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What to expect after a car accident
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Help ILAO open opportunities for justiceIf you're in an accident, it's important to take steps to protect your rights. This means collecting key information at the scene, knowing how the legal process works, figuring out the costs of damages, and handling insurance claims. Doing these things can help you get fair compensation and legal protection.
Get the police report if there is one! The report typically includes:
Exchanging information with the other party and getting a copy of the police report is important, even if you do not plan to file an insurance claim.
When it is safe to do so, take photos and videos to gather the following facts and information, which can help you form or defend a case:
Generally, injury and damage claims arising from motor vehicle accidents are due to the alleged negligence of a driver. A plaintiff must show the following to recover damages for negligence:
The alleged at-fault driver or drivers are typically “proper defendants.” A proper defendant is a person or entity that can be legally held responsible and sued for their actions or negligence in a specific case.
The vehicle owner could also be held liable in some cases. However, ownership alone does not lead to liability. The plaintiff must show that:
If either of these conditions is met, liability may extend to the vehicle owner.
If the driver is performing an act for another person at the time of the accident, that other person, or "principal," could be liable for the driver's negligence under the legal concept of agency. There are generally two scenarios when agency will come up:
Family or friend
Families can be “on the hook” for the negligence of their drivers. For example, here in Illinois, parents may be held liable under an "agency" theory for their child's negligent driving if the child was running an errand or doing business for the parents at the time of the accident. This is supported by cases such as Stellmach v. Olson, 242 Ill.App.3d 61, 64 (2nd Dist. 1993) and Basak v. Hurley, 2016 Ill.App.3d at 11. However, in the Stellmach case, the Court explained that a parent is not liable for damages caused by a child who drove the parent's car for the child's own purposes, even if the parent consented to that use. Stellmach, 242 Ill.App.3d at 65. The question of whether an action is a family errand will be a question of fact for the jury to consider during the trial.
Employee
An employer might be liable if an employee becomes involved in a car accident. Specifically, an employer may be liable for the damages caused by the negligent acts of its employees if:
Negligent entrustment occurs when someone gives control of a dangerous item, like a vehicle, to another person who they know or should know is likely to use it in a way that could cause harm to others. Norskog v. Pfiel, 197 Ill.2d 60 (2001). For example, if a vehicle owner allows a friend to drive their car despite knowing that the friend has lost their driving privileges due to previous violations, the owner can be held responsible not only for the friend's negligent driving but also for their own negligence in giving the friend the keys.
Even if the owner of the vehicle can't be held responsible, there still might be insurance for the driver who does not own the car. Typically, liability insurance follows the vehicle. If the driver has the insured owner's permission to drive the car, the owner's policy should cover the driver. This coverage applies unless the driver is specifically excluded from the policy or is a household member the insured failed to disclose on the insurance application. In this context, an insured person is someone who is operating the insured vehicle with the owner's permission.
A summons is an official notice of a lawsuit. It is given to a person or business so that they know they are being sued. It also gives the person being sued the opportunity to defend themselves. Below are different ways summons may be served on the other party:
Calculating damages is not an exact science. For injuries, there is an old rule of thumb called "three times specials." The rule suggests that the total compensation should be roughly three times the amount of the "special" damages like medical bills and sometimes lost wages. The idea is: one amount to cover the bills, one amount for the plaintiff’s pain and suffering, and one amount for attorney’s fees. However, insurance companies often challenge this rule. They tend to question whether the accident actually caused the injury and whether the treatment and bills were necessary and reasonable.
However, the value of a claim will certainly be measured against medical bills, lost income from missed work, car rental expenses, repair bills, or the value of a totaled vehicle. Additionally, intangible damages like pain, suffering, permanent injuries, scarring, and death will be considered.
Often, plaintiffs do not receive damages right away. To compensate for the delay, plaintiffs may receive prejudgment interest. In Illinois, plaintiffs can collect this interest in cases involving wrongful death, negligence, willful and wanton conduct, or strict liability.
They can recover this interest on all damages except punitive damages, sanctions, statutory attorney's fees, and statutory costs. However, plaintiffs cannot recover prejudgment interest from state or local government entities. Prejudgment interest accrues at 6% per year from the time the lawsuit is filed until the judgment is made, but it cannot accrue for more than 5 years. 735 ILCS 5/2-1303(c).
If a private health insurance company pays for medical care provided pursuant to the accident, that insurer will have a 100% contractual interest in what it has paid. The insured is contractually obligated under most private policies to reimburse the insurance company out of any settlement or award of damages. Therefore it behooves any plaintiff or attorney to negotiate with the health insurance provider to give up its rights in exchange for payment out of any settlement or award of damages and hopefully compromise the amount it receives. Insurance companies are willing to accept compromise payments – money in hand now through a settlement, rather than waiting for the outcome of litigation.
Liens can create challenges for both the plaintiff and the defendant, especially during settlement negotiations. The Healthcare Services Lien Act limits the recovery of these lien holders. The Act defines two categories of healthcare services: healthcare professionals (like doctors and dentists) and healthcare providers (like hospitals or treatment centers). Together, the total liens from these two groups can't be more than 40% of what the plaintiff gets. Also, no single group can get more than 33% of the recovery. If the total liens are over 40%, each group can only get up to 20% of the plaintiff's recovery.
The Act also affects lawyers' liens. If the total liens are 40% or more of the recovery, lawyers' fees can't be more than 30% of what the plaintiff gets. This rule doesn't apply if there is an appeal. Also, the Act doesn't stop healthcare providers or professionals from trying to collect the rest of their fees for services given to the injured person. They can still try to get the remaining money owed.
Lastly, both Medicare and Medicaid have interests in the money recovered by injured parties. Medicare liens work like other medical liens but have priority. Medicaid liens are more limited and only cover the recovery of medical expenses, not other damages like lost wages.
Defendants can challenge any part of the plaintiff's case. For example:
Defendants must raise affirmative defenses, especially about the actions of other parties, right away in their Answer. They should also check if the plaintiff or another driver might have contributed to the accident and ask for permission to add Counter Claims and Third Party Claims immediately.
If the plaintiff is found to be more than 50% at fault, they cannot recover any damages. If the Plaintiff is found to be 50% or less at fault, their recovery will be reduced by the percentage of their fault. 735 ILCS 5/2-1116. Comparative negligence should be included as an Affirmative Defense in the Answer.
In Illinois, motor vehicle insurance is mandatory. Registered vehicles must have liability insurance with the following minimum limits:
These requirements are outlined in 625 ILCS 5/7-601 et seq. and 625 ILCS 5/7-203.
Additionally, motor vehicles registered in another state but operating in Illinois must also have liability insurance, as specified in 625 ILCS 5/7-601(d).
Insurance is a contract between the insured and the insurance company. The insureds, who are the first parties to the contract, pay premiums in exchange for the insurance company’s promise to pay for damages from covered accidents involving covered vehicles. The insurance company, the second party to the contract, promises to pay covered claims as long as the insureds fulfill all their contractual obligations.
An insured can be a named insured, an automatic insured, or an additional insured. If someone is not one of these, they are not covered under the policy. Here’s what these terms mean:
Who is insured depends on the specific terms of the policy, so it is important to read the policy carefully.
Liability coverage is insurance that pays for claims by another person (not part of the insurance contract) who is seeking damages for personal injury or property damage caused by an insured. It covers the insured’s (driver’s or owner’s) liability to third parties due to negligence in an accident involving a covered vehicle. The policy pays for damages and the cost to defend the insured if there is a lawsuit.
There are generally 5 types of first-party coverage:
If a car is financed, the finance company typically requires the buyer to purchase Comprehensive and Collision Insurance and name the finance company as an additional insured. This ensures that if the car is damaged and there is no other insurance, the finance company’s interest in the vehicle is protected.
Subrogation is when an insurance company seeks to recover money it paid to its insured under first-party coverage from the third party at fault. After paying out a claim to the insured, the insurance company can pursue the responsible party. The insured, called the subrogor, transfers their rights to the insurance company, known as the subrogee. The insurance company aims to recover the deductible paid by the insured and the amounts paid under the policy. The insured must cooperate and participate in any necessary litigation.
An insurance company can deny a third party’s claim for several reasons, such as the insured not being at fault, the damages not being caused by the accident, or the damages being excessive. If the insurance company denies a claim and the third party still wants to be paid, they must sue the person they believe is at fault, not the insurance company. The proper defendant is the alleged at-fault party. When the insured gets the summons, they should pass it to their insurance company, which will defend the case and pay any damages awarded. The insurance company is required to defend its insured in court as long as the insured has met their policy obligations.
There are several reasons why an insurance company might dispute coverage, but two common scenarios where they can justifiably deny a claim are:
Some other reasons include being wholly or partially at fault, not getting a medical evaluation or having a diagnosed injury, or exceeding your maximum coverage.
The insured must inform the insurance company about any incident that might lead to a claim and must cooperate with the company’s investigation. Courts have emphasized that notifying the insurer is essential, allowing the insurer to conduct a timely and thorough investigation. These notice requirements are crucial and must be followed for the insurance coverage to apply.
The notice requirements “serve the important function of allowing the insurer the opportunity to make a timely and thorough investigation of the insured’s claim,” so that such provisions are “prerequisites to coverage and not mere technical requirements which the insured is free to overlook or ignore with impunity.” Kerr v. Illinois Central R.R., 283 Ill.App.3d 574, 670 N.E.2d 759, 765, 219 Ill.Dec. 81 (1st Dist. 1996), appeal denied 171 Ill.2d 567 (1997), citing American States Insurance Co. v. National Cycle, Inc., 260 Ill.App.3d 299, 631 N.E.2d 1292, 1300, 197 Ill.Dec. 833 (1st Dist. 1994).
Policies usually call for “immediate” or “prompt” notice or notice “as soon as practicable.” The test adopted by the courts is whether the notice is reasonable under the particular facts and circumstances. The Illinois Supreme Court in Country Mutual Insurance Co. v. Livorsi Marine, Inc., 222 Ill.2d 303, 856 N.E.2d 338, 343, 305 Ill.Dec. 533 (2006), affirmed the applicable notice requirements stating:
A policy condition requiring notice “[a]s soon as practicable” is interpreted to mean “within a reasonable time.” Whether notice has been given within a reasonable time depends on the facts and circumstances of each case. Failing to provide reasonable notice can result in losing the right to recover under the policy.
Even if an insured driver believes the accident was another party's fault, they should still notify their insurance company. This ensures that if the other driver makes a claim later, the insured can rely on their insurance company to defend them and pay any damages. Additionally, if the insured is served with a summons, they should immediately notify their insurance company so that defense counsel can be appointed. Failure to notify the insurance company at this point may result in losing coverage.
If the defendant doesn’t have insurance, the plaintiff should first check their own policy for coverage. In Illinois, all car insurance policies must include coverage for accidents caused by uninsured drivers. If the insured and the insurer disagree about who is at fault or the amount of damages, they usually have to go to arbitration. If the statute of limitations is approaching, the plaintiff may need to sue the at-fault driver to ensure they can collect from them in the future if the insurance payout is not enough.
The main issue with uninsured drivers is collecting the judgment. If the plaintiff wins in court, they can go after the defendant’s non-exempt assets like wages, savings, real estate, and cars through additional legal actions. The plaintiff can also ask the Illinois Secretary of State to suspend the defendant’s driving privileges under 625 ILCS 5/7-303.