Chicago Personal Injury Lawyer Blog

The Illinois Appellate Court recently ruled on a spoliation claim in a product liability lawsuit arising out of a 2004 car accident. The trial court had ruled that the insurer for the defendant vehicle salvage company did not have to contribute to any settlement that might arise out the salvage company's inappropriate destruction of the relevant vehicle. However, the appellate court reversed this ruling and found that the salvage company's insurance policy did in fact cover any claims arising out of spoliation of evidence. As a result of the appellate court's decision, the defendant's insurance company will now have to pay any reasonable damages arising out of the spoliation claim. Universal Underwriters Insurance Company v. LKQ Smart Parts, Inc., et al., No. 1-10-1723 (December 16, 2011).

The product liability lawsuit was based on a 2004 SUV rollover accident. Michael Widawski's Nissan Pathfinder SUV rolled over, ejecting Monika Gramacki, its only passenger, from the vehicle as it rolled over. Gramacki died and her family brought a product liability lawsuit against Nissan for an alleged defect in the Pathfinder's rear door.

The main piece of evidence in a product defect claim is the alleged damaged product, which in this case would Widawski's Nissan Pathfinder. It is not enough for a party to simply allege that a product is defective; it must also be examined by experts to determine the source of the defect and whether that defect caused harm to the party. However, in the present case, no experts were able to examine Widawski's vehicle because it was destroyed before they could do so.

Following the rollover accident, Widawski's insurer, Farmers Insurance, handled the preservation of the Pathfinder. Farmers hired LKQ Smart Parts, Inc., a vehicle salvage and storage firm, to store the damaged Nissan and keep it in its current condition. However, LKQ failed to follow these instructions and somehow ended up destroying the Nissan Pathfinder shortly after it arrived. And with its destruction went Gramacki's family's hope of a fair and successful product defect claim against Nissan.

In order to rectify this dilemma, Gramacki's father filed two lawsuits: the first was a product liability lawsuit against Nissan for the allegedly faulty door latch, the second was a spoliation of evidence claim against Farmers for the destroyed Pathfinder. In its claim against Farmers, Gramacki alleged that the "destruction of the subject Nissan Pathfinder deprived Plaintiff of the key piece of evidence necessary to prove an otherwise valid product liability/negligence lawsuit" against Nissan. Farmers then filed a third party lawsuit against LKQ for its role in destroying the Pathfinder.

Continue reading "Insurance Company Owed Duty to Defend Claim for Negligent Spoliation of Evidence Because the Vehicle Loss Was Tangible Property - Universal v. LKQ" »

Cell phones have made it easier for people to stay connected and to access data while on the go. However, cell phones can cause car accidents, whether the driver is using them to talk or to text. And while many states, including Illinois, have passed bans on the use of cell phones while driving, doing so has not been able to halt the use of cell phones while driving.

Consequently, the National Transportation Safety Board (NTSB) is looking for other strategies to halt the use of cell phones while driving. Last week it suggested that insurance companies could help limit this widespread problem if they simply refused to pay out for accident claims caused by drivers texting or talking on their cell phones.

And while the NTSB's idea makes sense and even seems like it could work, insurance companies are not jumping on board. To explain their reluctance to adopt the NTSB's suggestions, insurance companies explained that one of the main reasons to have insurance is that insurance companies will cover the cost of injuries even if the auto accident is caused by careless or even reckless behavior. And as an insurance specialist and spokesperson for the Consumer Federation of America said, “An accident is an accident.”

Continue reading "Texting, Driving, and Causing Accidents is Still Insured" »

It is common knowledge that insurance companies tend to drag their feet when it comes to paying out on insurance policies. Therefore, there are laws in place to prevent insurance companies from acting in bad faith and requiring them to uphold their end of the bargain. However, in the lawsuit of Kevin Pryor v. United Equitable Insurance Company, No. 1-11-0544 (2011), the appellate court found that the insurance company had actually not acted in bad faith. Rather, it was the insured client who had jumped the gun and filed an unnecessary lawsuit.

The case arose out of a claim the plaintiff, Kevin Pryor, filed after being involved in a 2009 car crash. While Pryor had car insurance, the other driver did not. Therefore, Pryor filed an uninsured motorist claim with his own insurance company, United Equitable Insurance Company.

On January 21, 2010, Pryor entered into a binding arbitration agreement with United Equitable for an award of $9,775. On January 27, 2010, Pryor signed a release and trust agreement regarding that award. On February 5, 2010, Pryor signed a release of the physician's lien, thereby completing his part of the arbitration agreement. United Equitable was to pay out Pryor's award within 30 days of receiving his release. However, when it had still failed to pay out by March 2, 2010, Pryor brought an insurance malpractice lawsuit against United Equitable.

Continue reading "No Bad Faith for Insurance Company’s Delay in Payment to Insured - Pryor v. United Equitable Insurance Company" »

A Circuit Court judge ruled on a provision in an insurance policy claim that arose out of a 2003 Chicago porch collapse. At issue was whether or not the death and injuries of several individuals was the result of a single occurrence. The judge decided in favor of the defendant insurance company, which contended that the injuries arising out of the porch collapse constituted a single occurrence in Jean Ware, et al. v. First Specialty Insurance Corp., 10 CH 10841.

The 2003 porch collapse that is the subject of Ware occurred in Chicago's Lincoln Park neighborhood. The various plaintiffs were outside on a third story porch when it collapsed; thirteen individuals died while many others suffered severe injuries. The building was insured by First Specialty Insurance Corp.; therefore, the injured plaintiffs brought a claim against the insurance company for the personal injuries and wrongful deaths that arose out of the porch collapse.

The current issue deals with the fact that the First Specialty Insurance policy had a limit of $1 million per occurrence and a $2 million aggregate limit for multiple occurrences. While the plaintiffs argued that their injuries constituted multiple occurrences since the related deaths happened at different times, the defendant argued that the claim constituted one occurrence because all the injuries arose out of the porch collapse. If the judge ruled in favor of the plaintiffs, then there would be a $2 million policy cap; whereas if the judge ruled in favor of the defendant, then there would only be a $1 million policy cap.

Continue reading "Cook County Judge Restricts Insurance Recovery in Porch Collapse Case; Ware v. First Specialty Insurance Corp." »

While it is somewhat common for two vehicles involved in an Illinois car accident to be covered by the same insurance company, it is very rare that both those vehicles are covered under the same insurance policy. In Progressive Premier Insurance Company of Illinois v. Kocher, No. 5-07-0468, both vehicles involved in an Illinois motorcycle accident were owned by the same family and covered on the same insurance policy. The case was brought to the Illinois Appellate Court to help shed light on what to do in these unusual circumstances.

The Illinois auto accident occurred when Nick Kocher's motorcycle collided with his father's ATV. Luke Kocher was a passenger on the ATV at the time of the crash and sustained severe head injuries. Luke required a lengthy hospitalization and recovery, which resulted in a large amount of medical bills.

The Kocher family turned to Progressive Insurance Company of Illinois, their auto insurer, for payment of the bills that were a result of the motorcycle accident. Both the motorcycle and ATV were insured on the same policy, along with a third vehicle. The policy coverage included limits of $100,000 per person and $300,000 total for each vehicle.

Continue reading "Progressive Insurance Limits in Illinois Motorcycle Accident Case Ruled On By Appellate Court" »

A recent Illinois workers' compensation decision, Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, No. 107852, 2010 WL 199914 (Ill.Sup.Ct.), examined whether a worker was entitled to temporary total disability (TTD) benefits following his termination. The Illinois Supreme Court reversed the Illinois Appellate Court's decision, thus siding with the Illinois Workers' Compensation Commission's assessment.

The facts of the case involved a union carpenter who suffered serious injuries to his head, neck, and back when he fell on his head en route to the hospital after suffering heatstroke on the job. Over the next two years, the Illinois carpenter was unable to return to his normal duties at Interstate Scaffolding, Inc. During this period he fluctuated between not working at all and times of working light duty per his doctor's instructions.

Under Illinois workers' compensation law, the injured worker received TTD workers' compensation benefits from Interstate Scaffolding, Inc. when he was not working at all. Yet when he was working light-duty, the employee was eligible for an Illinois workers' compensation maintenance benefit to account for the difference in his pay as a carpenter and his light-duty wage.

Continue reading "Illinois Temporary Total Disability (TTD) Benefits Reviewed By Illinois Supreme Court: Affirm Illinois Workers Entitled to TTD Benefits Until Condition Stabilizes" »

As my dad used to always say, "it's no fun getting old," something that baby boomers are discovering as they begin to reach their golden years. More and more baby boomers are settling into nursing homes and are looking to make a claim on the long-term care insurance that many of them have been paying for over many years. But many people have been disappointed in this not-unreasonable expectation as the insurance companies have been denying claims on a regular basis.

Starting in the 1990s insurance companies began taking advantage of baby boomers by scooping up thousands of individual long-term care insurance policies. It seems that the expectation by the insurance companies was that the buyers would eventually give up paying the annual premiums and close out the files by taking the collected premium.

However, instead more and more claims are being made on an increasing basis. So more and more the long-term care insurers are unable to meet their legal obligations and are denying claims for illegal reasons in an attempt to avoid payment.

In essence the insurance companies were taking advantage of the elderly insureds by denying their claims for long-term care insurance. This left many people without any resources to pay for their nursing home care or other long-term care needs. This dishonesty on the part of insurance companies has resulted in a jump in lawsuits filed against insurance companies, many of which have been successful at thwarting the insurance company's attempts to avoid payment of the long-term care.

Continue reading "Nursing Home Residents Face Uncertain Future With Long-Term Care Insurance Denials" »

In September 2008, a Illinois First District Appellate Court decision ordered Zurich American Insurance Company to cover a Illinois wrongful-death lawsuit against its insured Key Cartage and Terry Washington. Zurich American Insurance Co. v. Key Cartage, 2008 WL 4445122 (1st Dist., Sept. 30). The Illinois Supreme Court has agreed to hear this appeal in the case where Rose Services, an affiliate of Key Cartage, had leased the truck from Franklin Truck Group to haul waste.

It had been argued that Zurich should be obligated to provide co-primary insurance coverage because it issued a trucker’s insurance policy to Rose Services. Zurich argued that coverage was barred because a reciprocal coverage provision in its policy meant that unless it provided coverage to Franklin, Zurich was not obligated to provide coverage to Key.

The Illinois Appellate Court ruling, an issue of first impression, held that Zurich was required to provide omnibus coverage, which would extend the policy to any permissive driver of the truck. In their opinion the appellate court held that “[a]s a matter of public safety, Illinois public policy warrants mandatory omnibus coverage for commercial truckers that should not be limited by private agreement.”

Continue reading "Illinois Truck Accident Insurance Coverage Will Be Decided On By Illinois Supreme Court" »

Under the Illinois Vehicle Code, every motor vehicle liability policy issued in Illinois must cover drivers who have expressed or implied permission from the insured. Recently, in a question of first impression, the Illinois Appellate Court was asked whether this statutory requirement for omnibus coverage applies to a liability insurance policy issued to a trucking company for commercial vehicles.

Based on State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Group, 182 Ill.2d 240 (1998), the First District Court reversed a ruling for Zurich American Insurance Company and concluded that Zurich American was obligated to provide omnibus coverage under a trucker’s policy. Zurich American Insurance Co. v. Key Cartage, 2008 WL 4445122 (1st Dist., Sept. 30).

In this case, Zurich American had issued a trucker’s policy to Rose Cartage Services. One of the covered vehicles was a Kenworth tractor that Rose had leased from Franklin Truck Group and later loaned out to an affiliated company, Key Cartage.

Terry Washington was driving the vehicle for Key Cartage when it was involved in an Illinois truck accident that resulted in the other driver's death. Both Key Cartage and Washington were sued for the wrongful death of the individual. They argued that they were entitled to coverage under the policy that Zurich sold to Rose Cartage.

Continue reading "Illinois Makes Mandatory Insurance Coverage For Vehicles Applicable to Truckers" »

Illinois Appellate Court ruled that Illinois Insurance Guaranty Fund (IIGF) is responsible for paying Illinois workers' compensation benefits to a worker who was injured on the job (Virginia Surety Co. v. Adjustable Forms, Inc.). This ruling came in spite of IIGF's claims that the Chicago worker was also covered under Virginia Surety Co.'s policy and therefore it should be paying the Illinois workers' compensation benefits.

Michael Hadrys, an Adjustable Forms employee, was injured while working on a construction project in Illinois called the River East Project. And as is typical in the construction industry, his insurance was an owner controlled insurance program (OCIP) meaning that it was covered through the owner of the job and not his direct employer. The OCIP was being covered by Reliance Insurance Co., who have since folded, and that's when things get complicated.

Typically, when an insurance company folds all its claims are handled by the Illinois Insurance Guaranty Fund (IIGF), provided that there is no other insurance company involved to take over the claim. However, in this case because Hadrys's employer, Adjustable Forms, actually also had its own insurance through a different provider, Virginia Surety Co. Therefore the IIGF argued that it was not responsible for paying Hadrys's workers' compensation claim, but that Virginia Surety Co. was. Yet the Illinois Appellate Court disagreed.

The case revolved around whether or not Virginia Surety Co. was actually responsible for insuring Hadrys at the time of his Illinois construction site injury. The IIGF said that it was because it was an alternate form of insurance for Hadrys's employer. Virginia Surety Co. said that it was not because Adjustable Forms insurance policy stated that it would cover injured employees unless they had other insurance.

Continue reading "Illinois Court Decides Insurance Company Not Responsible for Covering Workers' Compensation Claim" »

A Kane County, Illinois trial court's decision was reversed in a property damage case involving a car and two horses in what could be described as a two-horse crash. The issue in the case turned out not to be the horses, but the property damage to the car.

State Farm insured the vehicle that was damaged and filed suit against Pat Santucci for property damage only. Santucci was part owner of P.S. Coyote, a corporation that operated out of Santucci's Illinois property, where he also individually owned the horses, outbuildings and barn involved in the accident. Statewide covered P.S. Coyote and Santucci under a commercial general liability policy.

Statewide agreed to represent Santucci even though he was insured only as related to his business. Statewide even issued a letter to Santucci stating that they reserved no rights and that they would insure Santucci regardless. However, that same day Statewide was declared insolvent. Santucci's claim would now be handled by the Illinois Guaranty Insurance Fund.

The fund is created by the State of Illinois and is in place to take over some of the insurance claims for liquidated insurance companies. Unlike Statewide Insurance, when the fund took over Santucci's case it did so with a reservation of rights. That is where Santucci's claim gets complicated.

Continue reading "Illinois Appellate Court Denies Insurance Coverage To Individual, But Company Covered" »

It's no secret that insurance companies sometimes put their own interests above that of their customers. Even if you make all your premium payments on time and promptly fill out your forms, you might still struggle to obtain payments from your insurer. And while the practice of denying claims and benefits is nothing new, the methods are.

MetLife v. Glenn evaluates one of the new methods, specifically voiding a policy after a claim is filed and instead advising the insured to pursue benefits from other sources. Wanda Glenn sought judicial review after MetLife cancelled her disability benefits.

For two years Glenn had received disability benefits after being diagnosed with a heart condition and deemed unable to perform her job. During that time MetLife encouraged Glenn to apply for Social Security disability benefits. This required a review of her condition by an outside agency under stringent criteria. However, this agency found that Glenn not only was unable to perform her own job, but was unable to do any type of work- she was granted Social Security disability. Shortly thereafter her MetLife benefits came up for review. As a result of this review MetLife determined that Glenn was still unable to perform her old job, but was now capable of performing other jobs. Based on this determination MetLife cancelled her disability benefits.

The Supreme Court considered several factors when evaluating MetLife's denial of benefits, including its conflict of interest. This conflict of interest was based on the fact that MetLife was authorized to determine whether a claimant was eligible for benefits and was also responsible for paying those benefits.

Continue reading "MetLife v. Glenn: U.S. Supreme Court Says Insurance Company's Conflict of Interest One Factor in Wrong Denial of Disability Benefits" »

Antonio Galvan, uninsured, sued Northwestern Memorial Hospital once he discovered that he was charged twice as much as an insured patient would have been for the same services. He alleged that the Chicago hospital's practice of differentiating between uninsured and insured patients constituted unfair and deceptive conduct under the Illinois Consumer Fraud Act.

Plaintiff Galvan was taken to Northwestern Memorial Hospital in Chicago by ambulance after being injured in an automobile accident. Upon his discharge 15 days later he was presented with a hospital bill for $87,033. In his claim against Northwestern he alleged that their practice of billing uninsured patients twice the amount of insured patients was unfair and deceptive.

When measuring unfairness in Galvan, the Illinois Appellate Court considered "(1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive or unscrupulous; and (3) whether it causes substantial injury to consumers."

According to the court, Galvan failed to consider an important fact in his arguments- that there is an obvious difference between an insured and uninsured patient and that it is therefore reasonable to treat them differently. An insured patient pays insurance premiums and in return is awarded a lower service rate. The hospital offers this lower rate because they are guaranteed payment from an insured patient and his/her insurance company. Whereas there is no such guarantee from an uninsured patient.

An insured patient routinely pays for medical expenses in the form of insurance payments and is rewarded with reduced hospital bills. But an uninsured patient doesn't have the added expense of insurance payments so is hit with a larger bill. The court felt this was a fair practice and that the amount charged by Northwestern did not qualify as "exorbitant".

Continue reading "Chicago Hospital Sued for Overcharging Uninsured Patient: Illinois Appellate Court Upholds Hospital's Right to Charge Different Rates" »

A recent decision by an Illinois Appellate Court continued the debate regarding the interpretation of the construction statute of repose (Illinois Code of Civil Procedure, Section 13-214(b)).

The construction statute of repose states:

No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.

The statute seeks to protect construction parties from having to defend against stale claims. Since its inception the statute has been a balancing act between the rights of the injured party and the rights of the party responsible for the construction. Illinois courts generally have limited the statute to apply to claims of construction or improvement to real property. However, where some courts differ is on claims brought as to duties of maintenance and inspection.

In Ryan v. Commonwealth Edison Co., Ryan, an electrician, was injured when a circuit breaker exploded. He claimed that ComEd was responsible for the electrical current flowing into the building and that the severity of his accident was increased by ComEd's negligence regarding its ongoing maintenance duties. ComEd argued that the claim should be barred under the statute because the injury resulted from design flaws in the power system when it was installed 20 years ago, which would place it well outside the 10 year limit imposed by the statute. ComEd's motion for summary judgment was granted, but the 1st District Appellate Court, Sixth Division, overturned this decision stating that the injury was the result of poor maintenance and inspection rather than design flaws in the original power system and therefore the statute does not apply.

This circuit's decision focuses on the continuing acts related to the product, rather than the date of the original design of the product. That is significant in that the court looked beyond a hard and fast date of design and instead examined the entire fact background of the power system. The ruling is fair and just and may lead to decisions based on the facts, rather on a certain date of installation, design, sale or manufacture of a product. Motions for summary judgment will be denied where genuine issues of material fact are open for a jury to decide.

Continue reading "Illinois Appellate Courts Disagree on Scope of Construction Statute of Repose" »