Areas & Topics

November 2018 Archives

Termination of A Public Official for Political Reasons Violates the First Amendment

Two park commissioners organized a coup to terminate the employment of the park district's executive director, as retaliation. because she supported the election of a board member they opposed.  They also broke into her office and stole her personnel file.  The U.S. District Court acknowledged that breaking into the office and stealing the file were not official duties for the purpose of establishing that they were acting under color of state law; but nevertheless denied the motion to dismiss because the defendants' other activities established that they engineered the plaintiff's termination from public office for political reasons, which violates the First Amendment of the U.S. Constitution.  McCaskill v Barbara Moore et al (U.S. Dist Ct for the N. dist of Ill., Oct. 2018)

Landlord's Failure to Stop Tenants from Attacking Lesbian Violates the Law

The Fair Housing Act prohibits landlords from discriminating against any person with respect to the sale or rental of a dwelling because of race, color, religion, sex, familial status or national origin.  The United States Court of Appeals for the Seventh Circuit recently ruled that the Act also establishes liability for landlords which have actual notice of tenant-on-tenant harassment based on any protected staus, which includes sexual orientation, but fails to take any reasonable steps within their control to stop the harassment.  It is not necessary to establish that the landlord had discriminatory animus toward the victim.  Wetzel v. Glen St. Andrew Living Community.  ( U.S. Seventh Circuit, August, 2018)

Failure to Read Insurance Policy was Devastating

Homeowners purchased insurance from American Family Insurance in 2012 because of a promise that the policy would be equal to or better than their previous policy with Travelers Insurance Co, which provided liability coverage for defamation.  The American Family policy did not provide coverage for defamation.  More than 2 years later (the policy was renewed) the Homeowners were sued for defamation. They demanded that American Family defend the lawsuit, but it declined because the policy did not provide defamation coverage.  The Homeowners sued for negligent failure to provide a policy with equal or better coverage than the Travelers policy.  The Illinois Supreme Court, in a 5-2 decision, ruled that the 2-year Statute of Limitations for negligent procurement began when the Homeowners received, and could have read, the policy, not when the defamation lawsuit was filed.  The Court reasoned that the homeowners could have read, and understood, the policy when it was received.  The decision assumes that most homeowners, upon reading, can determine the coverages provided,  and that most homeowners actually read their policy before a claim arises.  American Family Insurance v. Krop ( Ill. Sup. Ct., Oct. 2018)

2 tips for motorists that will prevent injury and death

There's no reason why you shouldn't be able to get from A to B without being involved in a serious auto collision -- that is, if everyone else on the road were attentive, defensive and law-abiding motorists. Unfortunately, no matter how safe and careful we are on the road, there will be an unlimited number of drivers who are not. This is why, if we hope to reduce our chances of injury in an auto accident, we need to take extra precaution, such as:

Biometric Information Privacy Act Does Not Require Poof of Harm

The Illinois Biometric Information Privacy Act (2008) prohibits the collection of consumers' fingerprints, iris scans, voice and facial data without permission.  Penalties for violations included liquidated damages of $1,000 for each violation, or actual damages if greater, plus attorneys fees.  Proof of specific harm is not required because there is no real recourse once the biometric data is compromised.  The purpose of the act is to prevent irretrievable harm from happening.  Sekura v. Krishna Schaumburg Tan, inc ( Ill. App. 1st dist. 2018).

Arbitrators May Award More Than Permitted By Law

Most Consumers contend that arbitration awards favor large corporations that insert arbitration clauses in consumer and employment agreements, in part because the Arbitration Organizations and arbitrators receive all their repeat business from the Corporations, not the consumers and employees. If the arbitrators ruled consistently in favor of the consumers and employees the Corporations would eliminate the arbitration clauses or use a different arbitration service.  Once an arbitration award is issued however, even for an amount not allowed by law, it will normally be conformed as a judgment by the courts.  The Eighth Circuit Court of Appeals recently affirmed a District Court judgment enforcing an arbitration award even though it awarded substantially more than allowed by the limit of liability clause in a construction contract.  The Court ruled that mistakes of fact or law by the arbitrator are not grounds for vacating the award.  Beumer Corp v ProEnergy Services, ( U.S. Court of Appeals for the Eighth CIrcuit, August 2018)

Zoo ban on guns still unresolved by Mo Court of Appeals

The Misssouri Court of Appeals reversed a Judgment in favor of the St. Louis Zoo, ruling that disputed questions of fact exist precluding summary judgment on the Zoo's ban on firearms at the Zoo.  The Zoo had obtained a permanent injunction against an Ohio guns rights activist.  The Court of Appeals ruled that disputed facts still exist on whether (1) the zoo will suffer irreparable harm and (2) whether the Zoo has an adequate remedy at law for money damages if the injunctions is not granted.  The case was remanded back to the Circuit Court to resolve those issues.  Zoological Park v. Smith (Mo. Ct. of Appeals, E.D.  Nov. 2018).

Is that ad really a bait and switch?

A bait and switch is essentially when a company advertises one product to get you into the store but then tries to sell you another product at a higher price. However, simply trying to convince you to buy something that costs more money is not a bait and switch. You must have no other choice.

Bridal Shop Liable for Copyright Infringement for Posting Wedding Photos of Celebrities in a Blog

Posting copies of wedding photos of Nicky Hilton and her husband in a blog by a Bridal Shop did not fall within the "fair use" exception to the Copyright Act.  The Celebrities had copyrighted their wedding photos and were charging $2,500 to republish them.  The key factor considered by the Court was the possibility that the Bridal Shop could profit from the publication without paying the customary license fee charged by the Celebrities.  Famed FlyNet inc v. Jasmine Enterprises, inc.  (U.S. Dist Court, N.D. Illinois, Sept. 2018).

The Statute of Limitations begins when damages, not liability for the damages, is discovered

A storm blew part of a roof of an Auto Sales Business onto power lines causing a power surge that damaged Plaintiff's computers.  years later the Plaintiff learned that the roof had been defectively installed, but was time barred by the 4 year statutue of limitations applicable to negligent construction, which began to run from the date of the accident when the damages were discovered, not from the date Plaintiff discovered that the roof had been defectively installed.  M & S Industrial Co v. Allahverdi (Illinois Appellate Court, 1st dist. 2018).

Subcontractor recovers under Quantum Meruit and Unjust Enrichment Notwithstanding its breach of the Subcontract

A Subcontractor for a metal canopy at O'Hare Airport installed 1,000 feet of defective welds out of 39 miles of total welds.  The defective welds were a material breach of the subcontract permitting the General Contractor to withhold payment, under the rule a party which materially breaches a contract cannot take advantage of the terms of the contract which benefit it, and cannot recover damages from the other party.  The General Contractor recovered a judgment for $27,500,000 against the Subcontractor.  But the Subcontractor was allowed to recover unpaid subcontract balances totaling $4,771,000 under the theory of Quantum Meruit which provides for reasonable compensation for value provided over and above the injury suffered by reason of the Subcontractor's breach.  That judgment was also upheld under the theory of Unjust Enrichment.  No Set-offs were allowed.  LB Steel v. Carlo Steel Corp. (Illinois Appellate Court, 1st dist., Sept. 2018).

Common car accident causes

Many people in Illinois get in their cars every day and drive to work, school or to run errands. However, driving is perhaps one of the most dangerous things you can do. In 2016 there were 324,473 motor vehicle crashes in Illinois, including 1,000 fatal accidents.

Automobile Repairs Without FIrst Providing a Written Estimate Violates Illinois Law

The Illinois Automotive Repair Act requires a written estimate before repairs are performed.  Exceptions apply for (1) Commercial fleet repairs and (2) ongoing service or maintenance.  The Customer may also sign a written waiver agreeing that an estimate is not required.  The Illinois Appellate Court recently ruled that it is not necessary to prove that the repair shop knew of the Statute.  It is only necessary to prove that the repair shop acted intentionally, and the mechanic's statement that he was too busy to provide an estimate before performing $9,000 worth of repairs meets the requirementy of intentional conduct.  A violation of the Automotive Repair Act also constitutes a violation of the Illinois Consumer Fraud Act, permitting awards for Attorneys Fees and Punitive Damages.   Bell v. Ring.  ( Ill. App.  3d dist, Sept. 2018).

David M. Duree and Associates, P.C.
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