Chicago Injury Lawyer Blog

The time after a car accident can be stressful and frightening. Painful injuries and worries about keeping up with work and family are the biggest concerns. You may be in no position to speak to anyone - let alone the insurance adjuster for the at-fault driver. But the insurance company will often contact you and ask you to settle your claim quickly, often for a figure that is far less than it is worth. If you have been hit by a car while riding your bike or as a pedestrian, you can expect a call from the insurance company. My advice: Never speak to them without a lawyer.

No matter what the adjuster tells you, the at-fault driver's insurance company does not have your interests in mind. In fact, the adjuster has a conflict of interest in saying anything to you about the value of your claim. It is important NOT to speak with the at-fault driver's insurance company without counsel. Any competent attorney knows that a call to the insurance company is likely to be recorded; therefore, it is not in your interest to say anything at all. It is best to leave all communication to your counsel.

Continue reading "Illinois Car Accidents: Why NOT to Speak to the Insurance Company" »

As winter approaches, snow, ice, and water are going to become hazards for pedestrians who can injure their neck and back. In Illinois, a slip & fall accident is an actionable claim against the property owner or manager depending on how the snow, ice, or water accumulated. If an accumulation occurs naturally and without aggravation by the property owner, Illinois courts have held that a property owner generally owes no duty to remove the accumulation, regardless of how long the accumulation has been present. Despite this, Illinois courts have also found that business owners have a duty to provide a reasonably safe means in ingress and egress. Reed v. Galaxy Holdings, Inc., 394 Ill.App.3d 39 (1st Dist. 2009).

Once a property owner undertakes to clear snow or ice from the premises, the property owner assumes a duty to do so non-negligently. One such scenario is when a property owner has shoveled snow into a pile, which later melts and then refreezes, creating a hazard. If a parking lot has a sloped grade, and the snow is removed to the higher part of the parking lot, melting snow that drains back across the parking lot may result in an unnatural accumulation. Unnatural accumulations can also form from gutters or a leaking roof which drain melting snow onto a parking lot only to refreeze there.

Continue reading "Illinois Slip & Fall Claims: Unnatural Accumulation of Snow and Ice" »

The common fund doctrine serves to limit an insurance company's recovery of insurance liens from a Plaintiff's settlement. The common fund doctrine is an exception to the American rule on attorney's fees. Typically, each party is responsible for their own attorney's fees unless there is a statute or an agreement between the parties to the contrary. However, the common fund doctrine allows an attorney to collect a reasonable fee from a fund created through the attorney's efforts. The rationale is to prevent the unjust enrichment of other parties, such as an insurance company, through the lawyer's hard work, without paying their fair share.

Commonly, this doctrine is applied in cases involving car accidents, pedestrian accidents, and bicycle accidents in which the plaintiff's insurance company has paid for medical expenses for the plaintiff's injuries and is seeking repayment from the at-fault defendant's insurance company. For the common fund doctrine to apply, the attorney must create the fund through legal services, the subrogee or claimant must not have participated in bringing about the creation of the fund, and the subrogee received a benefit from the common fund. However, the doctrine will not apply when the subrogee expresses a prompt, clear, and unequivocal desire to pursue its own subrogation claim against the defendant's insurance company.

Continue reading "Insurance Subrogation Liens: The Common Fund Doctrine in Illinois" »

The Illinois Supreme Court recently clarified social host liability in Illinois in the decision of Bell v. Hutsell. The case explains how personal injury or negligence claims can arise in social host situations. These claims may include car accidents. Generally, a social host of a party where alcohol is served is not liable for injuries caused by persons who consume alcohol and thereafter cause injuries to third persons. However, under a voluntary undertaking theory, if a social host undertakes an act, then they may be civilly liable if they perform that act negligently. As an example, a parent who allows their minor child to have a party at their residence and undertakes to prevent minors from consuming alcohol, such as confiscating liquor, may be liable if an intoxicated person subsequently injures a third person.

In the case of Bell v. Hutsell, Daniel Bell, an 18-year-old, attended a party hosted by the Defendants' son, Jonathon, and allegedly consumed alcohol at said party. In the complaint, the Plaintiff alleged the Hutsells were aware of underage consumption at the house, that their son, Jonathon, had previously pled guilty to underage consumption, that underagers drank excessive amounts of alcohol within the presence of the Hutsells without any objection, and that Jerry Hutsell had spoke to a number of underage parties who had been drinking alcohol and requested that if they had drank, then not to drive. The Complaint further alleged that after consuming alcohol at the Hutsell residence Daniel Bell died in a single-car accident when his vehicle collided with a tree.

Continue reading "Illinois Social Host Liability in the Wake of Bell v. Hutsell" »

Most negligence cases require the Plaintiff to prove the same four elements; duty, breach, causation, and damages.

Actual cause or cause in fact is the actual event that caused the harm. The harm would not have happened but for the actual cause event occurring. Proximate cause is also known as legal cause. To win a negligence claim, the plaintiff must show more than just breach by the Defendant toward the Plaintiff. The negligent content must also be the legal cause of the Plaintiff's injuries. The Restatement (Second) of Torts requires two elements to be met to determine whether an action is the legal cause of the Plaintiff's injuries. First, the tortious conduct must be a substantial factor in bringing about the injury. Second, there must not be a rule of law which prevents the defendant from being liable for his negligence.

Continue reading "Illinois Negligence Cases: Proximate Cause and Foreseeability of Harm" »

On November 23, Governor Quinn signed SB 1694. The new legislation allows access to a deceased family member's medical records without the requirement of opening of an estate. SB 1694 will add 5/8-2001.5 to the Illinois Code of Civil Procedure entitled: "Authorization for release of a deceased patient's records." 735 ILCS 5/8-2001.5. The new law makes it easier for families of victims to investigate wrongful death claims. Under the new rule, a decedent's records may be released upon written request by a deceased person's estate or agent appointed under a power of attorney. If no executor, administrator, or agent exists (and the deceased person made no prior objection), then the deceased's medical records can be obtained in one of two ways. First, the medical records may be attained by the deceased's surviving spouse sending written request to the medical facility. Second, if surviving spouse exists, then medical records may be obtained by written request by one of the following: an adult son or daughter of the deceased, a parent of the deceased, or an adult brother or sister of the deceased. The person requesting the records must sign an "Authorized Relative Certification" attesting the fact that the person is entitled and authorized to receive the records under the statute.

Continue reading "Wrongful Death: New law helps family members gain access to records in Illinois" »

Illinois Traffic Crash Reports are made by the police when a vehicle is involved in a collision (See an example Illinois Traffic Crash Report here). They are used for vehicle crashes, vehicle collisions with a pedestrian, and vehicle collisions with a bicyclist. If police are called to the scene of a collision, an Illinois Crash Report will be filled out. A more detailed report will be made if there is a death, serious injury, or if a vehicle has to be towed from the scene.

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The basic information included in the Crash Report is the street or intersection where the accident occurred, the municipality where the accident occurred, the county where the accident occurred, as well as the date, and the time of the accident. This information can be found in the box at the top of the report.

Continue reading "Car Accidents: Reading an Illinois Traffic Crash Report" »

When a Plaintiff settles his personal injury claim, he may also have one or more liens against the amount of the recovery. Healthcare liens against a settlement may be asserted by the medical providers who have treated and rehabilitated the Plaintiff after suffering an injury. These liens are covered by the Health Care Services Lien Act. 770 ILCS 23/1, et seq. Any licensed hospital, doctor, or physical therapist which has provided medical services may elect to place a lien on the claim.

If the Plaintiff recovers a settlement or judgment, notice of the recovery must be given to each lien holder. The lien holder may seek payment of the amount of reasonable charges which remain unpaid. The Health Care Services Lien Act places limitations on the amount a lien holder can recover from the settlement or judgment.

Continue reading "Illinois Personal Injury Settlements: Healthcare Liens" »

An uninsured/underinsured (UM/UIM) claim often arises after a car accident. If the person at-fault for the accident flees the scene and is unable to be located, or if the person at-fault does not have insurance or has inadequate insurance, an uninsured/underinsured claim (sometimes called, "UM/UIM") should be brought immediately. UM/UIM claims often arise in pedestrian accidents, bicycle accidents, and hit & run accidents.

In a typical liability car accident case, notice to the other party need not be given before filing a complaint. Contrastingly, when making a UM/UIM claim, there are strict notice provisions that must be met before the claim can proceed. A UM/UIM claim is made against the Plaintiff's own insurance company, and the requirements for the notice provisions may be found in the Plaintiff's insurance contract. In most instances, it is best to have your attorney inform the insurance company of the claim, in writing, via certified mail, as soon as possible. Giving notice and demanding arbitration under the policy is not the equivalent of filing a lawsuit. It merely informs the insurance company that a claim exists, and it allows the insurer to begin investigating the claim. Failure to provide timely notice with a proper demand for arbitration can result in waiver of the claim, even if there is no prejudice to the insurer.

Continue reading "Illinois Uninsured/Underinsured Claims" »

The biggest distinction between filing a lawsuit against an individual for a car accident and filing an uninsured/underinsured motorist claim (UM/UIM claim) against an insurance carrier is that the latter will be sent to arbitration for adjudication. Illinois law requires insurance companies to include arbitration clauses in all insurance contracts containing UM/UIM coverage (215 ILCS 5/143a). Illinois utilizes arbitration as a means of providing a more efficient means for those with a UM/UIM claim to have their case heard and have a just decision reached. Medical bills from a car accident add up quickly. The sooner a result can be obtained, the better.

To initiate the arbitration, the insured's counsel must send a written demand for arbitration to the insurance company. The demand for arbitration is akin to filing a lawsuit. The demand must be clearly stated and sent within the time specified by the insurance policy. The demand should include information about the insured and name the insured's arbitrator. The Insurance company will then name their own arbitrator. Then, both arbitrators will select a third "neutral" arbitrator within forty-five days to complete the panel. If the third arbitrator is not selected within the allotted time, either party may request that the case be sent to the American Arbitration Association (AAA). Some insurance contracts provide that all UM/UIM arbitrations be sent to the AAA. When the AAA hears the arbitration, they may choose to use a single arbitrator, or a panel of three.

Continue reading "Arbitration in Illinois Uninsured/Underinsured Motorist Claims" »

A setoff is a defense to a legal judgment for damages. A setoff can be either partial or total. When an insured party is making a claim against their insurance company for an Uninsured/Underinsured Motorist claim (UM/UIM claim) for an auto accident, bike accident, or pedestrian accident, the amount awarded in the claim may be reduced or "setoff" by any amount already covered from the at-fault motorist. A setoff is used to prevent double recovery, as compensatory damages are designed to make a person whole, not to punish the other party or provide a windfall for the insured.

A setoff often applies in an underinsured motorist claim. Recovery from the underinsured motorist is deducted from an arbitration award against the underinsured motorist carrier to prevent double recovery. For a setoff to be considered, the insurance company must submit the claim to the arbitrator. Unlike issues involving coverage, which are the domain of the courts, any disputes over damages must be presented to the arbitrator or they are considered waived.

Continue reading "Damages: Setoffs in Illinois Uninsured/Underinsured Motorist Claims" »

Rental car insurance is confusing. It is important to know when your insurance provides coverage for the rented vehicle, and under what circumstances that coverage may be limited. The answers to these questions may depend on the language of your own automobile insurance policy. One important fact is whether your car is "disabled" and "withdrawn from use" rather than when you simply are concerned that it may be on the brink of becoming disabled or possibly in need of repair. If your rented car is involved in a car accident, questions may arise as to whether your own insurance policy will still cover you for bodily injury liability (if you cause injury to someone), uninsured motorist coverage (if you become injured due to the fault of an uninsured driver) or underinsured motorist coverage (if the at-fault driver carries an insufficient amount of liability coverage, and you are injured)in an accident.

Many automobile insurance policies have a Substitute Vehicle Clause, which provides coverage for a "temporary substitute vehicle" when the insured vehicle is not in "normal use" or has been "withdrawn from normal use." When your vehicle meets the requirements of a Substitute Vehicle Clause, the rental is covered to the same extent as your own vehicle. In Economy Fire and Casualty Company v. Dean-Colomb, the court found that a vehicle is withdrawn from normal use because of breakdown, repair, servicing, loss, or destruction. Economy Fire and Casualty Company v. Dean-Colomb, 269 Ill.App.3d 603 (4th Dist. 1995). Simply fearing that a car is unsafe for use without it being inoperable or taken to a shop for service is insufficient to qualify for a coverage through the Substitute Vehicle Clause. Economy Fire and Casualty Company at 608.

Continue reading "Rental Cars: When is a "Substitute Vehicle" Covered by YOUR Illinois Insurance policy?" »

Under the Illinois Liquor Control Act ("Dram Shop Act"), third parties who are injured by an intoxicated person may have a cause of action for damages against the seller of alcoholic liquor, who by selling or giving alcoholic liquor, causes the intoxication of such person. In many cases, the Act provides a remedy to individuals who are innocent victims injured in car accidents and bar fights. The Act provides no remedy for intoxicated persons who themselves are injured.

The amount of damages that may be sought against a bar or restaurant under the Act is limited in amount by statute and is specified by year. 235 ILC 5/6-21. If you believe that you were injured by an intoxicated person, or would like to learn more about bringing a Dram Shop claim, you should speak to a knowledgeable attorney right away.

The decision in Nicholson v. State Farm Mut. Ins. Co. is a win for automobile insurance policyholders in Illinois. It also imposes a new obligation on insurance carriers to obtain a signed coverage election form before binding coverage, when the insured makes a "material change" in the policy.