Allard v. NPF Franchising, LLC , 2023 IL App (1st) 220335-U ( 2023 )

2023 IL App (1st) 220335-UNo. 1-22-0335
Order filed March 31, 2023
FIFTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
EMILY ALLARD, )
)
Plaintiff-Appellant, ) Appeal from the
) Circuit Court of
v. ) Cook County.
)
NPF FRANCHISING, LLC; CHICAGO )
BANDITS, LLC, d/b/a “Chicago Bandits”; ) No. 2019 L 6672
VILLAGE OF ROSEMONT; FASTPITCH )
PARTNERS, LLC, d/b/a “Akron Racers”; CITY )
OF AKRON; BILL SOKOLIS; AARON ) Honorable
MOORE; CHERI KEMPF; and TONI ) Diane M. Shelley,
CALMEYN, ) Judge presiding.
)
Defendants )
)
(NPF Franchising, LLC; Chicago Bandits, LLC, )
d/b/a “Chicago Bandits”; Village of Rosemont; )
Bill Sokolis; Aaron Moore; and Toni Calmeyn, )
)
Defendants-Appellees.) )
JUSTICE MITCHELL delivered the judgment of the court.
Presiding Justice Delort and Justice Lyle concurred in the judgment.
ORDER
¶1 Held: We affirm the dismissal of most of plaintiff’s claims sounding in negligence as time-
barred as well as the dismissal for want of jurisdiction based on the exclusive remedy
No. 1-22-0335
provision of the Workers’ Compensation Act. We reverse, however, the dismissal of a
negligence claim for failing to maintain workers’ compensation coverage.
¶2 Emily Allard appeals an order dismissing her claims arising from a concussion suffered
while playing softball. She raises 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? 1 For the following reasons, we affirm in part and reverse in part.
¶3 BACKGROUND
¶4 A 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, operated and maintained by NPF Franchising, LLC.
¶5 The Chicago Bandits drafted Allard in 2014, and after a successful year, she re-signed with
the team for the 2016 season and executed the NPF team uniform player contract, which provided
that the parties were also bound by the NPF Player’s Manual for 2016. At the time of her signing,
the Bandits informed Allard that the team maintained active workers’ compensation insurance in
compliance with the 2016 NPF manual. The Bandits also promised Allard that it would provide
secondary medical insurance for the players. At that time, Bill Sokolis owned the team, and Aaron
Moore served as its general manager.
1
Bill Sokolis, Aaron Moore, and Toni Calmeyn each argue that any argument concerning claims
against them (counts XVIII and XIX) are forfeited. The dismissal of those claims is not part of this appeal.
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¶6 On June 14, 2016, the Bandits traveled to Akron, Ohio to play against the Akron Racers at
Firestone Stadium. At one point during the game, Allard ran to catch a fly ball and collided with
the fence at the edge of the field. The fence caught her at her waist, and her six-foot-tall frame
doubled over, with her head down and her feet lifted off the ground. She then returned to a standing
position. Her fellow players and head coach checked on her from across the field with a thumbs-
up signal, and Allard, having no apparent injuries at that moment, returned the thumbs-up.
However, as she walked back to her position, Allard began to see “stars” and realized that she
needed medical assistance. The game resumed, and she left the field to talk to the team trainer
about her symptoms, which included nausea, headache, stars in her vision, and ringing in her ears.
The trainer gave her some ibuprofen, and she did not return to the game.
¶7 Allard’s condition went untreated for another day, and the Bandits played a second game
in Ohio. Upon the team’s return home, the Bandits doctor placed Allard on “concussion protocol,”
which prohibited Allard from attending games or practices. She remained on the protocol for
approximately 10-12 days. Afterwards, Allard attempted to return to her sports routine, but her
concussion symptoms immediately returned and worsened. On July 24, 2016, the Bandits
terminated its contract with Allard and released her as “unable to play” based on her injury.
Through the remainder of 2016 and 2017, she went through extensive therapy at her own expense.
¶8 In summer of 2017, Allard returned to the Bandits under a new contract. By 2017, the
Bandits had gone through a change in ownership: the Village of Rosemont now owned the team
with Toni Calmeyn as the new general manager. When Allard began practice, her concussion
symptoms returned almost immediately. She communicated these symptoms to the ownership, but
the Village and Calmeyn nonetheless cleared her to continue playing. In the first game after her
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return, the symptoms adversely affected her performance. The ownership changed her position to
an offensive position from her usual defensive position for the next two games.
¶9 At the start of the 2017 season, Allard saw a neurologist referred by the team doctor. When
she provided her medical insurance information, the hospital would not accept her primary
insurance, and it also declined her secondary insurance through the Bandits. Allard reached out to
Calmeyn, prompting her to investigate the team records from the old ownership. Calmeyn
instructed Allard to sit out of games until they resolved the insurance issue.
¶ 10 On June 7, 2017, the Bandits filed a workers’ compensation claim with its insurance carrier,
Liberty Mutual, for Allard’s concussion injury. The insurance adjuster informed the team that its
policy had lapsed from September 12, 2015 through July 12, 2016. Calmeyn informed Allard that
her injury was not covered because the former team owner had failed to pay insurance premiums
for nearly one year. Subsequently, Allard’s 2017 contract with the Bandits terminated.
¶ 11 In late May of 2019, Allard spoke to a former owner of the Akron Racers, Joey Arrietta.
Arrietta informed Allard that safety improvements had been made to the fencing at Firestone
Stadium and said, “The new fencing was done because of you.”
¶ 12 On June 14, 2019, Allard filed her initial complaint, and on October 31, 2019, she filed the
first amended complaint, adding a negligence claim with the Village of Rosemont as the defendant.
After extensive briefing, the circuit court dismissed negligence claims against the Village and NPF
Franchising, LLC with prejudice as time-barred under section 13-202 of the Code of Civil
Procedure. 735 ILCS 5/13-202 (West 2018). The circuit court also dismissed 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,
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and unjust enrichment against the Bandits for lack of jurisdiction under the Workers’
Compensation Act. 820 ILCS 305/1 et seq. (West 2018). The circuit court denied Allard’s motion
to reconsider. The circuit court’s subsequent orders dismissed the remaining claims, and Allard
timely appealed. Ill. S. Ct. R. 303(a) (eff. July 1, 2017).
¶ 13 ANALYSIS
¶ 14 Allard appeals the dismissal of her claims on statute of limitations and subject matter
jurisdiction grounds. 735 ILCS 5/2-619 (West 2018). When considering a motion to dismiss under
section 2-619, a court must accept as true all well-pleaded facts in the complaint, as well as any
inferences that may reasonably be drawn in plaintiff’s favor. Sandholm v. Kuecker, 2012 IL
111443, ¶ 55. A dismissal based on section 2-619 is reviewed de novo. DeLuna v. Burciaga, 223
Ill. 2d 49, 59 (2006).
¶ 15 A. Statute of Limitations
¶ 16 Allard argues that the circuit court erred in dismissing her negligence claims against the
Village of Rosemont and NPF Franchising as time-barred because the limitations period began to
run not on the date of her concussion injury, but later. An action for personal injury must be filed
“within 2 years next after the cause of action accrued.” 735 ILCS 5/13-202 (West 2018). However,
the common-law discovery rule delays commencement of the applicable limitations period. Knox
College v. Celotex Corp., 88 Ill. 2d 407, 414 (1981). Under the discovery rule, 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.” Id. at 415.
¶ 17 Allard contends that the statutory limitations period did not start to run on June 14, 2016,
the date of her concussion, because her injury was not a “sudden traumatic event” but the result of
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“several ostensibly innocuous circumstances.” This distinction is significant because where the
plaintiff’s injury is caused by a “sudden traumatic event,” the cause of action accrues—and the
statute of limitations begins to run—on the date that the injury occurs. Golla v. General Motors
Corp., 167 Ill. 2d 353, 363 (1995). On the other hand, when a plaintiff’s injury is a result of “several
ostensibly innocuous circumstances,” the cause of action accrues when the plaintiff knows or
reasonably should know that he has been injured by the wrongful conduct of another. VaSalle v.
Celotex Corp., 161 Ill. App. 3d 808 (1987) (“[W]here a plaintiff’s injury is latent, that is, does not
manifest itself until some time after defendant’s wrongful act occurred, the plaintiff’s cause of
action is said to accrue when plaintiff knows or reasonably should know he has been injured by
the wrongful conduct of another.”); see also Nakamura v. BRG Sports, LLC, 2019 IL App (1st)
180397, ¶ 19.
¶ 18 NPF Franchising argues that Allard forfeited the issue of whether her concussion injury
was a “sudden and traumatic event” because she failed to argue the issue to the circuit court in her
response to motions to dismiss. In fact, in her combined response to NPF Franchising’s motion to
dismiss, Allard did raise the issue of when the statute of limitations for her claims began to run,
the underlying issue prompting the discussion of a “sudden traumatic event” versus “several
innocuous circumstances.” NPF Franchising’s own reply as well as the circuit court’s written
ruling referenced the “sudden traumatic event” language from Golla v. General Motors Corp. (167
Ill. 2d 353 (1995)) Allard had already relied on, and it should not take NPF Franchising by surprise
that she now discusses the case more in depth. Accordingly, we address the issue on its merits.
¶ 19 Allard characterizes her injury as starting with a whiplash that led to “a worsening and
pervasive concussion injury” through a series of allegedly wrongful acts of defendants. She alleged
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that the Bandits personnel did not immediately treat her after the concussion, that she was not
taken to a doctor for a few days following the incident, and that the Bandits assigned her to
continue playing for games in the 2017 season despite her symptoms. By her own words, Allard’s
injury resulted from a single instance of whiplash and worsened over time. That the plaintiff did
not realize the consequences or the full extent of her injury at the moment of the injury does not
postpone the accrual of her claim. Golla, 167 Ill. 2d at 364. Indeed, Allard alleged that within
minutes after the whiplash, she began to see stars in her vision and realized that she needed medical
attention. Without question, there was “an injury of some magnitude” (Id. at 365), of which Allard
was almost immediately aware. Plainly, this factual pattern is what the Golla court contemplated
in discussing the rationale underlying the “sudden traumatic event” rule: “the nature and
circumstances surrounding the traumatic event are such that the injured party is thereby put on
notice that actionable conduct might be involved.” Id. at 363.
¶ 20 It was also apparent that Allard was on notice, at that moment, of NPF Franchising’s
conduct. Her allegations against NPF Franchising include its failure to provide a safe workplace
with safe fencing and failure to require the teams to implement concussion protocols as soon as a
player sustained an injury. When Allard signed with the Bandits for the 2016 season, the Bandits
gave her a copy of the 2016 NPF manual, which required fencing of softball fields to be 6 feet or
higher. Thus, when she collided with the fencing that only stood at her waist level, she knew or
should have known that the fencing height failed to comply with NPF’s own standards. The fact
that she obtained actual knowledge about the noncompliant fencing three years after the injury is
immaterial. See SK Partners I, LP v. Metro Consultants, Inc., 408 Ill. App. 3d 127, 130 (2011)
(“under the discovery rule, a statute of limitations may run despite the lack of actual knowledge of
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negligent conduct” (emphasis in original)). Further, she knew instantly that no team or league
personnel came to check on her immediately after the whiplash.
¶ 21 Allard’s injury is therefore distinguishable from an injury that is the result of “several
ostensibly innocuous circumstances” discussed in cases involving latent brain injuries from sports.
See Nakamura, 2019 IL App (1st) 180397; see also Butler v. BRG Sports, LLC, 2019 IL App (1st)
180362; Rose v. National Collegiate Athletic Ass’n, 346 F. Supp. 3d 1212 (N.D. Ill. 2018). In
Nakamura, the plaintiff, a former football player, complained of the long-term, latent brain damage
suffered as a result of repeated head trauma. Nakamura, 2019 IL App (1st) 180397, ¶¶ 18, 21. The
court refused to apply the “sudden traumatic event” rule under Golla because the plaintiff was
“seeking recourse for repetitive concussive and subconcussive trauma experienced while playing
football,” not for the consequences of a single concussion. (Emphasis added.) Id. ¶ 26. The
plaintiff’s knowledge of one severe concussion was not relevant because the basis of his case was
not an injury resulting from that single incident but the latent brain injury that manifested over
several years as a result of “repeated and cumulative effect of concussions.” (Emphasis added.) Id.
¶¶ 28-29 (“CTE and other head-trauma-induced neurodegenerative diseases generally do not result
from a single concussion.); see also Butler, 2019 IL App (1st) 180362, ¶ 33 (observing that the
basis of the case was the “several innocuous” brain traumas over the years and the slow-developing
neurodegenerative disorders); Rose, 346 F. Supp. 3d at 1222-23 (the plaintiffs alleged that the
athletes experience an increased risk of developing neurodegenerative diseases caused by
repetitive and cumulative brain trauma and that they may display no immediately noticeable
symptoms). In contrast, Allard’s injury is based on one discrete concussion and the consequences
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arising from it. She did not allege any other concussions sustained while playing softball or that
her injury is a latent brain injury resulting from repetitive head trauma.
¶ 22 However, the application of the “sudden traumatic event” rule does not bar Allard’s
negligence claim against NPF Franchising in its entirety. The claim included allegations that NPF
Franchising negligently failed to ensure that its teams maintained an active workers’ compensation
insurance. Here, Allard could not have known that the team’s workers’ compensation insurance
lapsed at the time of her injury until the insurer denied the claim and that denial was communicated
to her. Knox College, 88 Ill. 2d at 415 (the limitations period starts to run when a person “also
knows or reasonably should know that it was wrongfully caused”). Consequently, the cause of
action based on this conduct could not have accrued on June 14, 2016, the date of the concussion.
The Bandits’ general manager (Calmeyn) informed Allard of the insurance claim denial on June
14, 2017, and she filed her initial complaint on June 14, 2019. Because the action was filed within
the two-year limitations period, Allard’s negligence claim against NPF Franchising is not time-
barred to the extent that it alleges NPF Franchising’s negligence in failing to ensure its teams’
active insurance status.
¶ 23 Likewise, Allard’s cause of action against the Village of Rosemont did not accrue on June
14, 2016, but in June 2017 when the Village assigned her to play multiple games despite her injury.
However, the Village argues that the claim is time-barred on a different ground—that Allard did
not add the Village as a defendant until the filing of the first amended complaint on October 31,
2019, more than two years from June 2017.2
2
The Village also asserts that the claim is subject to one-year limitations period under the Local
Governmental and Governmental Employees Tort Immunity Act. We need not reach this argument because
the claim is time-barred even when applying the longer two-year limitations period.
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¶ 24 Section 2-616(d) governs when the addition of a defendant relates back to the timely filed
complaint so as to avoid the affirmative bar of the statute of limitations. 735 ILCS 5/2-616(d)
(West 2018). This relation-back statute is plainly inapplicable. The statute only applies where a
plaintiff has made a mistake in identifying a defendant, not when he failed to join a proper
defendant. Id.; Mann v. Thomas Place, L.P., 2012 IL App (1st) 110625, ¶ 23. This failure to timely
include a defendant does not constitute a mistake concerning the identity of a proper party for
purposes of the relation-back statute. Therefore, Allard’s negligence claim against the Village is
barred by the statute of limitations.
¶ 25 B. Workers’ Compensation Act
¶ 26 Allard argues 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. The
Workers’ Compensation Act was enacted “to abrogate the common law rights and liabilities which
previously governed an injured employee’s ability to recover against his employer.” Sharp v.
Gallagher, 95 Ill. 2d 322, 326 (1983); see also 820 ILCS 305/1 et seq. (West 2014). The Act
specifically provides that the statutory remedies under the Act are to serve as the employee’s
exclusive remedy if he sustains a compensable injury:
“[N]o common law or statutory right to recover damages from the employer *** for injury
or death sustained by any employee while engaged in the line of his duty as such employee,
other than the compensation herein provided, is available to any employee who is covered
by the provisions of this Act ***.” 820 ILCS 305/5(a).
In an employee’s action against an employer, the Act requires “exclusive resort” to the workers’
compensation remedy for any injury arising out of and in the course of the employment covered
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by the Act. Garland v. Morgan Stanley & Co., Inc., 2013 IL App (1st) 112121, ¶ 24. In order to
circumvent this bar on common law actions, a plaintiff must allege and prove 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. Meerbrey v. Marshall Field and Co.,
Inc., 139 Ill. 2d 455, 463 (1990).
¶ 27 First, Allard contends that her injury did not arise out of her employment with the Bandits
because her claims arise out of her relationship with the employer, not out of a workplace injury.
An injury arises out of employment when “the injury had its origin in some risk connected with,
or incidental to, the employment so as to create a causal connection between the employment and
the accidental injury.” McAllister v. Illinois Workers’ Compensation Commission, 2020 IL
124848, ¶ 36. Whether characterized as fraud claims, contract claims, or equitable claims, all of
Allard’s claims against the Bandits, in essence, point to her injury deriving from the June 14, 2016
concussion. She alleged in each of these claims that the Bandits failed to maintain workers’
compensation insurance and that, as a result, she was not properly compensated for a career-ending
concussion injury. See James v. SCR Medical Transportation, Inc., 2016 IL App (1st) 150358, ¶ 9
(rejecting the employee’s argument that he is suing for the employer’s failure to maintain insurance
coverage and observing that he is truly suing to be compensated for his injuries). This injury,
sustained while playing for the Bandits, is clearly an injury arising out of employment, and Allard’s
claims arise out of this workplace injury.
¶ 28 Allard’s reliance on West v. Western Casualty and Surety Co. (846 F.2d 387 (7th Cir.
1988)) is misplaced. She contends that her fraud claims are not barred, as in West, because her
injury is only incidental to the concussion and it arose out of her relationship with the employer.
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In West, an employee brought a fraud claim against his employer’s workers’ compensation insurer.
Id. at 390. The court held that the action was not barred by the Act because the employee’s injury
was the deprivation of a right to bring a claim against a third party due to the insurance company’s
deliberate misrepresentation regarding his legal rights. Id. at 392-93. Here, not only are Allard’s
claims directly against her employer, but she specifically alleged that she was injured by not getting
the full compensation for her concussion injury due to the Bandits’ failure to maintain insurance.
¶ 29 Further, Allard’s argument that her breach of contract and breach of implied covenant of
good faith and fair dealing claims involve interpretation of the contract provisions is unpersuasive.
Employers Mutual Companies v. Skilling (163 Ill. 2d 284, 290 (1994)) holds that the circuit court
and the Workers’ Compensation Commission have concurrent jurisdiction to hear the insurance
coverage issues and that the circuit court’s jurisdiction is paramount when the question of law was
presented to the circuit court in the declaratory judgment action. Here, Allard’s allegations do not
raise a question of law involving the interpretation of contract provisions. Rather, her allegations
are straightforward as to the Bandits’ agreement to provide and maintain workers’ compensation
insurance and as to its breach by failing to do so. See Covinsky v. Hannah Marine Corp., 388 Ill.
App. 3d 478, 483 (2009) (“Whether a breach of contract has occurred generally is *** a question
of fact.”).
¶ 30 Allard also argues that her fraud claims are not barred by the exclusive remedy provision
of the Act because they are intentional torts. Whether a claim avoids the exclusive remedy rule of
the Act as an intentional tort is “dependent upon the object of the employer’s intention,” that is to
say, the employer must have acted with a specific intent to injure the employee. Mayfield v. ACME
Barrel Co., 58 Ill. App. 3d 32, 35 (1994) (citing Copass v. Illinois Power Co., 211 Ill. App. 3d
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205, 213 (1991). Even if the employer knowingly ordered the employee to perform an extremely
dangerous job, willingly failed to furnish a safe place to work, or willfully and unlawfully violated
a safety law, the conduct would still fall short of the kind of specific intent that strips the resultant
injury of its accidental character. 2A Arthur Larson, Workmen’s Compensation Law § 68.13
(1990).
¶ 31 Here, the resultant injury to Allard was her workplace concussion injury. Her complaint is
devoid of any allegation that, for example, the Bandits knew “with 100% certainty” that its conduct
would injure her. See Daniels v. Venta Corporation, 2022 IL App (2d) 210244, ¶ 29 (alleging that
the employer knew “with 100%” certainty” that directing the employee to remove asbestos would
injure him). Allard argues that the thrust of her fraud claims is that she was harmed in that she lost
an opportunity to contract with another team, but her allegations in the operative pleading do not
support this contention. In her fraud claims, she alleged that had the Bandits not fraudulently told
her about its insurance status, she would not have played for the Bandits and, as a result, would
not have sustained her injury. She also alleged that had the Bandits properly maintained active
insurance coverage, she could have recovered on her workers’ compensation claim. As previously
discussed, it is clear that the core of Allard’s claims is her concussion from the June 14, 2016 game
and that she was not fully compensated for this injury due to the Bandits’ failure to maintain
workers’ compensation insurance. Having failed to allege that the Bandits acted with specific
intent to injure Allard, her fraud claims are not barred by the exclusive remedy provision of the
Act. See Glasgow v. Associated Banc-Corp, 2012 IL App (2d) 111303, ¶ 21 (the plaintiff alleged
that the defendants knowingly failed to provide adequate bank security to prevent robbery but
failed to allege that they “commanded or expressly authorized her injuries” inflicted by robbers).
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¶ 32 Lastly, Allard argues that her injury is not compensable under the Act because the
employment contract between Allard and the Bandits might be voidable. The Bandits contends
that this argument was never raised before the circuit court and is forfeited. Allard does not seek
to void her employment contract with the Bandits in her complaint, nor did she raise this issue as
to the noncompensability of her injury under the Act in any of her responses to defendants’ motions
to dismiss. Therefore, the argument is forfeited.
¶ 33 CONCLUSION
¶ 34 The judgment of the circuit court of Cook County is affirmed in part and reversed in part.
Allard’s negligence claim against NPF Franchising, to the extent that it alleges NPF Franchising’s
failure to ensure the teams’ active workers’ compensation insurance status, is remanded for further
proceedings.
¶ 35 Affirmed in part and reversed in part.
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