Articles Posted in Insurance Claims

As a car accident lawyer, I am always looking at what makes us less safe on the road. At the top of this list is distracted driving. In Illinois, drivers are generally allowed to use cell phones, but are prohibited from using cell phones, hand held or otherwise, when driving in a school zone or when driving in a highway construction zone. Recently, Illinois tightened these restrictions and prohibited all hand held cell phone use while driving.

Texting – the most dangerous form of distracted driving – has long been prohibited in Illinois. Exceptions to the prohibition from texting while driving are quite limited: reporting an emergency situation and continued communication with emergency personnel during the emergency situation; using a device in hands-free or voice-activated mode; if the driver is parked on the shoulder of a roadway; or when the vehicle is stopped due to normal traffic being obstructed and the driver has the motor vehicle transmission in neutral or park. Absent an exception, texting is prohibited.
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Every day, Illinois drivers are injured in motor vehicle accidents with hit-and-run drivers or drivers who are uninsured or underinsured. In 2012, over 13% of Illinois drivers were uninsured, and the increasing number of uninsured and underinsured drivers nationwide only underscores the importance of having uninsured motorist coverage for the rest of us. In Illinois, it is the right of every policyholder who carries Uninsured Motorist coverage, or “UM” coverage, to have his or her injury claim seeking UM coverage heard at arbitration, to decide how much compensation or “damages” will be paid.

An UM arbitration is a legal proceeding held before a panel of arbitrators. The arbitration hearing is set up much like a trial, where parties represented by lawyers call witnesses and present evidence to the arbitration panel. After the hearing, the arbitrators render a decision, referred to as an arbitration “award.” The decision of the arbitrators determines whether the injured person has a right to receive any damages under the insurance policy and how much.
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Rental car insurance is confusing. Before you rent, it is important to know if 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 concerning “substitute vehicles.” To trigger a “substitute vehicle” clause, an important fact to consider 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 a bodily injury liability claim (if you cause an accident, injuring someone), an uninsured motorist claim (if you become injured due to the fault of an uninsured driver) or an underinsured motorist claim (if the at-fault driver carries an insufficient amount of liability coverage to adequately cover your injury claim).

Your automobile insurance policy likely has 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 rented vehicle meets the requirements of a “Substitute Vehicle,” the rented vehicle is covered to the same extent as your own vehicle. The public policy behind enforcement of substitute vehicle clauses is to prevent an insurance company from being liable for two vehicles while the insured has paid only one premium.
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Motor vehicle accidents raise many complicated issues of fault and proof. One way to prove a defendant’s liability is by using an admission of guilt (“guilty plea”) in the underlying traffic court proceeding, which is ordinarily conducted soon after an accident is reported. Often, a potential defendant will plead guilty to a traffic citation. The guilty plea may be used in the civil case to demonstrate the fault of the motorist. “[G]uilty pleas to traffic offenses have been admitted in subsequent civil proceedings as admissions.” Young v. Forgas, 308 Ill.App.3d 553, 565 (4th Dist. 1999). A defendant’s claim he did not appreciate the effect of a guilty plea in a traffic case is irrelevant. As stated in Young, a “person must realize that civil litigation is a very real possibility and that the guilty plea to the traffic charge could reflect adversely upon him in a subsequent proceeding.” Id.

A guilty plea is an exception to the hearsay rule. “A guilty plea to a traffic violation is admissible as an admission against interest in a later civil action on the same facts.” Mivatovich v. Chicago Transit Authority, 112 Ill.App.2d 437, 442 (1st Dist. 1969). Courts reason that “a judicial admission is a deliberate, clear, unequivocal statement of a party about a concrete fact within that party’s peculiar knowledge.” Sohaey v. Van Cura, 240 Ill.App.3d 266, 280 (2nd Dist. 1992). “[A] judicial admission is conclusive upon the party who made it, and the party may not controvert the admission at trial or on appeal, so the effect of a judicial admission is to withdraw a fact from contention. Id., at 280-81. Additionally, “a party cannot create a question of fact for purposes of a summary judgment motion by attempting to contradict a previous judicial admission.” Id.
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Naperville truck accidents cause serious injuries each year, including: broken bones, back and neck injuries, and in some cases even fatalities (wrongful death). The City of Naperville, recognizing the dangers posed by truck traffic, has designated specific routes for trucks. Naperville’s truck route plan has many advantages, including: reducing congestion; decreasing air pollution; and perhaps most important, providing safer neighborhood travel. By allowing trucks to “use” neighborhood streets, but forbidding travel “through” neighborhoods, Naperville’s plan recognizes the need for goods and services to be delivered to homes, businesses and facilities. The program also recognizes that limiting large truck travel (semi trailers, 18 wheelers) to specific routes is an excellent way to prevent pedestrian and motorist accidents. Statistics show that limiting the opportunities for large commercial trucks to interact with other motorists, pedestrians, and bicyclists lowers the likelihood that a truck accident will occur.

Specific Initiatives

Truck traffic patterns from the area’s main highway–Route 88–place burdens on many local roads. Interstate 88 (Ronald Reagan Memorial Tollway) runs through the north part of Naperville carrying millions of tons of cargo every year. Much of that cargo must find its way to the residents and businesses that call Naperville home. In order to efficiently serve the City of Naperville, a truck permit plan has been implemented. Commercial trucks that travel upon Naperville streets pay permit fees. The City of Naperville’s Truck Route Plan provides a Designated Truck Route System and implements a Road Damage Overweight/Over-dimension Truck Permit Program. Trucks carrying heavy loads that exceed 73,280 pounds pay a fee for the privilege of using Naperville roads. The funds from the program go into the Road and Bridge Fund, which is used to repair, maintain, and construct the roads and streets in Naperville. The program represents a compromise between the need for goods to be delivered with the need to safely maintain Naperville streets. The truck permit plan promotes the following best practices and methods:

– Integrate truck route planning with land use planning.
– Coordinate the location of truck routes with roadway design and land uses.
– Consider regional implications of truck route locations.
– Enforce truck route policies.
– Reevaluate existing truck routes periodically.
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The City of Naperville is situated in a diverse area of DuPage County. Naperville contains residential areas, commercial areas, schools, churches, parks, and rivers. In addition, unincorporated areas surround Naperville. Naperville’s recent growth and development have presented challenges for city officials, who are charged with providing and maintaining safe transportation. In order to prevent car accidents, truck accidents, and motorcycle accidents, the City of Naperville has developed a comprehensive Traffic Safety Plan (the “Plan”). A goal of the Naperville Comprehensive Transportation Safety Plan is intended to save lives and reduce injuries by lowering the number and frequency of crashes. Like the Truck Route Plan, Pedestrian Plan, and Bicycle Plan, the Traffic Safety Plan sets forth policies and practices designed to achieve the plan’s goal to reduce car accidents in Naperville.

Some of the policies include:

– Requiring developers to provide dedicated sidewalks for pedestrians and bicycles.
– Lobbying state and federal governments for additional traffic safety funds.
– Considering car crash rates or truck accident frequency when prioritizing capital
improvement projects that may impact vehicle crash rates.
– Promoting and enforcing seat belt usage to reduce injuries and save lives.

Some of the practices include:

– Considering traffic safety when reviewing new development plans.
– Developing and implementing driving education programs, especially for younger, less
experienced drivers.
– Identifying and examining locations with a high frequency of car accidents.
– Evaluating school access in terms of motor vehicle safety issues.
– Encouraging alternative forms of transportation, such as bicycles and walking paths.
– Minimizing conflicts between motorists, pedestrians, and bicyclists in all future
development plans.
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A common risk faced by Illinois drivers is being struck by a driver that is underinsured. To save money on premiums, many drivers carry only the minimum amount of bodily injury liability coverage, which is $20,000. So what happens when you are involved in an accident with a driver who does not carry enough liability insurance to cover your personal injuries? If you elected to carry underinsured motorist insurance coverage, you may be protected from the risk posted by an underinsured driver.

History of UIM Coverage

Prior to underinsured motorist (UIM) coverage being offered by Illinois insurance carriers, motorists had the option of carrying only uninsured motorist (UM) coverage. UM coverage is insurance that offers protection from drivers who do not carry automobile liability insurance at all. If an insured motorist carrying $100,000 of UM coverage was involved in an accident with a motorist who had bodily injury liability limits of $20,000, the injured person could recover nothing from his or her UM policy; the only remedy was to collect the at-fault driver’s limits of $20,000. In effect, the responsible, insured driver would have been in a better position if the other driver had been completely uninsured. E.g Hathaway v. Standard Mut. Ins. Co., 285 Ill. App. 3d 67 (1996). Legislators responded to this inequity in 1980 by enacting a statute requiring insurance companies to offer underinsured motorist coverage in amounts equal to uninsured coverage. See 215 ILCS 5/143a-2.
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In car accident cases, lawyers for each party are permitted to conduct written discovery by issuing subpoenas, propounding a list of written questions called “interrogatories,” or serving document requests. The use of discovery to obtain personal information posted on social media sites has recently become a hot topic. To what extent should discovery in a lawsuit be allowed when it seeks information from personal social media accounts? More specifically, should someone’s Facebook account be a subject of discovery when that person has been involved in a motor vehicle accident?

Recently, Federal Courts have addressed whether Facebook and social media sites are discoverable in civil litigation. In 2011, the United States District Court for the Eastern District of Michigan, in Chauvin v. State Farm Mut. Auto. Ins. Co., denied the defendant’s request to access the plaintiff’s Facebook account and held that “…discovery requested is available through less intrusive, less annoying and less speculative means…there is no indication that granting access to Plaintiff’s private Facebook account would be ‘reasonably calculated’ to lead to discovery of admissible information.” Chauvin v. State Farm Mut. Auto. Ins. Co., Case No. 10-11735 (E.D. Mich 2011). The Court saw no reason for one party to have access to the other’s Facebook page where there were much less intrusive ways to obtain the same information. In 2011, a Pennsylvania Court in Piccolo v. Paterson held that the plaintiff in a car accident did not have to accept a friend request on Facebook from the defendant, particularly since the defendant wished to access the plaintiff’s posts and view pictures of the accident.
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The aftermath of a motor vehicle accident can be legally complex. Often times, a person other than the driver to the striking vehicle, may be additionally responsible for the damages caused by a motor vehicle collision. Under Illinois law, two common scenarios in which a person or entity may be found legally responsible for damages caused by a negligent driver arise in (1) the parent-child relationship, and (2) the employer-employee relationship. Whether a parent or an employer is legally responsible for the at-fault driver will a careful analysis of the facts surrounding the accident and the relationships of the parties.

Parent-Child Relationship

If a child gets into an accident while driving his or her parents’ car, the injured plaintiff may be able to sue the parents in certain, but not all, situations. Parents are not liable for the injuries caused by their children merely because their child causes an accident. In Illinois, parents may be held liable under an “agency” theory for their child’s negligent driving if the child was engaged in running an errand for or doing the parents’ business at the time of the accident. Stellmach v. Olson, 242 Ill.App.3d 61, 64 (2nd Dist. 1993). However, the Stellmach Court explained that a parent is not liable for damages caused by a child who drove the parent’s car for the child’s own purposes, even if the parent consented to that use. Stellmach, 242 Ill.App.3d at 65. If, instead, the child was using the car to run a family errand, then the parent will be liable. Stellmach, 242 Ill.App.3d at 64. The question of whether an action is a family errand will be a question of fact for the jury to consider during the trial. Id.
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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.
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