Illinois attorneys handling Underinsured Motorist Claims should be aware that there are setoffs that the insurance companies are claiming that need to be challenged. In a typical situation, plaintiff sustains serious injuries caused by the negligence of another driver. Plaintiff settles her claim for the policy limits of $100,000 from the negligent driver’s insurance company. Plaintiff makes a claim against her won insurance company for additional benefits under the underinsured motorist coverage of her own policy. Her insurance policy has limits of $300,000 for underinsurance motorist coverage. The plaintiff’s insurance company will routinely seek a credit for the full $100,000 paid by the neglligent driver’s insurance company, therby leaving only an additional $200,000 available to compensate the seriosly injured plaintiff.

The common fund doctrine allows a party that creates a fund from which others benefit to seek reimbursement from those other parties. Scholtens v. Schneider, 173 Ill. 2d 375, 671 N.E. 2d 657 (1996). The common fund doctrine most often appears in situations where an insurer obtains a recovery for medical expenses they paid through the plaintiff’s attorney’s efforts in securing the fund. However, the common fund doctrine is not limited to insurance subrogation cases. Chapman v. Kitzman, 193 Ill. 2d 560. 739 N.E. 2d 1263 (2000). The general requirements for applying the common fund doctrine are: (1) the fund for which fees are sought was created as a result of legal services performed by the plaintiff’s attorney, (2) the claimant of the fund did not participate in its creation, and (3) the claimant will benefit from the fund. Taylor v. State Universities Retiremement System, 203 Ill. App. 3d 513, 560 N.E. 2d 893 (1990).

In a very interesting partial concurrence and disssent Justice Chapman addresses the intersection of the common fund doctrine and underinsured motorist benefits and concludes that: “the common-fund doctrine is applicable.” James v. Western States Ins. Co., 335 Ill. App. 3d 1109, 1127, 738 N.E. 2d 37, 51(2001). Using the example above with the $100,000 settlement with negligent driver’s insurance company, the underinsured motorist policy of $300,000 would receive a credit of $66,666 ($100,000 minus $33,333 in fees or $66,666), instead of the full $100,000 credit. Using this approach achieves a $33,000 additional benefit to the client.

Tires older than 6 years old should not be used on motor vehicles since it can lead to tread separation and catastrophic failure. Since 2001 the British Rubber Manufactures Association (BRMA) have recommended: “BRMA members strongly recommend that unused tyres should not be put into service if they are over 6 years old and that all tyres should be replaced 10 years from the date of their manufacture.” This is incredible since BRMA includes all the tire manufacturers who also sell in the United States. No such warnings have been given by tire manufacturers and retailers to consumers in the United States. Retailing giants in the U.S. like Walmart and Sears routinely sell tires as new in their stores that are routinely older than 6 years and sometimes as old as 17 years. This is unconscionable!

Like any other rubber product, tires have a limited service life regardless of tread depth and use. Tire age can be determined through decoding of the required DOT number printed on the side of a tire, but it is of no help to consumers because you must know the code to interpret when the tire was manufactured. Experts that I have worked with say that tire age is a silent killer because a consumer can purchase a brand new tire from a reputable retailer or outlet and have no idea that at the time of purchase the tire is already defective.

Ford Motor Company added a 6 year tire replacement recommendation, regardless of tread wear, to all 2006 owner’s manuals. Finally, on June 2, 2008, the National Highway Transportation Safety Administration (NHTSA) issued a Consumer Advisory warning that aged tires, regardless of tread use, are subject to greater stress increasing the likelihood of catastrophic failure. Recent investigative reports point to corporate neglect and government inaction as the root cause of American consumers buying new tires that are defecive at the time of purchase.

Illinois childhood sexual abuse victims were given a chance to bring their claims for injuries by an opinion by the Illinois Appellate Court, Fifth District that was released March 7, 2008, Doe v. Diocese of Dallas, 379 Ill. App. 3d 782, 885 N.E. 2d 376. Essentially the court held that the statute of limitations for bringing a claim for childhood sexual abuse that became effective on July 24, 2003, and which in summary increased the statute of limitaions to 5 years from “the date the person abuse discovers or through the use of reasonable deligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse, 735 ILCS 5/13-202.2, could apply to a claim that the previous statute of limitations had already barred. The Illinois legislature passed this legislation in direct response to an opinion by the Illinois Supreme Court in 2000 which held that there is no requirement that a plaintiff must know the full extent of his injuries before the statute of limitations begins to run, and further held that Illinois law presumes an injury from an allegation of sexual abuse, Clay v. Kuhl, 189 Ill. 2d. 603, 727 N.E. 2d 217 (2000).

In 2006 two different Illinois Appellate Court decisions intrepretting 735 ILCS 5/13-202.2, reached the same conclusion “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 wothout offending the due process protections of our state’s constitution.” Kuch v. Catholic Bishop of Chicago, 366 Ill. App. 3d 309, 313, 851 N.E. 2d 233, 236 (2006); see also Galloway v. Diocese of Springfield, 367 Ill. App. 3d 997, 857 N.E. 2d 737 (2006). Both cases cited to a 1997 decision by the Illinois Supreme Court that held that once a statute of repose has extinguished a cause of action, defendant has a vested right under the due process clause of the State Constitution to invoke the statutory repose period, even after the repose period was abolished by the legislature. M.E.H. v. L.H., 177 Ill. 2d 207, 685 N.E. 2d 335 (1997).

The issue the court recently wrestled with In Doe v. Diocese of Dallas, (2008), was statutory retroactivity and whether to use the “vested rights approach” or the “legislative intent approach.”
The court described the vested rights approach as “the law applied was that which was in effect at the time of the appeal unless the use of that law somehow interfered with a vested right…., with the vested rights approach the legislature’s intent regarding retroactivity was not relevant.” The court stated that “under the legislative intent approach, the presumption is against retroactive application of the statutory changes unless the legislature clearly indicates an intent that the amendments be so applied.”
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An Illinois wrongful death lawsuit was filed recently for the deaths of a husband and wife who died March 7, 2007, in Will County. Unfortunately the heirs did not contact me until last month. They had retained a previous attorney shortly after the accident. For reasons that are unclear no lawsuit was filed. One of the major concerns of the lawyer representing the victims of crashes involving interstate trucking companies are securing the records that the trucking company retains regarding the on duty hours of the truck driver involved in the occurrence.

Federal Motor Carrier Regulations require that trucking companies involved in interstate commerce and their drivers maintain logs regarding the on duty status of the truck drivers. These logs are critical pieces of evidence for the lawyer to secure, because interstate truck drivers are frequently driving in excess of the federal regulations. Ever since the trucking companies were deregulated over 25 years ago, the trucking companies have been paying their drivers based on the number of miles they drive, so there is an incentive for both the truck driver and the trucking company to keep the wheels roling. It is true that drivers frequently avoid rest stops and actually urinate in containers in the truck so they can keep the wheels rolling.
Federal Motor Carrier Regulations mandate that a truck driver involved in interstate commerce cannot drive or be on duty no more than 70 hours in an 8 days, 49 CFR 395.3(b)2. On duty is defined in the federal regulations as being more than just driving, so time spent loading or unloading must be logged as being on duty. Traditionally logs were manually filled out by the drivers and they understandably wanted the logs to reflect that they were in fact operating their truck within the federal hours of service regulations.

Unfortunately, the federal regulations also provide: “..each motor carrier shall mantain records of duty status (logs) for 6 months from the date of receipt..” 49 CFR 395.8(k)(1). Filing a complaint against the interstate trucking company and its driver should be done as soon as practicable so that the trucking company is still required by federal regulations to preserve the logs of its driver. Attorneys should always file a motion for a protective order to preserve the logs shortly after filing suit. Why are the drivers daily logs so critical?
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A products liability suit in a rollover accident was not preempted by federal regulations according to a recent decision by the Fifth Circuit Court of Appeals. This decision rejects a common defense used by manufacturers in defending product liability claims brought by injured consumers claiming injuries from defective products. Plaintiff brought suit in a Texas state court against GM alleging serious injuries when she was partially ejected from the passenger side window of a Tahoe. The complaint alleged common law theories of strict liability and negligence for the defective design, manufacture, and marketing of the Tahoe’s side windows. Plaintiff claimed GM’s use of tempered glass in the side windows was unreasonably dangerous and that the use of advanced glazing would have decreased the likelihood of passenger ejection. GM removed the action to federal district court based on diversity jurisdiction.

The Fifth Circuit Court of Appeals succinctly stated the issue: “This appeal is about whether FMVSS 205, which governs motor vehicle safety, preempts a common law suit alleging that GM’s use of a permitted glazing technology was unsafe. We are the first appellate court to rule on this question.” O’Hara v. GM, (slip opinion at p. 6) (2007). GM argued that a 2002 decision to leave the existing standards regarding glazing intact (FMVSS 205) embodies a federal policy regarding motor vehicle glazing would be frustrated by a Texas common law rule requiring advanced glazing in side windows. GM contented thatGeier v. American Honda Motor Co., 5529 U.S. 861 (2000), which found that FMVSS 208 (the NHTSA safety standard for occupant crash protection) compelled preemption of state common law claims. Plaintiff contended that FMVSS 205 differs significantly from FMVSS 208 and that NHTSA’s decision not to require advance glazing in side windows left FMVSS 205 intact as a “minimum safety standard” that does not preempt state tort actions. Plaintiff further argued that NHTSA’s decision not to require advance glazing in side windows is similar to the Coast Guard’s decision not to require propeller guards, which was held to be non-preemptive inSprietsma v. Mercury Marine, 537 U.S. 51 (2002).

Conflict preemption was discussed with the Court stating: “Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Fid. Fed. Sav. & Loan Ass’n. v. de la Cuesta, 458 U.S. 141, 153 (1982). Federal regulations can have a preemptive effect equal to that of federal laws. Conflict preemption can arise in one of two ways, either when compliance with both federal regulations and state regulations is a physical impossibility or when state laws stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The second form of implied conflict preemption is at issue here.”O’Hara v. GM, (slip opinion at p. 7) 2007.

In Sprietsma, The U.S. Supreme Court held that nothing in the Coast Guard’s official explanation for not requiring propeller guards on all boats “would be inconsistent with a tort verdict premised on a jury’s finding that some type of propeller guard should have been installed on this particular kind of boat” and that it did not “convey an authoritative message of a federal policy against propeller guards.” Sprietsma v. Mercury Marine, 537 U.S. 51, 67 (2002).
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Illinois medical malpractice lawyers who represent victims and their clients were pleased with the ruling last week by Cook County Circuit Court Judge Joan Diane Larsen that caps on non-economic damages in medical malpractice cases violates the Illinois Constitution. Under the law (Public Act 94-667), plaintiffs could be awarded no more than $500,000 in non-economic damages against doctors and $1 million against hospitals. Non-economic damages are generally damages for pain and suffering, disability, and disfigurement.

The Illinois Supreme Court has twice ruled as unconstitutional caps on non-economic damages in medical malpractice cases in Wright v. Central Du Page Hospital, 63 Ill. 2d 313, 347 N.E. 2d 736 (1976), and in wrongful death and injury cases in Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E. 2d 1057 (1997). In Best, the high court observed: Under our constitution, the three branches of government-legislative, executive, and judicial-are separate and one branch shall not “exercise powers properly belonging to another.” Ill. Const. 1970, art. II, sec. 1. 179 Ill. 2d at 410, 689 N.E. 2d at 1078. The Illinois Supreme Court traced judicial authority by noting: For over a century it has been a traditional and inherent power of the judicial branch of government to apply the doctrine of remittitur, in appropriate and limited circumstances, to correct excessive jury verdicts. Best, 179 Ill. 2d at 411, 689 N.E. 2d at 1079.

In concluding that 735 ILCS 5/2-1115.1 (the cap) violates the separation of powers clause of the Illinois Constitution (1970). Art. II, sec.1, the Best court held: …because the legislature cannot make such case-by-case determinations, separations of powers concerns would be violated by the “legislative attempt to mandate legal conclusions.”….we conclude that section 2-1115.1 invades the power of the judiciary to limit excessive awards of damages. The courts are constitutionally empowered, and indeed obligated, to reduce excessive verdicts where appropriate in light of the evidence adduced in a particular case. Section 2-1115.1, however reduces damages by operation of law, without regard to the specific circumstances of individual jury awards. 179 Ill. 2d at 660, 689 N.E. 2d at 1081.
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An Illinois wrongful death lawsuit that I filed on behalf of the family of a 17 year old boy who died in a crash while riding his motorcycle recently came to a successful conclusion. On July 26, 2004, the decedent’s best friend drove his 1995 Honda CBR 600 F3, which he had just purchased, to decedent’s home to let him take it for a ride. This motorcycle is commonly known as a “pocket rocket“, due to its rapid acceleration. This feature causes inexperienced drivers to be thrust back causing their hands to pull back on the accelerator which is located on the hand grip. Unfortunately, while riding the motorcycle decedent lost control of the motorcycle, left the roadway and struck a tree sustaining fatal head injuries.

In Illinois it is illegal to operate a motorcycle without a Class M license. Neither 17 year old boy had a Class M license nor did they ever have any training in the operation of motorcycles. Decedent’s family sued the the 17 year old owner of the motorcycle alleging negligent entrustment of the motorcycle to their inexperienced, unlicensed and underage son.
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Illinois Wrongful Death Act now allows jurors to award damages for “grief, sorrow, and mental suffering.” The law in Illinois since 1867 has been that in wrongful death actions, there is “no recovery for bereavement” and “nothing can be given as solatium.” Chicago & A.R. Co. v. Shannon, 43 Ill. 338, 1867 WL 5039 (1867).

Jury instructions in wrongful death actions arising before the effective date of this amendment, May 31, 2007, have and will include Illinois Pattern Jury Instruction (Civil) IPI 31.07. This instructions states: In determining “pecuniary loss” you may not consider the following:
(1) The pain and suffering of the decedent;
(2) The grief or sorrow of the widow and next of kin, or (3) The poverty or wealth of the widow and next of kin.

Needless to say this was and is a powerful argument that defendants, their insurers and attorneys make to jurors at the trial of a wrongful death action to limit the amount of damages awarded. Sometimes the only significant loss widows and next of kin sustain is the “grief, sorrow, and mental suffering” associated with the wrongfyl death of a family member.
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Illinois sexual abuse victims often confront confusing statute of limitations issues when bringing claims for chilhood sexual abuse. The Illinois Supreme Court held that under the common law discovery rule governing when a statute of limitations commences, there is no requirement that plaintiff must know the full extent of her injuries before the applicable statute of limitations begins to run. Clay v. Kuhl, 189 Ill. 2d 603, 727 N.E. 2d 217 (2000).

Plaintiff in Clay was born in 1964, sexually abused on hundreds of ocassions in 1972 and 1973, and filed suit against Kuhl and his religious order in 1996. Plaintiff alleged that it was not until 1994 that she first became aware that Kuhl’s misconduct caused her injuries.

The defendants moved to dismiss complaint pursuant to 735 ILCS 5/2-619(a)(5), arguing that the time for filing suit expired on March 31, 1984, when she turned 20 years old. Illinois law allows minors to bring suit within two years of reaching majority; 18 years old being majority in Illinois, 735 ILCS 5/13-211. The trial court granted defendants’ motion to dismiss. Plaintiff appealed and Illinois Appellate Court reversed the dismissal, Clay v. Kuhl, 301 Ill. App. 3d 694, 704 N.E. 2d 875. The Illinois Supreme Court granted leave to appeal and reversed the Appellate Court and affirmed the trial court’s dismissal.

In arguments before the Illinois Supreme Court plaintiff contended that application of the discovery rule is necessary because plaintiff did not realize the full extent of her injuries until well after her 20th birthday. The discovery rule states that a party’s cause of action accrues when the party knows or reasonably should know of an injury and that the injury was wrongfully caused. Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E. 2d 976 (1981).
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Internet prescription drug overdoses are a threat to public health in the United States. Medical malpractice and product liability suits against the internet pharmacies, physicians who prescribe without a valid physician-patient relationship, and the pharmaceutical companies themselves currently are the only effective means to halt this public health threat.

The Centers for Disease Control last week released data that indicates that “poisoning was second only to motor-vehicle crashes as a cause of death from unintentional injury in the United States.” The report indicated that unintentional drug poisoning deaths increased 68% from 1999 thru 2004. This mortality rate increase was attributed primarily to deaths associated with prescription drugs. Fatal drug overdoses in teenagers and young adults soared 113 % during this same time frame.
What does this mean? Deaths from drugs manufactured by pharmaceutical companies, sold by pharmacies (internet and traditional), and frequently approved by physicians accounted for more accidental overdose deaths than from street drugs, such as heroin. Troubling, you bet!

According to a recent study by the Partnership for a Drug Free America, today’s teens are more likely to abuse prescription and over the counter medications, than illegal drugs. These drugs can be purchased over the internet or over the counter. The National Center on Addiction and Substance Abuse (CASA) at Columbia University reported in 2006 that 9 out of 10 internet sites selling controlled prescription drugs do NOT require a prescription.

The current president of CASA and former U.S. Secretary of H.E.W. recently stated: “Any child can get, without prescription, a highly addictive controlled substance like OxyContin, Valium and Ritalin from drug pushers.” Despite Congressional hearing, CASA reports and increased attention in the press, these drugs continue to be as easy to buy over the internet as candy. Other CASA findings indicate that Xanax and Valium are the most frequently offered controlled prescription drugs over the Internet.
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