James P. Kenny the newest member of Airdo Werwas, LLC, obtained a verdict for one of our General Contractor clients against a subcontractor that had sued claiming that it had been inappropriately locked out of three job sites and was not paid for completed work in excess of $300,000.
In addition to having the judgment entered in our client’s favor on all of the subcontractor’s causes of action, we also received a verdict against the subcontractor in the amount of $289,243.46, which represented the costs and expenses incurred by our General Contractor client in having to repair the shoddy workmanship of the subcontractor in order to complete the three projects after the subcontractor was removed from the three job sites.
Judge James Snyder, Associate Judge for the Circuit Court of Cook County’s Commercial Calendar, presided over this four day Zoom trial. Mr. Kenny explained that this trial was uniquely positioned for a successful Zoom trial, given that at least one of the witnesses and an interpreter were located in Poland at the time of trial He also explained that Zoom allowed him to be able to focus the attention of the Judge and the witnesses on specific photographs that helped explain the reason the subcontractor was removed from the job sites, and on the extent that the work completed by the subcontractor was not properly completed.
The judgment was entered in our client’s favor on the subcontractor’s three causes of action: Breach of Contract for an Alleged Oral Agreement, Breach of Contract of a Written Agreement, and Quantum Meruit (equitable) Claim. Our one count Counterclaim was for breach of the written subcontractor agreement in the amount of $289,243.46.
This General Contractor had basically decided after removing the subcontractor from the site that it was simply glad that it was then able to get the three projects back on track to be timely completed. It had no desire to pursue the subcontractor for recovery. It was not until the subcontractor sued them and after consulting with Mr. Kenny that it was determined that, in fact, the subcontractor’s workmanship was a breach of their subcontractor agreement and that our client would be able to collect for its consequential damages in having to repair the original work of the subcontractor. Mr. Kenny said that “sometimes the best defense is a good offense.” He added that this is the case only were the facts are well supported by the evidence, which we were the facts in our case.
If you are a general contractor that finds itself in a similar situation, then please contact Airdo Werwas, LLC, about scheduling a meeting so that Mr. Kenny or any of our other well qualified attorneys can consult with you on the defense of breach of contract claim or the possibility of putting together a recovery plan and strategy.
Airdo Werwas has successfully defended clients including attorneys and other professionals in lawsuits arising out of allegations of breach of fiduciary duties, non-compete agreements, violations of the Illinois Trade Secrets Act, and the Federal Computer Fraud and Abuse Act. The key to the defense of these lawsuits is a strong tenacious defense that attacks the allegations at the heart by establishing the innuendo and conjecture are not the same thing as evidence needed to prove the very serious allegations.
One such case filed in the Northern District of Illinois involved allegations by a Fortune 100 Company against one of its former Sales Managers who allegedly orchestrated a “corporate raid.” Allegedly the Sales Manager raided confidential information, employees, customers, and trade secrets. The employer also alleged that the former employee absconded with data storage and “SIM cards” from the Company-issued Blackberry phones. Although the allegations against the Sales Manager proved frivolous, a strong defense was necessary.
Another such case was filed in the Circuit Court of Cook County Illinois. It involved a former law firm “partner” who allegedly breached his fiduciary duties when he allegedly interfered with the business opportunities of his former employer by enticing former clients to his new law firm. Once again the lawsuit proved frivolous after waging a strong defense to the allegations in the complaint.
On the other hand, an employer that wages a war against an employee to avoid paying severance and other benefits can be costly. One such case was prosecuted by Airdo Werwas that involved a breach of employment contract, defamation, and intentional infliction of emotional distress. The result against the former employer who set up a pretext for termination Cook County Jury Verdict in excess of $3 million.
James P. Kenny has successfully prosecuted first-party property claims. One such case involved a policyholder. The Insurance Company wrongly denied paying the benefits under the policy that covered the structure and contents because it alleged the fire was caused by arson and in its mind, the insured had a motive for wanting to start it. It told the insured we will not pay the claim because we suspect you started it. Airdo Wewas filed a lawsuit to establish that the insurance company had no direct evidence the insured started the fire and it was actually more probable than not that one of the gangs in the neighborhood was the actual cause of the fire in retaliation for the insured’s active involvement in the Chicago Neighborhood Watch Program. After written and oral discovery concluded, the case successfully settled in the insured’s favor in a case the insurance carrier was previously refusing to pay.
Defense of an insurance broker in a lawsuit filed by a State Liquidator on behalf of a Bankrupt Insurance Company in the U.S. District Court for the Northern District of Illinois relating to an alleged breach of a Management Agreement concerning a fronting arrangement involving a Bermuda Captive.
Michael A. Airdo and Brian J. Hingston prevailed in another victory in the Troy v. Bishop Guertin High School case in New Hampshire. Earlier this year, Michael and Brian, along with local counsel in New Hampshire, prevailed on their summary judgment motion. The Court agreed that the Plaintiff’s case was barred by the statute of limitations. That ruling is significant for its precedential value in upholding the statute of limitations.
Plaintiff subsequently filed a Motion to Reconsider. The Court entered a Notice of Decision denying that Motion, as well. In the Motion to Reconsider, Plaintiff raised several new arguments for the first time and cited several new cases that had not previously been raised in this case. The Judge rejected those arguments and the significance of the newly cited cases and maintained the original ruling of summary judgment for the Defendants.
The 1st District Appellate Court affirmed summary judgment in favor of Defendant Temperance Beer Company. Jorge Tafoya-Cruz & Dulce James v. Temperance Beer Company, LLC, 2020 IL App (1st) No. 1-19-0606. The defendant was represented by Mollie N. Werwas, and Amanda Walsh of Airdo Werwas, LLC. The Appellate Court agreed that the trial court had properly granted Temperance’s Motion for Summary Judgment and denied Plaintiff’s Motion for Reconsideration. At issue was whether Temperance had notice of liquid claimed to be on the taproom’s restroom floor, allegedly causing Plaintiff’s fall. The Appellate Court found the trial court properly decided there was no evidence presented about how long a liquid had been on the floor, or even what the liquid was, and so Plaintiff did not meet his evidentiary burden to prove constructive notice.
The Appellate Court also held the trial court properly denied Plaintiff’s Motion for Reconsideration because Plaintiff presented a new legal theory in that motion. The new theory, that water allegedly dripping on the floor created a recurring dangerous condition, was waived because the plaintiff only raised this issue for the first time on a motion to reconsider. Additionally, the Court rejected Plaintiff’s proposition that an employee’s unofficial inspection policy imposes an obligation on a business, independent from common law. To view the Court’s opinion, click here.
Michael A. Airdo recently won summary judgment for its pharmacy client. Plaintiff, a 42 year old union electrician, alleged that he suffered tardive dyskinesia as a result of taking the medication Reglan for an extended period of time. Tardive dyskinesia causes uncontrollable stiff, jerky movements of various parts of the body. As a result, plaintiff claimed that he was permanently disabled and unable to continue to work as an electrician. His wife also filed suit for the loss of his consortium due to his claimed disabilities. On September 29, 2017, Judge William E. Gomolinski granted summary judgment on behalf of Airdo Werwas’s client, a major national retailer and pharmacy chain and recently denied plaintiffs’ motion for a rehearing.
Plaintiff was diagnosed with gastroparesis in 2008. He started taking Reglan (“Metoclopramide”) in 2008, until he was diagnosed with tardive dyskinesia in 2014. Plaintiff claimed that the FDA issued the following “black- box” warning in 2009:
“WARNING: TARDIVE DYSKINESIA”
Treatment with metoclopramide can cause tardive dyskinesia, a serious movement disorder that is often irreversible. The risk of developing tardive dyskinesia increases with duration of treatment and total cumulative dose.
Metoclopramide therapy should be discontinued in patients who develop signs or symptoms of tardive dyskinesia. There is no known treatment for tardive dyskinesia. In some patients, symptoms may lessen or resolve after metoclopramide treatment is stopped.
Treatment with metoclopramide for longer than 12 weeks should be avoided in all but rare cases where therapeutic benefit is thought to outweigh the risk of developing tardive dyskinesia.
Plaintiffs contended that the pharmacy should not have filled the script for metoclopramide for more than 12 weeks without verbally warning the customer about the duration warning for metoclopramide. Plaintiffs further argued that the pharmacy should not have filled the medication order for six years without first calling the customer’s physician to inquire about the extended duration of metoclopramide therapy. In granting the motion for summary judgment, the court stated, “[a]ccordingly, Plaintiff’s proposed extension of the pharmacist’s duty exceeds the limited scope of the contraindication exception defined in Happel. Moreover, dispensing a drug in excess has been consistently ruled by Illinois courts not to be a determination made by the pharmacist.”