbsp;According to the court, the decedent&rsquo;s relationship to the defendant was no different from the relationship of any other citizen of the world who might encounter an employee of the defendant who had contracted COVID-19 while at work.</p> <p>The court also found it important that the Illinois legislature and Illinois Appellate Court have refused to extend the duty owed by employers and physicians to third parties that are not part of the employer-employee and physician-patient relationships.&nbsp;As to employers, the court explained that in its most basic sense, the plaintiff&rsquo;s claim was based on the defendant&rsquo;s alleged failure to protect its employees from contracting COVID-19 at work.&nbsp;According to the court, Illinois policy regarding employee exposure to dangerous workplace conditions is reflected by the Illinois Workers&rsquo; Compensation Act, which provides that the statutory remedies afforded by the Act serve as an employee&rsquo;s exclusive remedy for compensable injuries.&nbsp;Thus, the court questioned whether Illinois policy would be served by imposing upon employers a common law duty owed to an unlimited pool of potential claimants, &ldquo;mediated only by the travels and uncontrolled contacts of employees outside the workplace[.]&rdquo;&nbsp;As to physicians, the court relied upon prior court opinions in which plaintiffs filed suit against physicians, alleging that they developed communicable diseases due to the physicians&rsquo; failure to diagnose third-party patients.&nbsp;In those cases, the Illinois appellate court refused to extend the physicians&rsquo; duty beyond their patients.&nbsp;<i>See</i>&nbsp;<i>Britton v. Soltes</i>, 205 Ill. App. 3d 943 (1st Dist. 1990);&nbsp;<i>Heigert v. Riedel</i>, 206 Ill. App. 3d 556 (5th Dist. 1990).</p> <p>Finally, the court distinguished the plaintiff&rsquo;s claim from &ldquo;take home asbestos&rdquo; cases (<i>i.e.</i>, where plaintiffs allege that they developed cancer due to asbestos exposure they experienced through the work clothes of a spouse or relative).&nbsp;The court reasoned that in those cases, the alleged injuries resulted from contact with a byproduct of the defendant&rsquo;s very business, the use or manufacturing of asbestos or asbestos-containing products, whereas the plaintiff in this case based her claim on the relationship between the defendant and its employee.&nbsp;</p> <p>By contrast, the Circuit Court of Will County allowed a plaintiff&rsquo;s secondary exposure case to proceed beyond the pleadings stage.&nbsp;In&nbsp;<i>Miriam Reynoso v. Byrne Schaefer Electrical</i>, No. 20-L-620, the plaintiff alleged that she developed COVID-19 from her husband after he contracted the virus through his employment with the defendant.&nbsp;In ruling on the defendant&rsquo;s motion to dismiss, the court denied the motion as to Count I of the plaintiff&rsquo;s complaint, while granting the motion as to Count II.&nbsp;The court, however, granted the plaintiff leave to amend Count II of her complaint.</p> <p>We will continue to keep our eyes on The Land of Lincoln in 2022.</p>https://www.bscr-law.com?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=10Illinois Supreme Court Find a Duty to Defend for Alleged Biometric Information Privacy Act Violationshttps://www.bscr-law.com/?t=40&an=116953&format=xml15 Jul 2021Illinois Law Blog<p>A tanning company customer filed a class action lawsuit against West Bend Mutual Insurance Company&rsquo;s insured, Krishna Schaumberg Tan, Inc. The customer alleged Krishna violated Illinois&rsquo; Biometric Information Privacy Act, 740 ILCS 14/1, <i>et seq</i>., (BIPA) by scanning customers&rsquo; fingerprints and disclosing biometric information containing those fingerprints to an out-of-state third-party vendor. Krisha tendered the lawsuit to West Bend and requested a defense. West Bend had issued two businessowners&rsquo; liability policies to Krishna.</p> <p>West Bend filed a declaratory judgment action contending that it did not owe a duty to defend Krishna against the class action lawsuit. First, West Bend argued that the class action compliant did not allege a publication of material that violates a person right of privacy. West Bend argued the Illinois Supreme Court has defined publication as communication to the public at large, not to a single party, as had occurred here. Second, it alternatively argued that the policies&rsquo; violation of statutes exclusion applied and barred West Bend from having to provide coverage to Krishna for the BIPA violations. Krisha argued that sharing biometric identifiers and biometric information with a single party is a publication covered by the policies. Further, Krishna argued that regardless of whether the violation of statutes exception applied, the policies also provided coverage for a violation of BIPA under the Illinois data compromise coverage endorsement of the policies.</p> <p>The trial court entered summary judgment in Krisna&rsquo;s favor on its counterclaim, finding that &ldquo;publication&rdquo; simply means the dissemination of information and that the sharing of biometric identifiers constitutes a publication within the purview of the policies. The trial court also found that the exclusion for violation of statutes does not apply because the exclusion only applies to statutes that regulate methods of sending information and not the collection, retention, disclosure, and destruction of biometric identifiers and information. West Bend appealed, and the appellate court (1st Dist.) affirmed. The Illinois Supreme Court then allowed West Bend&rsquo;s petition for leave to appeal and affirmed the entry of summary judgment for Krishna.</p> <p>The West Bend policies defined &ldquo;personal injury&rdquo; as an injury &ldquo;other than a bodily injury&rdquo; that arises out of an &ldquo;oral or written publication of material that violates a person&rsquo;s right of privacy.&rdquo; The Supreme Court found the complaint alleged a &ldquo;personal injury,&rdquo; other than a &ldquo;bodily injury&rdquo; in that it alleged emotional upset, mental anguish, and mental injury when Krishna disclosed biometric identifiers and biometric information in violation of the right to privacy under BIPA.</p> <p>The Court then looked to whether Krishna&rsquo;s sharing of biometric identifiers and biometric information with the out-of-state third-party vendor was a &ldquo;publication&rdquo; that violated the customers&rsquo; right to privacy. The West Bend policies did not define &ldquo;publication.&rdquo; The Supreme Court, after considering dictionaries, treatises, and the Restatement, concluded that the term &ldquo;publication&rdquo; has at least two definitions and means both the communication of information to a single party and the communication of information to the public at large. When a term has multiple reasonable definitions or is subject to more than one reasonable interpretation within the context in which it appears, it is ambiguous. The Court, therefore, strictly construed the term against West Bend, as the insurer who drafted the policies. Accordingly, the Court adopted the construction used by Krishna as the insured and construed the terms publication to include a communication with a single party, like the out-of-state vendor.</p> <p>The West Bend policy also failed to define the term &ldquo;privacy.&rdquo; BIPA codifies (1) an individual&rsquo;s right to privacy in their biometric identifiers (such as fingerprints, retina or iris scans, voiceprints, or scans of hand or face geometry), and (2) an individual&rsquo;s right to privacy in their biometric information. The Supreme Court found that BIPA protects a secrecy interest &ndash; the right of an individual to keep his or her personal identifying information like fingerprints secret. Disclosing a person&rsquo;s biometric identifiers or information without their consent or knowledge, therefore, necessarily violates that person&rsquo;s right to privacy in biometric information. Accordingly, the allegation that Krisha shared biometric identifiers and information with the third-party vendor alleged a potential violation of the right to privacy within the purview of West Bend&rsquo;s policies.</p> <p>Having made all these findings, the Court concluded that West Bend had a duty to defend. This did not, however, end the Court&rsquo;s inquiry in that West Bend asserted the policies&rsquo; violation of statutes exclusion barred coverage because the exclusion applies to statutes that prohibit the communicating of information and BIPA limits the communication of information. The exclusion, however, specifically listed certain statutes to which the West Bend policies do not apply &ndash; the TCPA (which regulates the use of certain methods of communication), CAN-SPAM (which regulates electronic mail) and statutes &ldquo;other than&rdquo; the TCPA or CAN-SPAM that prohibit or limit the communication of information. The Court construed the violation of statues exclusion to apply only to statutes like the TCPA and the CAN-SPAM act, i.e., those which regulate methods of communication. BIPA, however, does not regulate methods of communication but rather the collection, use, safeguarding, handling, storage, retention, and destruction of information, which is fundamentally different from the two statutes mentioned in the policies&rsquo; exclusion. The exclusion, therefore, is inapplicable.</p> <p>The opinion underscores the unique features of the protections offered by BIPA in the context of the already broad duty to defend. It remains to be seen whether more and more policies will include BIPA-specific exclusions.</p> <p><i>West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc.</i>, 2021 IL 125978 (May 20, 2021).</p>https://www.bscr-law.com?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=10Prejudgment Interest Has Hit Illinoishttps://www.bscr-law.com/?t=40&an=116581&format=xml03 Jun 2021Illinois Law Blog<p>Governor Pritzker has signed into law SB72 (<a href="https://www.ilga.gov/legislation/publicacts/102/PDF/102-0006.pdf">PA102-0006</a>), which imposes a 6% prejudgment interest on personal injury and wrongful death actions effective July 1, 2021.</p> <p>The prejudgment interest has been a threat <a href="/?t=40&amp;an=114526&amp;format=xml&amp;stylesheet=blog&amp;p=5258">since HB3360 was first proposed on January 13, 2021</a>. The first proposal, a 9% per annum interest with unlimited scope and running from the date of the accident, <a href="/?t=40&amp;an=115624&amp;format=xml&amp;stylesheet=blog&amp;p=5258">was vetoed on March 25, 2021</a>.&nbsp; After the veto, the General Assembly made amendments to SB72 and those modifications became PA102-0006 on May 28, 2021.</p> <p>The effects of this new law will be vast.&nbsp; The law applies a 6% per annum interest to personal injury or wrongful death actions arising out of any theory of tort liability. The prejudgment interest applies to most categories of damages, including non-economic and future damages, and is effective July 1, 2021. For current claims, the interest begins to accrue from the time of the accident or the enactment of the statute, whichever is later. Otherwise, the interest starts accumulating at the time the cause is filed.&nbsp;</p> <p>The law does have some limitations for the prejudgment interest, such as limiting the total years for it to run to five. Settlement offers will also play a part in limiting the amount of prejudgment interest.&nbsp; The interest can be cut off by the highest written settlement offer made within 12 months of the suit being filed and not accepted within 90 days or rejected by the plaintiff.&nbsp; If the judgment is greater than the highest offer, then the plaintiff only gets prejudgment interest on the difference between the highest offer and the judgment.&nbsp; If the judgment is less than or equal to the highest offer, then the plaintiff gets no prejudgment interest.&nbsp;</p> <p>There are many issues with the statute that cannot be answered.&nbsp; Such as what happens to defendants who are added after the suit is filed, at what point does their time start running to make a qualified offer or how do you deal with third-party plaintiffs. Who gets taxed with discovery deadlines and compliance delays?&nbsp; It will also bring up coverage interest and could expose insurers to pay covered damages in excess of the limits.&nbsp;</p> <p>Defendants need to be mindful of the prejudgment interest and its ramifications to the case as well as the vast number of unanswered questions regarding the full effect of the new law.&nbsp; &nbsp;If you have questions about how this new law will impact you or your organization, please contact the author or Baker Sterchi.</p>https://www.bscr-law.com?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=10Illinois Courts Begin Weighing in on COVID-19 Exposure Claimshttps://www.bscr-law.com/?t=40&an=115943&format=xml19 Apr 2021Illinois Law Blog<p><a href="/?t=40&amp;an=114849&amp;format=xml&amp;stylesheet=blog&amp;p=5258">As discussed in a prior blog post</a>, one consequence of the COVID-19 pandemic may be a wave of lawsuits arising from exposure to the virus. Now that we have passed the one-year anniversary of the pandemic outbreak, perhaps not surprisingly, court opinions in COVID-related litigation are increasingly being issued.&nbsp;Below, we discuss several opinions recently issued in this litigation, including in some cases discussed in the firm&rsquo;s prior blog post on this issue.</p> <p><u>Direct Exposure Claims</u></p> <p>Since the pandemic outbreak, multiple lawsuits against nursing homes have been filed in Illinois related to residents contracting COVID-19.&nbsp;As previously discussed, one such case was filed against a Bloomington, Illinois nursing home.&nbsp;In that case, the plaintiff alleged that the defendant failed to properly monitor residents&rsquo; medical conditions and, consequently, her mother contracted and died from COVID-19.&nbsp;On December 29, 2020, the defendant removed the case to the District Court for the Central District of Illinois.&nbsp;The defendant also moved to dismiss the complaint, arguing that it is immune from liability under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 (&ldquo;the PREP Act&rdquo;).&nbsp;Recall, the PREP Act makes &ldquo;covered persons&rdquo; immune from suits under federal and state law for all claims, except for willful misconduct claims, caused by, arising out of, relating to, or resulting from the administration or use of a &ldquo;covered countermeasure&rdquo; to diseases, threats, and conditions, including COVID-19.&nbsp;In response, the <a href="https://www.pantagraph.com/news/local/crime-and-courts/bloomington-nursing-home-sued-over-covid-death/article_e39ee783-6257-5cd2-97a0-99f7c378e789.html">plaintiff argues</a> that she is not alleging liability based upon the administration or use of a countermeasure, but rather, based upon the nursing home&rsquo;s alleged failure to act to prevent the spread of COVID-19.&nbsp;At this point, <a href="https://www.pacermonitor.com/public/case/37701283/Martin_v_Petersen">the court has yet to rule on the motion to remand or motion to dismiss</a>.&nbsp;Any ruling on the motion to dismiss could be consequential because there is currently limited guidance on how courts will interpret the scope of the PREP Act&rsquo;s immunity provision.&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;</p> <p>In addition to the PREP Act, courts also face questions over the extent to which Governor Pritzker&rsquo;s Executive Order No. 17 shields nursing homes from liability against COVID-19 litigation.&nbsp;According to Section 3 of that Order, during the pendency of Governor Pritzker&rsquo;s disaster proclamation related to COVID-19, health care facilities shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission by the health care facility, if the injury or death occurred at a time when the health care facility was engaged in the course of rendering assistance to the State by providing health care services in responsive to the COVID-19 outbreak, unless the injury or death was caused by gross negligence or willful misconduct.&nbsp;On April 1, 2021, the District Court for the Northern District of Illinois declined to dismiss a lawsuit based upon Executive Order No. 17 immunity.&nbsp;In <i>Claybon v. SSC Westchester Operating Co.</i>, 20-cv-04507, 2021 U.S. Dist. LEXIS 64067 (N.D. Ill. Apr. 1, 2021), the plaintiff alleged that while the decedent resided at the defendant&rsquo;s nursing home, members of the home&rsquo;s nursing staff began to show symptoms of COVID-19, one member tested positive, and one member was hospitalized for the virus.&nbsp;According to the plaintiff, despite these developments, the defendant instructed its employees to report to work.&nbsp;Eventually, the decedent passed away after developing a dry cough, fever, and shortness of breath.&nbsp;In the lawsuit, the plaintiff alleged that the defendant was responsible for the decedent&rsquo;s death, claiming that the defendant required symptomatic employees to report to work, failing to provide PPE, and failing to implement pandemic-related guidelines issued by the Center for Medicare &amp; Medicaid Services.&nbsp;</p> <p>The defendant argued it was immune from liability pursuant to Section 3 of Executive Order No. 17.&nbsp;The court explained that the &ldquo;problem&rdquo; with the defendant&rsquo;s argument was that whether it was assisting the State in response to the pandemic when it committed the allegedly tortious conduct was a question of fact that could not be resolved at the pleadings stage.&nbsp;Moreover, the plaintiff died on March 30, 2020, but the Executive Order was not filed until April 1, 2020.&nbsp;The court noted that it was unclear whether the Order applied retroactively and declined to make that determination at the pleadings stage.</p> <p>In a related case, the District Court for the Northern District of Illinois again declined to dismiss a complaint against Westchester based upon immunity under Executive Order No. 17.&nbsp;In <i>Brady v. SSC Westchester Operating Co.</i>, 20CV4505, 2021 U.S. Dist. LEXIS 68920 (N.D. Ill. Apr. 9, 2021), the court explained that Section 3 immunity applies when a healthcare facility is engaged in the course of rendering assistance to the State; thus, immunity applies where a facility spreads COVID-19 while affirmatively treating or trying to prevent its spread, but does not apply where a facility allows the virus to spread through inaction.&nbsp;The court determined that it was unclear from the face of the plaintiffs&rsquo; complaint, which alleged that Westchester failed to protect its residents from infected nursing staff spreading the virus, whether plaintiffs&rsquo; claim triggered the immunity provision.</p> <p>The court also found that the plaintiffs&rsquo; claim survived because they sufficiently alleged a willful and wanton misconduct claim.&nbsp;The Executive Order expressly notes that its immunity provision does not apply to claims arising from death or injuries caused by a facility&rsquo;s willful misconduct.&nbsp;The court found the plaintiffs sufficiently alleged willful misconduct through their claims that the defendant knew about the risks of exposing its residents to infected nursing staff by mid-March 2020 and, despite that knowledge, required employees who had tested positive for, or were displaying symptoms of, COVID-19 to report to work.&nbsp;The plaintiffs further alleged that Westchester failed to provide PPE to its staff in March 2020.&nbsp;Finally, the court rejected Westchester&rsquo;s argument that it could not have known the symptoms of COVID-19 so early in the pandemic.&nbsp;According to the court, by March 2020, at least two of the defendant&rsquo;s employees had tested positive for the virus, so it had objective knowledge that members of its staff were carrying the virus.&nbsp;The court also relied on the plaintiffs&rsquo; allegations that official guidance issued by mid-March 2020 listed symptoms of a respiratory infection (<i>e.g.</i>, fever, cough, shortness of breath, or sore throat) as signs of the virus, that members of Westchester&rsquo;s staff reported those symptoms to management, and Westchester still required its staff to report to work.</p> <p>Recently, the District Court for the Southern District of Illinois allowed a COVID-related lawsuit to proceed beyond an initial review.&nbsp;In <i>Brown v. Watson</i>, 21-cv-00138-JPG, 2021 U.S. Dist. LEXIS 65560 (S.D. Ill. Apr. 5, 2021), the plaintiff alleged he had been subjected to unconstitutional conditions while confined in the St. Clair County Jail.&nbsp;Among other things, the plaintiff claimed he developed COVID-19 due to conditions at the jail, including being forced to sleep in proximity to COVID-positive inmates.&nbsp;According to the complaint, jail staff were provided with masks and gloves to prevent infection, but inmates were not.&nbsp;Additionally, incoming inmates were not tested for COVID-19, separated from one another, or allowed to use protective gear.&nbsp;The plaintiff alleged that a COVID-19 outbreak occurred due to conditions at the jail, resulting in 300 inmates testing positive for the virus.&nbsp;Finally, the plaintiff claimed that he was denied adequate testing and medical care for COVID-19.&nbsp;The plaintiff asserted claims against the St. Clair County Sheriff and the jail&rsquo;s doctor.</p> <p>Under federal law, the court was required to conduct what is known as a preliminary review to filter out non-meritorious claims.&nbsp;<i>See</i>, 28 U.S.C.&sect; 1915A.&nbsp;The court determined that the plaintiff satisfied the conditions necessary to survive a preliminary review by setting forth allegations suggesting that each defendant acted objectively unreasonable or deliberately indifferent to the conditions of his confinement and/or medical condition.&nbsp;</p> <p>Outside of the healthcare realm, as discussed in our prior post, several McDonald&rsquo;s employees and their relatives filed suit against McDonald&rsquo;s, alleging negligence and public nuisance arising from its decision to remain open during the pandemic without taking implementing certain health and safety standards.&nbsp;The plaintiffs sought injunctive relief in the lawsuit, including that McDonald&rsquo;s provide its employees with certain protective equipment and implement various workplace safety measures.&nbsp;McDonald&rsquo;s subsequently filed suit against its insurer Austin Mutual, arguing that it owed a duty to defend McDonald&rsquo;s in the underlying lawsuit.&nbsp;On February 22, 2021, the District Court for the Northern District of Illinois denied Austin Mutual&rsquo;s motion to dismiss, finding that the complaint in the underlying lawsuit potentially gave rise to coverage.&nbsp;<i>McDonald&rsquo;s Corp. v. Austin Mut. Ins. Co.</i>, No. 20C5057 (N.D. Ill. Feb. 22, 2021).&nbsp;The primary issue in that case was whether the underlying lawsuit sought &ldquo;damages because of bodily injury.&rdquo;&nbsp;Austin Mutual argued that the underlying case did not trigger coverage because the plaintiffs sought injunctive, not monetary relief.&nbsp;In response, McDonald&rsquo;s argued that if it was forced to expend money to comply with injunctive relief granted in the underlying case, such damages would constitute &ldquo;damages&rdquo; that would only arise because the plaintiffs in the underlying case contracted COVID-19, a &ldquo;bodily injury.&rdquo;&nbsp;Noting that the case was a &ldquo;very close call,&rdquo; the District Court concluded that if the plaintiffs in the underlying lawsuit succeeded in obtaining injunctive relief, it would be only because they contracted a bodily injury.&nbsp;The court found that an alternative avenue for coverage existed; namely, that exposure to COVID-19 is itself a bodily injury that McDonald&rsquo;s would be forced to expend &ldquo;damages&rdquo; to remedy.</p> <p><u>Secondary Exposure Claims</u></p> <p>Following our prior blog post, there have been significant developments in two cases discussed in that post.&nbsp;Specifically, in the two secondary exposure cases, the courts have ruled on the defendants&rsquo; motions to dismiss.&nbsp;In <i>Erika Iniguez v. Aurora Packing Co.</i>, 20-L-372, the Circuit Court of Kane County dismissed the plaintiff&rsquo;s complaint with prejudice.&nbsp;In that case, the plaintiff alleged that the decedent&rsquo;s husband worked for the defendant, contracted COVID-19 at work, and passed the disease on to the decedent, resulting in her death.&nbsp;The court found that the defendant did not owe a duty of care to the decedent.&nbsp;In reaching that conclusion, the court explained that the decedent and the defendant did not stand in a &ldquo;special relationship&rdquo; that would give rise to a duty of care.&nbsp;According to the court, the decedent&rsquo;s relationship to the defendant was no different from the relationship of any other citizen of the world who might encounter an employee of the defendant who had contracted COVID-19 while at work.&nbsp;</p> <p>The court also found it important that the Illinois legislature and Illinois Appellate Court have refused to extend the duty owed by employers and physicians to third parties that are not part of the employer-employee and physician-patient relationships.&nbsp;As to employers, the court explained that in its most basic sense, the plaintiff&rsquo;s claim was based on the defendant&rsquo;s alleged failure to protect its employees from contracting COVID-19 at work.&nbsp;According to the court, Illinois policy regarding employee exposure to dangerous workplace conditions is reflected by the Illinois Workers&rsquo; Compensation Act, which provides that the statutory remedies afforded by the Act serve as an employee&rsquo;s exclusive remedy for compensable injuries.&nbsp;Thus, the court questioned whether Illinois policy would be served by imposing upon employers a common law duty owed to an unlimited pool of potential claimants, &ldquo;mediated only by the travels and uncontrolled contacts of employees outside the workplace[.]&rdquo;&nbsp;As to physicians, the court relied upon prior court opinions in which plaintiffs filed suit against physicians, alleging that they developed communicable diseases due to the physicians&rsquo; failure to diagnose third-party patients.&nbsp;In those cases, the Illinois appellate court refused to extend the physicians&rsquo; duty beyond their patients.&nbsp;<i>See</i>, <i>Britton v. Soltes</i>, 205 Ill. App. 3d 943 (1st Dist. 1990); <i>Heigert v. Riedel</i>, 206 Ill. App. 3d 556 (5th Dist. 1990).</p> <p>Finally, the court distinguished the plaintiff&rsquo;s claim from &ldquo;take home asbestos&rdquo; cases (<i>i.e.</i>, where plaintiffs allege that they developed cancer due to asbestos exposure they experienced through the work clothes of a spouse or relative).&nbsp;The court reasoned that in those cases, the alleged injuries resulted from contact with a byproduct of the defendant&rsquo;s very business, the use or manufacturing of asbestos or asbestos-containing products, whereas the plaintiff in this case based her claim on the relationship between the defendant and its employee.&nbsp;</p> <p>By contrast, the Circuit Court of Will County recently allowed a plaintiff&rsquo;s secondary exposure case to proceed beyond the pleadings stage.&nbsp;In <i>Miriam Reynoso v. Byrne Schaefer Electrical</i>, No. 20-L-620, the plaintiff alleged that she developed COVID-19 from her husband after he contracted the virus through his employment with the defendant.&nbsp;In ruling on the defendant&rsquo;s motion to dismiss, the court denied the motion as to Count I of the plaintiff&rsquo;s complaint, while granting the motion as to Count II.&nbsp;The court, however, granted the plaintiff leave to amend Count II of her complaint.</p> <p>Baker Sterchi will continue tracking developments in this litigation.&nbsp;Please monitor our blog for updates on this and many other legal issues.&nbsp;</p>https://www.bscr-law.com?t=39&anc=2035&format=xml&directive=0&stylesheet=rss&records=10