7/10/2014

ILLINOIS AUTOMOBILE SUBROGATION: The Nuts and Bolts

Presented By: Gary L. Wickert Matthiesen, Wickert & Lehrer, S.C. Bradley J. Jeanblanc Feiereisel & Kasbohm, LLC

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ILLINOIS AUTOMOBILE SUBROGATION: The Nuts and Bolts

Presented By: Gary L. Wickert Matthiesen, Wickert & Lehrer, S.C. Bradley J. Jeanblanc Feiereisel & Kasbohm, LLC

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INTRODUCTION TO ILLINOIS AUTOMOBILE INSURANCE • Types of Coverage – Personal – Liability • Bodily Injury • Property – Medical Payments (Med Pay) – Personal Injury Protection (PIP) – Not Applicable – Uninsured/Underinsured

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SUBROGATION GENERALLY IN ILLINOIS • Equitable and Contractual Subrogation • Reimbursement / Intervention • Anti-Subrogation Statutes – Health Care Services Lien Act - § 23/1, et seq. • 2012 Amendment • Codifies Made Whole Doctrine • Codifies Common Fund Doctrine • Exclusions

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MEDICAL PAYMENTS (MED PAY) SUBROGATION • Medical Payments (Med Pay) Benefits • Only Contractual – Not Equitable • Policy Terms Control

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UNINSURED/UNDERINSURED (UM/UIM) SUBROGATION • Uninsured Motorist Subrogation – 215 I.L.C.S. § 143.24d • Underinsured Motorist Subrogation – Third-Party (Uninsured Motorist) – Other Third-Party Tortfeasors • Notice and Consent Requirements

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COLLISION SUBROGATION

• Measure of Damages • Loss of Use • Loss Resale Value • § 143.24d Mandatory Arbitration of Physical Damage Subrogation Claims • Interstate Bankers Cas. Co. v. Hernandez, 3 N.E.3d 353 (Ill. App. [3rd Division] 2013). • Illinois Administrative Code § 919.80 – Adjusting of Property Damage Claims

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MADE WHOLE DOCTRINE

• General Rule • Health Care Services Lien Act (HCSLA) • Applies Only to Reimbursement Claims • Applies to Equitable and Contractual Subrogation

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COMMON FUND DOCTRINE

• Health Care Services Lien Act (HCSLA) • 7th Circuit vs. Illinois Supreme Court • Defenses – Active Participation – Meaningful Participation – Unwilling Recipient • Brase by Brase v. Loempker, 642 N.E.2d 202, 205 (Ill. App. 1994). • Application to Med Pay Set-Off – Scheppler v. Pyle, 2013 IL App. (3d) 110380-U (Ill. App. 2013).

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ECONOMIC LOSS DOCTRINE

• Moorman Doctrine • Sudden or Dangerous Occurrence Exception • Intentional Misrepresentation and Fraud • Negligent Misrepresentation • Sudden and Calamitous Event

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STATUTE OF LIMITATIONS

• Personal Property: 5 Years • Personal Injury (Med Pay): 2 Years • Design, Planning, Construction of Improvement To Real Property: 4 Years • Product Liability: 12 Years Statute of Repose

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RELEASE OF TORTFEASOR BY INSURED When tortfeasor with full knowledge of insurer’s subrogation right settles with insured, a general release signed by insured will not bar subrogation suit against tortfeasor or its insurer. An unlimited release signed by an insured for consideration not specifically including an amount designated as covering the insurer’s subrogation interest does not bar a subsequent subrogation action by an insurer’s subrogee against the tortfeasor, if the tortfeasor or his insurance carrier had knowledge of the subrogation rights. Illinois Fraudulent Concealment Statute - 735 I.L.C.S. § 5/13-215

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REIMBURSEMENT OF DEDUCTIBLES

• § 5/143b. Carrier is subrogated to insured’s entire claim including deductible and must include in subrogation action. • Carrier repays full pro-rata deductible to insured out of net recovery. • Incurred expenses (attorney’s fees, collection fees, etc.) can be deducted. • Administrative expenses cannot be deducted. – Normal Cost Of Doing Business • Installment payments reimbursed pro-rata when received.

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COLLATERAL SOURCE RULE

• Generally: Damages recovered from a source collateral to the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor. • § 5/2-1205. Medical Malpractice • § 2-2301. Settlement of Claims – Release must be tendered within 14 days of settlement. – Timely approval of settlement by court. – If no payments within 21 days of executed release, can recover interest and gets judgment.

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SUDDEN EMERGENCY DOCTRINE • Defendant confronted with a sudden emergency is required to exercise the standard of care of a reasonably prudent person under similar emergency circumstances. • The emergency must arise without fault on defendant’s part. • Examples: – Driver in front of you loses control on icy road and spinning out; – A deer running in front of a person’s vehicle; – Car in the oncoming lane crossing the centerline; or – A lost load on the highway.

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SEAT BELT DEFENSE

• Allows evidence of lack of seat belt use. Plaintiff recovers only damages they would have incurred if wearing seat belt. • Prior to 1985: Not Available In Illinois • After 1985: – § 12-603.1 – Mandated seat belts in vehicles and requires seat belt use. – Failure to wear seat belt may not be considered evidence of negligence.

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BAILMENT

• Definition: Act of bailor delivering property to bailee for a particular purpose, without transfer of ownership. – Proof of delivery of product in good condition creates rebuttable presumption of negligence by bailee. – Bailee may rebut with evidence of due care. – Burden of proceeding with evidence shifts to bailee. – Burden of proof remains with bailor.

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NEGLIGENT ENTRUSTMENT

• A person may be liable for negligent entrustment of an automobile where that person entrusts an automobile to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner or entrustor of the automobile.

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GUEST STATUTE/FAMILY PURPOSE DOCTRINE • Guest Statute (§ 5/10-201): A non-paying guest passenger in a vehicle may not sue the driver unless accident was caused by willful and wanton misconduct. • Family Purpose Doctrine: Owner of vehicle is responsible for damages when the vehicle is driven by a family member with or without the owner’s permission. – Doctrine Not Used In Illinois

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RENTAL CARS, LOANER VEHICLES AND TEST DRIVERS

• Test Drive: When a customer test drives a vehicle, new or used, the dealer’s garage policy is primary and the customer’s personal auto policy is secondary. § 5/5-101 • Loner: Primary coverage determined by the amount of customer’s liability coverage. 625 I.L.C.S. § 5/5-101(6) – If customer has 100/300/50 limits, customer’s policy is primary. – If customer doesn’t have 100/300/50 limits, dealer’s policy is primary.

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MULTIPLE CLAIMS IN EXCESS OF LIABILITY • Liability carrier is under no obligation to place priorities in relation to the claims that present thegreatestthreatofliabilityforanexcess judgment against insured. Can settle specific claims if reasonable under the circumstances.

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DRAM SHOP LIABILITY

• Liquor Control Act of 1934. 235 I.L.C.S. § 5/6-21(a). – Seller of alcohol causing intoxication liable for resulting injuries/damages (strict liability). – Must serve more than “negligible amount”. – Seller’s negligence must cause injury. – Actual/constructive knowledge person will be consuming alcohol. – Intoxicated person cannot recovery.

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ILLINOIS AUTOMOBILE SUBROGATION: The Nuts and Bolts

SPECIAL GUEST CO-PRESENTER Bradley J. Jeanblanc Feiereisel & Kasbohm, LLC [email protected] http://fkllc.net

Gary L. Wickert Matthiesen, Wickert & Lehrer, S.C. [email protected] www.mwl-law.com

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