Tuesday, March 31, 2009

PLCAA and Gun Saftey

The purpose of the PLCAA is to prevent firearms manufacturers and dealers from being held liable for crimes committed with their products. In a recent Illinois Supreme Court case Adames v. Sheahan the court found, among other things, that the Protection of Lawful Commerce in Arms Act (PLCAA), prevented the Beretta Corporation from being held liable for the wrongful death of a young boy.

In an unfortunate circumstance Billy Swan a 13 year old boy accidentally shot his friend, Josh Adames. Billy first discovered three guns in his parent’s bedroom. They were in a lock box (which the court determined to be unlocked). Billy’s father owned them, as he worked for the Cook County Sheriff’s office as a correctional officer.

[Billy Swan’s Testimony]
“Billy picked up each gun and examined it. Billy said that the magazine or clip was in the Beretta. When Billy picked up the Beretta, he pushed a button that released the magazine. Billy could see the bullets in the magazine. Billy then put the magazine back in the Beretta. Billy moved the slide at the top of the gun and a bullet popped out. Billy again removed the magazine and put the bullet back in the magazine. Billy repeatedly removed and replaced the bullets and magazine from the gun. Billy knew that the Beretta was loaded when the magazine was in the gun, but thought it was unloaded when the magazine was taken out. He thought that the bullet came out of the top of the magazine when the handgun was fired, and did not know that a bullet remained in the chamber.”

After playing with the guns for several minutes, Billy saw his friend, Michael, and invited him inside. Billy showed him the guns. Minutes later another friend Josh came over and was also invited in. Billy released the magazine and put it in his pocket. He then pointed the gun at Josh and pretended to fire, he pulled the trigger, and the boys ears began to ring.

I’ve been thinking about this case recently, trying to figure out whether a firearm manufacturer has a duty to protect the users of its product? It is definitely not an easy task. On one end of the spectrum I ask myself, why should a manufacturer of a firearm have a duty to protect someone whose actions they have no control over, yet on the other end of the spectrum shouldn't stricter safety precautions be required to maintain this limited liability by a firearm manufacturer? Personally I’m leaning towards the latter.

A magazine disconnect is an internal mechanism that engages a mechanical safety such as a block or trigger disconnect when the firearm's magazine is removed. Arguably a simple and inexpensive mechanism would have prevented the Beretta 92FS in Billy’s hand from being fired.

The PLCAA, became law as of October 26th, 2005. Ironically as of January 1st, 2006 California deemed handguns without a chamber load indicator or a magazine disconnect mechanism to be unsafe, and as a result new handgun designs without either of the two safety features are now against the law.

Although the Beretta 92FS Billy held did have a chamber load indicator, it was arguably "not sufficient to warn a user that the chamber had a bullet in it because the user could hardly see the indicator." [Expert Testimony]

Should more states follow a stricter requirement for firearm manufactures? I feel if you’re giving gun manufacturing companies less liability, then yes stricter standards need apply.

Opinions welcome...

Medicare Set-Asides

I am not sure how many of you are personal injury attorneys who are reading this, but if you are, keep reading for some good news.

Come July 1, 2009, CMS (i.e. Medicare) is implenting new reporting requirments for liability insurance companies regarding personal injury claim settlements. Many attorneys contemplated whether the new law would also require Medicare set-asides in personal injury settlements where there is a reasonable likelihood of future medical treatment. The good news is, from my research on the subject, there is still no requirement for a personal injury attorney to create a set-aside with respect to a personal injury settlement.

For those unfamilar with set-asides, they are a creature of worker's compensation claims. Medicare does not like paying for treatment that should be covered by a third-party. Therefore, they require, as part of a settlement, a quasi-trust to be exhausted for medical treatment before Medicare benefits kick in. Essentially the worker's compensation attorney drafts a proposed set-aside amount and Medicare decides whether they agree or disagree with the proposal.

While the new law does not mandate Medicare set-asides for PI cases, this is not to say that this will always be the case. Indeed, the fact that they are requiring liability carriers to forward settlement information for all Medicare and soon to be Medicare recipients certainly suggests that they are considering set-asides for personal injury claims in the future.

I still do not see how set-asides could ever work in a personal injury case. Here's why. Suppose you have a Medicare recipient who is severely injured in a motor vehicle accident. His medical specials total well over $100,000.00. However, the tortfeasor has a $20,000.00 policy and the plaintiff has no UIM (underinsured motorist) coverage. Exactly how can an attorney negotiate a set-aside when there is no money to set-aside? Once the insurance company exhausts its limits, their obligation is complete. Perhaps the federal government should simply mandate minimum policies of $100,000.00. I guess that is a little too logical.

Coming Soon: Pre-Foreclosure Grace Period in Illinois

The week of January 12, 2009, both houses of the Illinois Assembly passed Senate Bill 2513. The bill makes several amendments to Illinois law, including amendments to the Illinois Mortgage Foreclosure Law imposing new pre-foreclosure requirements in Illinois. The governor is expected to sign the bill on Monday, April 6, 2009 and under its terms it will go into immediate effect. The foreclosure bar is referring to the bill as the "30-30-30 Law."

The law will apply to all loans secured by residential real estate, except for loans for which any borrower has previously filed bankruptcy or for which the property is not the mortgagor’s principal residence. The law will apply only once per loan - that is, if a loan has previously gone into default and this bill was complied with, the requirements of the bill need not be complied with on a subsequent default.

Thirty Day “Grace Period Notice”
If a residential real estate loan falls into default by more than thirty days (the first 30), the mortgagee must send a “Grace Period Notice”. This notice must be a separate letter from any default or breach letter otherwise sent, but can be sent contemporaneously with other communications. No foreclosures can be filed once the law goes into effect unless the notice has previously been sent.

The Notice must be headed in 14 point type GRACE PERIOD NOTICE and must include the date that the notice was sent. The notice must also state in 14 point type:


No other language should be included in the body of the “Grace Period Notice”, but it must also include the following information:
1) The consumer hotline number of the Illinois Department of Financial and Professional Regulation: 1 (877) 793-3470
2) The web address of the Illinois Department of Financial and Professional Regulation: http://www.idfpr.com/
3) The phone number for contacting the mortgagee.
4) The fax number of the mortgagee.
5) The mailing address of the mortgagee.
The notice must be send via first class U.S. Mail and addressed to the borrower at the property address securing the loan.

(This 30 day grace period is the second "30" in the "30-30-30 Law".)

Second Thirty Day Grace Period
The law also imposes a second grace period which could extend up to an additional thirty days. (The third "30"referenced in the new law.) If at any time during the thirty day notice period described above, an approved counseling agency provides written notice to the mortgagee that the borrower is seeking approved counseling services, no foreclosure action can be initiated for thirty days after the date of the counseling agency notice. (An approved counseling agency is defined as a housing counseling agency approved by the U.S. Department of Housing and Urban Development.)During this thirty day it is expected that the counseling agency and the mortgagee will work on agreeing to a "sustainable loan workout plan” which can include, but is not limited to, (1) a temporary suspension of payments, (2) a lengthened loan term, (3) a lowered or frozen interest rate, (4) a principal write down, (5) a repayment plan to pay the existing loan in full, (6) deferred payments, or (7) refinancing into a new affordable loan.

The Effect of the Law
Once a mortgagee is regularly in compliance with the new law, it should not result in substantial delays to initiation of foreclosure proceedings as the required notices can be sent as soon as the loan is thirty days delinquent. However since the law will go into effect immediately upon signing, it could immediately result in delays of 30-60 days on all new Illinois mortgage foreclosure actions beginning next week.

Interestingly, even before the governor has signed the bill, another bill as been proposed which would extend the two grace period to 60 days. This bill, HB2004, was referred to the Rules Committee on March 17. If passed, I guess this will become the 30-60-60 Law...

DUI on Motorized Bar Stool

From msnbc.com:

A 28-year-old man has been charged with drunken driving after crashing his motorized bar stool, Ohio authorities said.

Police in Newark, 30 miles east of Columbus, say when they responded to a report of a crash with injuries on March 4, they found a man who had wrecked a bar stool powered by a deconstructed lawn mower. Police released the 911 tapes, revealing the calm exchange between the driver's friend and the dispatcher.

"I got a friend who wrecked a bar stool," the caller said. When asked by the dispatcher whether he hit his head inside the bar, the friend replied, "Um, no, he was riding the bar stool ... a motorized bar stool."

Kile Wygle, the bar-stool rider, was hospitalized for minor injuries. During an interview after his crash, Wygle told the reporter, "I drank quite a bit after I wrecked. Police say he was charged with operating a vehicle while intoxicated after he told an officer at the hospital that he had consumed 15 beers.

Wygle told police his motorized bar stool can go up to 38 mph. Wygle has pleaded not guilty and has requested a jury trial.

Monday, March 30, 2009

Welcome Berton J. Maley!!

I am once again pleased to announce the addition of another guest contributor to our site.

Berton J. Maley is a Supervising Attorney at Codilis & Associates, P.C. in Burr Ridge. B.J. concentrates his practice in the areas of secured creditors’ rights in bankruptcy, mortgage foreclosure, and related matters. He manages the firm’s Bankruptcy and Information Systems departments and he also developed the firm’s Training and Development Program.

B.J. is a talented and proficient writer. He co-authored “Trial of the Foreclosure Case" in the Illinois Foreclosure Practice IICLE volume. His articles have been published in the DuPage County Bar Brief, REO Magazine, and the Loyola Consumer Law Journal.

B.J. is also a regular lecturer on bankruptcy, mortgage foreclosure, and related topics. He has spoken for such groups as the Bankruptcy Association of Southern Illinois, Lorman Education Services, Phi Alpha Delta Law Fraternity, REOMAC (mortgage industry trade association), and the Illinois Housing Development Authority.

This is an outstanding addition to the Northern Law Blog. We look forward to many interesting and informative posts from B.J.

Friday, March 27, 2009

Requesting Settlement in Pleadings

The Fall 2008 edition of Litigation, published by the American Bar Association's Litigation Section, contains an interesting article titled "Making Full Use of the Court: Come to Settle First, Litigate Second" by Magistrate Judge Morton Demlow of the Northern District of Illinois.

The article sets forth in great detail the advantages and disadvantages of requesting a settlement conference in the plaintiff's complaint, or in the defendant's answer. I have never heard of anyone doing this before, but this article makes a strong argument that more lawyers should request the court's assistance in trying to settle their cases.

I won't go into too much detail, but I wanted to share the language that Judge Demlow suggests for each parties' respective pleadings.

For the plaintiff: "WHEREFORE, plaintiff (1) hereby requests the Court to conduct a mediated settlement conference or to refer this case to its court-annexed mediation program in order to assist the parties to bring about a settlement of this case; or in the alternative, (2) plaintiff hereby demands judgment against defendant for the sum of _____ dollars."

For the defendant: "WHEREFORE, defendant prays that the Court deny plaintiff's claim and award defendant its costs and expenses incurred in the defense of this action and for such other relief as the Court deems proper. Further answering, in the alternative, defendant hereby requests the Court to conduct a mediated settlement conference or to refer the case to its court-annexed mediation program in order to assist the parties to bring about a settlement of this case."

Tuesday, March 24, 2009

They should make a movie.

I just read an interesting article about one of the most highly publicized criminal cases currently pending in Germany. Three men allegedly lowered themselves from the roof of one of Berlin's most luxurious department stores via ropes down into store's jewelry department, all the while evading the store's motion sensors.

After smashing the glass and stealing more than than $7 million worth of jewels, the men escaped. The police, however, found a glove at the scene that contained DNA. The DNA, however, belonged to two diferent people. The suspects were identical twins. Their DNA was indistinguishable.

The defendants were granted separate trials. Neither man could be conclusively linked to the scene, even though there is speculation that they were both there. Both men could argue that someone else's DNA was found at the scene. The charges were dropped and the men were released on Wednesday. The jewels have not been recovered.

Time reports that the statute of limitations for burglary cases in Germany is ten years. I wonder if these guys will be followed around for a while. More details here.

Sunday, March 22, 2009

Motion to Fight Opposing Counsel

I just came across a great legal humor blog called Lowering the Bar that is written by Kevin Underhill, a partner in the San Francisco office of Shook, Hardy & Bacon. I spent at least an hour this weekend reading through the previous posts on the website. There is some really good stuff on there, but my favorite part of the blog is the Legal Document Archive. There are links to humorous judicial opinions, court orders, and pleadings.

My favorite pleading is the "Motion for Fist Fight" filed by Attorney Kirk Krutilla from Superior, Montana. This is an actual motion that was filed by Mr. Krutilla in a criminal case. Here is a link to the motion and the State's response.

It is not entirely clear what was happening in that case, but from what I understand, Mr. Krutilla represented a man who was charged with causing the death of another man during a fight. Mr. Krutilla's client was asserting self-defense. Apparently, the decedent was the aggressor in the fight, and Mr. Krutilla was upset that the State seemed to be sanctioning the actions of the decedent by prosecuting his client for defending himself. So, Mr. Krutilla filed a motion for a fist fight involving him and another lawyer from his office on one side, and two prosecutors on the other side.

The State's response is equally hilarious. They state that "the counsel for the State are confident they could acquit themselves respectably if it were necessary to settle any part of this matter by means of a physical contest," but, nonetheless, they respectfully request that the motion be denied.

Saturday, March 14, 2009

Voluntary Acknowledgments of Paternity

I met with a client last week who just discovered that the child who he has been supporting for the last twenty-two months is not actually his child. He found out just in time too.

On May 1, 2007, my client signed a voluntary acknowledgment of paternity ("VAP"). The mother of the child had convinced him at that time that he was the father. Recently, certain comments made by the mother have led my client to believe that he was not the father. So, he took the child to the clinic for a paternity test. The test excluded my client as the father.

Voluntary acknowledgements of paternity are "conclusive presumptions" that operate as final judgments of paternity and "serve as a basis for seeking a child support order without any further proceedings to establish paternity." 750 ILCS 45/6(b).

Illinois law allows for sixty days in which to rescind a VAP. After sixty days, the only way to vacate a VAP is to file a 2-1401 petition on the limited grounds of fraud, duress, or material mistake of fact. Illinois Dept. of Public Aid v. Graham, 328 Ill.App.3d 433 (3rd Dist. 2002).

As you know, 1401 petitions must be filed within two years of the judgment. So, on May 1, 2009, my client would have would have lost the right to vacate his VAP, and he would have been obligated to support this child for the next sixteen years. He made it here just in time.

Sunday, March 8, 2009

Kane County May End "No-Refusal" Weekends

Several newspapers reported last week that the Kane County State's Attorney's Office planned to conduct its second no-refusal weekend over St. Patrick's Day weekend, March 14-17, 2009.

Their plans may change, however, after a Friday ruling by Judge Kevin Busch which failed to find a defendant in contempt of court for his failure to comply with a warrant for his blood during the last no-refusal weekend.

Last Memorial Day weekend, suspected drunk drivers in Kane County who refused breathalyzers were held at the scene while assistant state's attorneys prepared search warrants for their blood and urine. The search warrants were then presented to an on-call judge for signature, oftentimes in the middle of the night. Most suspects who were confronted with a signed warrant then submitted to a blood draw. It is my understanding that the authorities did not forcibly execute those warrants, but rather arrested people who failed to voluntarily comply for contempt of court.

The Chicago Tribune reports that one person who was arrested for failing to comply with a warrant was acquitted of those charges last week at a hearing before Judge Busch.

The Tribune also reports that Kane County State's Attorney John Barsanti said he would study his options before proceeding with the upcoming no-refusal weekend, which may be postponed or eventually cancelled.

Thursday, March 5, 2009

Student Loan Advice

I signed up for a really cool website about two weeks ago called Upromise.com. Their services are only available to those people who have student loans with Sallie Mae. I think I have been getting Upromises' solicitation emails for several years, but I always dismissed them as spam. Well, I finally took the time to look into it, and I am really glad that I did. I could have made hundreds of dollars already if I would have signed up several years ago. If you have Sallie Mae loans, look into it. If you don't, the rest of this post may only make you angry.

Upromise is a portal through which you can access nearly every single Internet shopping site available. There are literally thousands of websites linked to Upromise including online stores such as Amazon and Ebay, travel sites such as Travelocity as Expedia, department stores such as JC Penney and Macy's, retailers such as Target and Kohls, electronics stores such as Best Buy and Apple, etc. Literally thousands of online shopping sites.

Upromise also links directly to your student loan account at Sallie Mae. Every time that you shop on Upromise, between 2-8% of your purchase prices is deposited into your Upromise account. Then, once per month the money from that account is applied towards your student loan balance. Your Sallie Mae statements then show two payments every month, your payment and the Upromise payment.

The names of all of the stores are listed on the site. Next to each link is a number between 2% and 8%, so you know before you buy exactly how much of a refund you will get back. This is helpful because you can compare items between stores. Even if the same item is priced the same at Best Buy and at Circuit City, one of those stores might offer you 5% cash back, while the other one only gives you 2% through Upromise.

We just signed up a couple of weeks ago. Based upon the rate that we are going, and without buying anything extravagant, just making normal online purchases that we would make anyways, we will have close to $200-$300 bucks applied to student loans by the end of the year.

Look into it.

Tuesday, March 3, 2009

Former Major Leaguer Fails BAID Test 4 Times

I'm sure that most of you know that Illinois' DUI laws were amended effective January 1, 2009 to provide for monitoring device driving permits (MDDPs) in place of judicial driving permits (JDPs). As part of the MDDP process, a first time DUI offender with a statutory summary suspension can drive, but only after the installation of a breath interlock ignition device (BAID).

BAIDs are new in Illinois, but not in Florida where former Major Leaguer Jim Leyritz was recently arrested because his BAID registered alcohol consumption on four separate occasions.

Leyritz is currently awaiting trial on one count of DUI manslaughter and one count of DUI property damage. His trial is tentatively set for May 25, 2009. If convicted, he faces up to 15 years in prison. Authorities allege that Leyritz was drunk on Dec. 28, 2007 when he ran a red light in his SUV and crashed into another car, killing the other driver. Authorities said toxicology reports indicated that Leyritz's blood-alcohol level three hours after the crash was 0.14 percent. His license was also suspended at the time of that crash.

A condition of his bond is that he consume no alcohol. After his BAID registered positive for alcohol on four separate occasions, a judge revoked his bond and he was arrested. No word on whether he will remain jailed until his trial.