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.

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. 

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.

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.

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 obtained...in 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.

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.

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.