Articles Posted in Personal Injury

There has been little guidance from the courts in Illinois about electronic discovery.  The Illinois Supreme Court has changed the rules a little bit to accommodate electronic issues. But for the most part we treat electronic discovery the same way we treat paper discovery. Facebook posts are discoverable to some extent and get used in the courts. Electronic documents are discoverable under the discovery rules.

The appellate courts are slow to get cases because unless a litigant wants to take the time and money fighting about it the issues frequently just get resolved at the trial courts, without appellate review.

However, the appellate court recently got a shot to make some law in the case entitled Carlson v Jerousek 2016 IL.App (2d) 151248. The case got to the appellate court in the normal way for a discovery issue.  The plaintiff took a friendly contempt after the court ordered him to comply with its order. The court had ordered that the defense could do a forensic image of all his 5 computers.

The appellate court recently held that offset language in uninsured/underinsured policies with plaintiffs injured by two defendants does not apply. Throwing out the offset language is counterintuitive to most lawyers. Lawyers are taught that you apply the language of the contract. This case reminds us that the terms of the insurance policy are applied generally, but that there are exceptions to general statements.

In Tufano the court held that the policy holder must be placed in the same position as if each tortfeasor carried the same as amount of insurance as the injury victim. Furthermore, one tortfeasor’s payment cannot be used to offset the under insurance gap of the other tortfeasor. Each instance of under insurance is viewed separately. However, the amount the plaintiff can get from each party is capped by the un-insurance/under-insurance of his or her policy.

This case is very helpful in that it discusses the prior decisions of both the appellate and supreme courts regarding uninsurance/underinsurance coverage.

The Illinois fourth District Court of Appeals decided, on July 15, 2016, in Miller vs. Sarah Bush Lincoln Health Center, that medical bills are not reduced to the amount paid by insurers in personal injury suits. This case creates a split in circuits because a different case entitled Perkey vs Portes -Jarol, from 2013 decides the opposite on virtually identical facts. In Perkey a party ask to appeal to the Supreme Court, but the Supreme Court denied leave to appeal. With this court case from the Fourth Circuit Court of Appeals there is a split in circuits, which suggests the Supreme Court will take this issue.

In Miller the jury returned a verdict in favor of the plaintiff on a medical malpractice claim. The jury awarded $638,347.91. Of that amount, $133,347.91 was represented plaintiff’s medical expenses. This defendant asked the court to enter judgment to reduce the jury’s verdict by $91,724.03. This would leave the Plaintiff with medical expenses recouped of $41,623.88. The court did so. The plaintiff appealed to the fourth District Court of Appeals. The $41,623.88 is the amount that the insurers paid. The remainder, $91,724.03, was written off.

In question is section 2 – 1205 of the Illinois court of civil procedure. The important part of 2 – 1205 provides that the defendants can get a reduction for 100% of the benefits “Which have been paid or have become payable to the injured person.” The court held that a write off by medical provider entitled to payment is the antithesis of a payment, by definition. It is not payable to anyone, least of all the injured person. The court held that the statute only allows a verdict to be reduced by the amount paid to the medical providers or payable to the plaintiff.

In civil rights cases plaintiff typically uses statute called section 1983. This statute which allows for the plaintiff to file suit for violations of their constitutional rights. The statute gives a person the right to file suit against a person who is a government employee for deprivation of any rights, privileges or immunities secured by the Constitution and law. The statute gives the plaintiff the right to recover attorney’s fees incurred. The attorney’s fee shifting provision makes this an attractive statute for victims of constitutional rights violations.

The statute had been interpreted to provide liability if and only if the plaintiff can prove the defendant was deliberately indifferent. This has been the language used in the jury instruction and is cited as black letter law.

Deliberate indifference is a subjective standard. It is subjective because it turns on the subject a state of mind of the defendant.

In one of the weirdest fact patterns in a long time the appellate court ruled on intentional infliction of emotional distress is a suicide case. Obviously, the law must accommodate even extremely weird fact patterns and this case is weird. Intentional infliction of emotional distress is an odd, and often maligned, cause of action. People in general, the author included, are very skeptical of emotional distress claims of any sort. Courts are also skeptical. However, in Turcois vs. Debruler the Second Circuit Court of Appeals decided a precedent-setting case.
In Turcois the question came up whether a plaintiff in an intentional inflection of emotional distress case can recover for suicide. Obviously, the discusses causation as an issue. The case arose at the motion to dismiss stage, as opposed to the motion for summary judgment stage. Accordingly, all allegations are taken as true by the court.
Plaintiff alleged as follows: plaintiff leased an apartment from the defendants for one year. There’s no suggestion that the plaintiff violated the lease in any way. Nevertheless, within 30 days of moving in the defendant began putting pressure on the plaintiffs to move out. Defendant sent a 30 day notice to vacate, despite the fact that the plaintiffs had a valid lease. Defendants called plaintiff pressuring them to move repeatedly. Exactly one month from the date they moved in Plaintiffs received a notice indicating that they must move out within three weeks. The notice indicated that washers and dryers would be removed. Plaintiffs attempted to pay rent, but the defendant declined to accept the check. Within six weeks of the date they moved in defendants gave plaintiffs a notice indicating the building was going to be demolished. Again, within six weeks of the plaintiffs moving in, the defendant allowed the demolition of the property to proceed around plaintiffs units. The demolition company tore into the outside walls of the building in which plaintiff’s unit was located and then began to demolish the units surrounding her unit. Five days later plaintiff’s decedent committed suicide, leaving a note saying “Please forgive me and my daughters, and you also Carmen. Sell the land and build the house.”
The trial court had concluded that because plaintiffs death as a result of suicide, they could not maintain wrongful death of survival action against the defendant as a matter of law. The appellate court reversed this decision. The appellate court distinguishes between negligence and intentional infliction. The court says that, based on Luss vs. Village of Forest Park, one cannot bring an action for death if one commits suicide in a negligence case. The court reviewed authority from other jurisdictions, including cases from Rhode Island, New Hampshire, Wyoming, California, Indiana, [Kimberlin v Delong] and, more importantly, the Restatement of Torts (Second). The court concluded that the law does not allow the tortfeasor in cases of outrageous conduct of intentional nature to escape liability for that conduct where the tort is a substantial factor in the cause of the suicide. It discussed Section 46 of the Restatement at length.
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In Segovia vs. Romero the first district appellate court clarified what money a defendant may set off against a judgement. The case is somewhat unusual procedurally. The plaintiff in this case was the wife of a State Farm insured. The defendant in the case had driven his car into the rear end of the plaintiff’s vehicle. State Farm paid for her loss pursuant to her husband’s policy in the amount of $10,766.20, itemized as follows:

$5,000 Med Pay

$5,516 Property Damage

Underinsured Stacking

The first District Court of Appeals decided an interesting case about stacking as applies to uninsured and underinsured policies. In Allstate vs Trujillo 2014 Il.App (1st) 123419, the court decided that parties can stack there underinsured (UDIM) policies.

Allstate filed suit for declaratory judgment against plaintiff. The plaintiff was a passenger in a car insured by a person named Delgado. Delgado had a liability policy through Allstate which had limits of $100,000 per person, and $300,000 per accident. The same policy had $100,000 in UDIM coverage. The other driver had a $20,000 policy with American Access insurance. American Access tendered their $20,000 policy. Allstate tendered their $100,000 in liability coverage. Plaintiff took the position that Allstate also owed another $80,000 in UDIM coverage. Allstate claimed that under the policy there is no stacking.

The Appellate Court recently decided a case involving the interplay between the Workers’ Compensation Act and joint liability in Ramirez v FCL Builders, Inc.

According to the Illinois Worker’s Compensation Act an employee cannot sue his or her employer for an injury. Instead, the employee must file a workers compensation claim. The Act says that there is no right to recover damages from the employer, so it is broadly drafted. 820 ILCS 305/5. However, courts have allowed suits by workers against third parties. Often, the third party will then sue the employer for negligence. Courts have allowed this.

To explain what I mean, if a worker, as part of his duties is driving a company vehicle and gets hit by a bad driver, the worker should have a workers’ compensation claim against his employer. The third party may argue the employer is at fault because the worker’s brakes did not function properly. If so, the third party should only pay for part of the loss and the employer should pay for part.

In McRoberts v. Porter, the Appellate Court considered the application of the Health Care Services Lien Act and its application to uninsured/under-insured claims. The Health Care Services Lien Act provides that any healthcare professional who renders any service in the treatment, care, or maintenance of an injured person…should have a lien upon all claims and causes of action of the insured person for the amount of the healthcare professionals or healthcare providers reasonable charges up to the date of payment of damages of the injured person. The total amount of liens, under this act, however, shall not exceed 40% of the verdict, judgment, award, settlement, or compromise secured by, or on behalf of, the injured person on his or her claim or right of action. Traditionally, liens applied to tort actions but not claims against insurance.

In McRoberts v. Porter there was a car accident. Three people sustained bodily injuries and damages. There was a liability policy of $50,000.00, which the plaintiffs collected. There was another under-insured motorist benefit of another $50,000.00. The total insurance was $100,000.00.

The liability coverage is clearly subject to liens under the statute. The question was whether or not it applies to under-insured benefits.

The court in DeMambro v. City of Springfield discussed local governments obligation to use reasonable care when repairing the roadways. The issue arose under the Tort Immunity Act, specifically section 3-102. That section provides as follows: “Accept as otherwise provided in this article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used.” (745 ILCS 10/3-102(a).

In DeMambro the plaintiff injured her ankle when she slipped in a pothole while attempting to enter her vehicle, which was lawfully parked, near the curb on a city street. The trial court held that the city owed no duty of reasonable care to the plaintiff. Instead, the city was liable only if the action were willful and wanton under the Tort Immunity Act. The court held that plaintiff failed to provide evidence of a “physical manifestation of intent by the city….that it intended for Herndon street to be used by pedestrians.” The court found that there was no evidence that the street had designated parking meters, parking stalls, or line spaces. The court felt the burden would be too significant on the city or municipality to exercise reasonable care whenever a vehicle passenger or driver were entering or exiting the car if it has to do so for any cars who are parked parallel to a roadway. The city relied on Vaughn v. City of West Frankfort, 166 Ill. 2D [155,] 164 [(1995)]. It also relied on Boub v. Township of Wayne, 183 Ill. 2D 520[(1998)].

The Appellate Court (4th District Court of Appeals) reversed the trial court. The court reviewed the case law concerning permitted and intended users under the Tort Immunity Act. In Di Domenico v. Village of Romeoville, 171 Ill. 3D 293, 525 N.E.2d 242 (1988), the Appellate Court concluded the plaintiff was an intended and permitted user of a city street where the person was legally parked parallel to the curbing. In Di Domenico there were no signs, signals, meters or stripes. In contrast, the Supreme Court, four years after Di Domenico, concluded a person was not an intended and permitted user of a six lane highway where he was struck and killed near the center road trying to cross traffic. In Wojdyla v. City of Park Ridge, 148 Ill. 2D 417, 420-22, 592 N.E.2d 1098, 1100-01 (1992), the Supreme Court distinguished Di Domenico. The big difference in the Wojdyla case that the plaintiff was crossing the highway when he was struck and killed by a car. In another case, a plaintiff was exiting his parked truck to deliver boxes and stepped in a pothole. The court held that he was an intended and permitted user of the street. Curatola v. Village of Niles, 154 Ill. 2D 201, 608 N.E.2d 882 (1993).