Illinois Appellate Courts

Doctor Asserts Slander Claims Over Accusation of Negligence During Surgery – Tunca v. Painter

September 16, 2013 | Peter S. Lubin and James V. DiTommaso

An Illinois appellate court reversed a circuit court order dismissing a doctor’s lawsuit for slander per quod against two colleagues. Tunca v. Painter, et al, 965 N.E.2d 1237 (Ill. App. 2012). Two doctors who worked at the same hospital as the plaintiff alleged that the plaintiff was negligent during a surgery, resulting in injury to the patient. The plaintiff alleged that their statements were defamatory, causing damage to his professional reputation and a decline in patient referrals. After the circuit court dismissed multiple claims of slander per se and per quod, the plaintiff appealed. The appellate court held that the defendants’ statements were slanderous on their face, and ruled in the plaintiff’s favor.

The plaintiff, Dr. Josh Tunca, is a surgeon specializing in gynecological oncology. Defendant Dr. Thomas Painter is a vascular surgeon who worked at the same hospital. Defendant Dr. Daniel Conway was chairman at the time of the hospital’s quality review committee. After Dr. Tunca performed surgery to remove an ovarian tumor in June 2006, a severe blood clot formed in the patient’s femoral artery. Dr. Painter performed a femoral-femoral bypass, correcting the condition. Id. at 1241. Dr. Painter allegedly told the hospital’s vice president and medical affairs director that Dr. Tunca had “inadvertently cut the [patient’s] left iliac artery,” and made similar statements to other doctors. Id. at 1241-42. Dr. Conway allegedly spoke to Dr. Tunca, in the presence of other doctors, “regarding his allegedly cutting the [patient’s] artery.” Id. at 1242.

Dr. Tunca filed suit against Drs. Painter and Conway in July 2007, alleging slander per se against both defendants. This is a claim that the statements in question are unambiguously defamatory. He claimed that their statements, made in the presence of others, were “false, malicious, slanderous, and…inten[ded] to injure plaintiff’s good name and credit in his profession.” Id. After several dismissals of his slander claims, the plaintiff filed a third amended petition alleging slander per quod against both defendants, adding allegations that the defendants’ statements had been “disseminated throughout the hospital,” affecting his ability to treat patients and his ability to get new patients. Id. at 1245. After the Cook County Circuit Court dismissed these claims, the plaintiff appealed.

Judge Dismisses Libel Claim By Former NBC Reporter Who Intends to Appeal

August 23, 2013 | Peter S. Lubin and James V. DiTommaso

The old cliché of a journalist who will do anything for a story might not be too far from the truth if the claims in this case which caused this CBS reporter are in fact true. Such appeared to be the case for Amy Jacobsen when cameras caught her in a bikini at the house of a person of interest in a major case.

In April 2007, Lisa Stebic disappeared. She and her husband, Craig Stebic, were in the process of getting divorced when Lisa failed to show up to pick up her children, then 10 and 12 years old, from school. After she disappeared, friends and neighbors claimed that Lisa had been inquiring about a domestic violence shelter. She reportedly told one friend, “If anything ever happened to me, look towards Craig.”

After Lisa disappeared, neighbors of Craig Stebic’s house were told by a media consultant to have video cameras aimed at the house at all times in case they should catch anything suspicious. It was one of these neighbors who turned the video of Jacobsen and her children in bathing suits at Craig’s house.

According to Jacobsen, she was driving to the local swim club with her two sons on July 6, 2007, when she got a call from Jill Webb, Craig’s sister. Webb reportedly said she was upset about some of the network coverage of the case and asked Jacobsen if she would talk about the case with her at Craig’s home. Jacobsen said she agreed after Webb told her she could bring her children with her.

A few days later, CBS aired footage of Jacobsen and her children enjoying what looked like a pool party at Craig Stebic’s house. On July 12, Stebic was named a person of interest in his wife’s disappearance.

If Jacobsen is the type of reporter who will do anything for a scoop — a claim she denies in her libel suit –, it appears to have worked. She is one of only two reporters that Craig talked to during the investigation.

After the footage aired, Jacobsen was fired from her position as a reporter at NBC. One year later, Jacobsen filed a libel lawsuit seeking more than $1 million from CBS and the neighbor who shot the video of her at Stebic’s house.

In February 2009, a Cook County judge allowed four counts of defamation to be considered by the courts. Judge Elizabeth Budzinski determined that “the CBS newscaster presented the footage with statement made in the form of insinuations and questions regarding Jacobsen’s activities while at the Stebic home”. Such insinuations and questions, Budzinski wrote in her ruling, “suggest that Jacobsen used improper methods in cultivating sources and obtaining stories.”

A different judge however, Judge Jeffrey Lawrence, has recently dismissed the lawsuit, saying that the parts of the CBS report that Jacobsen complained about are “constitutionally protected expressions of opinion.” Additionally, Lawrence argued that Jacobsen and her attorneys did not provide sufficient evidence that the content in the CBS report was fabricated.

It is not time for CBS to relax yet, though. Jacobsen is intent on an appeal. Her attorney, Kathleen Zellner, said that they “had always figured there would be an appeal before this went to trial because there are too many issues.” Zellner went on to say that the appeal will rest on her argument that Jacobsen was not a public figure at the time that CBS aired the story and that Judge Lawrence’s explanation contradicts a ruling that a prior judge made earlier in the case.

Illinois Appellate Court Reverses Dismissal of Northwestern Professor’s Defamation Lawsuit, Remands for Further Proceedings – Mauvais-Jarvis v. Wong

August 22, 2013 | Peter S. Lubin and James V. DiTommaso

An appellate court in Illinois reversed a lower court ruling dismissing a defamation lawsuit brought by an associate professor at Northwestern University. Mauvais-Jarvis v. Wong, et al, Nos. 1-12-0070, 1-12-0237 cons., slip op. (Ill. App. 1st Dist., Mar. 28, 2013). The plaintiff claimed that the defendants committed libel against him in emails and other correspondence exchanged in the course of an internal investigation into data presented by the plaintiff for publication. The trial court dismissed all defamation claims, holding that the statements in question were subject to an absolute privilege because the defendants were investigating “suspected research misconduct.” Id. at 2. The appellate court accepted the plaintiff’s argument that the statements are only protected by a qualified privilege, and that the defendants had not established in their motion to dismiss that the privilege should apply.

The plaintiff, Franck Mauvais-Jarvis, is an associate professor of medicine at Northwestern University and the research director of the school’s Comprehensive Center on Obesity. Part of his research is funded by the U.S. Department of Health and Human Services (HHS). The court gives a comprehensive overview of HHS’ policies on “research misconduct,” which includes fabrication, falsification, or manipulation of data and research materials, as well as plagiarism. Id. at 4. Northwestern maintains an Office of Research Integrity (ORI) based on HHS regulations, which conducts reviews of alleged research misconduct.

Appellate Court Affirms Grant of Summary Judgment in Reverse Discrimination Case Holding that Fighting at Work Justifies Termination — Our Chicago Business Trial Attorneys Represent Employers and Employees in Discrimination and Overtime Lawsuits

August 13, 2013 | Peter S. Lubin and James V. DiTommaso

Johnson, an African-American woman, was employed at Koppers’ plant from 1995 until her termination in 2008. She had been disciplined for sleeping at her desk in the laboratory, for smoking in the lunch room, for not punching out on the time clock, for fighting with a security guard, and for an altercation with a white male co-worker, O’Connell. Without interviewing Johnson, the plant manager determined that both O’Connell and Johnson were at fault and decided that Johnson should be punished more severely because of her disciplinary history and O’Connell’s allegations of racial harassment. The plant manager warned Johnson that future incidents would lead to termination. O’Connell received a less severe warning letter. The Union filed a grievance on Johnson’s behalf and Johnson’s warning was reduced to a memo that summarized her work obligations and employment status. Johnson was fired after another altercation with O’Connell. A witness indicated that Johnson shoved O’Connell, who filed a police report.

Johnson filed suit, alleging discrimination on the basis of her race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, and 42 U.S.C. 1983. Johnson argued that her claim should succeed under the cat’s paw theory because her co-worker, O’Connell, harbored discriminatory animus against her race and gender. As O’Connell had no power to terminate Johnson himself, Johnson argued that O’Connell falsely reported that she called
him racial and gender-based slurs on one occasion and pushed him following a separate verbal altercation, in order to induce the plant manager to terminate Johnson’s employment at
Koppers.

The trial court granted summary judgment in favor of the the employer, Koppers and reject Johnson’s claims holding a false report by O’Connell, standing alone, is insufficient to establish discriminatory animus. While it is clear from the record that O’Connell and Johnson did not like each other, Johnson has provided no evidence to indicate that O’Connell’s animosity was motivated by discriminatory bias against her race or gender.

The Seventh Circuit affirmed summary judgment in favor of Koppers. In affirming the trial court, the Seventh Circuit held:

In order to succeed under the cat’s paw theory, Johnson needs to show that O’Connell, motivated by discriminatory animus, concocted a false story about Johnson, and that
O’Connell’s story was the proximate cause of Johnson’s termination. See Jajeh v. Cook County, 678 F.3d 560, 572 (7th Cir. 2012). That simply is not the case here. The proximate cause of
Johnson’s termination was actually the April 2008 physical altercation between Johnson and O’Connell that was witnessed by an independent third party. … Johnson’s claim fails because she cannot prove that she met Koppers’ legitimate job expectations, or that Koppers’ non-discriminatory reason for termination was pretextual. While Johnson correctly points out that there is no evidence to suggest that she had not been adequately performing her duties as a lab technician, her termination stemmed from a specific incident of insubordination, not a failure to perform her daily tasks. Johnson’s insubordination—pushing a co-coworker—clearly does not meet Koppers’ legitimate job expectations, even if she was an otherwise satisfactory lab technician.

You can view the Seventh Circuit opinion here
.

Illinois Appellate Court Denies Request for a New Trial After $1.2 million Verdict for Fraudulent Misrepresentation in Commercial Property Transaction

February 23, 2012 | Peter S. Lubin and James V. DiTommaso

Most businesses are of the brick and mortar variety, meaning that they have a physical location where they conduct operations, and as a result these business have to either buy or rent properties to acquire the space they need. At DiTommaso Lubin, our Elgin business attorneys have handled many commercial and industrial building sale disputes, and are always researching the law in that area to better serve our clients. Napcor Corporation v. JP Morgan Chase Bank, NA is one such case about material misrepresentations made in the sale of a commercial property.

In Napcor Corporation v. JP Morgan Chase Bank, NA, Plaintiff purchased a large commercial building from Defendants. Prior to the sale, the building’s roof allegedly began to leak significantly, and the building’s broker performed an inspection to determine the extent of the damage. The broker allegedly concluded that the existing roof needed to be removed and replaced to fix the problems. Instead of replacing the damaged roof, Defendant constructed a second roof over the first because it was a cheaper option. This second roof was constructed in spite of the fact that Defendant was allegedly warned that the new roof would be susceptible to being torn off by winds. Additionally, the original leakage problem allegedly remained after the new roof’s construction.

The building was then listed for sale, and the pertinent part of the listing stated that the building had a “new roof in 1994 (tear off).” In 1996, Plaintiff purchased the building for $1.309 million through a contract where Plaintiff agreed to accept the building “as is”, and had a 30-day due diligence period. Plaintiff was allegedly not made aware of the leaks, and relied upon Defendant’s alleged representation that the old roof had been torn off. Upon moving into the building, Plaintiff allegedly found the leakage problem and over several years three sections of the roof blew off on three different occasions. Plaintiff then filed suit for fraudulent misrepresentation, and was awarded a $1.2 million judgment after a trial by jury.

Defendant appealed the decision and asked for a judgment notwithstanding the verdict and a new trial based upon faulty jury instructions and the exclusion of evidence that Plaintiff agreed to accept the building in its “as is” condition. Defendant contended that the jury instruction failed to state that Plaintiff had the burden of proof to show all the elements of fraud by clear and convincing evidence. The trial court denied Defendant’s motion.

The Appellate Court affirmed the judgment and held that the trial court did not abuse its discretion by denying Defendant’s motion for a new trial. The Court made its decision because the ‘as is’ language in the purchase agreement did not preclude Plaintiff from claiming it relied on the alleged misrepresentations, and the clause also did not serve as a defense to fraud. As such, the Court decided, the verdict was not against the manifest weight of the evidence. Finally, the Court denied the request for a new trial because the lower court used an IPI civil jury instruction that accurately stated the law, and in doing so, the trial court did not abuse its discretion.

Business Owners Beware, Make Sure Your Employment Agreements are Clearly Written and Reasonable

February 2, 2012 | Peter S. Lubin and James V. DiTommaso

Every business has employees, and as business litigators, the attorneys at DiTommaso Lubin pride ourselves on being knowledgeable about all the areas of law that affect our clients, including employment laws. Our Orland Park business attorneys recently discovered a case that has an impact on companies who utilize employment non-competition agreements with their employees.

Reliable Fire Equipment Company v. Arredondo pits an employer against two former employees, Defendants Arredondo and Garcia, who worked as fire alarm system salesmen for Plaintiff. Each Defendant signed an employment agreement where Defendant’s would allegedly earn commissions of varying percentages of the gross profits on items or systems sold. After working for Plaintiff for several years, Defendants created Defendant High Rise Security Systems, LLC., which was allegedly a competitor to Plaintiff’s business. Plaintiff eventually became aware that Defendants were starting an alleged competitor company, and asked Defendants if in fact they had created a fire alarm business. Defendant Arredondo allegedly denied that he was starting such a business, and resigned shortly afterward, with Defendant Garcia tendering his resignation two weeks after Arredondo.

Plaintiff then filed suit alleging breach of the duty of fidelity and loyalty, conspiracy to compete against Plaintiff and misappropriation of confidential information, tortious interference of prospective economic advantage, breach of the employment agreements, and unjust enrichment. The trial court held that the employment agreements were unenforceable because of unreasonable geographic and solicitation restrictions and the fact that language of the agreements was unclear. A trial on the issues unrelated to the employment agreement ensued, and Defendants successfully moved for a directed verdict because there was insufficient evidence that Defendants competed with Plaintiffs prior to Arredondo’s resignation.

Plaintiff then appealed the trial court’s ruling that the employment agreements in question were unenforceable and the directed jury verdict. The Appellate Court affirmed the trial court’s directed verdict, stating that the lower court had properly weighed the evidence in finding a total lack of competent evidence. The Court then analyzed the restrictive covenants under the legitimate business interest test and found that the geographic restrictions were not reasonable and therefore the trial court did not err in ruling that the restrictive covenants were unenforceable.

Reliable Fire Equipment Company v. Arredondo illustrates why it is so important for business owners to keep an eye on their employees, and serves as a warning for companies wanting to sue former employees based upon non-competition agreements. Furthermore, the case shows that courts frown upon the use of vague language in such agreements, and it is always in your best interests to keep the terms of employment agreements reasonable.

Appellate Court Applies 10 Year Statute of Limitations in Construction Indemnity Case

January 12, 2012 | Peter S. Lubin and James V. DiTommaso

DiTommaso Lubin represents clients all over the Chicago-land area, and because Chicago is a growing metropolis, land comes at a premium. This means that there is constant property development going on all over our fair city, and with that development comes unique legal problems. Water Tower Realty Company v. Fordham is a case that was decided in the Appellate Court of Illinois, First District, Third Division that addresses some of the problems that arise when companies perform construction in close proximity to neighboring businesses.

In Water Tower Realty Company v. Fordham, Defendant Fordham constructed a building on a parcel of land in Chicago, and prior to its construction, Defendant agreed to indemnify Plaintiff Water Tower for losses suffered due to the erection of the edifice. Five years after the building was finished, Plaintiff filed suit alleging that during construction Defendant had “so used its property as to make it impossible to lease” an adjacent property. Plaintiff claimed that it had lost over $75,000 in rental business as a result and that Defendant had refused to indemnify Plaintiff for this loss. Plaintiff filed for a dismissal of the action, and the trial court dismissed the claims because they were barred by the applicable statute of limitations as set forth in 735 ILCS 2-619(a)(5). Defendant then appealed the trial court’s dismissal.

The Appellate Court analyzed whether the trial court was correct in applying the four year statutory period or whether a ten year period was appropriate. The Court found that the nature of the injury was determinative in making such a decision, with the four year term applying if the injury was due to a construction-related activity, and the ten year term applying if the harm was caused by a breach of contract. In reversing the lower court’s dismissal, the Appellate Court concluded that the appropriate statute of limitations was the ten year term because the Plaintiff’s injury was caused by Defendant’s failure to honor the indemnity agreement. The Court went on to hold that the agreement’s indemnity provisions applied to both first party and third party claims, and that it contained no language that could hold Defendant’s agents personally liable for Plaintiff’s damages.

Illinois Appellate Court Dismisses Lawsuit Between Truck Manufacturer and Franchisee

December 22, 2011 | Peter S. Lubin and James V. DiTommaso

DiTommaso Lubin represents clients from many industries who operate all kinds of businesses, including both franchisors and franchisees. Our Aurora business attorneys came across an appellate decision from the Fourth District here in Illinois that involves a dispute that arose out of a franchise agreement between a heavy-duty truck manufacturer and a truck dealer.

Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp. is a disagreement that came about after the two parties entered into a sales and service agreement where Plaintiff Crossroads had the right to purchase Sterling Trucks and vehicle parts from Defendants and Defendants “reserved the right to discontinue at any time the manufacture or sale” of their parts or change the design or specs of any products without prior notice to Plaintiff. Several years after entering the agreement, Defendants allegedly announced that they were discontinuing the production of Sterling trucks and that Detroit Diesel Corporation (the truck’s engine manufacturer) would cease accepting orders as well. Defendant sent written notice of these decisions to Plaintiffs. Defendants decided to discontinue manufacture of the Sterling vehicles allegedly because they were duplicative of other vehicles manufactured by Sterling’s parent company.

In response to this notice, Plaintiff filed suit alleging violations of the Motor Vehicle Franchise Act, fraud, and tortious interference with contract. Defendants filed a motion to dismiss on all counts, which was granted in part by the trial court because Defendants’ discontinuance and re-branding of the Sterling brand constituted good cause for terminating the contract. Plaintiff then filed an interlocutory appeal for the trial court’s partial dismissal.

The Appellate Court affirmed the trial court’s dismissal of the violations of sections 4(d)(1) of the Franchise Act because Plaintiffs failed to allege specific facts supporting each element of violation under the Act and instead merely made conclusory allegations for each violation. The Court also found that the allegations under section 9 of the Act were improperly plead, as Plaintiff’s allegations contained only conclusions without the specific facts required by the Act. The Court then upheld the lower court’s ruling as to the allegations under section 9.5 of the Act because the sales and service agreement remained in effect and had not been terminated. Next the Court found the dismissal of the fraud claims to be proper because Plaintiff failed to allege a misrepresentation of a present fact and dismissed the claims under section 4(b) of the act because Defendant’s conduct was neither arbitrary nor in bad faith. Finally, the Court did not address the alleged 4(d)(6) violations due to a lack of subject-matter jurisdiction, as such violations are within the purview of the Review Board under section 12(d) of the Act.

Appellate Court Rules that Adding an Arbitration Clause to an Insurance Agreement Does Not Constitute a Change in Coverage under Illinois Law

November 10, 2011 | Peter S. Lubin and James V. DiTommaso

Workers’ compensation insurance is a necessary part of doing business for many companies, so the attorneys at DiTommaso Lubin are always on the lookout for emerging legal issues in that area. Our Naperville business attorneys recently discovered a decision rendered by the Appellate Court of Illinois that is significant for current and potential clients who have workers’ compensation insurance agreements that contain an arbitration clause.

All-American Roofing, Inc. v. Zurich American Insurance Company pits Plaintiff All-American Roofing against its Defendant insurer, Zurich American in a lawsuit that arose from alleged unpaid deductibles and retrospective insurance premiums. The five-year insurance agreement was based upon retrospectively rated premiums that required Plaintiff to reimburse Defendant after the end of a policy year for claims that arose during that year. After the fourth year, the policy exchanged the retrospectively rated premiums for a larger deductible. The dispute began when Defendant summoned Plaintiff to arbitration regarding the aforementioned unpaid sums pursuant to a mandatory arbitration clause contained within the parties’ agreement. In response to the arbitration summons, All-American Roofing filed for declaratory judgment along with claims for breach of contract, fraud, and related causes of action. Plaintiff requested that the trial court declare that the mandatory arbitration clause was unenforceable and sought damages for their other claims. The trial court stayed the arbitration, dismissed most of Plaintiffs claims through summary judgment and ordered the parties to arbitrate the remaining issues. Plaintiff then appealed the trial court’s rulings regarding the arbitration clause, contract, and fraud claims.

On appeal, Plaintiff argued that the arbitration clause was added to their policy after the first year of coverage and that the clause constituted a material alteration to the policy’s coverage. Furthermore, Plaintiff argued that the Illinois Insurance Code required Defendant to give notice that it was not renewing the original coverage. Because Defendant failed to give such notice, the arbitration clause did not legally take effect. The Appellate Court disagreed, stating that the addition of an arbitration clause did not constitute a change in coverage, and cited the plain language of the statute for their reasoning. The Court went on to hold that the agreements and subsequent addenda to it for the first two years were valid because the parties lawfully entered into the agreements and there was sufficient consideration on both sides. The Court also upheld the trial courts granting of Defendant’s motion for summary judgment on Plaintiff’s fraud claim because there was not sufficient evidence in the record of fraud nor had Plaintiffs identified any material issue regarding Defendant’s alleged violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. The Court held that the arbitration clause was not operative for the final two year of the agreement because Plaintiffs never signed the amended policy documents for those years. The Appellate Court reversed the trial court on this issue because they disagreed with the trial court’s ruling that Plaintiff’s payment and acceptance of coverage signified acceptance of the new terms.

All-American Roofing, Inc. v. Zurich American Insurance Company provides a valuable lesson to business owners who utilize arbitration clauses in their contracts. Namely, this case tells us to read the fine print in any contract before signing it, as you may be getting more (or less, depending on your point of view) than you originally bargained for.

llinois Appellate Court Rules that a Relocation Provision in a Commercial Lease Must Abide by State Regulations

October 20, 2011 | Peter S. Lubin and James V. DiTommaso

Earlier this year, the Appellate Court of Illinois handed down an opinion that has implications for businesses with leased premises. Our Aurora business attorneys found Bright Horizons Children’s Centers LLC v. Riverway Midwest LLC, which is a dispute regarding a commercial lease that was initially filed in Cook County.

Bright Horizons is a company that operates day care facilities across the state of Illinois. The company entered into a ten year commercial lease agreement with Riverway for a property in Rosemont, Illinois. The lease agreement contained restrictive language allowed for the building to only be used for a child-care center. The agreement also contained a relocation provision which gave Riverway the right to relocate Bright Horizons, upon 180 day written notice, to a different property of equal quantity and quality to the original premises. The dispute between these two parties arose when Riverway sought to invoke the relocation clause less than one year into the lease.

Riverway attempted to exercise the relocation provision on three occasions. The first attempt was unsuccessful because the alternative premises allegedly presented to Bright Horizons did not meet the requirements of the lease agreement. Bright Horizons accepted the second space offered by Riverway, but Riverway withdrew their notice before renovating the new facilities to meet the requirements of the lease. Riverway then proposed a third relocation premises, and allegedly informed Bright Horizons that if they were unable to agree on an alternative space, Riverway would terminate the lease in 180 days from the date of the notice. This third property allegedly ran afoul of state licensing standards for child care facilities and the Illinois Administrative Code. Bright Horizons informed Riverway that the third property did not meet Illinois’ licensing standards and could not be legally used as a child care facility. In response, Riverway informed Bright Horizons that they were in default of the lease and that Bright Horizons could cure their default by relocating to the third alternative premises.

Bright Horizons then filed for declaratory judgment requesting that the trial court find: 1) that they were not in breach of the lease, 2) that Riverway could not terminate the lease, and 3) that Riverway had failed to properly exercise the relocation clause of the lease agreement. Bright Horizons then filed for summary judgment on these issues, which was granted by the trial court. Riverway then appealed the trial court’s ruling. On appeal the Appellate Court agreed with the trial court’s grant of summary judgment in favor of Bright Horizons. In so ruling, the Court held that the lease allowed for one permitted use of the premises and required that Bright Horizons comply with all laws and regulations, including the state child-care licensing standards. The Court held that Bright Horizons’ relocation to the proffered space would violate state regulations and cause Bright Horizons to be in breach of the lease due to their inability to operate a child-care. As such, the Court affirmed the ruling of the trial court granting summary judgment in favor of Bright Horizons.