Every Employer (including Law Firms & their Business Clients) Should Have an Anti-Sexual Harassment Policy in Place. The U.S. Supreme Court has ruled that an employer may avoid vicarious liability for the sexual harassment of its employees if (1) a published company policy opposing sexual harassment is adopted and published; and (2) the employee failed to take advantage of the policy and its procedures. However, such allegations would constitute an affirmative defense only in a case where no tangible job detriment was suffered by the affected employee. Burlington Industries, Inc. v. Ellerth , appealed from 7th Circuit, No. 97-569, and Faragher v. Boca Raton , No. 97-282, both Decided June 26, 1998.
Agreed Installment Payment Judgment Order With One Debtor Not Accord & Satisfaction as to co-Debtor Where Payment Schedule Not Met. Where wife failed to pay according to agreed judgment order installment payment schedule, creditor could proceed against husband for entire debt, even though in marital dissolution, wife was to pay debt. Separate default judgment entered against husband, and nothing in record indicated creditor's intent to accept wife's agreement in satisfaction of debt. Collection Professionals, Inc. v. Logan, No. 4-97-0842 (3d Dist., May, 1998)
Known-Loss Doctrine; Corrected Opinion. Summary Judgment should not have been granted on Known-Loss doctrine which provides that where insured knows when it purchases a liability policy that there is a substantial probability that it will suffer a loss, the loss is not a contingent risk, and therefore is not covered under the policy. Even though insured knew, upon purchase of industrial property, of presence of undetermined amount of creosote, such knowledge did not constitute knowledge of substantial probability that claim would be brought by CERCLA. St. Paul Fire & Marine Insurance Co., et al vs. Letton Iron & Metal Co., et al, No. 5-96-0130 (5th Dist. May, 1998)
Employer's Defamatory Remarks, through Truthful, May Give Rise to Cause of Action for Infliction of Emotional Distress. Although bank president's statements that he had fired Plaintiff for "touching women" was true, where defendant admitted the touching but denied that it was sexual in nature, but where others interpreted the president's remarks to mean that Plaintiff had been guilty of sexual harassment, such conduct could give rise to a cause of action for infliction of emotional distress. President's remarks, needlessly published to non-officer employees and others, were strongly susceptible of misinterpretation. Parker vs. Bank of Marion,, No. 5-97-0104, ( 5th Dist., June 16, 1998)
Contract Which May Be Terminated for Specific Breaches is Terminable at Will, and Not Only for Cause. Where parties to contract provide that contract "may" be terminated for specific list of material breaches, contract is indefinite in duration and therefore terminable at will, and not only for cause. Language "may" is permissive, inferring there may be other grounds; and listed breaches, if material breaches, would, by themselves, be cause for termination. Jespersen vs. Minnesota Mining & Manufacturing Co.,No. 83728, Decided June 18, 1998.
Injury Subject to 4 Year Statute of Limitations Under U.C.C. Injured Plaintiff employee of bar, who brought action against manufacturer of door in bar counter, could state claim for breach of implied warranty of merchantability, so that applicable statute of limitation was 4 years under 810 ILCS 5/2 725 (1), and not 2 years under 735 ILCS 5/13-202. Maldonado vs. Creative Woodworking Concepts, Inc., No. 3-97-0334, (Ill.App. 3rdt Dist. 1998)
Plaintiff Employee is 3rd Party Beneficiary of Warranty Between Manufacturer and Employer. The safety of Plaintiff-Employee was implicit in contract for sale between Manufacturer and Employer, so that Plaintiff-Employee could claim to be 3rd party beneficiary of warranty given by Manufacturer to Employer. Maldonado vs. Creative Woodworking Concepts, Inc., No. 3-97-0334, (Ill.App. 3rdt Dist. 1998).
Valid Arbitration Agreement Compels Non-Signatories to Arbitrate. Rejecting precedent in J.F. Inc. v. Vicik, 99 Ill. App. 3d 815, 426 N.E.2d 257, 55 Ill.Dec. 282 (5th Dist., 1981), the Illinois Supreme Court has ruled that once the trial court determines that a valid arbitration agreement exists, the Court may be compelled to order arbitration, even for those parties who were non-signatories to the arbitration agreement. Remanded for further proceedings. Board of Managers of the Courtyards at Woodlands Condominium Association vs. IKO Chicago, Inc., et al, No. 83578, June 18, 1998.
Knowing Receipt of Benefits of Another's Fraud Not Actionable Under Consumer Fraud Act. List of actionable conduct in Illinois Consumer Fraud and Deceptive Business Practices Act, although not exclusive, is limited to actions of perpetrator of fraud. Therefore, telephone company's receipt of benefits from fraud allegedly perpetrated by marketing firm which mailed notices of free gifts, then billed customers for 900 number calls, not actionable against telephone company under the Act.Zekman vs. Direct American Marketers, Inc., 1998 WL 257013, Ill. Sup. Ct.)
Federal Products Liability Legislation Pending. From James Covington, ISBA's Director of Legislative Affairs (E-mail address "Jcoving@isba.org" , the following message: At 9:30 am on Tuesday, July 7, the United States Senate will vote on a Motion to Proceed to the Product Liability Bill. It's known as a cloture vote. The Senate is in recess until July 6. More information about the products liability bill is available on ATLA's public home page: http://www.atlanet.org