Tag Archives: Settlements

US Supreme Court Helps Insurance Companies, Screws Injured People

The US Supreme Court decided US Airways v. McCutchen today, allowing insurance companies to write their way around the common fund doctrine and similar law, and taking money away from injured people.

Make no mistake – this is a big deal.

See, the world used to work like this:

  1. Step 1: Person gets injured.
  2. Step 2: Health insurance company pays medical bills.
  3. Step 3: Injured person hires attorney, spends time, money and effort to settle case with tortfeasor. 
  4. Step 4: Injured person pays insurance company back, but keeps a fair percentage (typically 1/3 of the lien) for the time, money effort and attorneys fees spent in obtaining the settlement to pay the insurance company back. Without that effort, the insurance company would have gotten nothing.

Now things are different.

Step 4 now reads “Injured person pays insurance company back the full amount, so long as the insurance company requires them to do so.”

In some cases this won’t be a big deal. For many, many cases, liens and attorneys fees will eat up much or all of a potential settlement – especially in tougher cases, smaller cases, or cases with inadequate insurance. This is a lot of cases.

Bummer.

(Howard Zimmerle is a personal injury attorney in the Quad Cities of Iowa and Illinois. He has offices in Davenport and Rock Island. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

 

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Filed under Legal News, Settlements, Types of Lawyer Jokes

Illinois Health Care Services Lien Act – New Case

One of the great tools in a plaintiff lawyer’s arsenal in Illinois is the Health Care Services Lien Act, which reduces the amount of certain medical liens in some cases. It can really help increase the total amount your client ends up with in a settlement.

A new case from the 5th District, Stanton v. Rea, notes that the 40% of the settlement that goes to the medical lienholders should not be calculated until after costs have been subtracted from the settlement. In other words, the Act doesn’t mean 40% of the pie, it means 40% of the pie after costs. In some cases, that can make a big difference.

My partner, Mike Warner, just spoke on some new aspects of the Lien Act at the recent Rock Island County Bar Association Seminar. I think a thorough “how to” post is forthcoming.

(Howard Zimmerle is a personal injury lawyer in the Quad Cities of Iowa and Illinois, helping people who have been injured due to someone else’s fault. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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Filed under Illinois Case Law, Illinois law, Negotiations, Settlements

How Confident Should You Act in Front of Your Clients?

One of the old maxims in business is “underpromise and overdeliver.” That holds true in most businesses and professions I can think of, including the law. 

As a plaintiff’s personal injury lawyer, however… there’s a line somewhere. 

Most of the time we deal with people who have very little legal experience – and almost always no relevant personal injury experience. If they have an idea in mind about what their case is worth, it often comes from either (a) news reports of big verdicts/settlements (ie McDonalds coffee case), or (b) what some friend/neighbor/coworker got in a settlement several years ago. 

So when we discuss settlement or trial, our job is to inform our clients so that they can make the right decisions. If they have a great case, they still need to know that juries do weird things. Slam dunk cases can be lost. Juries can award medical bills of $200,000 and $10,000 in pain and suffering and think they are doing you a favor. Juries tend to make the right decision, but there are always horror stories of juries who make decisions on bad assumptions, or because they didn’t like someone’s shoes, or whatever. 

If your client’s case is dicier – questionable liability, major issues of some kind, whatever… you have to be blunt with your assessment of chances. You have to be able to explain that, say, juries often don’t award anything for minor impact auto cases, or that their treating doctor will connect the accident and injuries, but not with as much gusto as the defense’s doctor. 

You have to do all of this in a way that clients understand the potential pitfalls, but still trust your abilities and still know that you believe in them and will fight for them. 

If you are too blunt with your assessment of trial potential, your client might start to doubt you. They might think they didn’t hire the right lawyer. They might spread bad word of mouth. 

On the other hand, if you are too rosy, and if things don’t go well, they will doubt you. They will think they didn’t hire the right lawyer. They might spread bad word of mouth. They might even sue you for malpractice, breach of warranty, or something creative like that. 

The key is riding the line – staying honest and blunt, but with the right level of optimism. At the very least, in every case your client needs to understand that we never know exactly what a jury is going to do. The case depends on 12 (or 6 or 8 or whatever) people we’ve never met and only get a limited amount of time to talk to beforehand. It depends on whether all witnesses show up, whether they come across well in stressful situations, whether the judge applies the law correctly, etc, etc, etc – many things that we just can’t know until they happen. We have a good idea what will happen, but you just never know. 

(Howard Zimmerle is a personal injury, medical malpractice, nursing home malpractice, trial lawyer in Rock Island, Illinois, with an office in Davenport, Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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IRS Clarifies Taxability of Tort Damages

The Internal Revenue Service has shed some light on the taxability of tort damages. Attorneys typically have the kneejerk response that personal injury damages are not taxable. That is only true to a point.

The new regulation clarifies a few things, namely:

  • Damages for personal injury or sickness are not taxable
  • Damages for “emotional distress” are taxable unless they are attributable to a physical injury or sickness
  • Punitive damages are taxable

The emotional distress language is important for people who handle employment law cases, false arrest, or other torts where emotional distress is recoverable but don’t typically involve physical injury or sickness.

(Howard Zimmerle is a trial lawyer from Illinois. He practices throughout western Illinois and Eastern Iowa. He can be reached at 309-794-1660 or at hzimmerle [at] mjwlaw.com.)

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Filed under Settlements, Traps

Become an Instant Expert on the New Illinois Workers Compensation Law in 5 Minutes

By reading my post at the Rock Island Workers Compensation Attorney Blog. Like an expensive hairdo, it hits the highlights. The big points to us lawyer-folk are the changes to compensation for carpal tunnel and other hand injuries, wage differential awards, and use of the AMA guides. For unionized construction workers, you could be in trouble. For stoners, you could be in trouble. For doctors, you just took a pay cut.

It’s all at the other blog. Read up and become instant experts.

(Howard Zimmerle is a workers compensation attorney practicing in Rock Island, Moline, Henry County, Knox County and surrounding areas. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Illinois law, Workers Compensation

Howell v. Dunaway reversed by Illinois Supreme Court

About a year ago I blogged about a 5th District case that would allow lawyers to reduce the amount of medical provider liens pursuant to the Illinois common fund doctrine.

Never mind, because the Illinois Supreme Court reversed it.

It was a nice tool while it lasted.

(Howard Zimmerle is a personal injury lawyer in the Quad City area. You can reach him at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Illinois Case Law, Illinois law, Settlements

New Illinois Case Good for Minors who had Settlement Proceeds Stolen

It happens too often.

Parent settles case on behalf of minor. The court orders the settlement proceeds to be invested and not to be touched without a court order until the minor turns 18 (or 21). Somehow, a parent dips into the money after all, and by the time the minor finds out, the money’s all gone.

It really does happen often, despite certain protections in the system.

Luckily, in Newell v. Newell, the Third District allowed an action against the parent and the bank in one of these situations. The court held that a three year statute of limitations applied, but also applied the discovery rule, so that the statute of limitations didn’t begin to run until the minor knew or had reason to know that a cause of action might exist.

(Howard Zimmerle is a lawyer in the Quad Cities, regularly handling cases in Moline, Bettendorf, Rock Island, Davenport, East Moline and other areas. You can reach him at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Illinois Case Law, Illinois law