Why does my case take so long? Three reasons.

Money: Americans typically spend 5 days of almost every week devoted to trying to obtain it. Insurance companies do too. As long as they are acting in “good faith” (the standard required of them by law), they are entitled to try to deny paying it out, or if they must pay, to delay its payment or minimize its amount. They do well when they take in as much in premiums as possible and pay out as little as possible in claims. When viewing your case from this perspective, it’s not a surprise that your case will drag on. Insurance companies also invest the premium payments they receive, so there is a financial incentive for them to hold onto the money so they can earn its time value.

Impatience: Often times, an injured person’s case is the only legal case they will have during their entire life. He or she will focus on it frequently. In contrast, once an insurance company finishes one case, they just move on to the next one. If one case doesn’t settle, it will move on to trying to settle the next case. They are also well aware of your impatience. If they think that they can get you to accept X now instead of a multiple of X two years from now, they will do it. The best settlement offers always come the morning when a jury is set to be picked.

Fairness: The law is a complex system of rules designed to level the playing field among people and balance competing interests. Just as an injured party in a legal case has a right to be compensated for his or her loss, an insurance company has the right to fully investigate the claim to ensure that it’s legally obligated to pay it. Claimants are not taken at their word, their version of events is compared to other witnesses and investigators. Investigation takes time, and insurance companies are entitled to this time by law.

How to Testify – Telling the Truth

“Conscience is the inner voice that warns us somebody may be looking.” – H.L. Mencken

The first rule about testifying is to tell the truth. While that may seem obvious, you’re forgetting that the end result of a lawsuit often involves someone who has given testimony either receiving or paying out tens if not hundreds of thousands of dollars, or more. As you might imagine, people often have tremendous difficulty following this basic rule.

There are many reasons to tell the truth: It’s the right thing to do, testimony becomes a permanent court record which your children could look up someday, there are legal penalties for perjury, etc., but you knew all of this before you began reading. The point of this article is simple: if you are dishonest while testifying, you will be caught, and it will backfire.

As the quote above suggests, in the context of litigation, someone is looking. Prior to anyone saying a word under oath, attorneys for each side have typically reviewed a mountain of documentary evidence – police reports, incident reports, medical records, photographs, surveillance videos, etc. The contents of these materials contain an endless amount of prior statements. While telling a lie under oath seems simple, the trouble comes in trying to remain consistent about the lie every time the topic comes up both before and after telling the lie, often a timeline of years. The point: Liars get caught, so don’t lie.

Moreover, giving testimony is not a quick “in and out” experience. Under Illinois law, an attorney has a right to depose a witness with up to three hours of questions. When we suspect a lie, we are taught to keep asking and asking related questions in the hopes that at some point the deponent either breaks and confesses the truth, or more likely, digs their hole even deeper by continuing to lie and lie and lie, often times creating an extravagant concoction that defies belief. Frequently, the witness is giving their first and last deposition in their lifetime, whereas I sit in on around 5 depositions per month. The point again: Liars get caught, so don’t lie.

Keep it simple. Don’t turn a good case into a terrible case by lying in a mistaken attempt to create a great case.

Lawsuits and the Internet

Injury victims must never forget that there is an entire industry of attorneys and insurance company claims department employees devoted to weeding out fraudulent claims. The way they accomplish that is by vigorously defending each and every claim and lawsuit as if it was fraudulent.

One current method being pursued is through statements injured parties make on the internet, whether in email messages, blogs, or posts on social media forums such as Facebook, Twitter, and Instagram. For example, during litigation, one specific municipal defendant generally requests: “Any and all social media or other electronic postings, blogs, conversations, photographs, tweets, feeds, comments, or websites authored by or concerning the plaintiff for the one year prior to the accident through the present date. If any portion of the foregoing has been deleted, please state form of the data, the subject matter, date, time and reason for deletion” and “All emails authored by or concerning the plaintiff, related to the subject matter incident, the plaintiff’s condition and/or the damages claimed.”

Now, just because a party to litigation requests something from another party doesn’t mean that it must be produced. A party responding to these requests has an opportunity to object, and the dispute can then be put before a judge for determination. To date, certain courts have refused to allow the production of these materials. See Ehling v. Monmouth-Ocean Hospital Service Corp., 2013 WL 4436539, (District Court of New Jersey, August 20, 2013); Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (Central District of California 2010). However, Illinois courts have not yet had an opportunity to weigh in, and there’s no guarantee that they will side with the courts refusing to order production of this information. In fact, a Cook County judge recently gave a speech to a continuing education forum indicating that she would order production of all of this material.

So how do you protect yourself from this intrusion into your privacy?

  • Don’t use social media while your case is pending.
  • If you must use social media, don’t discuss your injury, your lawsuit, and definitely don’t discuss how your injury happened.
  • Also, be mindful that your comments and photographs may contradict your claims in the suit, i.e. vacation photos when you’re claiming loss of a normal life.
  • Don’t accept friend requests / invitations to connect from anyone you don’t know.
  • Set your privacy settings to only allow your family and friends to see your postings, and not defense attorneys or insurance claims professionals.

What if it’s too late and you’ve already posted before you’ve consulted with an attorney? Unfortunately, you’re stuck. If you delete the content you’ve posted, the court considers this destruction of evidence. The jury may be instructed to assume that the content you posted was harmful to your case, regardless of whether it actually was. Courts don’t treat destruction of evidence kindly.

Remember, everything can be intentionally misconstrued if someone really wants to. You may have been sedated on pain killers for the entire miserable one-hour bumpy car ride to the Indiana Dunes and your therapist may have even recommended aquatic therapy, but when you’re at trial, you don’t want a defense attorney showing the jury pictures of you holding a piña colada on the beach moments after your attorney asks them to award you tens if not hundreds of thousands of dollars for your suffering.

Pothole Season

Once again, it’s pothole season. We are all walking and driving around in a minefield of dangerous conditions. Potholes (and other property defects) are generally caused by the freeze and thaw process of our climate. When water accumulates in soil underneath a pavement, such as concrete or asphalt, the water weakens this soil’s consistency. When this water freezes, it can cause the pavement above it to shift, creating a variety of different problems. Sidewalk blocks can crack or shift, often creating un-level conditions which are ripe for tripping. Also, when extremely heavy vehicles travel over pavement covering a weakened subsurface below it, a pothole is formed.

However, as humans, we’re conditioned to expect smooth consistent surfaces in areas which are intended for walking. So when we encounter these dangerous conditions, often concealed by snow or poor lighting, serious injury can often result. So what are the legal responsibilities of property owners and the people traversing their property with respect to these dangerous conditions?

Many people are under the mistaken assumption that if you get hurt on someone’s property by some kind of dangerous condition, the property owner is automatically liable. However, it’s much more complicated than that. If that were the law, owning any property at all would be much more expensive than it currently is. Instead, Illinois law attempts to strike a balance between the rights of the injured and those of private property owners*. Specifically, both property owners and the people traversing that property are required to “exercise reasonable care under the circumstances” regarding dangerous conditions on the property. 740 ILCS § 130/2. Note that this discussion only contemplates people who are on the property with the owners permission, as the law is not friendly towards trespassers.

So what does “reasonable care under the circumstances” entail? For a property owner, generally, it means that he or she has a duty to inspect their property with some regularity for unsafe conditions. Ward v. K-Mart, 136 Ill.2d 132 (1990). If, during these inspections, a property owner finds a dangerous condition, it’s expected that they do something about it, whether that means repairing it or simply providing a warning to passersby. However, “reasonable care under the circumstances” is intentionally vague, meaning that the question of whether a property owner acted with reasonable care under a specific set of circumstances will often be left to the opinions of a jury.

However, simply filing a lawsuit does not mean that you can get before a jury to have your case heard. Illinois law does not let every case reach that stage. A judge can throw a case out beforehand under many circumstances, including the following:

  • Property owners have no responsibility to repair/warn of conditions that are 1) known of by the injured person, 2) open and obvious (such as bodies of water and changes in height), or 3) of the type “reasonably expected to be discovered”.
  • Property owners have no responsibility to repair/warn of conditions which are hidden and unknown to the property owner (remember, however, that they do have a responsibility to inspect).
  • Property owners have no responsibility for actions resulting from the misuse of the property or anything on it by the injured person.

So as a private property owner, what can you do to limit your risk and keep your insurance premiums affordable?

  •  Develop a property inspection program commensurate with the size and scope of your property. Depending on what kind of property is at issue, this can be as simple as visiting the property and walking the lot once a month or as complex as written policies and procedures with logs showing when inspections were done and their results.
  • When you do find a problem, do something about it. If a repair is prohibitively expensive, consider a warning. Remember, the law doesn’t require that you repair anything, just take “reasonable care under the circumstances”. Would repaving your parking lot cost you $7,500? Why don’t you just spray the pothole with bright orange paint or put a cone over it? Don’t like the color orange? Well you won’t like a lawsuit either.

As a member of the public at large who has to face the hazards of life every day and can’t afford a $30,000 surgery and 2 months off work, what can you do to protect yourself?

  • Remember that you also have an obligation to act with reasonable care as well. Look where you’re going. Wear appropriate footwear. Don’t jog on ice.
  • When you find a problem, you should also do something about it. Notify the property owner. The number one defense in premises liability litigation is “I didn’t know.” Make sure he or she is on notice of the dangerous condition and has an opportunity to do something about it.

My late grandfather used to tell me “an apple a day keeps the doctor away”. Wouldn’t you love to keep the lawyers away too?

*Government property such as city streets, sidewalks and public buildings are subject to special exceptions.

Your State Government at Work

New legislation this year favorable to injury victims:

-Public Act 98-548 requires Defendants to timely perform settlement agreements. 735 ILCS § 5/2-2301. Nothing makes my clients more upset than finally agreeing to a settlement after contentious litigation, only to learn that the Defendants are dragging their feet to delay payment. This bill sets deadlines and creates financial consequences if those deadlines are not met.

-Public Act 98-519 raises minimum automobile liability insurance limits from $20,000 per person/$40,000 per occurrence to $25,000 per person/$50,000 per occurrence, effective January 1, 2015. Despite decades of dramatically rising medical costs, these limits had not been increased in 24 years since the Illinois General Assembly first required motorists to carry liability insurance in 1989. These modifications are a small step towards helping injury victims recover from the financial shock of life’s catastrophes and will have a negligible impact on consumer premiums.

Explaining Automobile Insurance: Part III – Medical Payments Coverage

In addition to liability and UM/UIM coverage, insurance companies often offer what’s called medical payments insurance. This coverage is very self-explanatory on its face, but tricky in its application. Medical payments coverage typically provides money to pay for medical bills incurred as a result of a motor vehicle collision regardless of who is at fault. That means that even if you are 100% at fault – you run into a tree because you were too busy texting – your insurance company will still provide money to help with your medical bills. A common limitation is that the medical bills must be 1) incurred within one year from the date of the collision and 2) reported to the insurance company within that same time period. Also, these benefits are only payable up to the limits you purchase. If you purchase $5,000 in “med pay” coverage, your insurance company will only pay the first $5,000 of your medical bills.

$5,000 in “med pay” coverage may seem like a lot, but it’s not. Even a short ambulance ride to a local emergency room typically costs around $750.00. Once you’re in the emergency room, note that the hospital and most of the doctors who see you will bill separately. The emergency room physician will probably bill around $500.00 to oversee your care. Radiologists who you never even see, but who interpret your x-rays and CT scans and report their findings to the emergency room physician will bill another $250.00. In addition to a standard charge for the hospital room, the hospital will bill for each medication dispensed and x-ray ($200-500 per scan) or CT scan ($1,500-2,500 per scan) undergone. While prices vary widely between various hospitals and based on the extensiveness of your treatment, one thing remains constant: before you know it, that $5,000 in medical payments insurance is gone.

So how do you get the most out of your medical payments coverage? The most important thing is to also have health insurance, whether private or government-funded (Medicare and Medicaid). Thanks to ObamaCare, starting January 1, 2014, the federal government will be incentivizing you to make a smart financial decision by purchasing health insurance (or paying a penalty for failing to do so). One of the many reasons that health insurance is so important to have is that your health insurance company acts as your agent in bargaining with your medical providers. When presented with the exact bills discussed in the previous paragraph, your health insurance will pay them for a fraction of the full bill. You can then use your medical payments coverage to pay any deductible or co-payment required in your health insurance plan. In contrast, if you just use your medical payments coverage to satisfy your medical bills, you will end up paying the full medical bill.

Health insurance companies typically enter into contracts with hospitals and doctors providing for a set fee schedule for each service you receive. The prices in these contracts are often well below the listed price which your medical provider will bill you. Automobile insurance companies don’t have these contracts with hospitals, so they must pay the full medical bill. By submitting your bills through your health insurance plan first, before using your medical payments coverage, you gain the benefit of the bargain.

For example, if you use your medical payments coverage to pay for the CT scan above, you will end up paying the full $1,500 – $2,500 charge, as if you were paying cash for the bill. However, if you first submit the bill to your health insurance, they may already have a contract in place where that same service is billed at $675. Even if you have a large deductible with your health insurance plan and end up paying $675 out of pocket for that charge, you can use your medical payments coverage to reimburse you that $675 charge. That way, you’ve only used $675 of your med pay benefits rather than $2,500. If you need follow up treatment, you now have $4,325 in med pay benefits left rather than only $2,500. Also, as you have to typically have to repay any insurance benefits you receive (whether from health insurance or med pay insurance) out of any settlement you receive from the at-fault driver’s insurance company, it’s in your interest to keep the amounts these providers pay out to satisfy your medical bills as low as possible. Submitting your medical bills to your health insurance first and then using your med pay benefits to reimburse yourself for deductibles and co-payments is the best way to keep repayment of your medical bills as low as possible.

Unfortunately, the medical industry is well aware of which insurance company will pay them what for each service, and may often tell you that “I’m sorry, we only take automobile insurance – We don’t take Blue Cross”, unless of course there’s no automobile insurance available, in which case they’ll gladly take Blue Cross. You may have to put up a stiff resistance to force the medical billers to take the insurance plan you want them to take, because they would much rather receive the full $1,500 to $2,500 than the $600 in the example above. However, it’s worth the struggle, as the wise allocation of your insurance benefits can play a very large role in your net recovery from any personal injury case.

Explaining Automobile Insurance: Part II – Underinsured and Uninsured Motorist Coverage

Underinsured Motorist Coverage: As the examples in my previous post demonstrate, in light of the high cost of healthcare today in Chicago, it is very easy for the value of personal injury cases to exceed the state minimum liability limits of $20,000. So what happens if you suffer personal injuries and the at-fault party did not purchase sufficient insurance?

In this scenario, insurance companies offer what’s called “underinsured motorist coverage” (“UIM”). UIM insurance is coverage that you can purchase to fill the void left when someone who did not purchase sufficient insurance ends up injuring you. It happens more often than you realize. Just look around next time you’re driving and see how many cars you see that are 10+ years old. To illustrate this scenario, imagine someone rear ends you, and your medical bills total $60,000, but the at-fault driver only bought a state minimum “keep you legal for less” insurance policy with only $20,000 in liability coverage. The at fault driver’s insurance company is only obligated to pay the first $20,000 to settle your case, leaving you responsible for the next $40,000 in medical bills. However, had you purchased $100,000 in underinsured motorist coverage when purchasing your own automobile insurance, you could then make a claim against your own insurance company for the $80,000 difference between your underinsured motorist limits and the $20,000 offered by the at fault insurance company. Purchasing underinsured motorist coverage is the only way to protect yourself from the harsh economic realities of the world we all live in. Also, compared to liability insurance, underinsured motorist coverage is relatively cheap.

Uninsured Motorist Coverage: What if the person that hit you had no insurance at all? This is an unfortunate fact of life as well. Often times, when someone has been involved in multiple poor driving events, insurance companies will refuse to insure that person any longer. Also, people lose their jobs and see their auto insurance premium as something they can cut back on. Or people simply lose their bills and forget to pay on time. Also, what if the person that hit you just immediately flees the scene, leaving you no opportunity to even ask if they are insured? In these instances, insurance companies offer what’s called “uninsured motorist coverage” (“UM”). UM insurance is coverage that you can purchase to fill the void left when someone injures you but either leaves the scene (“hit and run”) or stays, but does not have valid insurance. If you are injured and you had previously purchased uninsured motorist coverage, you then can make a claim with your own insurance company, who will pay out on your claim up to the limits of the uninsured motorist coverage you buy. Similar to underinsured motorist coverage, uninsured motorist coverage is often relatively cheap.

As one of the first people to speak with someone following life’s tragic events, it is my extreme displeasure to often have to inform people that while they’ve suffered greatly, sometimes in a life-altering manner, the person who inflicted this suffering on them won’t be able to help make them whole again. I then investigate whether or not they protected themselves from this scenario with un- or underinsured motorist coverage. Every once in a while, people in this situation don’t, and it’s the worst part of my job to tell them that their only option is bankruptcy. Do yourself a favor and make sure that you are not just purchasing automobile insurance sufficient to protect the people you might hurt from financial disaster, but also looking out for yourself.