What Does Comparative Negligence Mean in a Car Accident Lawsuit?

Web Admin - Monday, March 11, 2019
Barrington car accident attorney comparative faultThe question of comparative negligence--sometimes referred to as contributory fault--often arises in an Illinois personal injury lawsuit. If you are seriously injured as the result of another party’s negligence and awarded damages of $100,000, you would expect to receive $100,000. However, under Illinois’ modified comparative negligence law (735 ILCS 5/2-1116), the total amount of compensation you receive will be reduced by the percentage of fault attributed to you, up to 50 percent. For example, if you are awarded $100,000 but found to be 25% at fault for the events which caused your injuries, your award will be reduced to $75,000. If you are assigned more than 50 percent of the blame, you are barred from receiving any compensation.

How Comparative Fault Is Determined Under Illinois Law

Fault is determined based on the evidence and the law. For example, if you are properly stopped at a red light and are rear-ended by a speeding driver, you did not do anything wrong. The driver behind you failed to obey the speed limit and to slow or stop to avoid a collision, so they would be assigned 100 percent of the fault. 

If, however, you were in the process of changing lanes when you collided with a speeding driver, each of you might be assigned part of the fault. You had a duty to make sure the lane was clear before moving into it. The other driver had a duty to obey the speed limit and to slow down to avoid a collision if possible. 

When fault must be apportioned, your attorney will thoroughly study the events leading to your injury. This effort may include reviewing physical evidence, interviewing witnesses, studying police reports, gathering medical records, and consulting with experts. Most commonly, your lawyer and the defendant’s lawyer will discuss the evidence and come to an agreement about the amount of damages and the division of fault. If no agreement can be reached through negotiation, you will have to go to court.

In a court trial, your attorney will argue that the defendant’s negligence was the primary or sole cause of the events that led to your injuries. Under Illinois law (735 ILCS 5/2-613(d)), the burden is on the defendant to show how your own negligence contributed to your injuries and to argue what percent of the fault should be assigned to you. The jury--or, in the case of a bench trial, the judge--will then decide how the fault should be apportioned.

Consult an Experienced Palatine Personal Injury Lawyer

If you have been severely injured in a car accident or other incident resulting from another person or company’s carelessness, consult a knowledgeable Schaumburg civil litigation attorney for advice. Call the law offices of Drost, Gilbert, Andrew & Apicella, LLC at 847-934-6000. There is no fee for your initial consultation.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.


Understanding the Discovery Process in Personal Injury Lawsuits

Web Admin - Thursday, February 07, 2019
Rolling Meadows personal injury lawyer discovery processIf you have suffered severe damages as a result of someone else’s negligence or malfeasance, you have the right to file a personal injury lawsuit to recover compensation from the at-fault party. In order to win your case, however, your lawyer will have to develop a strong set of facts and arguments through a legal process known as discovery

For example, if you are injured in a collision involving your car, an SUV, and a large commercial truck, some of the questions that will have to be investigated and argued include:

- What percentage of the fault for the collision should be attributed to each party involved in the crash, including the company that owns the commercial truck and employs its driver? 

- Exactly what physical injuries did you suffer as a result of the collision? 

- What are your reasonable medical expenses to recover from those injuries?

- Did the accident leave you with any permanent disfigurement or disability? 

- What other damages did you suffer, such as emotional trauma requiring psychotherapy or lost income from being unable to work?

The legal process through which the parties to a lawsuit exchange information and answer questions such as these is called discovery. Discovery has two phases: sharing of written documents and oral interviews known as depositions.

Written discovery typically involves three types of documents:

- Interrogatories - These are essentially questionnaires submitted by one party in the lawsuit to be answered in writing by another party. The questions may be as simple as asking for names, contact information, and relevant insurance information for everyone involved in the accident.

- Requests for production of documents - The other side may request documents such as your medical records, medical bills, records pertaining to your vehicle, and any photographs you may have of the accident scene, your vehicle, and your injuries. Your lawyer may, in turn, request such information from other parties to the lawsuit.

- Requests for admission - This document spells out certain facts of the case and asks that the other party admit or confirm that these facts are

true, so that these facts do not have to be further investigated or proven in court. For example, in an auto accident case, the request might seek to confirm the details of a negligent party’s personal liability insurance coverage, obtain an admission that they were not carrying out duties for an employer at the time of the accident, and seek an admission that it was their negligence that caused the crash.

The purpose of the written discovery phase is to lock down all possible evidence related to your case, including any evidence that the opposing parties may use to support their position. For example, there is typically an insurance company involved, and their objective will be to minimize the scope of your damages and thereby minimize the compensation they have to pay you. 


Once written discovery has been completed, your legal team will use that information to ascertain the questions they want to ask in the oral interrogation phase known as depositions. Depositions are expensive, so your legal team will want to prepare a very focused list of questions to ask in each interview. Depositions are made under oath and are generally video-recorded and transcribed. 

You may be surprised to learn that the discovery process in a personal injury case can take as long as six months to a year. While this may seem like a long time to wait for a settlement, a thorough discovery process is crucial to prove who was at fault and demonstrate the full extent of your damages. Most cases are won or lost in discovery, and most cases are settled based on the information that comes out of the discovery process, saving you the additional time and expense of a trial.

A Schaumburg Personal Injury Attorney

If you have been injured in a car crash or other accident that was not your fault (or at least less than 50% your fault), be sure to select a Palatine personal injury lawyer who has the skill and experience to handle the discovery process for your type of case and advocate vigorously on your behalf. Contact us at 847-934-6000 to schedule a free consultation.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.


Serious Bicycle Accident Injuries Can Result from “Dooring”

Web Admin - Wednesday, June 20, 2018
Rolling Meadows bicycle accident injury lawyerRiding a bicycle is a great way to get exercise and save on transportation costs. However, when sharing the road with larger vehicles, cyclists are at risk of serious injury in a collision. One type of bicycle accident that is becoming increasingly common is “dooring,” and both drivers and cyclists should be aware of the risks of these types of accidents and take steps to prevent them from occurring.

What Is Dooring?

Dooring occurs when a driver or passenger in a motor vehicle opens their door in the path of a cyclist. This often happens when a person who is exiting a vehicle next to a bike lane fails to check to make sure the lane is clear.

A large number of people in Illinois and Chicago have been injured by dooring accidents in recent years. According to data from the City of Chicago, there were 181 dooring accidents in 2017, and there have been over 100 dooring accidents so far in 2018. While this has decreased from 302 reported cases of dooring in 2015, the increasing number of people using bicycles for transportation in the Chicago area means that these types of accidents are becoming more and more likely.

Dooring Injuries

Colliding with the door of a vehicle can cause a wide variety of serious injuries to a cyclist. Depending on the speed at which a cyclist is traveling, they may be thrown from their bike, and they can suffer broken bones, dislocated shoulders, serious bruises, neck and spine injuries, sprained wrists or knees, injuries to internal organs, and disfiguring lacerations and abrasions.

While cyclists can protect themselves from head injuries by wearing a helmet, they may still suffer traumatic brain injuries in dooring accidents, especially if they are knocked into the path of a moving car. In some cases, cyclists have been caught underneath vehicles, which can result in loss of limbs, paralysis, and death.

Contact a Schaumburg Bicycle Accident Lawyer

Drivers and passengers of motor vehicles should take steps to prevent dooring accidents by always looking behind their vehicle before opening their doors, and they should take extra care when driving or parking near bike lanes. Failure to protect the safety of others is a form of negligence, and cyclists who are injured because of dooring may be able to pursue compensation for damages caused by a negligent driver. If you have been injured in a bike accident, contact an Arlington Heights personal injury attorney at Drost, Gilbert, Andrew & Apicella, LLC today. Call our office at 847-934-6000 to schedule a personalized consultation.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.


Insurance Claim After an Automobile Accident

Web Admin - Friday, July 31, 2015

insurance claim, Illinois car accident lawyer, insurance disputeIn a perfect world, we would not need insurance because we would never have any accidents. Unfortunately, we do not live in such a wonderful place. If you have never been involved in an automobile accident, you may not be familiar with the process of making an insurance claim. Though we hope you never have to go through this process, understanding what to expect if you do can be helpful.

Illinois Fault-Based Insurance

When it comes to automobile accidents, Illinois is a fault-based state. This means that whoever is legally at fault for the accident is responsible for paying those individuals injured by the accident. Usually, this means that the at-fault party’s insurance carrier will pay for the damages. An individual involved in an accident caused by another driver has three options:

  1. 1. File a claim with his or her own insurance company, which will then pursue a subrogation claim against the at-fault party’s insurance company;
  2. 2. Pursue a claim directly with the at-fault party’s insurance company; or
  3. 3. File a personal injury lawsuit against the at-fault driver.

Pursuing Insurance Claims

Usually, automobile accidents involve claims with insurance companies. The requirements on automobile insurance are codified under the Illinois Insurance Code. After a claim is filed, a claims adjuster will be assigned to the case. The adjuster may contact the insured person to obtain more information about the accident. In addition, the adjuster may do the following:

  1. 1. Request a copy of the police report;
  2. 2. Contact the other driver involved in the accident;
  3. 3. Contact any known witnesses to the accident;
  4. 4. Inspect the car for damages (this may include the adjuster taking photographs of the vehicle); and
  5. 5. Contact healthcare providers for information in relation to any injury expenses.

If the accident resulted in no injuries, the only issue will be repair to the vehicle. Resolution of claims made for vehicle repairs usually involves one of the following options:

  1. 1. Use a body shop approved by the insurance company: these shops are already approved to perform automobile repair by the carrier; the claimant simply takes his or her car in for an estimate and the work is subsequently completed;
  2. 2. Obtain quotes: the adjuster may request that the claimant take the vehicle to several shops in order to obtain estimates to compare; or
  3. 3. Claimant uses their own shop: claimants may decide to use a shop of their choosing. But, this may result in the claimant having to pay the difference in cost between the shop he or she chooses and what the insurance company determines is the fair price of the work.

If injuries occur as a result of the accident, resolving the insurance claims becomes more complex. It will be necessary for the claims adjuster to receive evidence of all medical bills. This may require the claimant to sign a waiver granting the insurance company access to his or her medical records. Further, personal injury can add significant costs on top of the cost to repair the vehicle. This added cost may make coming to an agreement on who was at fault and for what amounts much more difficult and time-consuming.

Making claims against insurance companies can be difficult and frustrating. For assistance with your insurance claim, call an experienced Illinois insurance dispute attorney at 847-934-6000 today. Drost, Gilbert, Andrew & Apicella, LLC proudly provides representation for individuals throughout the northwest suburbs, in communities such as Crystal Lake, Barrington, Deer Park, Inverness, and Schaumburg.

Ken ApicellaAbout the Author: Attorney Ken Apicella is a founding partner of DGAA focusing in the areas of personal injury, employment, insurance coverage disputes, and civil litigation. Ken earned his J.D. from DePaul University College of Law in 1999. He has been named a SuperLawyers Rising Star and a Forty Illinois Attorneys Under Forty to Watch. Ken has written and lectured for the Illinois Institute for Continuing Legal Education and regularly serves as a moderator at Northwest Suburban Bar Association's Continuing Legal Education seminars.

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