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DuPage County Personal Injury Lawyers: Rental Cars: When is a “Substitute Vehicle” Covered by YOUR Illinois Insurance policy?

August 14, 2012 | John J. Malm

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 To trigger a “substitute vehicle” clause, an important fact to consider is whether your car is “disabled” and “withdrawn from use,” rather than when you simply are concerned that it may be on the brink of becoming disabled or possibly in need of repair.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provides coverage for a “temporary substitute vehicle” when the insured vehicle is not in “normal use” or has been “withdrawn from normal use.”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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DuPage County Dog Bite Lawyers: Pleading a Negligence Cause of Action

August 13, 2012 | John J. Malm

When filing a dog bite complaint, the plaintiff may pursue multiple theories of liability against the dog owner. The Animal Control Act holds dog owners strictly liable for bites and attacks by their dog. E.g. 510 ILCS 5. Prior to the passage of the Animal Control Act, a plaintiff was forced to bring a negligence cause of action. In such cases, a dog owner could plead an affirmative defense that he or she lacked knowledge that the dog would attack or bite–commonly referred to as the “one-bite” or “scienter” rule. Klatz v. Pfeffer, 333 Ill. 90, 94-95 (1928).

The Illinois legislatures adopted the “dog bite” statute, which eliminated the scienter rule. The modern “dog bite” statute states, in part: “If a dog or other animal without provocation attacks or injures any person who is peaceably conducting himself . . . the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.” 510 ILCS 5/16. The Illinois Supreme Court in Beckert v. Risberg held that the elements necessary to sustain an action under this section are: (1) proof of injury by the dog; (2) lack of provocation; (3) peaceable conduct; and (4) presence of the plaintiff in a place where he or she had a right to be. 33 Ill. 2d 44, 46 (1965); See https://www.chicago-injury-lawyer.org/dog-bite/. Accordingly, a dog owner may only defend an action under the statute by proving that the victim was creating a disturbance, trespassing, or tormenting the dog in a way that provoked the attack.
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Aurora Dog Bite Lawyers: Defeating Rare Defenses to Dog Owner Liability

August 13, 2012 | John J. Malm

The Illinois Animal Control Act provides a basis for dog bite victims to recover if they have been the victim of a dog bite. However, an animal attack, on its own, is not necessarily an automatic basis for liability. There are rare situations that may prevent the plaintiff from proving her claim because the plaintiff was actually in control of the animal at the time of the attack, or when a defendant has given proper warnings to the victim about the presence of a dangerous dog. Although rare, these two exceptions to liability are worthy of consideration.

Exception 1: There May Be No Liability When the Victim Assumes Complete Control of the Animal.

In rare situations, a plaintiff may be barred. Van Plew v. Riccio, 317 Ill.App.3d 179 (2nd Dist. 2000). In Van Plew, a pet sitter who the dog owner hired to feed and provide water for the dog was bitten during the course of her care for the dog. The court denied recovery and stated that “where a person voluntarily accepts responsibility for controlling or caring for a dog … that person is an ‘owner’ within the meaning of the Act and is precluded from recovery under the Act.” Id. at 182. The Fourth District of the Illinois Appellate Court reached a similar decision in Docherty v. Sadler, 293 Ill.App.3d 892 (4th Dist. 1997), where it denied relief to a ten-year-old-child who had agreed to take care of a neighbor’s dog. However, these situations are rare and what constitutes “control” is a high bar for the defendant to meet. More often, the defendant will have retained at least partial control of the animal, thereby exposing them to potential liability. A proper investigation can often defeat this defense.
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Kane County Car Accident Lawyers: Using a Defendant’s Guilty Plea to a Traffic Citation in a Civil Case

August 13, 2012 | John J. Malm

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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DuPage County Truck Accident Lawyers: Naperville Truck Accidents May Be Reduced by City’s Truck Route Plan

August 3, 2012 | John J. Malm

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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Naperville Car Accident Lawyers: Vehicle Crash Locations are Focus of Naperville’s Traffic Safety Plan

August 3, 2012 | John J. Malm

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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DuPage County Personal Injury Lawyers: What to do When the Driver Who Injures You is Underinsured?

August 3, 2012 | John J. Malm

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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Naperville Personal Injury Lawyers: Discovery of Facebook and Social Media Sites in Motor Vehicle Accident Cases

July 27, 2012 | John J. Malm

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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Kane County Car Accidents: Distracted Drivers and Cell Phones

May 15, 2012 | John J. Malm

Most Kane County residents are aware of the dangers of using cell phones while driving, but many still answer the phone while driving or even text while driving. Significantly, statistics show that a driver who is texting has the same impaired response time as an intoxicated driver. If you must use your cell phone while driving, some helpful safety tips are:

– utilize a hands free device – avoid using your phone in bad weather, stressful situations, or heavy traffic – make phone calls when you aren’t moving – avoid looking up numbers or trying to take notes while driving and
– keep your conversations short
The risks are more pronounced when drivers text. While texting, the driver’s gaze constantly shifts between his phone and the road. Experienced drivers, including truck drivers, fare no better when texting. A study showed that truck drivers who text and drive are approximately 20 times more likely to get into an accident.
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Naperville Motor Vehicle Accidents: Whiplash Injuries

May 3, 2012 | John J. Malm

Victims of car accidents often suffer cervical (neck) strain known as “whiplash.” A whiplash injury can occur as a result of both a low speed and a high speed collision. Whiplash most often occurs in rear-end collisions. Neck injuries, including whiplash, occur because the sudden force of a vehicle impact causes the occupant to decelerate rapidly, moving the neck past its normal range of motion. The crash victim’s head moves forward, then backward, very quickly, and unexpectedly.

Treatment for whiplash can be described as a neck injury to the soft tissue of the ligaments, tendons, and muscles in the neck. A whiplash neck injury, also described as a cervical strain or sprain, is considered a hypertension neck injury. Pain in the cervical area, which is often severe, is a common symptom of whiplash injury. Other symptoms include muscle spasms, headaches, neck pain, sleep disturbance, tight muscles, low back pain, tenderness in the back of the neck, poor memory, pain in the shoulders, fatigue, dizziness, vision problems, ringing in the ears, limited range of motion, and shooting pain in the arms.
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