Chicago Accident Law Blog

Illinois sexual abuse victims and their attorneys have experienced progress and setbacks in attempts to receive just compensation for their injuries-many of which are catastrophic and permanent.

...735 ILCS 5/8-2801 protects victims of sexual abuse having to defend against evidence of other sexual behavior. This is extremely important because victims do not want to have their whole history of sexual activity put under a public spotlight in order to pursue a legitimate claim of sexual abuse. Effective January 1, 2010.

...735 ILCS 5/13-202.2 increased the time victims of childhood sexual abuse have to file suit to 10 years after victim reaches 18 or 5 years from the date the victim discovers both (1) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the sexual abuse. This is also good news for victims since they frequently don't recognize until well after they reach 18 that their psychological and/or emotional injuries were caused as a result of the sexual abuse they suffered as children. Effective July 24, 2003.

...735 ILCS 5/13-202.3 eliminates the 2 year statute of limitations for adult victims of sexual if they are subject to "threats, intimidation, manipulation or fraud perpetrated by the perpetrator." Efffective January 1, 2008.

...Doe v. Diocese of Dallas, 234 Ill. 2d 393, 917 N.E. 2d 475 (2009). The Illinois Supreme Court held that the increased statute of limitations contained in 735 ILCS 5/13-202.2 (see above) does not resurrect a claim that was already barred by a prior statute of limitations when when the new statute of limitations became effective-July 24, 2003. The court based its holding on the Ill. Const. 1970, Art. I Sec. 12. ruling "once a statute of limitations has expired, the defendant has a vested right to invoke the bar of the limitations period as a defense to the cause of action..." Basically, once a statute of limitations has expired the cause of action cannot be resurrected by an act of the legislature without violating the Illinois State Constitution. This ruling has precluded many legitimate claims of childhood sexual abuse from proceeding, but its effect through time will be diminished.

...In re Detention of Tommy O. Hardin, 2010 WL 2524155, the Illinois Supreme Court held that probable cause standard was met under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq.) adopting a more relaxed standard employed by the state of Wisconsin in State v. Watson, 227 Wisc. 167, 595 N.W. 2d 403 (1999). The court has made the burden on the state less onerous when they seek to meet probable cause to have a trial on whether civil commitment is appropriate after a sexual abuse offender has completed his or her term of incarceration. Good news for society-pedophiles have a high rate of recidivism.

Illinois car accident attorneys should be aware of two recent opinions which expand the rights of injured parties to recover in uninsured motorist and underinsured motorist claims: (1) Uninsured Motorist claims - Nicholson v. State Farm Ins. Co., 2010 WL 1208887 (Ill. App. Ct. 2nd Dist.) released March 23, 2010.
(2) Undersinsured Motorist claims - Schultz v. Illinois Farmers Ins. Co., 2010 WL 966206 ( Ill. Sup. Ct.) released March 18, 2010.

In Nicholson, the issue was whether an Illinois insurer has to offer uninsured motorist coverage in an amount equal to liability coverage that an insured has elected to increase or whether an earlier rejection of higher limits exempts the insurer from this statutory requirement. Essentially in Nicholson an insured elected to increase his liability coverage and the insurered failed to get a written rejection of equal limits for uninsured motorist coverage as is required by 215 ILCS 5/143a-2(1). This section establishes the general rule that no automobile liability insurance policy "shall be renewed or delivered or issued in this State" unless UM coverage equivalent to the liability coverage is included, "unless specifically rejected by the insured."

The Nicholson court stated: "(t)he language, with its statement that the rule applies to policies that are renewed and its references to the insured, clearly expresses a legislative intent to include current policyholders, not just first-time applicants, within the statute's ambit." State Farm argued that 215 ILCS5/143a-2(2) sets out an exception to the rule requiring insurers to offer UM coverage equal to liability coverage and that the exception applies here because it states that equal coverage need not be provided in any "renewal, reinstatement, reissuance, substitute, amended, replacement or supplementary policy." The Appellate Court conceded that the language contained in subparagraphs(1) and (2) "is somewhat ambiguous."

The Nicholson court conclude that: " We believe that a change in the level of coverage, with its attendant change in the premium cost, is a material change that results in a new policy rather than a mere continuation of the old policy....in light of these material changes, the defendant was required to once again offer...equal UM coverage and to obtain a rejection of that coverage before the Janotas their new policy." The bottom line is that auto insurers in Illinois must offer and obtain a rejection of higher UM benefits when increasing an insureds liability coverage. Good news for victims seeking compensation for their injuries.

Continue reading "Illinois Uninsured and Underinsured Motorist Claims" »

Victim of Illinois railroad accident receives a $33 million from jury on March 25, 2010. A 19 year old railroad conductor was severely injured on April 8, 2007, when he fell alongside a moving train in the Rock Island train yard while attempting to pull a uncoupling lever on a train. The plaintiff sustained bilateral leg amputations as well as other catastrophic injuries.

The Iowa Interstate Railroad, and its engineer were charged with violating numerous safety rules while switching cars, particularly the federal radio communication rule governing train operations that requires an engineer, when backing a train in response to a radio command from a conductor, to stop in half the distance of what the command was, unless additional commands received. Jurors are generally receptive to violations of federal statutes or regulations as persuasive evidence of negligence, they certainly did in this case. The railroad initially published a memo blaming the injury on the injured conductor, but obviously the Rock Island County jury felt differently. An appeal is sure to be filed.

Illinois personal injury lawyers should be aware that on March 4, 2010, the Appellate Court in Holloway v. Dunway, 2010 WL 763918, held that medical providers stautory liens for services rendered (770 ILCS 23/1 et seq.) to an injured person are subject to reduction under common fund doctrine for attorneys fees incurred by plaintiff in obtaining recovery. The Court held and stated:

* if the professional or provider seeks to collect the debt owed to it out of the common fund created by the plaintiffs and their attorneys, the common fund doctrine applies and it is responsible for its proportionate share of attorney fees and costs- 770 ILCS 23/45.
*the common fund doctrine permits a party who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from that fund in which others have an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees. Scholtens v. Schneider, 173 Ill. 2d 375, 385 (1996).
*it is now well established that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney fee from the fund as a whole.
*To sustain a claim under the common fund doctrine, the attorney must show that (1) the fund was created as a result of legal services performed by the attorney, (2) the claimant did not participate in the creation of the fund, and (3) the claimant benefited or will benefit from the fund that was created. Bishop v. Bugard, 198 Ill. 2d 495 (2002).
*it is irrelevant that the party who benefits from a lawyer's services has a right to compensation, be it undifferentiated right of reimbursement or subrogation.
*We believe that by its use of this language, the supreme court intended to, and did, shift the focus away from the relationship between the parties and toward what it called the "real question" of whether the claimant benefited from the lawsuit without contributing to its costs, thereby becoming unjustly enriched. Bishop, 198 Ill. 2d 495, 510. (2002).
*While the hospital's right to payment may not be dependent on the creation of the fund, its statutory lien is in fact dependent on the creation of the fund, for the lien specifically and expressly attaches only to the common fund. 770 ILCS 23/20.

The effect of this decision is that now an injured plaintiff can have the health care providers statutory lien amount (770 ILCS 23/20) reduced by an additional amount, customarily the standard attorney fees of one third. This is only fair and equitable.
This will also have the effect of health care providers submitting their bills to Medicare, Medicaid or an insurance company for payment where they never receive the full amount of their bills. Good news for injured Illinois citizens.

Illinois product liability attorneys should be aware that Avandia, a diabetes drug, is now linked to a higher risk of heart attack and heart failure according to a report released by the Senate Finance Committee on Feb. 20, 2010. The report authored by the committee chaired by Senators Baucus and Grassley concluded:

"The totality of evidence suggests that GSK (GlaxoSmithKline) was aware of the possible cardiac risks associated with Avandia years before such evidence became public....Based on this knowledge, GSK had a duty to sufficiently warn patients and the FDA of its concerns in a timely manner. Instead, GSK executives intimidated independent physicians, focused on strategies to minimize findings that Avandia may increase cardiovascular risk, and sought ways to downplay findings that the rival drug ACTOS (pioglitazone) might reduce cardiovascular risk."

According to recently released reports by the FDA if every diabetic taking Avandia were instead given a similar drug named Actos, about 500 heart attacks and 300 heart failures would be averted every month because Avandia can hurt the heart. Dr. David Graham and Dr. Kate Gelperin of the FDA stated in a report: "Rosiglitazone (Avandia) should be removed from the market."

Senator Max Baucus chairman of the Finance Committee said: "Americans have a right to know there are serious health risks associated with Avandia and GlaxoSmithKline had a responsibility to tell them. Patients trust drug companies with their health and lives and GlaxoSmithKline abused that trust." The first study to disclose the Avandia heart risk was released by the New England Journal of Medicine on May 21, 2007. The Senate report states that the FDA estimated in July 2007, that Avandia has been linked to 83,000 heart attacks since it was put on the market.

Currently most litigation is in federal court since GlaxoSmithKline is a British corporation and the cases have been consolidated for purposes of discovery in the U. S. District Court for the Eastern District of Pennsylvnia. Victims are still entitled to file the litigation in the federal court where they took the medication, but discovery will take place under the auspices of the federal judge in the federal court for the Eastern District of Pennsylvania. Now that evidence exists that GSK failed to warn of known risks of Avandis for years the prospect for success in Avandia litigation has increeased substantially. If you, a family member, or friend has had a heart attack while taking Avandia you should promptly consult with an attorney well versed in handling product liability litigation. Should you so choose feel free to contact Edmund Scanlan at 877-494-1309.

Illinois sexual abuse victims and their lawyers are now protected against having to defend against evidence of other sexual behavior or sexual predisposition. Effective January 1, 2010, 735 ILCS 5/8-2801 provides that: "Admissibility of evidence; prior sexual activity or reputation.
(a) Evidence generally inadmissible. The following evidence is not admissible in any civil proceeding except as provided in subsection (b) and (c):
(1) evidence offered to prove that any victim engaged in other sexual behavior; or
(2) evidence to prove any victim's sexual predisposition.
(b) Exceptions.
(1) in a civil case, the following evidence is admissible, if otherwise admissible under this Act:
(A) evidence of specific instances of sexual behavior by the victim offered to prove that a person other than the accused was the source of semen, injury, or otheer physical evidence; and
(B) evidence of specific instances of sexual behavior by the victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent by the victim.

Subsection (c) deals with the procedure to determine admissibility, essentially a motion filed fourteen days before trial with an in camera hearing with the record sealed. This addition to the Illinois Code of Civil Procedure essentially follows Rule 412 of the
Federal Rules of Evidence. The Notes on Rule 412 state: The rule aims to safeguard the alleged victim against invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and infusion of sexual innuendo into the factfinding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings.

This addition to the Illinois Code of Civil Procedure is welcome for victims of sexual abuse. No longer will they be cross examined regarding other sexual behavior or their sexual predispositions. This will as the notes to Rule 412 reveal encourage victims to institute or participate in legal proceedings without fear of embarrassment or sexual stereotyping. Illinois sexual abuse victims will no longer have to fear public disclosure of intimate sexual details that have no bearing on the allegations of sexual abuse that are being litigated. This is very good news for Illinois sexual abuse victims and will now freely allow them to access the legal system for redress without submitting their entire life's sexual history to public scrutiny.

Illinois brain injury lawyers should be aware that traumatic brain injury can occur in the absence of loss of consciousness. There is overwhelming ignorance in the medical community that there is even the possibility of permanent brain injury in patients who do not suffer loss of consciousness following a trauma to the head.

Serious researchers have now concluded that traumatic brain injury can occur without a documented loss of consciousness. See Neuropsychological Assessment, 3rd, by Murial Lezak; Sports and Concussion Guidelines promulgated by the American Academy of Neurology in conjunction with the Brain Injury Association; the treatise Prognosis of Neurological Prognosis of Neurological Disorders.

I have represented numerous clients whose emergency room physicians failed to diagnose traumatic brain injury merely because the was no documented loss of consciouness. If the client has continuing cognitive difficulties it is wise to refer the patient to a neurologist, neurosurgeon, or rehabilitation physician who have experience in diagnosing and treating patients with traumatic brain injuries. Frequently, the attorney must retain an expert to perform a neuropsychological assessment of the patient to confirm the diagnosis of traumatic brain injury. It is critical to remember that just because a treating physician or emergency room physician does not diagnose a traumatic brain injury because of no documented losss of consciousness, does not mean that the patient does not indeed have a traumatic brain injury. The best evidence of serious brain injury comes from family and friends who can document personality changes or cognitive impairment that developed following a traumatic brain injury. Promptly retaining an attorney with experience representing victims of traumatic brain injuries is critical in securing a favorable outcome for clients some of whom will suffer of life with cognitive impairment.

Truck accident attorneys in Illinois and around the nation should be aware that the federal government formally barred truckers and bus drivers from sending text messages while operating a commercial motor vehicle, effective January 27, 2010. The Federal Motor Carrier Safety Administration (FMCSA) did not create a new regulation or a new law, but rather provided regulatory guidance. The FMCSA recently completed its "Driver Distraction in Commercial Vehicle Operations" study and released the final report on October 1, 2009. In this study the FMCSA found that: The most risky behavior identified by the research was "text message on cell phone," with an odds ratio of 23.2. This means that the odds of being involved in a safety-critical event is 23.2 times greater for drivers who are texting while driving than for those who do not.

FMCSA has now provided regulatory guidance regarding 49 CFR 390.17 in an answer to the following question: Do the Federal Motor Carrier Regulations prohibit "texting" while driving a commercial motor vehicle in interstate commerce? FMCSA answered the question as follows: Yes......Research has shown that during 6-second intervals immediately preceding safety-critical events (e.g., crashes, near crashes, lane departure), texting drivers took their eyes off the forward roadway an average of 4.6 seconds. Therefore the use of electronic devices for texting by CMV operators while driving on public roads in interstate commerce decreases safety and is prohibited by 49 CFR 390.17.

Truck accident lawyers should now issue discovery and subpoenas in lawsuits to secure the operators cell phone records to determine if the driver was texting at or near the time of a collision. If appropriate the complaint should be amended to include a violation of 49 CFR 390.17. Illinois and about 19 other states also ban texting while driving. On January 1, 2010, Illinois' law became effective and provides: A person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send, or read an electronic message, 625 ILCS 5/12-610.2. These state laws and 49 CFR 390.17 should be used in pursuing truck drivers and trucking companies for injuries in truck related crashes where driver attentiveness is the issue.

The traditional discovery in litigation of toll receipts, log books, fuel receipts, and GPS tracking devices should also be employed as hours of service violations resulting in fatigued drivers are common and the frequent cause of catastrophic injuries and fatalities in trucking accidents. Truck accident lawsuits are complex and prompt investigation by an experienced truck accident attorney is critical in ensuring a favorable outcome in catastrophic truck crashes. Speed of instituting legal action is also critical because federal regulations only require trucking companies to maintain their log books for six months, and they are frequently a critical piece of evidence in holding the trucking companies and their drivers responsible for serious injuries and deaths. Since truck accident cases frequently wind up in federal court because of diversity jurisdiction, this new interpretation of 49 CFR 390.17 will allow federal courts the authority to fashion a just and fair result for the victims of truckling accidents.

Illinois truck accident attorneys should be aware of the recent decision by the Illinois Supreme Court regarding whether the Illinois Vehicle Code's "omnibus coverage" applies to commercial truckers. In Zurich American Ins. Co. v. Key Cartage, 2009 WL 3470846 (2009), the Court held that "omnibus coverage" mandated by Section 5/7-317(b)(2) of the Illinois Vehicle Code does not apply to commercial truckers regulated under the Illinois Commercial Transportation Law, 625 ILCS 5/18c-1101 et seq. "Omnibus coverage" is defined as a motor vehicle liability policy that "shall insure the person named therein and any other person using or responsible for the use of such motor vehicle or vehicles with the express or implied permission of the insured" 625 ILCS 5/7-317(b)(2).

The issue in Zurich was whether Zurich American Ins. Co. which insured a lessor trucking company, Rose Cartage, or West Bend Ins. Co. which insured the lessee, Key Cartage and driver of the truck, were responsible for providing coverage when one of Key Cartage drivers was involved in an Illinois accident which resulted in a death. Zurich's insurance policy had a reciprocal coverage provision that stated that they would only cover Rose Cartage employees and that they would not provide coverage to anyone using the truck, even with permission, unless that person (Key Cartage) also insured Rose Cartage. West Bend Ins. Co. maintained that the reciprocal coverage provision violated 625 ILCS 5/7-317(b)(2). The Appellate Court in Zurich held that the reciprocal coverage provision violated Section 5/7-317(b)(2) and was void as against public policy.

The Illinois Supreme Court reversed and held that: "...we conclude that the definition of motor vehicle liability insurance policies set forth in section 7-317, including the omnibus requirement in section 7-317(b)(2), does not apply to commercial truckers regulated under the Commercial Transportation Law." The Court pointed out that section 18c-4902 of the Commercial Transportation Law provides that the Illinois Commerce Commission "shall prescribe the amounts of Insurance" necessary for insurance policies issued to motor carriers of property in the state of Illinois.

In properly evaluating the value of wrongful death actions or serious injuries sustained during a trucking accident, it is critical to know at the earliest possible time the amounts of coverage available so that recommendations can be made as to the value of the case. As a practical matter it is generally wise to name as defendants in trucking lawsuits not only the driver and his employer, but also the owner of the tractor, trailer, and any leasing agents.

Illinois sexual abuse victims and their attorneys were severely disappointed with the September 24, 2009, Illinois Supreme Court decision in Doe v. Diocese of Dallas, 234 Ill. 2d 393, 917 N.E. 2d 475. The court framed the issue as: "..whether section 13-202.2 of the Code of Civil Procedure (735 ILCS 5/13-202.2), may be applied to permit an action for personal injury based on childhood sexual abuse to proceed where that action would otherwise have been time-barred under the law as it existed when the amendment took effect."

The defendant priest's lawyer contended that because plaintiff's cause of action was already time-barred under the prior law years before the the 2003 amendments took effect, allowing the lawsuit to go forward now would deprive him of a vested right in violation of the due process protections of the Illinois Constitution (Ill. Const. 1970, Art. I Sec. 12). The Illinois Supreme Court agreed stating: "once a statute of limitations has expired, the defendant has a vested right to invoke the bar of the limitations period as a defense to a cause of action. That right cannot be taken away by the legislature without offending the due process protections of our state's constitution."

This decision has caused me to discontinue representation of several meritorious claims of my clients. The court did not dwell on the thoughtful analysis of two appellate court opinions that discussed the retroactivity analysis between the "vested rights" and "legislative intent" approach to determining whether a claim is time-barred. I have written two earlier blogs on this topic. This is a sad day for victims of sexual abuse in Illinois.

I understand the Illinois Supreme Court's reason for reaching the decision they did. Namely, application of the 2003 amendment to a time-barred claim to breathe new life into it violates the due process clause of our state's constitution (Ill. Const. Art. I, Sec. 12). I honestly believe they signed the opinion holding their nose, and they said as much; "Defendants in this case have elected to invoke the defense, and they alone are responsisible for that decision and its impact on plaintiff's ability to seek relief through the courts." I regretfully respect the high court's decision and feel sorry for the victim. The Catholic Church's tactic in bringing about the pain to this victim, many other victims, and even our Supreme Court is deeply disturbing!

Illinois car and truck accident attorneys in investigating the causes of vehicular crashes should always consider the possibility that one of the drivers was texting, emailing or on a cell phone at the time of the colllision. In 2008, the National Highway Traffic Administration (NHTSA) published a study indicating that driving daylight hours 11% -or 1.8 million drivers-were on the cell phone.

The National Safety Council has called for a total ban on cellphone use while driving because their research showed more than 100 million people are engaged in this activity everyday and that cellphone use has caused 636,000 crashes, 330,000 injuries, 12,000 serious injuries, and 2,600 deaths each year.

Texting while driving has been found by a recent study by Virginia Tech Transportation Institute to result in a 23 times greater risk of a crash. An Illinois law passed earlier this month will ban: texting, emailing, or websurfing while driving. This law will become effective January 1, 2010. This is a step in the right direction! Cell phone use while driving should similarly be banned.

In representing crash victims we should always investigate cell phone use, texting, or emailing as potential causes. Subpoena to the cell phone provider can provide dates, times, and numbers of phones called, texted or emailed. After suit is filed discovery request should be tailored to specifically inquire as to all cell phone or email providers so that the appropriate subpoenas can be served. Comprehensive subpoenas, requests for production, and depositions can shed a great deal of light on an otherwise difficult crash investigation and can result in securing a fair compensation to the crash victims we represent.

Illinois motorcycle accident attorneys should always be creative when analyzing the potential areas of recovery for their clients. According to the U.S. Dept. of Transportation (DOT) there were 7.1 million motorcycles on the road in the U.S. in 2007. Sales of all two wheelers in the U.S. was 1,087,000 in 2008.

Motorcycles are by their very nature far less crashworthy than closed vehicles and crashes frequently result in catastrophic injuries or death. They are also less visible to other vehicles and pedestrians and less stable than four wheel vehicles. Motorcyclists and their passengers are more vulnerable to the hazards of weather and road conditions than drivers in closed vehicles. According to the DOT 5,154 people died in motorcycle crashes in 2007 and motorcycles are 35 times more likely than passenger car occupants to die in crashes per vehicle mile driven in 2006, and 8 times more likely to be injured according to the DOT'S National Highway Traffic Safety Administration (NHTSA).

In a recent case I successfully represented the estate of an 18 year old male in a wrongful death lawsuit alleging negligent entrustment against the decedent's friend who let him ride his "supersport" motorcycle also known as a "pocket rocket" despite the decedent's lack of experience and licensure to operate a motorcycle. Determining whether there may be a potential claim for negligent entrustment require a careful reading of the Illinois Supreme Court's opinion in Zedella v. Gibson, 165 Ill. 2d 181, 186, 650 N.E. 2d 1000, 1003 (1995).

In Zedella, the Illinois Supreme Court adopted Section 308 of the Restatement of Torts (Second) which provides:

It is negligence to permit a third person to use a thing or engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such manner as to create an unreasonable risk of harm to others.

The testimony indicated that these recent high school graduates had never operated a motorcycle before, much less a motorcycle that was described in testimony as the fastest production motorcycle available.

Section 390 of the Restatement of Torts (Second) was adopted in Illinois by the court in Small v. St. Francis Hospital, 220 Ill. App. 3d 537, 542, 581 N.E. 2d 154, 158 (1991), and it states:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

These "pocket rockets" should only be used by or lent to motorcyclists with a high degree of training and who possess all necessary licenses.

Continue reading "Illinois Motorcycle Accident Attorneys Need Creativity" »