By Courtney E. Dunn, of Segal McCambridge
Professional softball player Emily Allard played for the Chicago Bandits from 2014 to 2016. The Chicago Bandits is a professional women’s softball team affiliated with the National Pro Fastpitch League, and operated and maintained by NPF Franchising, LLC (“NPF”). When Allard re-signed with the Bandits in 2016,[1] she executed the NPF team uniform player contract, which confirmed that the parties were also bound by the NPF Player’s Manual for 2016. At that same time, Allard claimed she was assured that the Bandits maintained active workers’ compensation insurance in compliance with the 2016 NPF manual and also provided secondary medical insurance for its players.
During a game against the Akron Racers at Firestone Stadium on June 14, 2016, Allard ran to catch a fly ball and collided with the fence lining the edge of the field. After the fall, she was able to return to standing position and, at first, felt well enough to return a thumbs-up sign to her fellow players and head coach. But, when she started to walk back to her field position, she began to see stars, felt nauseous, and had a headache with ringing in her ears, realizing that she needed to seek treatment from the team trainer. That treatment was limited to ibuprofen and sitting out the rest of the game.
Allard’s symptoms persisted, and the Bandits doctor placed her on “concussion protocol” for about 10-12 days. Eventually, on July 24, 2016, the Bandits terminated its contract with Allard and released her as “unable to play,” while Allard continued to undergo extensive therapy at her own expense.
In 2017, Allard returned to the Bandits, which by then had then changed ownership to the Village of Rosemont. Unfortunately, her concussion symptoms returned and she saw a neurologist referred by the team doctor. To her surprise, the hospital refused to accept her primary insurance and denied her secondary insurance through the Bandits.
As a result of the hospital’s denial, the Bandits filed a workers’ compensation claim with its insurance carrier for Allard’s concussion injury, but was informed that its policy had lapsed from September 12, 2015 through July 12, 2016. What was the reason for the lapse? The former team owner had failed to pay insurance premiums for nearly one year. Allard’s 2017 contract with the Bandits was then terminated.
On June 14, 2019, Allard filed an initial complaint, which she amended on October 31, 2019 in order to add a negligence claim with the Village of Rosemont as the defendant. The Circuit Court dismissed Allard’s negligence claims with prejudice as time-barred under section 13-202 of the Code of Civil Procedure. Additionally, the Circuit Court dismissed her claims for negligence, breach of contract, breach of fiduciary duty, promissory estoppel, breach of implied covenant of good faith and fair dealing, fraud, fraud in the inducement, fraudulent concealment, and unjust enrichment against the Bandits for lack of jurisdiction under the Workers’ Compensation Act.
Facing denials across the board, Allard appealed, presenting the Court with two issues: (1) did the Circuit Court err in dismissing negligence claims against the Village of Rosemont and NPF Franchising, LLC as time-barred, because the discovery rule postponed the commencement of limitations period of her claims; and (2) did the Circuit Court err in dismissing claims against the Chicago Bandits for lack of jurisdiction because her claims fall under exceptions to the exclusive remedy provision of the Workers’ Compensation Act?
Dismissal Based on Statute of Limitations and Jurisdictional Grounds
An action for personal injury must be filed within two years after the cause of action accrued. See 735 ILCS 5/13-202. However, the common-law discovery rule delays commencement, so the limitations period starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. See Knox College v. Celotex Corp., 88 Ill. 2d 407, 414, 430 N.E.2d 976, 58 Ill. Dec. 725 (1981). The question, then, is when did the clock start running? To Allard, the statute of limitations period did not start running on June 14, 2016 because her injury was the result of “several ostensibly innocuous circumstances” rather than a “sudden traumatic event.” This is an important distinction because, when an injury is proven to be the former, the cause of action accrues when the plaintiff knows or reasonably should know that he has been injured by the wrongful conduct of another. See VaSalle v. Celotex Corp., 161 ILL. App. 3d 808, 515 N.E.2d 684, 113 Ill. Dec. 699 (1987).
The Court rendered an interesting analysis on this argument, pointing to the 2016 NPF manual, of which Allard had a copy, which required softball field fencing to be 6 feet or higher. The Court found that, when she collided with the fence which reached only her waist,[2] she knew or should have known that the fencing was in violation of NPF standards. This, coupled with the fact that Allard did not allege repetitive and cumulative concussive trauma throughout her softball career, led the Court to find that Allard’s injury was a “sudden traumatic event” rather than a result of “several ostensibly innocuous circumstances.”
However, even if Allard’s injury was as “sudden” and “traumatic” as they come, that rule does not bar her negligence claim against NPF related to its negligent failure to ensure that its teams maintained an active workers’ compensation insurance. Allard did not know, nor could she have reasonably known, that the team’s policy had lapsed at the time of her injury. She was not expected to investigate whether premiums were being paid, leaving her to learn of the lapse only when the insurer denied the claim. Therefore, the cause of action based upon this line of facts could not have accrued on the date of her concussion. Rather, it accrued when Allard was informed of the insurance claim denial on June 14, 2017. Allard filed her initial complaint within the two-year period, on June 14, 2019, so her negligence claim against NPF related to the failure to ensure its teams’ active insurance status was not time-barred.
On that same note, Allard’s cause of action against the 2017 Bandits owner, the Village of Rosemont, did not accrue on June 14, 2016, but in June of 2017, when it assigned her to play multiple games while still injured. Still, the Court held that this claim is time-barred because Allard did not add the Village of Rosemont as a defendant until the filing of the first amended complaint, which was on October 31, 2019. This, of course, exceeded the two-year limit.
Workers’ Compensation Act
Allard’s next play was to argue that the Circuit Court erred in dismissing her claims against the Bandits for lack of jurisdiction because her claims fall outside of the Workers’ Compensation Act. When an employee commences an action against her employer, the Workers’ Compensation Act requires “exclusive resort” to the workers’ compensation remedy for an injury arising out of and in the course of employment covered by the Act.” See Garland v. Morgan Stanley & Co. Inc., 2013 IL App (1st) 112121. Allard, then, had the burden of proving that the injury either: (1) was not accidental; (2) did not arise out of employment; (3) was not incurred during the course of employment; or (4) was not compensable under the Act. See Meerbrey v. Marshall Field and Co., Inc., 139 Ill. 2d 455 (1990).
Allard argued that her injury did not arise out of her employment with the Bandits because her claims arise out of her relationship with her employer rather than a workplace injury. The Court did not agree, holding that each of Allard’s claims arise out of her concussion – not out of the failure to maintain workers’ compensation insurance. The Court further disagreed with Allard’s contention that her breach of contract claims involve an interpretation of contract provisions. Instead, the Court found her allegations straightforward – the Bandits agreed to provide and maintain workers’ compensation insurance and failed to do so. Finally, Allard argued that her fraud claims were not barred by the exclusive remedy provision because they are intentional torts. In short, Allard argued that the defendants acted with specific intent to injure the employee, but she did not set forth facts to support that argument. In fact, the basis of her fraud claim was that the Bandits acted fraudulently when it told her about its insurance status, which led her to play on that team.
On appeal, the judgment of the Circuit Court was affirmed in part and reversed in part. Allard’s negligence claim against NPF related to failure to ensure the teams’ active workers’ compensation insurance status was remanded for further proceedings.
Reference: Allard v. NPF Franchising, LLC, 2023 IL App (1st) 220335-U
[1] In 2016, the Chicago Bandits were owned by Bill Sokolis.
[2] Allard was approximately six feet tall.
