Disclaimer

I. Relevant Laws

Statute of Limitations
Negligence Standard and Bars to Recovery
Punitive Damages
Joint and Several Liability
Award Caps
Collateral Source Rule
Enforceable Liens
Cumis("Peppers")Counsel Case Law
Seatbelt Defense
Non-delegable Duties of Property/Auto Owners
Wrongful Death Damage/Elements Considered
Workers' Compensation Exclusive Remedy/Immunity
Pre/Post Judgment Interest

No Fault
Medical Payments
PIP Applicability
Mandatory Limits
Salvage

Map of Illinois Service Area
Map of Missouri Service Area

The following is meant as a general overview of the most relevant sections of Illinois law to liability insurers. As this area continually evolves, the contents of this compendium are subject to changes or revisions in the law, either by legislative or judicial action, which cannot be foreseen.

This information is a general overview, meant only to give a general understanding of Illinois law, and should not be construed in any way as specific advice. Please contact the Roth & Evans s directly for guidance regarding application of these general rules to specific situations.

We are happy to discuss any questions or issues that arise.

I.Relevant Laws

Construction in Illinois

Construction claims based upon design management and supervision must be commenced within four years from the time the person bringing the action knew or should have reasonably known of the act or omission which is the subject of their suit. See 735 ILCS 5/13-214.

In Illinois construction claims also are limited by a statute of repose. The statute of repose restricts potential liability by limiting the time by which a cause of action can arise. To put it another way, the statute of repose cuts off a plaintiff’s right to sue after a specific time regardless of the statute of limitations. For example, construction claims in Illinois have a ten year statute of repose. This means that no action can be brought against any person for the design, planning, supervision, observation or management of construction or construction of an improvement to real property after ten years have elapsed from the time of such act or omission. This is important in construction claims because often times the negligence in the manufacturing is not discovered until many years after the home or building had been built. The builder is not protected by the statute of limitations because it does not begin to run until the defendant has knowledge of the defect. This is why a statute of repose is necessary.

Products Liability

There is also a statute of repose for products liability cases. A cause of action must be brought within ten years within the date of the first sale, lease or delivery of possession to its initial user, consumer, or other non-seller. It is important to note that the statute of repose can be waived by the seller through a warranty of the product for a period over the 10 year statutory limitation. See 735 ILCS 5/13-213.

Contracts

There is a ten year limitation on written contracts in the State of Illinois. This limitation is subject to exceptions as provided by the Unifonn Commercial Code. Similarly, Illinois’ five year statute of limitation on unwritten contracts is subject to the Uniform Commercial Code as well. The two statutes can be found at 735 ILCS 5/13-205 and 735 ILCS 5/13-206.

NB: This section applies to warranty-type claims usually brought in conjunction with a products claim.

Personal Injury

Actions for damages for personal injuries must be commenced within two years after the cause of action accrued. This limitation is imposed by 735 ILCS 5/13-202 which is attached for your review.

Property Damage

In general, actions for property damage are limited to five years under 735 ILCS 5/13-205.

Uninsured Motorist

In Illinois, claims based upon uninsured motorist insurance are governed by the uninsured motorist contract itself. The limitation period provided in the uninsured motorist contract limits the time in which an action can be brought. See Coyne v. Country Mutual Insurance Company, 39 III. App. 3d 279, 349 N.E.2d 485 (1St Dist. 1976).

Contribution and Indemnity

In Illinois no action for contribution or indemnity may be made more than 2 years after the party seeking contribution or indemnity has made the payment or discharge of liability to the claimant. Also, after the party seeking contribution has been served in an underlying action he has a 2 year limitation to bring his claim for contribution or indemnity. This limitation is found at 735 ILCS 5/13-204.

A review of all Illinois Statutes of Limitation are included in the appendix.

Illinois is a modified comparative negligence state. This means the plaintiff must prove the defendants are liable for 50% or more of the fault. If the plaintiff is found to be more than 50% at fault, the plaintiff’s claim is barred. However, any damages awarded are diminished by the amount of plaintiff’s fault. The limitation of fault is statutory and is covered under 735 ILCS 5/2-1116 which is enclosed for your review.

In Illinois punitive damages cannot be pleaded in a bodily injury case and are allowed only after a special hearing to determine probable cause. Illinois courts view punitive damages as being criminal in nature and accordingly prohibit insurance coverage for punitive damages. Attached please find Beaver v. Country Mutual Insurance Company, 95 Ill. App. 3d 1122, 420 N.E.2d 1058 (5th Dist. 1981) which gives Illinois’ rule against insurance covering punitive damages as well as the policy considerations for its ruling.

Even though one cannot insure against punitive damages in Illinois, a corporate entity is somewhat protected by the complicity rule. The complicity rule holds that:

“Punitive damages can properly be awarded against a master or other principle because of an act by an agent or other principal because of an act by an agent if, but only if:

1. the principal authorized the doing and the manner of the act, or
2. the agent was unfit and the principal was reckless in employing him, or
3. the agent was employed in a managerial capacity and was acting in the scope of employment, or
4. the principal or the managerial agent of the principal ratified or proved the act.”

This means that an agent or an employee can act in a manner to bring about punitive damages against the individual without the corporation incurring punitive damages. This standard was adopted in Tolle v. Interstate Systems Truck Lines, 42 Ill. App. 3d 771, 356 N.E.2d 625 (5th Dist. 1976) which is attached hereto for your review. It would seem that the same rationale in Beavers would apply in regard to insurability of punitive damages.

In Illinois joint and several liability is attributable to any defendant who is determined by the trier fact to be liable for 25% or greater of the total fault attributable to the plaintiff. If a defendant is found to be less than 25% at fault, it can be held only severally liable. Joint and several liability is statutory. It is promulgated under 735 ILCS 5/2-1117, a copy of which is enclosed for your review. It is important to note that Illinois law has been significantly changed by the holding of this Illinois State Supreme Court in Best v. Taylor Machine Works, 179 III. 2d 367,689 N.E.2d 1057(111. 1997). In Best the Supreme Court held statutory several liability unconstitutional.

Much like Illinois’ statutory imposition of several liability, award caps on compensatory damages were overruled in Best v. Taylor Machine Works. The Supreme Court in Best found the caps on damages were arbitrary and unconstitutional as drafted by the legislature. The end result is a very friendly environment for the plaintiff’s bar.

In Illinois, sums received from collateral sources cannot be used to reduce a judgment against a tortfeasor. This rule has been repeated by our Supreme Court in several cases. See Bemier v. Burns, 113 I11. 2d 219, 497 N.E.2d 763 (Ill. 1986).

It is also important to note that the Supreme Court in Bemier v. Burns upheld the constitutionality of 735 ILCS 5/2-1205 which reduces recovery from collateral sources in medical malpractice cases. The court found that the reduction of the costs of malpractice actions was a legitimate governmental interest and for that reason found no violation of equal protection.

There are various types and classes of liens, such as a common-law lien which ordinarily is considered to be a legal claim or charge on property, either real or personal, as security for the payment of some debt or obligation; an equitable lien, which is a right recognized in equity, though not at law, to have property applied to the payment of a particular debt; and a statutory lien, which may be provided for by the legislature subject to constitutional limitations. Employers Mutual Casualty Company. Subrogee of Clark-Maple Chevrolet Company v. Trimon Elevator Co., 71 III. App.2d 124; 217 N.E.2d 391 (1St Dist. 1966). In 53 C.J.S. Liens 5, it is said that a statutory lien arises and exists only where there has been at least a substantial compliance with all the statutory requisites essential to its creation and existence, but where there has been such a compliance the lien arises by operation of law. Id. In section 21 of C.J.S. Liens, it is said that where a statute creating a lien provides no method for its enforcement, it may be enforced by an ordinary action at law for the collection of the debt. Id. The Act does not provide an exclusive method for enforcing the lien. Id.

Many liens are allowed by Illinois law. See appendix under “Liens”.

The Illinois Supreme Court has held that the insurers duty to defend and its obligation to pay a judgment are separate. When an insurer denies coverage for an incident, the insurer must hire outside counsel to defend its insured’s interest. The insurer is not estopped from denying coverage, however, a conflict of interest arises which prohibits an attorney from representing both parties. The only exception to this rule is a waiver by the insurer of the defense of non-coverage or an acceptance of such a defense by the insured. See Maryland Casual Company v. Peppers, 64 Ill.2d 187, 355 N.E.2d 24 (Ill. 1976) which is attached hereto for your review.

In Illinois, failure to wear a seatbelt cannot be raised as a defense. In 1985, the Supreme Court in Clarkson v. Wright, 108 Ill. 2d 129, 483 N.E.2d 268 (Ill. 1985) held that the damages caused by a plaintiff’s failure to wear a seatbelt cannot be deducted from the total recovery. Today, Clarkson still remains the law of Illinois.

Non-delegable duties of property owner

Non-delegable duties or obligations of a property owner is an issue that has been litigated in Illinois only in fact specific situations. For instance, the case of Repinski v. Jubilee Oil Company, 85 Ill. App. 3d 15, 405 N.E.2d 183 (1St Dist. 1980) held that “an owner of property which abuts a public sidewalk owes a duty to keep the sidewalk free from any condition which may create a danger or a hazard to persons lawfully upon the street. And thus the duty imposed upon the owner is nondelegable.”

With regard to duties owed by an owner or occupier of land to another on the premises, statutory and common law duties provide a guide. The Premises Liability Act, 740 ILCS 130/1, et seq. imposes a duty owed by an owner or occupier of land to an “invitee” and “licensee” of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.

Legal factors to be weighed when considering if a duty exists are:

1. The forseeability that the defendant’s conduct will result in injury;
2. The likelihood of injury;
3. The magnitude of the burden of guarding against it; and
4. The consequences of placing that burden on a defendant.

See Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231 (Ill. 1967) and Zimmermanv. Netemeyer, 122 Ill. App. 3d 1042, 462 N.E.2d 502 (5th Dist. 1984) attached hereto for your review.

The law of Illinois recognizes several possible duties owed to entrants upon the property of others. Proceeding from highest to lowest, the hierarchy of duties are:

1. Absolute liability for ultra hazardous or intrinsically or inherently dangerous activity. See Chicago and Northwestern Railway v. Hunerbeng, 16 Ill. App. 387 (1St Dist. 1885) and its progeny.
2. Highest degree of care (owed by common carriers and innkeepers). See Chicago and Eastern Railroad v. Flexman, 103 Ill. 546 (Ill. 1882).
3. Ordinary care for the safety of any persons lawfully upon the property. See Pashinian v. Haritonoff, 81111. 2d 377, 410 N.E.2d 21(111. 1980).
4. Refraining from wilful and wanton conduct to injure (some) trespassers. See Sumner v. Hebenstreit, 176 Ill. App.3d 881, 522 N.E.2d 343 (5th Dist. 1988).

Non-delegable duties of automobile owner

The issue of duties placed upon an owner of an automobile using the specific catch phrase “nondelegable duties” has not been litigated. Perhaps the closest cause of action which mirrors the violation of non-delegable duties placed upon an automobile owner is “negligent enstrustment.” A motor vehicle owner may be held liable for injuries resulting from the improper or negligent operation of his vehicle where he entrusts the vehicle to an inexperienced, reckless, or incompetent driver. Dyreson v, Hughes, 76 N.E. 2d 809, 333 Ill.App.198 (2nd Dist. 1948).

Outside the rubric of the negligent entrustment cause of action, generally speaking, the owner of an automobile is not liable for the negligence of another in operating the vehicle unless the operator is acting as the owners agent or servant. IL-LP Autos s 201.

To state a general auto negligence action, one must plead and prove a duty owed to the plaintiff by the defendant (auto operator), breach of that duty, and damages proximately caused by the breach. Rabel v. Illinois Wesleyan University, 161111. App. 3d 348, 355, 514 N.E.2d 552, 557, 112 Ill. Dec. 889, 894. (4th Dist. 1987).

The Wrongful Death Act, 740 ILCS 180/1, et. seq., creates a cause of action for the benefit of the widow and next of kin for “pecuniary injuries.”

With regard to damages, pecuniary injuries have been held to include benefits of pecuniary value; including money, goods and services received by the next of kin of the deceased. Pecuniary injuries have also been held to include the loss of consortium by the surviving spouse, the loss of a minor child’s society by the parents, the loss of an unmarried adult child’s society by the parents, the loss of a parent’s society of an adult child, and the proven loss of a sibling’s society. Id.

Usually, when a wrongful death action is pleaded, the Plaintiff will also plead a “Survival Action” count in which he seeks to recover for the decedent’s pain and suffering prior to death.

In determining “pecuniary loss” the following may be taken into consideration; 1) what money, goods andlor services the decedent customarily contributed in the past, 2) what money, goods and/or services the decedent was likely have contributed in the future, 3) the decedent’s age, 4) the decedent’s sex, 5) the decedent’s health, 6) the decedent’s physical and mental characteristics, 7) the decedent’s habits (e.g.: for industry, sobriety and thrift, etc.), 8) the decedent’s occupational abilities, and 9) the relationship between the plaintiff and the decedent.

The Illinois Workers’ Compensation Act (820 ILCS 305/5(a), generally provides the exclusive remedy against an employer for work-related injuries. It does not provide an exclusive remedy as to third parties. Section 5(a) of the Act states, in pertinent part, as follows:

“No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.”

The Act further provides in pertinent part:

“The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act.”

To escape the exclusivity of remedy rule, plaintiff must prove the injury (1) was not accidental, (2) did not arise from his or her employment, (3) was not received during the course of employment, or (4) was noncompensable under the Act. Meerbrey v. Marshall Field & Co., 139 Iii. 2d 455, 564 N.E.2d 1222 (Ill. 1990). In addition, the immunity granted by the exclusive remedy rule may be overcome in actions involving intentional torts by the employer or claims for retaliatory discharge Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (Ill. 1978).

Contribution vs Employer

It is important to note that employers who are sued as third-party defendants are only liable in contribution for the amount of their statutory liability under the Workers’ Compensation Act. This limits the employers liability to both the employee and third-party defendants to the statutory amount under the Workers’ Compensation Act. See the Illinois Supreme Court case Kotecki v. Cyclopse Welding Corporation, 146 Ill. 2d 155, 585 N.E.2d 1023 (I11.1991).

Waiver of Kotecki Defense

Kotecki limitations can be waived by contract. When one enters a contract to assume unlimited contribution liability, one waives the contribution cap as set forth by the Supreme Court in Kotecki. A party enters into such a contract with the presumed knowledge of the Kotecki limitation. Therefore, the Supreme Court will honor the contract and forego the Kotecki limitation. See Braye v. The Archer Daniels Midland Company, 175 Ill. 2d 201, 676 N.E.2d 1295 (Ill. 1997).

Prejudgment interest

The Illinois Interest Act (815 ILCS 205/2) provides for pre-judgment interest in certain situations. The Act provides as follows:

“§2. Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing (an insurance policy is in instrument of writing in illinois); on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.”

Prejudgement interest is not recoverable in actions for bodily injury, personal injury or property damage.

Post judgment interest

735 ILCS 5/2-1303 provides for “interests on judgments.” The statute provides, in pertinent part, as follows:

Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government, a school district, a community college district, or any other governmental entity. Whenjudgment is entered upon award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment.

II. Auto Considerations

Illinois does not embrace a “no fault” policy.

Amounts paid under med pay are generally subject to subrogation in Illinois. There are exceptions, such as when the same carrier pays Medical Payments and Uninsured Motorist and the arbitrators determine the total damages exceed the limits. See Glidden v. Farmer, 57 Ill. 2d 330, 312 N.E.2d 247 (Ill. 1974).

PIP (personal injury protection) is not generally sold in Illinois. Illinois has no special statutory provisions limiting suit or providing a credit if PIP is present.

The mandatory limit for auto insurance in Illinois is $20,000 per person (bodily injury), $40,000 per occurrence (bodily injury), and $15,000 (property damage).

A salvage value reduction is allowed in Illinois.

A. General observations.

The Courts in Southern Illinois are extremely pro-plaintiff taking their lead from the appellate court of Illinois for the Fifth District. This is by far the most liberal Appellate Court of the five in the State of Illinois, especially when it comes to treatment of the plaintiffs bar.

B. Jurisdictional limits.

1. Small Claims Court - 0 - $5,000.00
2. The “LM” division - $5,001.00 to $50,000.00
3. the General division - $50,000.00 plus.

1. Small Claims. No discovery without leave of court; with leave of court, generally only interrogatories allowed.
2. The “LM” division. Automatic disclosures apply such as in Federal Court. Also, there is in general, a limitation on the number of depositions although that is liberally dispensed with so that the difference between “LM” and “L” cases is blurred. “L” cases, no special rules. Normal discovery rules apply. Most cases are filed as “L” cases. However, the plaintiff must file an affidavit of the amount of damages sought.

C.Strength of Plaintiff’s Bar.

The Plaintiffs bar throughout Southern Illinois is pretty effective, certainly much more effective in Madison and St. Clair Counties than in outlying areas but effective there as well. This is because, quite frankly, there are economic rewards in this area for the reasons set out above and those with ability tend to flock to areas that are economically rewarding. Over all, Southern Illinois has a plaintiffs bar that is well above average and in Madison and St. Clair Counties one would have to grade the plaintiffs bar as excellent.

A.Direct Action.

Not allowed except, of course, in first party actions or, if all the i’s are dotted and t’s are crossed, in a bad faith claim.

B.Counties to watch out for.

In Southern Illinois, the most dangerous county is St. Clair County immediately to the south of Madison County, County Seat, Belleville. Madison County, County Seat Edwardsville - is the next most dangerous. Both have generally liberal jury panels with strong union backgrounds. These two counties provide the backbone of the organization that elects the Appellate Court Judges to the Fifth District and the Democratic organization that is so powerful in Southern Illinois.

Most other counties in Southern Illinois tend toward the rural and conservative. There are, however, some exceptions. Franklin and Williamson counties both have a long coal mining history with many members of the UMW. The UMW of course was one of America’s most militant unions and, where it exists, still is. It hardly exists in Williamson and Franklin counties because most of the coal mines have been shut down. This has not had the effect of making jurors in these counties more conservative but, if anything, has made them more resentful of things as they are and, therefore, more liberal in personal injury cases.

Jackson County is a fairly populous county which includes Carbondale and Southern Illinois University. While not as conservative as the other outlying counties, it is more liberal than many of the extremely rural counties which have no union history.

We are attaching a map of our service area.

1. STATUTE OF LIMITATIONS

Guide to Illinois Statutes of Limitation

735 ILCS 5/13-214

735 ILCS 5/13-213

735 ILCS 5/13-205

735 ILCS 5/13-206

735 ILCS 5/13-202

Coyne v. County Mutual Insurance Company, 39 Ill.App.3d 279,349 N.E.2d 485 (1St Dist. 1976)

735 ILCS 5/13-204

2. NEGLIGENCE STANDARDS AND BARS TO RECOVERY

735 ILCS 5/2-1116

3. PUNITIVE DAMAGES

Beaver v. Country Mutual Insurance Company, 95 Ill. App. 3d 1122, 420 N.E.2d 1058 (5th Dist. 1981)

Tolle v. Interstate Systems Truck Lines, 42 Ill. App. 3d 771, 356 N.E. 2d 625 (5th Dist. 1976)

4. JOINT AND SEVERAL LIABILITY & AWARD CAPS

Best v. Taylor Machine Works, 179 Ill.2d 367, 689 N.E.2d 1057 (Ill. 1997)

5. COLLATERAL SOURCE RULE

Bemier v. Burns, 113 Ill.2d 219, 497 N.E.2d 763 (Ill. 1986)

735 ILCS 5/2-1205

6. ENFORCEABLE LIENS

Employers Mutual Casualty Company, Subrogee of Clark-Maple Chevrolet Company v. Trimon Elevator Co., 71111. App.2d 124; 217 N.E. 2d 391 (1St Dist. 1996)

7. CUMIS (“PEPPERS”) COUNSEL CASE LAW

Maryland Casual Company v. Peppers, 64 Il1.2d 187, 355 N.E.2d 24 (111.1976)

8. SEATBELT DEFENSE

Clarkson v. Wright, 108 Ill.2d 129, 483 N.E.2d 268 (111.1985)

9. NON-DELEGABLE DUTIES OF PROPERTY/AUTO OWNERS

Repinski v. Jubilee Oil Company. 85 Ill. App. 3d 15,405 N.E. 2d 183 (1St Dist. 1980)

740 ILCS 130/1-5

Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231 (Ill. 1967)

Zimmerman v. Netemeyer, 122 Ill. App. 3d 1042, 462 N.E.2d 502 (5th Dist. 1984)

Chicago and Northwestern Railway v. Hunerberg. 16 Ill. App. 387 (1St Dist. 1885)

Eastern Railroad v. Flexman, 103 Ill. 546 (Ill. 1882)

Pashinian v. Haritonoff. 81 Ill.2d 377, 410 N.E.2d 21(111. 1980)

Sumner v. Hebenstreit. 176 Ill. App. 3d 881, 522 N.E.2d 343 (5th Dist. 1988)

Dyreson v. Hughes, 76 N.E. 2d 809, 333 Ill. App. 198 (2nd Dist. 1948)

Rabel v. Illinois Wesleyan University, 161 Ill. App. 3d 348, 355, 514 N.E.2d 552, 557, 112 Ill. Dec. 889, 894 (4th Dist. 1987)

10. WRONGFUL DEATH DAMAGES/ELEMENTS CONSIDERED

Wrongful Death Act, 740 ILCS 180/1

11. WORKER’S COMPENSATION EXCLUSIVE REMEDY/IMMUNITY

Illinois Workers’ Compensation Act (820 ILCS 305/5(a)

Meerbrey v. Marshall Field & Co.. 139 Ill.2d 455, 564 N.E.2d 1222 (Ill. 1990)

Kelsay v. Motorola, Inc., 74 Ill.2d 172, 384 N.E.2d 353 (Ill. 1978)

Kotecki v. Cyclopse Welding Corporation. 146 Ill. 2d 155, 585 N.E.2d 1023 (Ill. 1991)

Braye v. The Archer Daniels Midland Company. 175 Ill. 2d 201, 676 N.E.2d 1295 (Ill. 1997)

12. PRE/POST JUDGMENT INTEREST

Illinois Interest Act, 815 ILCS 205/2

735 ILCS 5/2-1303

13. MEDICAL PAYMENTS

Glidden v. Farmer. 57 I1l.2d 330, 312 N.E.2d 247 (Ill. 1974)