Thursday, April 29, 2010

What does “personal injury law” really mean?

Personal injury law is a nuanced body of civil law.  The word civil is important here because personal injury law gives injured people the right to sue in a civil action, as opposed to a criminal action. Another word for a civil action is: tort.

According to Black's Law Dictionary, a tort is:

"1. A civil wrong, other than breach of contract, for which a remedy may be the form of damages;  a breach of duty that the law imposes on persons who stand in a particular relation to one another.  2. The branch of law dealing with such wrongs."

There are numerous sub-categories of torts, including, but not limited to:

  • constitutional torts,

  • dignatary torts/defamation,

  • governmental torts,

  • intentional torts, e.g. battery,

  • mass torts,

  • negligent torts,

  • personal torts,

  • prenatal torts,

  • prima facie torts,

  • property torts,

  • public torts,

  • quasi-torts, and

  • toxic torts.

A person who commits a tort is called a: tortfeasor.

It is easy to think of torts/personal injuries in terms of real world occurrences, e.g. dog bites, atv accidents, trucking collisions, boating accidents, car crashes.  Personal injuries occur with shocking frequency.  It's very easy to understand the real world consequences of these injuries because they are so evident.  What is not so obvious is that there are laws that exist to provide people with compensation for their injuries, personal injury laws.

So very often, people don't realize that they are entitled to compensation for their injuries.  Very often they fall through the cracks of the legal system and do not recover for their injuries. Personal injury attorneys ensure that people do not fall through the cracks, and ensure that people receive the compensation that they are entitled.

Saturday, April 24, 2010

Attributing “Value” to a personal injury case.

When clients come into my office, they often ask: how much is my case worth?

And this is a fair question, because it is very important to determine the amount an individual may be able to recover.  It is important, however, to understand that there is a serious difference between the the amount an individual should be able to recover, the maximum potential recovery amount (the amount an individual could recover), and how much the claim is actually worth (the amount an individual will be able to recover).

In order to determine the maximum potential recovery amount, it is necessary to discover all available insurance coverage and all other avenues of compensation.  I touched upon these issues briefly in my previous post.

An experienced personal injury attorney will be able to run the gauntlet of the personal injury claims process in order to find all applicable insurance coverage.

In the state of Illinois, mandatory auto insurance laws require that insurance is, at minimum, maintained in the following amounts:

  • $20,000 for injury or death of one person in an accident;

  • $40,000 for injury or death of more than one person in an accident; and

  • $15,000 for damage to property of another person.

Actual amounts of insurance coverage vary on a case by case basis.  But many people choose to obtain the minimum amount of auto-insurance in order to keep their insurance expenses low.  In fact many insurance companies only write these minimum insurance policies in an effort to limit their exposure.

The circumstances of a case also give rise to the possibility of additional insurance coverage.  For example, if a defendant was an employee driving a company vehicle, the company may very well be liable.  Or where a driver of a vehicle is not the owner, the actual owner may very well have applicable insurance coverage.

Of course, it is necessary to look at the insurance coverage of the plaintiff  to discover other avenues of insurance coverage, such as uninsured and underinsured coverage.

Once all liable parties are discovered and all applicable insurance coverage is discovered, it is important to determine the actual value of your case.  And very often this value is higher than the total amount of insurance coverage.

Insurance coverage aside, there are several factors that can limit recovery.  These factors include, but are not limited to:

  • the amount of property damage--the more visible the property damage the more likely an insurance company is to pay the actual value of a claim;

  • whether a plaintiff has had previous injuries--previous injuries will usually decrease compensation offered by insurance companies;

  • whether shocking, wanton and egregious behavior caused the injuries;

  • the degree and visibility of injuries--the more plainly visible the injury the easier for juries to understand why plaintiffs deserve compensation; and

  • degree of fault, if any, attributable to the plaintiff.

There are many obstacles to claiming the compensation due for personal injuries.  And it is important to remember that determining the amount of compensation an individual will receive is not as simple as multiplying medical expenses by three. However, personal injury attorneys take great pride in advocating for plaintiff's rights.  And a skilled personal injury attorney will bridge the gap between the compensation individuals should receive and what they will receive, ensuring that plaintiffs receive full value for their injuries in the face of obstacles presented by the facts of the case and available insurance coverage.

Friday, April 23, 2010

Did I settle too soon? Investigating all applicable insurance coverage.

A person who recently went through the personal injury claims process asked me whether she settled too soon.   She was involved in a traffic collision and her medical expenses and lost wages were in the area of $22,000.  She had a friend who was an attorney specializing in patent law, and she asked her friend to take care of the case for her.

Because the driver who hit her only had $25,000 in liability insurance, the patent attorney settled it for $25,000.  However, this result still left the woman wondering.

In this situation, I would've recommended that the woman consult a personal injury attorney. More likely than not, the woman would've been entitled to significantly more than $25,000 considering factors like future medical expenses, loss of future wages, pain and suffering, and loss of enjoyment of life.  I didn't know enough about the facts of the woman's particular case, but it seemed to me that none of these factors were taken into account in calculating the $22,000.

It is possible that $25,000 was the maximum amount that could've been recovered.  However, it is always necessary to determine the availability of all possible insurance coverage.  For example, when determining the policy limits of an opposing party, one should inquire about excess/umbrella insurance, which insurance companies often hesitate to disclose.  Also, if,  a would be defendant is underinsured, the plaintiff's own insurance policy should have been notified of an underinsured motorist claim.  Even if it isn't certain whether underinsured coverage will apply, notice should still be given to the plaintiff's insurance company.

This is but a sample of the avenues the woman could have looked for recovery.  It is essential to hire an attorney who knows personal injury law in order to increase  recovery.

Tuesday, April 20, 2010

Why should you should retain a personal injury attorney? (Part 1)

Insurance companies have spent billions of dollars lobbying congress to enact tort reform legislation.  These companies have given many rationales for enacting tort reform laws.  One of the main rationales is to keep medical costs low.  The logic is that if payouts for damages in personal injury and medical malpractice claims are kept low, medical costs will also be kept low benefiting society at large.

However, insurance companies are not neutral parties in this equation.  Insurance companies are interested in keeping recoveries for personal injury claims low, so that their profit margin on each insurance premium stays high.  Insurance companies are for-profit institutions after all.

Insurance companies don't want people to retain personal injury attorneys.  In fact, studies made by insurance companies have shown that "attorney involvement is associated with a 64 percent increase in the average claim size." This is one reason hiring a personal injury attorney is important.  It is essential to retain an advocate who will fight for your rights and your interests, without ulterior motives.

How to choose a personal injury attorney? (Part 3)

You have a valid personal injury claim if you were injured as a result of an accident, caused by the fault of another.  When you are in the process of searching for an attorney, you should take your case to an attorney who has experience in the personal injury legal field.  It it very important that your case is handled by an attorney who is passionate about personal injury law.

If you have a valid personal injury claim, you can recover for:

  1. Medical expenses incurred during treatment of your injuries;

  2. Future medical expenses;

  3. Loss of Wages;

  4. Loss of Future Wages;

  5. Pain & Suffering; and

  6. Loss of enjoyment of Life.

It may very well be the case that your personal injury attorney will play an important role in protecting your future in the event of injury.  It is critical that your personal injury attorney is willing to fight for your rights.

Sunday, April 18, 2010

You’re injured, and you’re partially at fault–Do you still have apersonal injury claim?

The short answer to this question is: it depends.

Illinois law concerning fault and recovery has gone through several serious transformations.  Up until the 1981 Illinois Supreme Court decision, Alvis v. Ribar, Illinois used a "contributory negligence" system to determine whether a plaintiff could recover in a personal injury claim.  Alvis v. Ribar, 85 Ill. 2d 1 (Ill.1981).  Under this system, any degree of fault attributable to a plaintiff was an absolute bar to recovery.

The Alvis decision ushered in a new set of laws pertaining to fault and recovery in Illinois. Under the new "comparative negligence" legal system, plaintiff recoveries were limited by the percentage of their own negligence or fault.  So theoretically, if a plaintiff were 25% at fault or even 75% at fault, that plaintiff could recover with a reduction reflecting the percentage of their fault.

In 1986, the Illinois State Legislature enacted law that has supplanted Alvis's comparative negligence system. The new law is a hybrid between contributory negligence and comparative negligence.  Since 1986, Illinois has been a "modified contributory negligence" state.  735 ILCS 5/1116.  Under the current modified contributory negligence system, recoveries for damages are diminished in proportion to the percentage of fault attributable to the plaintiff. (Similar to comparative comparative negligence laws).  However, plaintiffs who are more than 50% at fault are completely barred from recovery. (Similar to contributory negligence laws).

Tuesday, April 13, 2010

Statute of Limitations – How long can you wait to file a personalinjury claim?

One of the most important factors in any personal injury claim is: what is the applicable statute of limitations?  This questions determines when a personal injury claim may be filed. If a claim is not brought within the the appropriate statute of limitations time period, the claim will be barred and Courts will not hear the case.

Generally, actions for personal injury damages in Illinois must be commenced within 2 years after the cause of action accrued.  735 ILCS 5/13-202.

However, there are several nuances to this rule:

Personal Injury to Minors:  In this situation, the statute of limitations does not begin to run until the minor reaches the age of 18.

Personal Injury Actions Made Against the State: In this situation there is an additional notice requirement.  The Court must be notified within 1 year of the injury, and suit must be filed within 2 years.

Dram Shop Actions:  Personal injury actions must be filed within 1 year.

Personal Injury Claims Against the Chicago Transit Authority: In the past, claims made against the CTA had to comply with a 6 month notice requirement.  If CTA did not recieve notice within 6 months of an individual's injury, the claim would be bared.  However, as of June 1, 2009, Governor Patrick Quinn repealed the 6-month notice requirement. Today, personal injury claims against the CTA need only comply with a 1 year statute of limitations.

Personal Injury Claims Against a Local Public Entity: Claims must be filed within 1 year.

An experienced personal injury attorney will ensure that all applicable statute of limitation requirements are met.

Thursday, April 8, 2010

Are Incorrect Police Reports A Bar to Recovery on Your Personal InjuryClaim?

A client recently asked me about an all too common situation:  He was involved in an auto-accident and the person who hit him was at fault.  Unfortunatley, the police report for the accident incorrectly showed my client to be at fault. Would he be prevented from recovering for his damages/injuries?

The answer to this question is: NO.

Chances are you've heard of the term Hearsay. This situation is why the rule exists.

According to Rule 802 of the Federal Rules of Evidence: "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress."

According to Black's Law Dictionary hearsay is: "testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of some other than the witness."

In this situation, the police report is hearsay.  The report is a police officer's out-of-court writing.  The police report does not consist of "the facts." The police officer was not a witness.

Even though the police report is inadmissible hearsay, however, the police report will be used by insurance companies to facilitate the settlement of claims. So, if the police report is wrong, chances are you will have to file a claim with the court and perhaps go to trial.

In short, an incorrect police report may create roadblocks, but it should not bar just compensation for damages.

Uninsured/Underinsured Motorist Provisions

When people are involved in collisions or accidents, they naturally look to the individuals who caused the collision or accident for recovery. Very often, however, the individual who caused an accident (a) will not have insurance coverage or (b) will not have adequate insurance coverage to cover the claim.  In this situation, achieving recovery may require looking into one's own insurance policy for "uninsured" and/or "underinsured" motorist provisions.

The validity and usefullness of this kind of coverage becomes clear in light of statistics from the the Insurance Research Council which show that the  number of uninsured drivers can reach 25% in some states. The Insurance Research Counsel also estimates that 15-17% of drivers nationally are uninsured.

Fortunately, Illinois requires uninsured/underinsured provisions.  An important caveat is that uninsured/underinsured generally only covers bodily injury and not property damage.

The Law Offices of Adam J. Zayed, P.C.  are dedicated to fighting for victim's rights.  For representation throughout the Chicago area, please contact one of our attorneys at 888-337-0023. 

Wednesday, April 7, 2010

How to Choose a Personal Injury Attorney (Part 2)

Honestly, one of the best ways to find a personal injury attorney, or any attorney for that matter, is to ask your family, friends, and acquaintances.  The chances are very high that someone you know knows a good attorney.

Another way to find an attorney is to use attorney referal services.  This method may prove slightly less credible, however, because the attorneys you will find through these services pay to get on the referral list.  Their skills as attorneys may very well be suspect, but if they pay their fees to the referral services, they remain on the list.

Another method for finding an attorney is to contact the local Bar Association for your area.  Most likely your area or county will have Bar Association listings of attorneys in particular practice areas.  These listings, however, do not necessarily ensure the capabilities of attorneys.

How to Choose a Personal Injury Attorney (Part 1)

It is not easy to choose a personal injury attorney.  Part of the difficulty is due to the sheer number of attorneys.  Another part is actually finding an attorney.  (Finding an attorney is not as easy as flipping open the yellow pages these days).  A very large part of this difficulty is due to the fact that people are not aware of how attorneys work, which means that people seeking attorneys might not be able to distinguish a good attorney from a bad one who will run a case into the ground.   One of the best things to do is to do some research and to go into an attorney-cient relationship with some knowledge.

One of the most important attributes your attorney should have is the ability to give you security.  At the end of the day, your attorney should help you sleep easy knowing that your claim is going to be redressed.  Finding the right attorney means knowing that your interests will be protected.  Your attorney should show you compassion and should be more interested in redressing the wrong done to you than profiting from your claim.  Not all personal injury attorneys are "ambulance chasers."  The right attorney is out to fight for your rights, not merely to capitalize on the tragedies that have befallen you.