The BIG Three

The value of a personal injury case - its "settlement value" and its "verdict value" - depends upon the extent to which it possesses three elements:

(1) clear-cut liability,

(2) big damages, and

(3) a solvent defendant.

Damages are of two types: special damages (e.g., medical expenses and lost earnings) and general damages (pain and suffering, disability, disfigurement). In this article the term "big damages" refers to special damages. We know of one case that settled for $6,000.00 although the special damages were confined to a doctor's bill of $25.00, but that almost certainly reflected a determination on the part of the defendant that it made more sense to pay to settle the case than to defend it. As a rule there is a closer correlation between special damages and settlement value. Or to put it another way, a case that entails a $500.00 bill for two-hour trip to the emergency room is not going to support a million-dollar settlement.

A case that possesses all three elements will look like this: Kathleen was a passenger in a car that had stopped for a red light on a clear, dry, sunlit day. A cement mixer owned and operated by a Fortune 500 company rammed into the back of her car. The car was totaled. Kathleen was knocked cold and suffered severe cuts to her face. She was brought by ambulance to a hospital, spent several days in the hospital, and followed up with her doctor on several subsequent occasions. The loss of consciousness implies the prospect of future complications, future medical expense, future pain and suffering. The facial cuts signal disfigurement. Kathleen was retired, and so lost wage was not an element of her case.

A lawsuit was filed. The defendant conducted basic discovery: served interrogatories, collected documents, and took the deposition of Kathleen. Then it invited her to mediation and the case settled for $70,000.00, ten times the amount of Kathleen's medical bills.

In that case, the defendant was solvent and well insured. The liability of the defendant was clear. There was no comparative fault on the part of Kathleen. The special damages were substantial and consisted entirely of readily provable medical expenses. 

Each case below represents a personal injury case lacking one or more of these ingredients:

Case 1: A case recently brought to our attention entailed an attack upon a young man in a parade by a spectator. Liability was clear enough: The unprovoked attack occurred in the presence of many witnesses and produced an arrest. But the would-be defendant was barely employed and uninsured. As for the potential plaintiff, he suffered a facial cut that required four or five stitches, was treated and released from the emergency room, and was looking at a follow-up visit or two with the family doctor. (Lacks big damages and solvent defendant.)

Case 2: Some years ago, a client we will identify as Samantha, a single, attractive, twenty something woman suffered severe facial cuts when she went through the windshield of a car when the driver lost control. He had minimum insurance coverage and no prospects. His insurer quickly offered the limits of his policy, and the adjuster openly acknowledged that those limits fell far short of full compensation. But the driver had no other assets of consequence and the obligation of his insurance company was capped at the limits of his insurance. (Lacks solvent defendant.)

Case 3: A plaintiff who suffered a career-ending knee injury in a truck jackknife attributed the occurrence to faulty brakes on the tractor he was driving and the trailer he was pulling. His co-driver had left this area and taken up residence in a god forsaken corner of a far-away state. But we found him. And we took a statement from him. By his account, there was nothing wrong with the brakes. It was all about black ice. The settlement demand plunged by ninety percent. (Lacks clear-cut liability.)

Don't Assume Anything

Another example of a personal injury case that seems absurd at first glance but makes sense upon reflection: Some time back reports were published about a personal injury case against a school board and the driver of a school bus following an injury to a grammar school student who was hit by a car while crossing the street on his way home from school after getting off the bus. The driver of the car that hit the child was sued, too, but had nothing to do with the school board or the driver of the bus.

So where do the school board the bus driver fit in to this story?

Once the child left the bus, he had to cross the street to get home, and the driver of the bus had a duty to avoid striking the child with the bus, of course, but no duty to assist the child to get across the street. As it happens, the child chose to cross the street in front of the bus, and the driver of the bus waved the child across. The child passed safely in front of the bus but was struck by a car traveling in the next lane. As noted, the bus driver was under no duty to guide and direct the child across the street, but the driver assumed the duty by waving the child across. Once the duty was assumed, the driver was obligated to carry it out with care under pain of liability for negligence on the part of the driver and its principal, the school board.

This subject, liability for negligent performance of an assumed duty, often appears in the context of trips, slips, and falls in snowy and icy places. Landowners are not liable for injuries attributable to natural accumulations of snow and ice. But once they undertake to shovel and plow the ice and snow, they must discharge the duty with care under pain of liability for negligence.

Outrageous Personal Injury Claims?

Personal injury cases often garner press coverage that focuses on the absurdity of the justice system, from the McDonald's hot coffee lawsuit to the seemingly bizarre tale of a suicidal person suing the subway for not stopping the train. There is always another side to the story.

Read on.

Quite an uproar about abuse of the tort system was excited some time back by a personal injury lawsuit on the part of a man who was struck by a subway train after he deliberately lay down on the tracks.

Outrageous?

Not when you know that the train barreled into the station at full speed even though the operator had been informed of the situation in time to bring the train to a halt without danger to his passengers or to the man on the tracks. The operator had a duty to conduct himself with reasonable care. That duty was not diminished or eliminated by the fact that

If you have been involved in a personal injury, it's important to examine the whole case. the plaintiff had put himself on the tracks on purpose. The operator had ample time to bring the train safely to a halt. He did nothing to avoid contact with the man on the tracks. Result? Liability.

Consider the issue from the opposite direction.

A visitor to a hospital who slipped and fell on a wet spot in its cafeteria erroneously assumed that the hospital was liable just because it owned the building.

Not so.

Unless the hospital created the hazard, the liability case against it would entail a failure to act reasonably to remedy the hazard in the face of actual or "constructive" knowledge of it: If in the exercise of ordinary care a reasonable person would have known of the hazard, the lack of actual knowledge will not operate as a defense.

Counties with Personalities: It Matters Where You File

by David McCarthy

The conventional wisdom as to personal injury cases in Chicagoland is that plaintiffs want to avoid DuPage and get into Cook County whenever possible and defendants want to avoid Cook County and get into DuPage County.

The conventional wisdom has it that the jury pools in DuPage County are conservative and will demand that a plaintiff prove her case, and particularly establish that the damages she requests of the jury are fully justified. On the other hand, the thinking as to jury pools in Cook County is that they start with the premise, "We've got to give this poor plaintiff something" and the only question is how much?

We speak specifically about DuPage County because it is widely regarded as the most conservative of the 102 counties in the State. Cook County is considered among the most liberal, along with Madison and St. Claire Counties over on the Mississippi River.
 
The above discussion might suggest that a plaintiff can file a lawsuit anywhere she wants to. Not true.

The general rule is that the suit must be filed in the county where the defendant resides or where some part of the transaction took place. A corporation "resides" in any county in which it has an office or regularly transacts business. Out-of-state defendants can be sued in any Illinois county.

YOU OWE IT TO YOURSELF TO BUY UM/UIM INSURANCE

by David McCarthy

If you value yourself as much as you value others (and why wouldn’t you?), the car insurance you buy will include UM/UIM coverage, and at limits equal to the limits of your liability coverage.

UM stands for “uninsured motorist” and UIM for “underinsured motorist.” In case you are in an accident, you will want as much insurance for your own injuries as for the injuries of people you hit. So buy UM/UIM coverage, and buy it at limits equal to the limits of your liability coverage.


Picture this:

You are rear-ended at a red light by an “at-fault” driver whose limits of liability insurance (say, $100,000.00) are not nearly enough to compensate you for your medical expense, your lost income, your pain and suffering, and all the rest of it. Can you go against your own insurance company for the UIM coverage under your own policy? Yes, but only if the limits of your liability insurance exceed the limits of his liability insurance. If his liability limits equal or exceed yours, he is not “underinsured” in relation to you.

You would fare no better if you had greater limits of liability coverage (say, $250,000.00 per person/ $500,000.00 per occurrence) but only $100,000.00/ $300,000.00 of UM/UIM coverage (which is to say, that you provided more insurance for the people you hit than you provided for yourself). You not only want to buy UM/UIM coverage, you want to buy it at limits equal to the limits of your liability coverage.

UM/UIM insurance protects you in case you are hit by a driver who has no insurance, or by a hit-and-run driver, or by a driver whose liability limits are less than your liability limits. UM/UIM insurance helps fill the gap between the value of your injury and the amount of insurance available to pay for it.

Your relationship with your own insurance company will be adversarial because you will be looking to it to pay you for that part of your claim which exceeds the limits of liability insurance of the at-fault driver but does not exceed the limits of your UM/UIM coverage. (No matter what the value of your claim, your insurer will not pay out in excess of the limits of your coverage.)

It is easy to foul up a UM/UIM claim.

A mis-timed “okay” is all it takes. We recently got a call from a man who believed he had an open-and-shut UIM case and who was annoyed that his insurer had not already cut him a check. To us it was at least as likely that he had outsmarted himself, but he did not stay on the telephone long enough to tell for sure. He had already received a “policy limits” offer from the insurer of the “at-fault” driver and he had already told the adjuster for his own insurer to “open a file” for his UIM claim. He acknowledged he had reached a point at which some professional advice would be of help to him. Alas, he may have taken one step too many, but there is no way to tell, for at that point, something that meant more to him than his UIM claim came up, he ended the call, and nothing further has been heard from him.

We assumed that he had already prejudiced the right of his own insurer to pursue the at-fault driver, and so his UIM claim was DOA.

But beyond that, he was indulging some rosy assumptions that his insurer was likely to challenge. For one thing, he took his best-case outcome for granted, and he carped that he did not have a check in hand already. His best-case was a payment of $145,000.00 under the UIM clause of his auto policy, that is, the limits of his UIM coverage ($250,000.00) reduced by payments from the insurer of the “at-fault” driver ($100,000.00) and from the “med pay” clause of his own policy ($5,000.00). His actual medical expense to that point was rather modest. The evaluation of the case was predicated on “wage loss” and on “future medical expense.”

As for “wage loss” we would love to know how he planned to reconcile the fact that he was working full, eight-hour shifts with his assertion that he was receiving only half pay. His insurer is apt to want a plausible explanation for that.

Additionally, there was a conflict between his complaints that his insurer had not yet offered him the full $145,000.00 and his assertion that surgery was inevitable (and lots of physical therapy thereafter) but that he would not have this surgery for at least four months. (It is not the practice of liability insurance companies to throw gobs of money at you while you are still being treated for your injuries and before you have reached the point of “maximum medical improvement.”)

Then there is the question of comparative fault, that is, the extent to which the caller’s own negligence caused his injuries.

It does not follow from the fact that the other insurer made a “policy limits” offer that the caller’s own insurer will proceed as if the caller were free of fault. On the contrary, and because they are spending their own money, they will investigate whether, and to what extent, their insured was responsible for his own injuries. And even were they to conclude that he was utterly blameless, they might formulate a settlement offer that factors in some comparative fault.

Our caller professed dismay that his insurance company had not yet written him a check for the full $145,000.00. We allow for the possibility that he will not receive a dime on his UIM claim because he blundered at a critical moment in dealing with the representatives of both insurers.

IT IS LAW, NOT PHILOSOPHY

By David McCarthy

Personal injury plaintiffs are entitled to recover wages and salary lost even if they continued to receive full pay during their injury-caused absence from work. We recently had to educate a client's boss and, incredibly an insurance adjuster about the "collateral source rule."

The damages a defendant is liable for are not reduced one bit by benefits provided to a plaintiff by a collateral source (e.g., an insurer who pays the medical bills, an employer who continues to pay salary), and evidence of benefits bestowed by a collateral source is not admissible at trial. An adjuster in Louisiana recently asserted that her insured was not answerable for wage loss on the grounds that our client had continued to draw full pay while convalescing. To her credit, the adjuster acknowledged her error when it was demonstrated and offered appropriate compensation for the wage loss. That is more than can be said for the boss.

Despite a painstaking briefing about the collateral source rule, the boss maintained that because the employee had not been docked pay during his absence, seeking compensation for wage loss was immoral and illegal.

FIRM NEWS

• $70,000.00 settlement in case with truck company for injuries to motorist who needed no hospitalization and had medical bills under $6,000.00.

• Six years of litigation culminated in settlement for client-contractor who rebuilt flood-damaged mansion. Our client got every dime of the insurance proceeds at stake. The homeowner, our opponent, was represented by a 22-lawyer Chicago firm that is nationally known for representing "victims" of "toxic mold."

• $25,000 settlement for snowboarding injuries suffered in a header off a “rail” at local ski hill.

• The Illinois Tollway Authority demanded $30,000 from our client for unpaid tolls and penalties. Our defense: mistaken identity. One telephone call and one letter resolved the matter. Fines and penalties paid by client: zero.


• We bested the largest law firm in Oak Brook when we successfully defended a young computer consultant from overseas who was sued for violation of a non-compete agreement, unfair competition, and misappropriation of trade secrets by his former employer, a national consulting company. Their application for a preliminary injunction was denied after an evidentiary hearing of several days, which established, among other things, that the "vast sums" allegedly expended to cultivate the pertinent customer amounted to less than $130.00 for a few lunches. They appealed. The trial judge was affirmed. The opponent then threw in the towel and dropped the case.


• We won a trial against a high-brow Chicago firm in the U.S. Bankruptcy Court in Chicago. Our client was the trustee of a $40 million debtor's estate. The defendant-opponent faced a "preference" liability of nearly $400,000.00 and had only one defense worth talking about, i.e., that the trustee had blown the statute of limitations. We established at trial that the trustee's personnel got the suit papers to the courthouse on time, and it was an employee of the court clerk's office who delayed in processing them.

ONE-ON-ONE WITH INSURANCE ADJUSTER: OVERMATCHED

by David McCarthy

Those who attempt to settle their own personal injury claims by one-on-one negotiation with an insurance adjuster are overmatched. From what we have seen, the adjusters promise only reimbursement of medical expenses, and the do-it-yourself plaintiffs think that is a pretty fair deal.

In fact, an injured person is entitled to compensation for lost wages, disability, pain and suffering, and disfigurement (if there is disfigurement). Will there be some permanent disability? Will the plaintiff ever be as able and healthy as before? That is compensable.

Will the pain continue into the future? Is additional medical care reasonably certain to be needed in the future? All that is compensable. Don't settle for mere reimbursement of medical expenses.


A recent telephone inquiry revealed the wisdom of seeking legal counsel early. A would-be plaintiff decided she wanted to sue because arthritis was developing at the sites of her injuries. All this surfaced two days before the pertinent statute of limitations expired. Not enough time.