Maximizing Your Underinsured Motorist Coverage in Illinois

Most people do not know that the minimum insurance coverage required of drivers in Illinois is $20,000 per person/$40,000 per accident.  Other people may have heard of this, but don’t exactly know what it means.  Failure to really understand minimum coverage until it’s too late can leave an injured motorist in a position where they have to pay for substantial vehicle repairs and outrageous medical expenses out of their own pocket.  This can lead to the loss of thousands of dollars because of an accident caused by another’s negligence.  Is it fair?  No.  Does it happen?  Absolutely.

Understanding what the policy limits numbers mean is the first step in understanding the various types of coverage.  In the example above, $20,000 per person means that the most the at-fault driver’s insurance company would have to pay to a single person injured due to the negligence of its insured is $20,000 for a particular accident.  The $40,000 per accident limit applies to the maximum the insurance company will ever be required to pay for an accident no matter how many people were injured and no matter how significant the injuries.  For example, assume 4 people were injured due to the negligence of a driver with this type of policy.  Every person in the wreck had treatment consisting of over $30,000 in medical bills.  No one person of the 4 may receive more than $20,000 for their injuries (inclusive of medical bills).  Additionally, the maximum the insurance company is required to pay out to all 4 of the injured parties is a TOTAL of $40,000! 

Fortunately, many of us purchase what is known as underinsured motorist coverage.  Like uninsured motorist coverage, underinsured coverage puts your own insurance company in the shoes of the negligent party when the negligent party does not have enough insurance coverage to pay for an accident victim’s injuries.  Typical underinsured motorist policies are written with limits from as low as a minimum of $25,000 to a maximum of anywhere from $300,000 to $500,000.  Additionally, some people choose to purchase a PLUP or personal liability umbrella policy.  PLUP coverage picks up where the regular auto insurance policy leaves off.  For instance, assume you have an auto injury with damages that are equivalent to $1,000,000.  The person that caused the accident has an auto policy with limits of $300,000.  You can recover the $300,000 from the auto carrier and attempt to recover the remaining $700,000 from the PLUP policy if the at-fault driver has one. 

Many clients ask why they must pursue their own insurance when they were not at fault.  It is a great question and one with a variety of answers.  One important reason why you should is because you are paying for these premiums in case the exact scenario above occurs.  If you pay for these premiums for the rest of your life and choose not to access them even when you need them, the insurance company enjoys a substantial windfall.  The other question that is often asked is why not go after the at-fault party individually and garnish his or her wages.  This is often a hopeless endeavor which results in chasing an individual and his or her assets across the country in order to satisfy the judgment.  Furthermore, if the judgment is large enough, the person may simply file bankruptcy and you will be lumped in with other creditors.   

There are many procedures that one must follow in pursuing an uninsured or underinsured motorist claim.  One of the first is the demand of arbitration.  The arbitration process, rather than a jury trial, is the means by which an uninsured or underinsured motorist claim is resolved if settlement is not feasible.  Some insurance carriers have written a time limitation within its policy which acts as a statute of limitations.  Under this particular policy provision, if arbitration is not demanded within the specified time period, usually 1-2 year from the date of accident, your uninsured or underinsured motorist claim will be extinguished. 

If you reach an agreement to settle for the policy limits of the negligent party’s insurance carrier, you must get the permission from the underinsured motorist carrier to accept the settlement.  Failure to do so will likely extinguish your claim.  Moreover, you must be careful not to sign away your rights to the underinsured motorist claim when settling and signing a release with the at-fault carrier.  Most releases release EVERYONE!  Many of the releases I review in such cases require a substantial amount of amendments and additional language protecting the underinsured motorist claim.  Finally, one must be cognizant of the set-off that an underinsured motorist carrier is entitled to from the monies already received from the at-fault party. 

With any type of case, it is always best to engage in a free consultation with an attorney who practices plaintiff personal injury law so that you do not do anything to jeopardize your claim.  In the case of the various inner workings of uninsured and underinsured motorist claims, this is especially true.

West's Headnote of the Day

Driver approaching intersection is not bound to look in all directions simultaneously, nor need he swivel his head like ventriloquist's dummy in order to be free of contributory negligence.

Bascelli v. Bucci, 368 A.2d 754 (Pa. Super. Ct. 1976)

Target the Dog - Part II

I wrote a post about Target the dog a couple of weeks ago. You will recall that Target the dog was living the good life as a national hero until she was mistakenly euthanized by a county animal control officer.

A commenter suggested that the attorney who filed suit on behalf of Target's owners would run into tort immunity problems. Governmental tort immunity would certainly be raised as a defense in that case, but I think the plaintiff would ultimately prevail. Keep in mind that complete text books have been written on this subject and I am certainly no expert, so I would welcome any feedback in the comments section. Even though Target was killed in Arizona, I will analyze the situation by applying Illinois law.

At issue would be the Local Government and Governmental Employees Tort Immunity Act. 745 ILCS 10/1 et seq. The Act provides different immunities for public entities and public employees. If I had more time, I could probably come up with a theory why the public entity should not enjoy immunity, but the easier case is the one against the employee who killed the wrong dog. Once liability is proven against the employee, I believe that the employer/entity would be obligated to indemnify the employee. Section 2-303 of the Act specifically says that nothing in the Act shall relieve a local public entity of its duty to indemnify its employees.

With respect to employees, immunity is granted to those who serve in a position involving the determination of policy or the exercise of discretion. See Section 2-201. Immunity is not granted to employees for ministerial acts. A governmental employee acts judicially or exercises discretion when he selects and adopts a plan in his official capacity, but as soon as he begins to carry out that plan, he acts ministerially and is bound to see that the work is done in a reasonably safe manner. See Greene v. City of Chicago, 73 Ill.2d 100 (1978).

Without a doubt, the Animal Control office had a policy in place dictating which dogs would be put down, how it would be done, how long they would be kept before it happened, etc. They don't automatically kill every dog that comes through the door. The original article even referenced a procedure whereby the County tried to reach the dogs' owners by posting pictures of stray dogs on their website and giving owners time to claim their dogs.

It is my position that the employee, and possibly the County, owed a duty to follow the procedures in place. If protocol would have been followed, Target would not have been killed. Because the employee was acting ministerially and was not exercising discretion, I believe he or she is liable for negligence.

Again, there are probably exceptions to the exceptions with regard to the Tort Immunity Act, so please let me know if my analysis is faulty.

A Landmark Case in the Making.

I have been following the development of animal law in Illinois for several years. Check here and here for prior posts relating to damages for injuries to pets. This is very much an emerging area of law and one that has not received a whole lot of publicity, until now. Unless a settlement is reached quickly, there is the potential for a landmark case to come out of Arizona for the wrongful death of Target - a dog and national hero.

According to the NY Times, Target saved the lives of American soldiers in Afghanistan when it and two other dogs confronted a suicide bomber that had entered the barracks. The dogs barked and snarled until the man detonated his bomb. One of the dogs died in the blast. Five soldiers were injured, but none were killed. The two surviving dogs were flown back to the U.S. by a charity and adopted by military families. Target was adopted by an Army medic who witnessed the incident and treated the wounded soldiers.

Target returned to a hero's welcome. She was on the Oprah Winfrey Show. She had her own facebook page. She was on the news on every television network. Then she wandered from her family's back yard and was captured by County Animal Control. Animal Control put the dog's picture on their website in an attempt to notify the owner. The owner immediately saw the picture and paid the pound's recovery fee online. But before the owner could come pick up the dog, a staff member mistook Target for another dog and euthanized her.

The unidentified woman has been placed on administrative leave. The County has ordered an investigation. The County has also provided grief counselors to the family. Oh ya, and the family has already talked to a lawyer. Even if a lawsuit is never filed, this case has the potential to be one of the largest settlements ever for the wrongful death of a pet.  I will be interested to see how this turns out.  If anyone hears any news in the future, please share it with me.

Watch where you walk!

In a recent Cook County Court of Appeals case, Judge Antonietti decided that Metra did not owe Donald Pence a duty to tend to a protruding bolt from a railroad tie.

Both the arguments and decisions were very interesting. Pence, on his way to the Metra train, tripped and fell from a protruding railway tie bolt. As a result he sustained what I assume is a colles fracture. (A common fracture in the wrist as people try breaking their fall with their hands). Pence argued Metra owed him a duty as a passenger to maintain its premises. However Metra claimed they owed no duty to Pence because Pence was not a passenger at the time of his trip and fall and he did not walk in the designated pedestrian crosswalk.

J. Antonietti affirmed the lower court’s opinion stating, “while Pence may have intended to be a passenger on a Metra train, he had not yet become a passenger at the time of his fall. Pence had not yet reached a ‘proper place to be transported’ and we cannot say that Metra had even impliedly accepted him for transportation.” Skelton, 214 Ill. App. 3d at 572.

Moreover The Tort Immunity Act applied because Pence did not walk in the designated pedestrian crosswalk, rather he walked in the middle of the intersection. Therefore Pence was “not an intended and permitted user of the property”.

Moral of the story, watch where you walk and use crosswalks.

NIU Grad Expands the Rescue Doctrine

Melinda Rowe-Sullivan (NIU Law 2003) successfully argued a matter of first impression before the Illinois Appellate Court, Third District, concerning the rescue doctrine.

Melinda represented the plaintiffs in Strickland v. Kotecki, 03-07-0831 (July 15, 2009). The plaintiffs in that case were the sister-in-law and brother-in-law of an individual who attempted to commit suicide (Kevin). Kevin's wife discovered that he was missing from the house and, for reasons not disclosed in the opinion, feared that he was about to commit suicide. She called her sister and brother-in-law for help.

The three of them eventually located Kevin's vehicle in a fenced-in business property. Kevin was in the vehicle and there was a hose running from the exhaust pipe to the passenger window. The brother-in-law jumped over the fence to rescue Kevin, but he injured his foot in the process. The brother-in-law then sued Kevin under the rescue doctrine.

The rescue doctrine had previously applied only to situations where a third party negligently places another person in danger. If someone is injured while attempting to rescue the person from danger, the rescuer can sue the third party for his or her negligence. Illinois courts had not decided whether the rescue doctrine allows a rescuer to bring a negligence action directly against a person who places himself in danger. The trial court dismissed the plaintiffs' complaint based upon that distinction and they appealed.

As this was a matter of first impression in Illinois, the appellate court looked to the laws of other states. The court found that every other state that considered this issue had allowed a rescuer to recover from people who place themselves in danger. Like the other states, this court found no logical reason to distinguish situations situations where defendants place someone else in danger from situations where defendants place themselves in danger. For that reason, the trial court's dismissal was reversed.

Great job Melinda! Another victory for NIU!

Ordinance Violation Does Not Equal Negligence

Husband and wife are in their early sixties. They live on the rented top floor of a two-flat in Chicago. Wife notices that husband has been missing from the house for some time. She calls out his name. She hears him respond from the alley behind the house. He yells back that he fell over the railing of their back porch. He then loses consciousness and dies. An investigation reveals that the back porch and railing are in violation of several city ordinances. Wife files a wrongful death lawsuit against the landlord.

Landlord moves for summary judgment alleging that plaintiff cannot prove that the ordinance violations proximately caused her husband's death. Landlord points out that there were no witnesses to the fall. Even the decedent's statement that he "fell over the railing" does not tell why he fell over the railing. He could have been climbing on the railing at the time and been blown off by the wind, or knocked off by a bird, or pushed off by his wife, etc.

The trial court and the appellate court both agree. Liability cannot be predicated on conjecture, rather proximate cause is established when there is reasonable certainty that the defendant's acts or omissions caused the injury. Violations of an ordinance or a failure to comply with the building code, by themselves without evidence that the violations caused the injury, do not establish proximate cause.

Strutz v. Vicere, 1-07-2564, decided by the 1st District on April 29, 2009. Not yet released for publication.