Tuesday, May 25, 2010

Lien Frustration

The concept of a "lien" is by its very nature difficult to comprehend.  What's more is that people suffering from personal injuries are generally not in a position to tackle the complexities of Illinois lien laws. Hopefully this post will provide some insight into the often confusing territory of liens involved in personal injury cases.

According to Blacks Law Dictionary a Lien is: "a legal right or interest that a creditor has in another's property, lasting usually until a debt or duty that it secures is satisfied."  In the personal injury context, liens attach to an individuals personal injury claim and the expected recovery.

One of the most common types of liens involved in personal injury cases are health care provider liens.    A valid health care provider lien is created when medical services are rendered and notice is served.  The lien subsequently attaches to any verdict, judgment or settlement reached stemming from the cause of action.  In other words, your heath care provider will get a portion of your personal injury recovery.

It is important to note that the total amount of all health care provider liens cannot exceed 40% of the verdict, judgment or settlment stemming from the cause of action.

Aside from health care provider liens there are numerous other types of liens, including, but not limited to:

  • Medicare liens

  • Workers' Compensation Liens

  • Illinois Department of Healthcare and Family Services Liens

  • Attorneys Liens

Incurring a personal injury can be a devastating event.   In addition to the physical ramifications of a personal injury, numerous other factors create stress and inconvenience. In the unfortunate event of a personal injury, I suggest you contact a personal injury attorney.  Nevertheless, hopefully the information contained in this post will help alleviate some of the stress you might feel when you receive notice of a lien relating to your personal injury.

Tuesday, May 11, 2010

Wrongful Death Actions and CREDITORS

I was recently asked about one of the nuances of the Wrongful Death Act.  The situation was as follows: The decedent had a significant amount of debt, and the family wanted to bring a wrongful death claim.  The question was: would the decedent's creditors have a right to recover under the Wrongful Death Act?

The Illinois Wrongful Death Act states:

Sec. 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony

740 ILCS 180.

As I have stated in previous posts, the Wrongful Death Act is a statutory creation that provides the surviving spouse and next of kin with a right to recover for the loss of the decedent.  Section 2 of the Wrongful Death Act states: "the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person."

A. This means that any recovery is not treated as part of the estate of the deceased; and

B. This means that the decedent's creditors cannot touch any amounts recovered in a Wrongful Death action.

At The Law Offices of Adam J. Zayed, P.C., our attorneys are experts in recovering the compensation families are entitled to in the event of a catastrophic injury or wrongful death

Wednesday, May 5, 2010

Complexity of Personal Injury Claims (Part 1): Who is liable?

Personal injury claims have a reputation for being relatively straightforward.  This is because very often the circumstances leading to the actual injury may be commonplace, e.g. a dog bite, a slip and fall, or a one car traffic collision.  Even when the circumstances causing a personal injury are relatively unremarkable, the legal aspects of the case will likely involve significant complexity.

Using one car accidents as an example, I'll attempt to illustrate  the magnitude of the complexity.

A one car accident is an accident involving literally one automobile.  A case I recently handled involved an individual who crashed into a construction site, while she had a passenger in the car with her.  On the surface, one might think: "One car, one driver, one person at fault." Despite the apparently straightforward fact pattern, simply determining all liable parties can be a significant task.  Even in this case, potentially liable parties may include but are not limited to:

  • the driver,

  • the passenger (if passenger took negligent actions),

  • the owner of vehicle (if not the driver),

  • the employer of the driver,

  • the road contractor,

  • local municipalities, and

  • the automobile manufacturer.

A personal injury attorney will investigate the facts of a case, and will ensure that maximum justice is achieved. When results matter, it is important to hire someone who knows the angles.

Monday, May 3, 2010

Survival vs. Wrongful Death

The term "wrongful death" is actually a bit of a misnomer.  In the unfortunate event that someone suffers an untimely death, one would intuitively think that the appropriate claim to file would be a "wrongful death" claim, to recover for losses suffered by the individual that suffered the untimely death.

Under Illinois statutory law, however, the Wrongful Death Act does not recover for damages incurred by the deceased.  Wrongful death claims recover for losses sustained by the spouse and the next of kin of the individual who suffered a wrongful death. 740 ILCS 180/0.01

On the other hand, a survival action is a claim brought in order to recover for personal injury and other property losses suffered by an individual before succumbing their injuries.  A personal injury attorney will ensure that all appropriate claims are made in order to ensure that victims of personal injuries recover the compensation they are owed.