8-27-12; Illinois Appellate Court provides a primer for the industry on the “unnatural accumulation” theory of snow and ice in handling/accepting IL fall-down claims. Adjusters who handle such...

As a dedicated insurance defense law firm, we were happy to see our Appellate Court reverse a multiple six-figure jury award where Defendant gas station appeared to do everything they could to clear snow and ice and provide safe ingress and regress to their customers. While an unfortunate and no doubt painful injury, such accidents are not always the fault of the landlord, particularly when Old Man Winter creates the circumstances leading to the injury.

In Barber v. G.J. Partners, Inc., (2012 IL App (4th) 110992, issued 8/22/12), Plaintiff suffered a slip and fall while exiting her vehicle as she was entering a gas station, fracturing her ankle. Heavy snow the day prior compelled the gas station to clear the lot with a plow and salt the front areas of the store. Nevertheless, there were a few metal plates (4ft X 4ft), slightly below the concrete, which had snow and ice packed in them from the plow and subsequent traffic.

Plaintiff argued such areas of packed snow led to an unnatural accumulation near lined parking spots and Defendant failed to warn customers of the slippery condition. Defendant on the other hand, argued there was no evidence of an unnatural accumulation of snow or ice upon which Plaintiff fell. The jury found for Plaintiff and thereafter, the trial judge denied Defendant’s motion for judgment notwithstanding the verdict. Defendant’s appeal followed.

Despite testimony from employees who acknowledged slippery conditions were created by the snow-packed plates, the Appellate Court nevertheless reversed the jury award and agreed to enter a judgment notwithstanding the verdict in favor of Defendants. Citing precedent, the Court noted:

·         “[T]he mere removal of snow which may leave a natural ice formation on the premises does not constitute negligence.”

·         Further, “the mere sprinkling of salt, causing ice to melt, although it may later freeze, does not aggravate a natural condition so as to form a basis for liability on the part of the property owner.”

·         Perhaps most important to this case, the Court further cited case-law to note “ruts and uneven surfaces created by traffic in snow and ice are not considered unnatural and cannot form the basis for liability.”

The Court explained a property owner may be subject to liability if the voluntary snow removal is performed in a negligent manner. Such liability may arise where a “new, unnatural or artificial condition” were created by the snow removal. However, the shoveling of parking areas and sidewalks is generally beneficial to customers. Store owners should not be discouraged from doing so simply because such operations can rarely be done “perfectly” during winter months.

The ruling is on the web at: http://www.state.il.us/court/opinions/AppellateCourt/2012/4thDistrict/4110992.pdf. This article was researched and written by John P. Campbell, Jr., J.D., please feel free to send your thoughts and comments to John at jcampbell@keefe-law.com.

8-27-12; Health Care Liens in IL Personal Injury/Wrongful Death Claims Re-Tailored by New ITLA-sponsored Legislation

We aren’t sure why but they skipped WC liens in making these changes. Assume you have a personal injury claim by Paula Plaintiff who is in a motor vehicle accident and runs up a $100,000 medical tab with ABC Hospital—the hospital puts Paula Plaintiff and her lawyer on notice of their lien. Paula Plaintiff’s lawyer is trying to get a jury to give Paula a $300,000 verdict—the jury finds Paula to be 40% at fault and awards $180,000. Does ABC Hospital get their $100K back, leaving Paula and her lawyer to split the $80K remainder?

Well, the answer to that question will change on January 1, 2013 because HB5823 quietly became law last week. The goal of this legislation was to apportion medical providers’ lien recoveries in personal injury/wrongful death litigation in IL. This is one of those sort of “stealth” laws where the forces of the Illinois Trial Lawyers Ass’n (our IL Plaintiff bar) quietly want something for their politically-donating membership and they unobtrusively get it. This bill has been signed by our Governor and will be in effect for all IL PI/Wrongful Death claims pending on January 1, 2013.

It does not affect workers’ comp liens but it will affect most other liens from health care providers. Without knowing it, doctors, hospitals and other care-providers have now statutorily “hired” the respective Plaintiff attorneys and will now owe them fees and litigation expenses despite the fact there is no true attorney-client relationship. The Illinois State Medical Society or ISMS did weigh in on this bill and appears to have eventually approved the final form. Our biggest concern with it will be how our judiciary handles these issues in negotiations and pretrials.

If it won’t bore you to death to read it, the new law says:

Sec. 30. Adjudication of rights. On petition filed by the injured person or the health care professional or health care provider and on the petitioner's written notice to all interested adverse parties, the circuit court shall adjudicate the rights of all interested parties and enforce their liens. A petition filed under this Section may be served upon the interested adverse parties by personal service, substitute service, or registered or certified mail.                      

Sec. 50. Subrogation claims. If a subrogation claim or other right of reimbursement claim that arises out of the payment of medical expenses or other benefits exists with respect to a claim for personal injury or death, and the personal injury or death estate claimant's recovery is diminished:             

(1) by comparative fault; or               

(2) by reason of the uncollectibility of the full value of the claim for personal injury or death resulting from limited liability insurance;

the subrogation claim or other right of reimbursement claim shall be diminished in the same proportion as the personal injury or death estate claimant's recovery is diminished. Unless otherwise agreed by the interested parties, the amount of comparative fault and the full value of the claim shall be determined by the court having jurisdiction over the matter. After reduction of the subrogation claim or other right of reimbursement claim due to either comparative fault or limited liability insurance, or both, the party asserting the subrogation claim or other right of reimbursement claim shall bear a pro rata share of the personal injury or death estate claimant's attorney’s fees and litigation expenses.

This Section 50 does not apply to any holder of a lien under the Workers' Compensation Act, the Workers' Occupational Diseases Act, or this Act including, but not limited to, licensed long-term care facilities, physicians, and hospitals, or to claims made to recoup uninsured payments pursuant to Section 143a of the Illinois Insurance Code or underinsured payments pursuant to Section 143a-2 of the Illinois Insurance Code. A subrogation claim or other right of reimbursement claim may be adjudicated even when a lien has not been filed regarding such claim.                   

You may note Plaintiff’s counsel is now entitled to fees/costs to recover the medical provider’s lien—the amount of the “fees” is not stated. This means they may be able to charge whatever they want to charge consistent with the ruling of the Circuit Court. Some plaintiff attorneys charge as much as 49% of the recovery after a hearing/appeal so the medical lien can be reduced by any comparative fault, lowered insurance coverage and as much as 49% for attorney fees and whatever for court costs.

We would appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

8-20-12; Need your thoughts, WC legal gurus

We are dealing with a bill from a client for an air ambulance company that provided services for an injured worker. Our client paid the air ambulance folks the amounts provided under the IL WC Medical Fee Schedule—the air ambulance folks accepted the payment. The air ambulance company is now claiming they don’t have to accept state regulation of their services, as they are federal in scope—in short, they want a lot more moolah.

We feel this is an interesting legal question. We are asking for your thoughts and input. There is no question an emergency air ambulance provider is providing a medical service for workers due to a work-related medical problem. We agree employers getting the benefits of such services for their workers owe for such WC benefits under state law. However, the air ambulance folks are claiming state law doesn’t apply to regulate them or their prices, under U.S. law.

The problem with that approach is they aren’t ferrying injured workers around for fun. The air ambulance folks know they are providing state-based workers’ comp services. It is our reasoned opinion an employer, insurance carrier or TPA owes them whatever the medical fee schedule provides or you don’t owe them anything because employers only owe your injured workers what is due under state law. This follows what we call the “Coca-Cola® Machine” model of workers’ compensation claims administration; you can’t get a coffee from a Coke® machine. Similarly, the Illinois WC Commission or the Indiana WC Board can only dispense one product; they can award state WC benefits and can’t do anything else.

In fact, we don’t feel an injured worker’s attorney can ask the IWCC to award unlimited benefits or benefits due under federal laws or the laws of another state/country. We feel they are limited to awarding Illinois state benefits only.

The air ambulance folks might sue your worker in quantum meruit for the reasonable value of their services—you don’t owe the employee a defense to such a claim because that duty isn’t outlined in the IL WC Act. You only owe your workers for statutory state WC benefits.

We have done online research. We feel this is the best and most current statement of the law on the topic: http://www.insurancelitigationregulatorylaw.com/tags/workers-compensation-1/

Please let us know your thoughts on this interesting topic.