I want my nickel. (Fed. R. Bankr. P. 3010)

I represent a client who was owed a significant amount of money, about $150,000.  We filed suit and shortly thereafter the defendant filed Ch. 7 bankruptcy.  The trustee discovered that the defendant owed a piece of property without a mortgage. The trustee hired a realtor, sold the property, and distributed nearly $200,000 pro rata among all of the creditors.  My client got a nice chunk of that money.

Then, after that money was distributed, the trustee filed additional paperwork with the bankruptcy court indicating that an additional $0.49 remained in his bank account due to an accounting error.  That money should have been distributed to the creditors.  The final paragraph of the trustee's report indicated that supplemental distribution checks were printed for the creditors but were made payable to the U.S. Bankruptcy Court pursuant to FRBP 3010.  The attachment listed my client as being owed $0.15 of that money.  

I had to look up Rule 3010, which provides as follows:

"(a) Chapter 7 Cases. In a chapter 7 case no dividend in an amount less than $5 shall be distributed by the trustee to any creditor unless authorized by local rule or order of the court. Any such dividend not distributed to a creditor shall be treated in the same manner as unclaimed funds as provided in § 347 of the Code."

Section 347 talks about unclaimed property.  That section sets forth certain timelines, after which any unclaimed money is "paid into the court."  That makes sense.  It also makes sense that trustees should not have to spend their own time and money dealing with amounts less than $5.00.

But, I was unaware of the rule.  So, I looked it up, did some reading, reviewed the trustee's supplemental report, emailed my client, spent about $200.00 in billable time, and eventually determined that my client wasn't going to get its $0.15; and, therefore, I wasn't going to get my nickel. 

SmithAmundsen LLC is Hiring.

SmithAmundsen LLC seeks an associate attorney to join its busy Labor and Employment team in the St. Charles office. Must have 4-6 years of experience. A background in HR is preferred, but not required. Must have experience in at least one of the following areas: Labor (negotiations and arbitrations), wage & hour claims, or discrimination. Ideal candidate will be highly-motivated and can hit the ground running. Excellent writing skills are required. 

Please send resume, writing sample, and salary requirements to:

attorneyresumes@salawus.com

Dave's not here, man.

The federal court for the Northern District of Illinois recently held that the smell of marijuana does not justify a warrantless search of someone's home.  The case involved a woman who was wanted for questioning by the police.  They went to her house but her husband would not let them in without a warrant.  But the police smelled marijuana so they barged in without a warrant and arrested the man and his wife for resisting arrest and possession of marijuana.

The couple filed a federal civil rights lawsuit against the two arresting officers alleging that they falsely arrested and beat the couple in violation of the Fourth Amendment.  The police officers moved for summary judgment under the theory that the odor of marijuana created exigent circumstances that allowed them to proceed without a warrant.  

The court applied an objective test that asks whether a reasonable police officer in the defendants' position would have believed that an emergency existed which justified entering the residence without getting a warrant.  The court explained that exigent circumstances only arise in true emergencies where there is a "compelling need for official action and no time to secure a warrant."  

In this case, all the officers had was the odor of marijuana.  The court acknowledged that possession of marijuana is a crime in Illinois, but stated that the mere smell of marijuana did not suggest a significant crime was occurring.  The court found that the smell of burnt marijuana provides probable cause that a crime had been committed, but is insufficient to rise to the emergency level justify a warrantless entry into somebody's house.  The court found that possession of marijuana was a misdemeanor and that the exigent circumstances doctrine should be restricted to cases involving "serious crimes."  

So, the police officers' motion for summary judgment was denied.  The case will proceed to trial on the false arrest claims, or they'll settle.  Two pot-smoking, cop-fighting ne'er-do-wells do not exactly make the most sympathetic plaintiffs ever, but it's definitely an interesting case.  I wonder how much it's worth?  Any guesses?

Supreme Court Revisits the Illinois "Mailbox Rule"

You may have heard of the “mailbox rule” at some point in your life. Defined by Illinois common law, the mailbox rule simply refers to when a document or pleading is considered “filed” in civil actions.  Under certain circumstances, such as when filing discovery pleadings, notices of appeal, and appellate briefs, a document is considered filed as of the day on which it was put in the mail.       

Grusceczka v. Commission, 2013 IL 114212 involved analysis of the mailbox rule in connection with the filing of an appeal of a worker’s compensation decision to the circuit court.  In Grusceczka, Petitioner’s attorney received the adverse decision from the Commission on April 20, 2009.  Under the Worker’s Compensation Act, a party has 20 days from the date of receipt of the Commission’s decision to file an action for circuit court review.  820 ILCS 305/19(f)(1).  Petitioner’s attorney mailed his petition for circuit court review and accompanying documents on May 4, 2009, well within the 20-day deadline.  However, the circuit clerk’s office did not file stamp those documents until May 14, 2009, outside of the deadline.   

While the circuit court ruled on the merits of the case (and still denied benefits), the Second District Appellate Court ruled that the circuit court never had jurisdiction to hear the case based upon its determination that the petition for review was untimely filed.  The Supreme Court reversed and held that the mailbox rule applied to the filing of a petition to review to the circuit court of a decision of the Commission.  Important to its analysis, the Court noted that the legislature had considered the matter of restricting the mailbox rule in a variety of other situations and only chose to preclude it as to the Election Code.  Additionally, while noting that the mailbox rule does not apply to the filing of a new civil action, the Court held that a petition to review was different in that important factors in the filing of a new complaint, such as the statute of limitations and notice to the other party, were simply not present with respect to circuit court review of a worker’s compensation decision.

Those intending to take full benefit of the mailbox rule beware.  As indicated above the mailbox rule does not apply to a new complaint being filed.  If your statute of limitations is on the day you mail the new complaint to the court to be filed, it will be filed AFTER the statute of limitations and your case will be barred. 

So the mailbox rule lives on…at least so long as we are still using mail and Cliff Clavin is delivering your mail. 

How to tether your dog outside, according to the State of Illinois.

I recently wrote a three-part blog about criminal and civil liability under the Illinois Humane Care for Animals Act. I wanted to give you a quick update because the Act has been amended, effective January 1, 2014. After the first of the year, it will now be a Class B misdemeanor to violate the provisions concerning tethering your dog outside. Here is the amended section:

(b) To lawfully tether a dog outdoors, an owner must ensure

that the dog:

        (1) does not suffer from a condition that is known, by

    that person, to be exacerbated by tethering;

        (2) is tethered in a manner that will prevent it from

    becoming entangled with other tethered dogs;

        (3) is not tethered with a lead that (i) exceeds

    one-eighth of the dog's body weight or (ii) is a tow chain

    or a log chain;

        (4) is tethered with a lead that measures, when rounded

    to the nearest whole foot, at least 10 feet in length;

        (5) is tethered with a properly fitting harness or

    collar other than the lead or a pinch, prong, or choke-type

    collar; and

        (6) is not tethered in a manner that will allow it to

    reach within the property of another person, a public

    walkway, or a road.

(c) Subsection (b) of this Section shall not be construed

to prohibit:

        (1) a person from walking a dog with a hand-held leash;

        (2) conduct that is directly related to the cultivating

    of agricultural products, including shepherding or herding

    cattle or livestock, if the restraint is reasonably

    necessary for the safety of the dog;

        (3) the tethering of a dog while at an organized and

    lawful animal function, such as hunting, obedience

    training, performance and conformance events, or law

    enforcement training, or while in the pursuit of working or

    competing in those endeavors; or

        (4) a dog restrained in compliance with the

    requirements of a camping or recreational area as defined

    by a federal, State, or local authority or jurisdiction.

This guy needs to call Dexter Evans.

You'll recall that Dexter Evans wrote about disclaimers for injuries at health clubs and gyms last month. He wrote about the case Hussein v. L.A. Fitness, in which the Illinois Appellate Court analyzed a disclaimer contained in the L.A. Fitness membership contract to see if it prevented recovery for injuries sustained in the health club. The court applied Minnesota law to the disclaimer because that is where the contract was signed. The court upheld the disclaimer and found that the plaintiff could not recover for his injuries.  

I am a member of L.A. Fitness. I normally go to Oswego location. Last night I saw that someone had apparently run right through the glass of a racquetball court. That had to hurt. Maybe the outcome will be different next time if the court gets to apply Illinois law to their disclaimer. I think someone needs to bring a case on an Illinois membership. The guy who did this damage should definitely call Dexter:

WHAT DAMAGES AM I ENTITLED TO? THE VARIOUS NUANCES BETWEEN WORKERS’ COMPENSATION & PERSONAL INJURY CLAIMS IN ILLINOIS

One question that often comes up with clients that have a work injury is what the difference is between a workers’ compensation claim and a personal injury claim.  Many clients, particularly first-time clients, don’t understand the nuances of each system.  As an attorney who handles both workers’ compensation and personal injury claims, I get many questions from clients as to what damages are allowed under each system and rightfully so.  What type of damages is an injured worker entitled to when filing a workers’ compensation claim?  When might an injured worker be able to pursue a third-party personal injury case in addition to his or her workers’ compensation claim?  Can the money you receive in workers’ compensation benefits act as an offset. 

Illinois Workers’ Compensation Act

As an injured worker, there are certain benefits that you are entitled to when you are injured on the job, assuming your injury arose out of and in the course of your employment.  First, you are entitled to payment of all medical expenses that you incur as a result of your injury.  If you are off work, you are often entitled to payment of lost wages in the form of what is referred to as total temporary disability (TTD) payments.  These payments are two-thirds (2/3) of your average weekly wages.  When you reach maximum medical improvement, meaning you no longer require medical treatment, you are entitled to some type of permanency award, depending on the nature and extent of your injuries. 

There are three types of awards you may be eligible for.  Most commonly, an injured worker receives a permanent partial disability (PPD) award.  These awards are broken down into percentages of a body part, leg, arm, foot, hand, body of whole, etc.  The percentages are related to the number of weeks you are considered permanently and partially disabled.  The maximum amount of weeks is 500, equivalent to 100% of the body as a whole.  That is the maximum PPD award you can receive.  The amount you are entitled to varies depending on which body part is injured and what the nature and extent of your injury is. 

Another award an injured worker might be entitled to is a wage-differential.  This award is meant to reimburse an injured worker for the loss in earning capacity as a result of the worker’s injury.  For example, assume you were working as a laborer making $30 per hour before you work injury.  As a result of the injury, you can no longer work as a laborer.  You find a job based upon your transferable skills, education, and work history, but the job only pays $15 per hour.  Hence, you have suffered a loss in earning capacity of $15 per hour.  You might be entitled to an award of 60% of $15 per hour multiplied by 40 hours per week.  Due to changes in the law, whether you receive this check for the rest of your natural life or for a set time period would depend on what year you were injured. 

Assuming you could no longer work in any capacity due to your work injury, you might be entitled to a permanent total disability award or perm-total award.  Essentially, this would be that you would receive whatever your TTD check was for the rest of your life.  This is the most significant impairment an injured worker can have.

One of the benefits under the Workers’ Compensation Act is that, unlike in a personal injury action, an injured worker need not show that his or her employer was negligent in causing your injury.  No such requirement exits because the workers’ compensation system is a “no fault” system.  If your injury arose out of an in the course of your employment, you should be covered.  What of the trade-offs that comes with such a system is that certain damages an individual would be entitled to in a personal injury claim, i.e. pain and suffering, loss of normal life, etc. is not available to an injured worker.  In this respect, the legislature seemingly sought to create a system that, while protecting injured workers regardless of fault, also protected employers from shelling out a substantial amount of money for injuries.  To that end, workers are generally forbidden from filing a third-party personal injury case against their employers.  The Workers’ Compensation Act is the exclusive remedy.  One added benefit:  The damages you receive in your workers’ compensation claim are not taxable.         

Personal Injury Claims

Unlike workers’ compensation claims, an injured person must show that someone else’s negligence (or intentional act) caused his or her injury.  Like workers’ compensation, you are entitled to damages relating to medical bills and lost wages you suffer as a result of your injury.  Unlike workers’ compensation claims, you are entitled to recover 100% of your gross lost wages.  However, lost wage damages are taxable whereas damages relating to your physical injury are not.  In addition, however, you are entitled to recover for damages for any pain and suffering, loss of normal life, and disfigurement sustained as a result of your injury.  Loss of normal life is generally defined as the inability to conduct your activities or hobbies as you normally did before your injury.  In addition to what you have already endured, if proven, you can recover damages for pain and suffering and loss of normal life that you are reasonably expected to sustain in the future.  Disfigurement generally refers to any scarring that you have suffered from your injuries.  You can also recover for any emotional damages you have as a result of your injuries.  Proof of these damages usually requires competent medical testimony to be admissible at trial.        

Interplay between Workers’ Compensation & Personal Injury

In certain situations, you could have a claim that falls under both systems.  Suppose you were operating a vehicle on behalf of your employer and someone hits your vehicle.  You could have a claim for workers’ compensation against your employer as well as a claim for personal injury against the person that caused the accident.  Assume you were walking from an employee designated parking lot to go into work and slipped and fell on ice in the parking lot.  You could have a claim against your employer as well as a third-party claim against the owner of the property (if not your employer), the manager of the property, and/or the snow and ice removal company.  Perhaps you were working on a machine in your employer’s factory and the machine was defective causing you injury.  Again, you could claim against both your employer and a claim for personal injury against the manufacturer of the machine.  Those are but a few examples of injuries which have both a workers’ compensation and personal injury component to them.   

Assuming you have an injury where both types of claims are applicable, there are even more nuances that a legal practitioner must be aware of.  If you receive any workers’ compensation benefits from your employer (i.e. medical payments, TTD, permanency award), your employer is entitled to receive 75% of what was paid to you out of the third-party personal injury case.  This is generally referred to as a subrogation interest or “lien”.  If the lien is more than the personal injury settlement or judgment, your employer is entitled to 75% of the total settlement or judgment.  Often, these liens are negotiable, but require a great effort on the part of the practitioner.  Although these liens do not generally apply to an underinsured motorist claim you have against your own insurance company, most policies now contain a provision wherein the insurer claims a credit or set-off for any amount paid to you in workers’ compensation benefits relating to your injury.     

These are just some of the nuances between workers’ compensation and personal injury claims.  There are many, many more.  Not just between the two very different systems, but also within those particular systems.  It is always best to consult a workers’ compensation attorney, a personal injury attorney, or one whopractices both to ensure your rights are being adequately protected. 

Creative Lawyering

News flash: People do not like to be sued. Oftentimes, they know it is coming and they will go to great lengths to avoid service of the summons and complaint.  

In situations like this, 735 ILCS 5/2-203.1 allows litigants to accomplish service by alternative means. The question becomes what alternative means to use. I've used this statute dozens of times. I always ask for regular mail and posting at the defendant's residence. Some judges, however, require that the mailing be sent via certified mail, return receipt requested.

You already know my feelings about certified mail (See, Certified Mail is Stupid, Northern Law Blog, January 29, 2013). No defendant in his right mind would sign for a certified letter while ducking service.  Instead, I would suggest a counter-proposal to the judge. How about UPS? No one ever turned away a package from UPS. Imagine the defendant's surprise when he tears open a huge box and finds only a summons and complaint in there.  I love it!!

Full disclosure: I didn't think of this myself. I saw another lawyer this morning hand up a UPS receipt as proof of service.    

Established Joliet Law Firm Seeks Attorney

Position Title:         Associate-Attorney

Job Type:                Full-time
Company Name:    Sabuco, Beck, Hansen & Schrock, P.C.
Entry Level:            No
Location:                 Joliet, Illinois 
Min. Experience:   2-3 years

Well established, growing, mid-sized law firm seeks an Associate Attorney with experience in family law.  Individual should have desire and/or consider a position as a junior partner.  Supportive Environment for a motivated, organized, intellectual individual. Research/appellate brief experience helpful.  Salary commensurate with experience.  If interested, please send resume to sbhslaw@hotmail.com or fax to 815.730.8865.