Author: Catherine Schneider, Coordinated Advice and Referral Program for Legal Services (CARPLS)
Last updated: May 2013
Get the police report if there is one! The report typically provides the names, addresses and dates of birth of the drivers, along with the names and addresses of the vehicles’ owners, the names and addresses of any passengers, and any insurance information for each vehicle. It should also contain the date and time of the accident, along with the address of the accident and information about any tickets which may have been issued.
Gather the following facts, which will help you analyze the strength of your client’s case or defenses:
Personal Injury – two years - 735 ILCS 5/13-202
Property damage – five years - 735 ILCS 5/13-205
Personal Injury and Property Damage when the defendant is a local public entity or any of its employees – one year - 745 ILCS 10/8-101
Generally injury and damage claims arising from motor vehicle accidents are due to the alleged negligence of a driver. Here is what a Plaintiff has to show to recover under negligence:
First, the alleged at fault driver or drivers are going to be proper party defendants. But, what about the vehicle owner? Ownership, in it of itself does not lead to liability. If the plaintiff can show that the driver was an agent of the owner at the time of the accident, or that the owner negligently entrusted the vehicle to the driver, then liability may attach to the owner.
Agency: If the driver is performing some act for another at the time of the accident, that other person, or “principal” could be liable for the driver’s negligence under agency. There are generally two scenarios when agency will come up, either the driver is family or a friend of the owner/insured, or is an employee of the insured.
Family or Friend: Families can be “on the hook” for the negligence of their drivers. For example, here 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. 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.
Employment: An employer may be liable for the damages caused by the negligent acts of its employees. An employer will be liable for its employees’ negligent acts if (1) an employer-employee relationship existed at the time of the accident and (2) the employee was acting within the scope of employment when the negligent act occurred. Pyne v. Witmer, 129 Ill.2d 351, 359 (1989). An individual should not be held to be an employee if he or she was hired as an independent contractor. But whether someone is an employee or independent contractor can be a question of fact too.
Negligent Entrustment: An action for negligent entrustment “consists of entrusting a dangerous article to another who the lender knows or should know is likely to use it in a manner involving unreasonable risk of harm to others.” Norskog v. Pfiel, 197 Ill.2d 60 (2001). Therefore, if the owner/insured lets his friend, who he knows has lost his driving privileges for moving violations, drive his car, that insured may likely face liability not only for the negligence of the driver, but his own negligence in giving the driver the keys.
Defendants and Insurance: Even if the owner is not liable because no theory of liability exists, there still might be insurance for the driver who does not own the car. Typically, liability insurance follows the vehicle. So if the driver is driving with the permission of the insured owner, there should be insurance for the driver, on the owner’s policy (unless that driver is specifically excluded or a member of the household the insured applicant failed to reveal on an insurance application). This goes back to who is an insured. In this case the insured is someone operating the insured vehicle with the named insured’s permission.
How to calculate damages is really more an art than a science. For injuries, there is an age old unwritten rule of three times specials. Specials are the medical bills and sometimes specials include lost time for work. Here’s where that three times idea comes from: one time to pay the bills, one time for the plaintiff’s pain and suffering, and one time for the attorney’s fees. But defendants, meaning really the insurance companies which defend these claims, tend to really discount and balk at this rule. Defense attorneys are looking to attack whether the accident actually caused any injury and closely scrutinize the necessity of the treatment and the reasonableness of the bills. But nonetheless, the value of a claim is certainly going to be measured against the medical bills, lost income from missed work, car rental expenses, repair bills, or the value of a totaled vehicle. Then there is the consideration for the more intangible or non-calculable damages like pain, suffering, permanency of injury, scarring and death.
Health Insurance: If a private health insurance company pays for medical care provided pursuant to the accident, that insurer will have a 100% contractual interest in what it has paid. The insured is contractually obligated under most private policies to reimburse the insurance company out of any settlement or award of damages. Therefore it behooves any plaintiff or attorney to negotiate with the health insurance provider to give up its rights in exchange for payment out of any settlement or award of damages and hopefully compromise the amount it receives. Insurance companies are willing to accept compromise payments – money in hand now through a settlement, rather than waiting for the outcome of litigation.
Medical Liens: When an injured party receives treatment, the medical provider has a lien for any unpaid portion of its bill against the injured party’s claims for damages.
The Healthcare Services Lien Act (770 ILCS 23/) controls. Liens can be both the plaintiff’s and the defendant’s hurdle, particularly in settlement negotiations. The Healthcare Services Lien Act limits the recovery of these lien holders. The Act creates two categories of healthcare services: healthcare professionals – which would be individuals like doctors and dentists and healthcare providers – which would be an entity like a hospital or treatment center. Basically, the total liens from both categories of lien holders cannot exceed 40% of the plaintiff’s recovery. Also, no individual category of lien holder can receive greater than 33% of the recovery. If the total liens are greater than 40%, then the each category of lien holder is capped at 20% of the plaintiff’s recovery.
The Healthcare Services Lien Act also affects attorney’s liens. If the total liens are greater than or equal to 40% of the recovery, the total amount of attorneys’ fees cannot exceed 30% of the plaintiff’s recovery. The attorneys’ fees section does not apply if an appeal is taken by either party. We should also note that nothing in the Act limits healthcare providers or professionals from pursuing collection of its reasonable charges for the services rendered to an injured. Therefore, it looks like a contract action remains for lien holders to recover remaining amounts due.
Finally, both Medicare and Medicaid also have lienhold interests in injured parties’ recoveries. Medicare is similar to other medical liens, but will have priority. Medicaid is more restricted and the lien is only on recovery of medical expenses, and not on other elements of damages like lost wages.
Defendants can attack any or all of Plaintiffs’ elements of proof: agency (the driver was not doing anything for the owner, nor was she an employee), negligence (the other driver stopped suddenly and did not have any working brake lights; another car cut me off), causation (the Plaintiff could not have been hurt – was walking around at the scene – said she was fine; there was not even a scratch on the other car); reasonableness and/or cost of treatment and repairs (6 weeks of massage was unwarranted, a new bumper was not needed). Defendants must raise affirmative defenses, particularly with respect to the actions of other parties, right away in the Answer. Also, defendants should be looking at whether the plaintiff or any other driver may have contributed to the accident, and seek permission to add Counter Claims and Third Party Claims right away.
If the plaintiff is found to be more than 50% at fault, it is a complete bar to his recovery. If the Plaintiff is found to be 50% or less at fault, then his recovery shall be diminished by his proportionate responsibility. 735 ILCS 5/2-1116. Comparative negligence should be pled with the Answer as an Affirmative Defense.
In Illinois, motor vehicle insurance is mandatory. Registered vehicles must be insured for liability purposes with the following minimum limits: $20,000 for injury or death to one person in an accident; $40,000 for injury or death of more than one person in an accident; and $15,000 for damage to property of another. 625 ILCS 5/7-601 et seq and 625 ILCS 5/7-203.
Insurance is a contract. Insureds are the first parties to the contract. They pay premiums in exchange for payment by the insurance company for damages which arise out of covered accidents involving covered vehicles. The insurance company, the second party to the insurance contract, promises to pay covered claims in accordance with the terms of the insurance contract, so long as the insured, first party keeps all his contractual promises.
Who is an insured: an insured can be named, an automatic insured, or an additional insured. If a party is not a named insured, an automatic insured, or an additional insured, that party is not covered under the insurance policy. A named insured is the party to whom the insurance policy is issued and is listed on the declarations page or in an endorsement modifying the definition of the named insured. An automatic insured is a party who qualifies under the definition of “insured” contained in the policy. Oftentimes, auto policies include that an insured is a driver, who is driving an insured vehicle, with permission from the named insured. On the other hand, some auto policies may include that only named insureds are insured. An additional insured is someone the named insured can add to the policy, by name, as an insured person for coverage, for additional premium. So, who is insured depends on what the policy says. Read the policy carefully.
Third Party Coverage or Liability Insurance is insurance to pay for claims by another person, who is not a party to the insurance contract, but who is claiming damages – personal injury or property damage - caused by an insured. It covers the driver’s and/or owner’s (insured’s) liability to third parties caused by negligence, arising out of an accident involving a covered vehicle. The policy will pay for damages and the cost to defend the insured, if litigation is filed.
First Party Coverage is coverage for insureds. There are generally 5 types of first party coverage:
If a car is financed, the finance company will typically demand that the buyer purchase Comprehensive and Collision Insurance and name the finance company as an additional insured. This way, if the car is damaged and there is no other insurance, the finance company has a significant level of certainty that their client’s insurance will pay to fix the vehicle, upon which the finance company has a lien.
Subrogation refers to the insurance company’s right to recover money it pays to its insured, under first party coverage, from third parties allegedly at fault. In other words, the insurance company goes after the alleged at fault party after it pays out to an insured under a first party coverage. The first party insured is the subrogor, as he subrogates his rights to the insurance company. The insurance company is the subrogee. The insurance company is supposed to collect any deductible paid by the insured, as well as recover amounts it paid under the policy. The insured has to cooperate and participate in the litigation if needed.
Denying Third Party Claims: The insurance company may deny a third party’s claim for various reasons: e.g. – the insured wasn’t at fault or the third party is seeking recovery for damages that don’t appear to have been caused by the accident, or is seeking excessive damages. If the insurance company refuses to pay a claim made by a third party, but the third party still wants to get paid, the third party’s recourse is to sue in tort. Sometimes, pro se plaintiffs end up naming the insurance company as the defendant. That is improper. The proper defendant would be the alleged at fault party or parties. Then, when that insured gets the summons, he passes it along to his insurance company so they can defend and pay out any damages that may be awarded. The insurance company owes its insured, or the defendant in the suit, a duty to defend in court, so long as the insured has met his contractual obligations under the policy.
Although there can be a host of reasons coverage can be disputed by the insurance company, there are two scenarios where the insurance company will have a good basis to deny a claim: 1) the insurance company denies the claim for failure to notify it, or 2) the insurance company denies the claim for non-payment of premium.
The insured has an absolute duty to notify the insurance company of any incident that could lead to a claim. The insured then has a duty to cooperate with the insurance company in its investigation of the claim. Many cases have held that notice requirements “serve the important function of allowing the insurer the opportunity to make a timely and thorough investigation of the insured’s claim,” so that such provisions are “prerequisites to coverage and not mere technical requirements which the insured is free to overlook or ignore with impunity.” Kerr v. Illinois Central R.R., 283 Ill.App.3d 574, 670 N.E.2d 759, 765, 219 Ill.Dec. 81 (1st Dist. 1996), appeal denied 171 Ill.2d 567 (1997), citing American States Insurance Co. v. National Cycle, Inc., 260 Ill.App.3d 299, 631 N.E.2d 1292, 1300, 197 Ill.Dec. 833 (1st Dist. 1994).
Policies usually call for “immediate” or “prompt” notice or notice “as soon as practicable.” The test adopted by the courts is whether the notice is reasonable under the particular facts and circumstances. The Illinois Supreme Court in Country Mutual Insurance Co. v. Livorsi Marine, Inc., 222 Ill.2d 303, 856 N.E.2d 338, 343, 305 Ill.Dec. 533 (2006), affirmed the applicable notice requirements stating:
A policy condition requiring notice “[a]s soon as practicable” is interpreted to mean “within a reasonable time.” Whether notice has been given within a reasonable time depends on the facts and circumstances of each case. Breaching a policy’s notice clause by failing to give reasonable notice will defeat the right of the insured party to recover under the policy.
So even if an insured driver believes the accident was another party’s fault, the insured driver should still notify his insurance company so that if there is a later claim by the other driver, the insured can then rely on his insurance company to provide a defense and payment for any damages awarded. Furthermore, an insured should notify his insurance company immediately if he is served with a summons, so that defense counsel can be appointed to appear and defend. If the insured fails to notify at this point, once again he may lose his coverage.
The insurance company has a duty to defend its insured who has met the contractual obligations, even if it denies third party claims. For example, Bruce is insured by ABC Insurance. Bruce comes to a stop at a red light and is rear ended by Lindsay, who is insured by XYZ Insurance. Bruce makes a claim with Lindsay’s insurance, XYZ Insurance, and never bothers to file a claim with his own insurance company ABC Insurance, believing that XYZ Insurance will surely “take care of it”. In the meantime, Lindsay also makes a first party claim with XYZ Insurance, under her collision coverage and her vehicle is repaired and paid for by XYZ Insurance. After its investigation, XYZ Insurance hires attorneys to file a subrogation, tort claim against Bruce for failing to keep a proper look out, traveling at an excessive speed, stopping without warning and failing to keep a safe distance from the vehicle ahead of his. Bruce now brings the suit to his insurer, ABC Insurance, which denies his claim for failure to notify. That denial will most likely be upheld by the courts as Bruce had an obligation to notify his insurance company of the accident. Typically when the suit is finally filed, it’s quite some time after the accident, and parties’ memories are not fresh and vehicles have been repaired or destroyed and the insurance company cannot conduct a proper investigation. If Bruce had notified ABC Insurance right away, brought his car in for an inspection and given his insurance company a statement, they would provide him with a defense when the suit arrives from XYZ Insurance and its insured, subrogor, Lindsay.
As for premiums the policy of insurance will require the insured to pay the policy premiums. If the initial premium is not paid, the company is not likely to issue the policy, and if subsequent premiums are not timely paid, the policy will lapse or be canceled.
First, the plaintiff should look to his own policy to see if he can recover. If he has uninsured motorist coverage, there is a good chance he can recover from his own insurance company. If the insured and insurer cannot come to an agreement as to liability and damages, most policies will require that the parties go to arbitration for their resolution. The plaintiff may have to sue the alleged at fault driver(s) if the statutes of limitation are nearing, to protect some potential future collection from that party in case the recovery from insurance is not sufficient.
Obviously the problem with uninsured drivers is collection. If the Plaintiff gets a judgment, the plaintiff has the right to proceed against the defendant’s non-exempt assets, like wages, savings, real estate and cars, through supplemental proceedings. A judgment creditor from a motor vehicle accident may also ask the IL Secretary of State to suspend the judgment debtor’s driving privileges. 625 ILCS 5/7-303. They will remain suspended until a) the debtor is paying via a payment plan with the Plaintiff; or b) the judgment is paid in full or c) the debt is discharged in bankruptcy.
Printed from: www.illinoisprobono.org/index.cfm?fuseaction=home.dsp_Content&contentID=2116
We welcome your comments and suggestions