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Signing Your Child’s Life Away Or . . . Are Exculpatory Clause Waivers Enforceable Against Minors?

Web Admin - Tuesday, April 30, 2013
My daughter recently went on a ski trip organized by her middle school ski club. On top of the normal parental permission slip, she also brought home the ski resort waiver form which had to be signed in order for her to participate. The form said, in sum and substance, if we [the ski resort] kill, paralyze or maim your child as a result of our negligence, we are not responsible. Hope you have health insurance. At the same time, without regard to negligence if your kid returns our ski equipment scratched, dented or otherwise damaged, be prepared to write a check. This was unfortunately not our only experience with such a waiver. My son was recently invited to a classmate’s birthday party at one of the trampoline centers that seem to be popping up all over these days. Included with the invitation was a similar waiver for us to sign in order for our son to attend his friend’s party.

Consider this for a second. These businesses profitably market themselves as a fun place to bring children, but at the same time tell you they are so concerned that your child will be injured as a result of their negligence, you need to sign an agreement not to hold the business responsible when it actually happens. I can’t be the only parent troubled by being asked to sign one of these.

But can this actually be enforced? In Illinois, the answer to that question is clearly “No.” The Court, in Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141 (2d Dist. 1994) held that a waiver of liability signed by a parent before the minor child’s cause of action accrued is ineffective. Illinois is not alone in applying this rule. It is the general rule that, in the absence of statutory or judicial authorization, a parent cannot waive, compromise, or release a minor child’s cause of action. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621, 629-32 (S.D. W.Va. 2004) (finding that a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent’s minor child for liability for conduct that violated a safety statute such as the Whitewater Responsibility Act); In re Complaint of Royal Carribean Cruises Ltd., 459 F. Supp. 2d 1275, 1279-81 (S.D. Fla. 2006) (under Florida law, parent’s preinjury release of liability on behalf of minor child was unenforceable to exonerate the commercial lessor of personal watercraft from liability for injuries sustained by child in accident that occurred while the minor was a passenger on watercraft operated by the parent/lessee); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3 (Me. 1979) (stating in dicta that a parent cannot release a child’s cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 216 Mich. App. 552, 550 N.W.2d 262, 263 (1996) (“It is well settled in Michigan that, as a general rule, a parent has no authority, merely by virtue of being a parent, to waive, release, or compromise claims by or against the parent’s child.”); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 383 (2006) (finding in a case involving a child injured while skateboarding at a skate park facility, “a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility”); Childress v. Madison County, 777 S.W.2d 1, 6-7 (Tenn. Ct. App.1989) (extending the law that a parent could not execute a preinjury release on behalf of a minor child to a mentally handicapped 20-year-old student who was injured while training for the Special Olympics at a YMCA swimming pool); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) (concluding in a case involving a child injured by falling off a horse provided by a commercial business that “a parent does not have the authority to release a child's claims before an injury”); Scott v. Pac. W. Mountain Resort, 119 Wash. 2d 484, 492-93, 834 P.2d 6 (1992) (holding that the enforcement of an exculpatory agreement signed by a parent on behalf of a minor child participating in a ski school is contrary to public policy).

Something to keep in mind the next time one of these waiver forms is put in front of you.

ILLINOIS SCRA .... TOO GOOD TO BE TRUE?

Web Admin - Tuesday, April 23, 2013

The federal Servicemember’s Civil Relief Act (formerly known as the Soldier’s and Sailor’s Civil Relief Act of 1940) is the current incarnation of a federal statutory scheme dating back to the Civil War designed to provide protections to service members on active duty.  Essentially, the statute prevents service members from being sued while on active duty and for up to a year afterwards.  Furthermore, because active military pay is often less than what the civilian service member was earning, the statute re-structures the contract terms of certain of their pre-service debt, capping interest rates and restricting forfeitures and repossessions.

Effective January 1, 2013, Illinois got into the act.  The Illinois Service Member Civil Relief Act (330 ILCS 63/1 et. seq.) substantially expanded the protections for service members.  In addition to the standard protections capping interest rates and staying certain repossessions and legal activities, the statute:

I. Allows a court to restructure the payment terms of an obligation to “preserve the interest of all parties.”

II. Allows a court, if military service “materially affects” the ability to pay, to re-structure rent and mortgage obligations, or cancel a lease (residential or not) under certain circumstances.

III. Prevents life insurance companies from lapsing a policy for non-payment within 2 years after service ends.

IV. Allows a refund of tuition from any state school if unable to attend for more than 7 days, and prevents a withdrawl from affecting grade point average

V. Prevents utilities from cancelling service for non-payment or imposing late charges, and mandates relaxed repayment plans for arrearages

VI. Allows the termination, without penalty, of cell phone contracts and automobile leases under certain circumstances

Not only did the legislature greatly expand the protections, the statute provides that many violations are now civil rights violations under the Illinois Human Rights Act (775 ILCS 5/1-101 et. seq.), which gives the service member a private right of action to recover actual and punitive damages and attorneys fees.  Enforcement proceedings may also be commenced by the Illinois Human Rights Commission or the Illinois Attorney General.

The question for the courts will be whether the legislature overstepped its bounds here.  Lawmakers love to vote for things that help service members particularly where, as here, there are no direct costs to the taxpayers.  However, there are substantial intrusions into the tenets of private contract law, and various trade organizations are already gearing up for a challenge, so it remains to be seen how much of this law will survive.  In the meantime, if you are a creditor of a service member ... Beware!  If you are a service member who has been denied your rights by an offending creditor, you should seek legal counsel.

MAUI TAN AND CHICAGO WHITE SOX THANK YOU THURSDAY PROMOTION

Web Admin - Monday, April 22, 2013

Welcome to the DGAA Law, LLC Blog.  The weekly winners of our“Thank You Thursday”™ promotions are posted here.   “Thank You Thursday”™ is a promotion that is run through our Facebook page.  Our intention is to thank those who have “liked” our Facebook page by providing them with a weekly opportunity to win free prizes.  No strings attached.  You do not need to hire us in order to win the prize.  The rules are simple; “Like” our page and “Like” the “Thank You Thursday”™ post and you are entered for a chance to win.

Congratulations to the winners of the April 18, 2013 “Thank You Thursday”™ promotion with Maui Tan of Arlington Height!!!  The winners are;

Stacy Bredberg

Jennifer Welter

Jacqui Augustyniak

Stephanie Marin

And the winner of the Chicago White Sox tickets is;

Tim Redel

Please contact Colin H. Gilbert at cgilbert@dgaalaw.com and notify him as to what address you would like your prize sent.  Please include the term “Thank You Thursday” in the subject line of your e-mail.

C.A.M. attempts reform while keeping Domestic Violence and DUI offenders out of jail

Web Admin - Tuesday, April 16, 2013

There is a little-known reform program in Illinois, at least in Cook County, that applies to individuals who are charged with offenses involving alcohol called C.A.M.  This is an acronym for Continuous Alcohol Monitoring.  It is designed to allow defendants to avoid jail time by wearing an ankle bracelet that is able to determine if, and when, an individual consumes alcohol.

CAM is not for everyone.  The primary user is the “Hard Core Drunk Driver”.  This is the person repeatedly driving with a blood alcohol content (“BAC”) greater than 0.16 or a driver with multiple DUI convictions at any BAC . The secondary user is the criminal offender that has been charged with domestic violence where alcohol is a contributing factor.

CAM was introduced as a way to punish and treat an offender while also protecting the community.  It is designed to be a “happy medium” between allowing offenders to  freely walk the streets and spend time in jail.  It is a 24/7 automated system that conducts a test every 30 minutes.  The CAM bracelet is able to detect, via sweat excretion through the skin, how many drinks a person has had over a given period of time.  It operates much in the same way a bracelet for house arrest does.  The offender is required to wear it at all times, the exception being that they are allowed to leave their premises.       

The most positive element of CAM is its ability to reform while helping criminal offenders avoid jail time.  Judges are sometimes in the business of punishing offenders, while at the same time attempting to reform them.  If a Judge can accomplish this without sentencing jail time they will certainly try to do so.  CAM has been in place in Illinois since 2008.  According to SCRAM from AMS (one of the companies responsible for administering CAM), DUI convictions are down 6% in Illinois over that period of time.  More startlingly, during that same period of time, DUI convictions were down more than 29% in Champaign and Macon County.

If you are one of the above referenced types of offenders, CAM may be a solution for you if you are looking to avoid jail time.  When facing these serious charges, talk with your criminal defense / DUI attorney about taking advantage of the CAM program prior to your court appearance.  It may mean the difference between prison food or pizza on a Friday night.

CHILLI’S THANK YOU THURSDAY PROMOTION

Web Admin - Monday, April 15, 2013

Welcome to the DGAA Law, LLC Blog.  The weekly winners of our “Thank You Thursday”™ promotions are posted here.   “Thank You Thursday”™ is a promotion that is run through our Facebook page.  Our intention is to thank those who have “liked” our Facebook page by providing them with a weekly opportunity to win free prizes.  No strings attached.  You don’t to hire us in order to win the prize.  The rules are simple; “Like” our page and “Like” the “Thank You Thursday”™ post and you are entered for a chance to win.

Congratulations to the winners of the April 11, 2013 “Thank You Thursday”™ promotion with Chilli’s of Arlington Height!!!  The winners are;

            Julie Jost

            Beth Volpp

            Katie Morrell

            Katie Meyer Thorstenson

            Gary Swiontek

Please contact Colin H. Gilbert at cgilbert@dgaalaw.com and notify him as to what address you would like your prize sent.  Please include the term “Thank You Thursday” in the subject line of your e-mail.


The Illinois Home Repair and Remodeling Act – Where do we stand?

Web Admin - Monday, April 08, 2013

By: Jay A. Andrew

http://www.dgaalaw.com/jay-andrew.html

The Illinois Home Repair and Remodeling Act (“HRRA”)
http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2359&ChapterID=67 was enacted and became effective on January 1, 2000. The intent of the original Act was to protect the elderly from so called “Storm Chasers”. “Storm Chasers” are contractors who move from state to state seeking repair work after natural disasters in an effort to collect the insurance proceeds. The HRRA’s five main requirements are that: 1) a contractor must provide the consumer a written contract on any home repair or remodeling job over $1,000.00 2) If that contract contains an arbitration and/or a jury waiver the contractor must get the consumer to acknowledge those provisions in writing 3)  the so-called “Storm Chaser” provisions 4) a contractor must provide the consumer with a Consumer Rights brochure for any home repair or remodeling job over $1,000.00 and 5) Minimum insurance requirements for contractors.

The original version of the HRRA stated that it was “unlawful” for any person not to comply with the HRRA. Some very creative attorneys in our state decided that this meant that consumers could use this as a shield to paying contractors for home repair and remodeling work when disputes arose and in some cases they argued that it wiped out the contractor’s Mechanics’ Lien. Thereafter, the Illinois Appellate Courts weighed in on the issue. They had different opinions on these theories[1]. The Act was rewritten in July 2010 to remove the word “unlawful” from Section. At the same time, the K. Miller Construction Company, Inc. v. Joseph McGinnis[2] case was being considered by the Illinois Supreme Court. In September 2010, the Illinois Supreme Court issued their opinion. They found that in light of the statutory amendments, a violation of the HRRA did NOT invalidate the Mechanics’ Lien or effect the enforceability of the construction contract.

Therefore, as consumers you are now left with a private right of action under the statute for a violation. The key to that action is the consumer’s ability to prove actual damages from the violation. The consumer’s attorney can attempt to “boot strap” the violation under the Illinois Consumer Fraud to obtain punitive damages and attorney’s fees. However, a finding of “bad faith” by the trier of fact would become necessary to recover those additional damages under the Consumer Fraud Act.

For the contractor, you should take a look at the HRRA and verify that you are in compliance before you head out to your next job. Your lien rights and enforceability of your own contract appear not to be in jeopardy with a violation, however, suffering through a direct action can also be a costly venture.

If you have any questions about the Home Repair and Remodeling Act, the Home Repair Fraud Act or the Illinois Consumer Fraud Act, whether you are a contractor or a consumer, feel free to contact Jay A. Andrew of DGAA, LLC W: www.dgaalaw.com E: jaa@dgaalaw.com P: 847.934.6000 x14

Like DGAA Law on Facebook: @ www.facebook/DGAALaw



[1] Behl Construction v. Gingerich, 396 Ill.App. 3d 1078, 920 N.E.2d 665 (4th Dist., Illinois 2009); Roberts v. Adkins, 397 Ill.App.3d 858, 921 N.E.2d 802, 336 Ill. Dec. 946 (3rd Dist., Illinois 2010); Smith v. Bogard, 377 Ill.App.3d 842, 879 N.E.2d 543 (4th Dist. Illinois 2007)

[2] 238 Ill.2d 284, 938 N.E.2d 471 (2010)

Dealing with denied or delayed life insurance claims

Web Admin - Monday, April 01, 2013

After consistently paying premiums on a life insurance policy for years, you should be able to expect the insurance company to live up to their end of the agreement.  Unfortunately, that doesn’t always happen. Many Illinois life insurance claims are wrongfully delayed or denied.  Here are a couple of tips should you find yourself with a denied life insurance claim:

Trust your instincts. A lot of times, I hear from clients who say that they had a feeling  right away that something just did not seem right from the outset of their initial interactions with the insurance company to collect on a loved one’s life insurance policy.  Maybe the insurance company inaccurately or unfairly categorized the manner of death, or claimed that the policy value was actually less than what they were led to believe.  Frequently, insurance corporations assert that some mistake on the insurance application now prevents the beneficiary from collecting on the policy.  You do not, and should not, assume that they are always right or are being completely truthful.

Don’t give up without a fight. The bottom line is that you do not have to take the insurance company’s word for it.  It could be a simple miscommunication.  It could also be that the insurance company is acting in bad faith or wrongfully denying your claim, which happens when an insurance company denies or delays a claim without a legitimate  legal justification.  Let’s face it, most life insurance claims involve significant dollar figures and insurance companies only make money if they take in more money in premiums than they pay out in claims.  Make sure that the insurance company’s denial is completely legal and justified before walking away.

Don’t sit on your rights. Justice delayed is justice denied.  While already dealing with the loss of a loved one, the prospect of taking on a colossus of an insurance corporation and its legion of highly paid lawyers can seem crushingly overwhelming.  Don’t just ignore the problem and let the insurance company win. Waiting too long to find the energy to take on the insurance corporation can sometimes preclude you from recovering on an otherwise valid claim.

Get help. You do not have to deal with the insurance company on your own. Too often,  beneficiaries inadvertently reduce their chances to recover under a policy by failing to submit paperwork completely, properly and on time.  It’s a good idea to get an experienced life insurance attorney involved if things are not going as they should.  Keep in mind that no matter how nice the person who sold the policy is, the insurance corporation’s interests are directly in conflict with yours.

If you have questions about life insurance benefits that you believe are being unfairly delayed or denied, feel free to contact Ken Apicella of DGAA, LLC. W: www.dgaalaw.com E: KCA@dgaalaw.com P: 847.934.6000.

Get to know us...

Web Admin - Saturday, March 09, 2013

Now that you know some of the ways to keep in touch with us, we thought you might want to get to know us a little...

DGAA Law, LLC is aggregate of four attorneys who complement each other in both background and personalities. Here are just some of the areas in which we practice: Civil Litigation, Collections, Corporate Law, Criminal Defense Law, Employment Law, Insurance Disputes, Personal Injury, and Real Estate Law.

We also provide services through our Online Illinois Attorney service. This service gives people the opportunity to contact us and utilize our skills directly through the DGAALaw.com website.

Kenneth B. Drost brings more than 34 years of practicing in the Illinois courts; Ken’s service areas include Commercial and retail collections, real estate law, corporate law, and various forms of civil litigation.

Colin H. Gilbert supplies innovative strategies and strong analytical skills to all of his cases; he practices in the areas of criminal defense, collections, real estate law, and corporate law.

Jay A. Andrew brings a unique perspective to the law firm in that he is both a litigator and a transactional attorney. His service areas include estate planning, probate, trust administration, real estate law, residential and commercial leasing, contracts, as well as civil litigation.

Kenneth C. Apicella has earned the designations “Super Lawyer” and “Rising Star” in the field of personal injury law by Thompson Reuters, a recognition awarded to only 5% of attorneys nationwide. Ken concentrates his focus in the areas of personal injury, employment, insurance coverage disputes, and civil litigation.

Welcome!

Web Admin - Saturday, March 09, 2013

Welcome to Drost, Gilbert, Andrew, and Apicella, LLC! DGAA Law, LLC is a fully integrated Chicago law firm, that also has a convenient northwest suburban office on the border of Arlington Heights and Palatine.

A couple of the goals of this blog are to share information, as well as keep in touch with you, and so there are many ways for us to reach one another.

Website: http://www.DGAALaw.com
Facebook: https://www.Facebook.com/DGAALaw
LinkedIn: https://www.LinkedIn.com/company/DGAA-Law-LLC
Phone: (847) 934-6000
USPS: DGAA Law, LLC, 800 E Northwest Hwy, Suite 1090, Palatine, IL 60074

So join us as we begin this journey. We look forward to hearing from you; if you have topics that you would like to see in this blog, let us know via email blog@dgaalaw.com.


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