By Celeste Bott

Law360 (June 19, 2020, 5:33 PM EDT) -- A personal injury law firm in downtown Chicago has said it shouldn't have to pay full rent for office space that is unsafe for its employees to use during the coronavirus pandemic, citing a provision in its lease barring "any" use of the space that "may be dangerous."

GWC Injury Lawyers LLC said in a Cook County Circuit Court lawsuit Thursday that landlord One East Wacker Partners LLC is refusing to abide by the terms of its own lease, in particular a section that prohibits "any use of the premises … that may be dangerous to person or property." The firm is seeking an order to release it from the office lease.

"The actions of defendants in attempting to enforce those terms of the lease that accrue to its advantage, while turning its back on the safety of plaintiffs' employees and denying plaintiffs a vested right of relief under the lease has been made in bad faith and in open defiance of the very contractual terms they agreed to," the firm said.

The firm rents the 38th and 39th floors and a portion of the 20th floor at One East Wacker, according to the suit. It also has offices in Liberty, Burr Ridge and Rockford, Illinois.

In a statement to Law360 on Friday, Lance Northcutt, a GWC partner, said GWC is continuing to pay 100% of its rent for the currently unused office space and will continue to have a dialogue with building management "to meaningfully address these urgent safety concerns."

"The health and safety of GWC's attorneys and staff is vital as we have continued to deliver results on behalf of our clients, even in the midst of the COVID-19 pandemic," Northcutt said. "We have attempted without success to explore creative ways to continue operations at the One East Wacker location and have come to the ultimate conclusion that the building simply does not have the necessary physical infrastructure and safety protocol to allow our diverse workforce to safely return. Of particular concern is the building's use of recycled air in its HVAC systems and the practice of allowing four people in a small elevator where they are forced to stand less than six feet away from each other within a confined space."

Despite being deemed an "essential service" under the Illinois governor's shutdown order, GWC opted to close its Chicago office until it was safe for employees to return, it says in its complaint. But One East Wacker Partners has since demanded full rent payments "for a building that was unsafe to occupy at full capacity," the firm said.

The landlord first sent a letter March 13 erroneously suggesting to tenants of the downtown building that "no special ventilation procedures are recommended, as the spread of COVID-19 from person-to-person over long distances, such as through HVAC systems, has not been shown" and vowing to take "heightened measures" to increase outside air intake into the building, according to the complaint.

But its assertions about the low risk of disease transmission through HVAC systems is "dangerously misplaced," the firm argued. It says the landlord then began taking a more "threatening" approach.

A second letter on March 20 issued a warning to GWC and other tenants of the building who were operating remotely, stating that it anticipated "that all parties will continue to abide by the terms of their lease and reserve all of our rights and remedies for any failures to do so," the firm said.

"When challenged as to how GWC could ever ensure the safety of its employees — particularly those who are most vulnerable to severe COVID complications and/or death — it was suggested that the wearing of masks and/or 'deep cleaning' would suffice," the firm said.

GWC is seeking orders from the court declaring that continued operations of the firm at the One East Wacker location presents a danger to its employees, that One East Wacker Partners is in breach of the lease and that the firm will be relieved of any further obligation under the lease, including the payment of any rents and fees, effective from the date it surrenders the space.

The firm also asks the court to enjoin its landlord from attempting to enforce the rent provisions of the lease until the matter is resolved in court and enter a schedule for expedited discovery about the building's physical and mechanical structures and "any remedial measures taken by defendants to reduce the risk of COVID-19 infection."

Representatives of OEWP could not be immediately reached for comment Friday.

GWC is represented by its own Lance Northcutt.

Counsel information for One East Wacker Partners was not available Friday.

The case is GWC Injury Lawyers LLC et al. v. One East Wacker Partners LLC et al., case number 2020CH04606, in the Circuit Court of Cook County.

--Editing by Orlando Lorenzo.

Update: This story has been updated to include comment from GWC. 

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