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Bradshaw v. Barger – Macon County, IL: this is a civil lawsuit revolving around a motor vehicle accident occurring on January 5, 2014 in Decatur, Macon County, Illinois. Kurt Koepe represented defendant Barger. The weather conditions were poor and the roads were covered with ice and snow.  Barger was traveling eastbound on Williams Street and plaintiff was westbound.  The defendant was planning on making a left-hand turn and when he saw the plaintiff’s vehicle he “tapped” his brakes.  Defendant lost control of his car and slid into the westbound lane of traffic.  The vehicles collided yet no tickets were issued in light of the weather/road conditions.  Plaintiff claimed injury to his left knee and an aggravation of a pre-existing back condition.  The plaintiff had previously had a left knee arthroscopy performed in 2007.  The plaintiff presented to the emergency room the day after the accident and then followed up with his family physician.  He was referred to an orthopaedic surgeon who took an x-ray and prescribed physical therapy.  The plaintiff was advised to follow up within a month after the initial visit with the orthopaedic surgeon.  The plaintiff did not return in one month and was discharged from physical therapy for lack of attendance.  Approximately six months after seeing the orthopaedic surgeon the plaintiff was involved in a motorcycle accident.  He went back to see the orthopaedic surgeon who performed a left knee arthroscopy which the physician related to the motor vehicle accident of January 5, 2014.  The plaintiff had $31,000.00 in medical specials but could not verify any wage loss. Plaintiff’s attorney requested a jury verdict of $80,000.00. The jury returned a verdict in favor of Mr. Koepke’s client, defendant Barger, finding that Mr. Barger was not liable.

By: Jason G. Schutte

The Illinois Workers Compensation Act does apply to death/fatality cases. This means that the death of an employee may require an employer to compensate the employee/estate of the employee due to the fatality.

The death must result from ‘accidental injuries arising out of and in the course of” the deceast individual’s employment.  The most common questions for in these cases is whether the death was causally connected to the employment. The employment does not need to be the sole factor in causing the death, it simply needs to be a factor that caused the death. 

Pre-existing conditions (for example, heart conditions) do not preclude recovery under the Illinois Workers Compensation Act because, under Illinois Law, employers ‘take their employees as they find them.’ If the employment aggravated or accelerated a pre-existing condition, it may very well be compensable under the workers compensation laws.  Whether the employment would have killed a normal person is irrelevant to determining whether a death case is compensable under the Act.

A death case may not be compensable if the death had no relationship to the employment.  Also a death may not be compensable if the employee had a pre-existing condition has become so advanced that any activity would have caused death.

The attorneys at Koepke and Hiltabrand have represented many employers and employees in work related injury cases.  Please contact the attorneys at KOEPKE & HILTABRAND to discuss your workers compensation issues.

By: Jason G. Schutte

What is Carpal Tunnel Syndrome? In medical terms, it is a condition resulting in numbness, tingling, weakness and other problems in one or both hands.  The symptoms are caused by pressure on the median nerve located in the wrist joint.  The condition can be caused by several common conditions including rheumatoid arthritis and pregnancy.  It can also be caused or exacerbated by “repetitive trauma.”

Repetitive trauma injuries are very common in the work place.  They result from tissue damage caused by repeated trauma, motion, vibration, etc.  These work place injuries are often associated with writing, painting, typing or the use of vibrating or hand tools.  Almost any form of activity that produces repeated trauma to a particular area of the body can cause this painful condition.  Other common repetitive trauma conditions are cubital tunnel, bursitis and tendonitis.

If an employee’s job requires repetition of movement leading to the development of a repetitive trauma injury, that injury will most likely be compensable under the Illinois Workers Compensation laws.  This means, that medicals bills, along with temporary and permanent injury awards (money) may be available to the injured employee; however, if the injured employee’s repetitive trauma injury is not due to repetitive motions performed during the course of their employment, the medical condition might not be compensable (meaning the employer may not have to pay for medical care or provide compensation).

Often repetitive trauma cases, including carpal tunnel, cubital tunnel, etc, will be determined based upon the specific facts of each case.  The attorneys at Koepke and Hiltbrand have represented injured employees and employers in workers compensation claims involving repetitive trauma injuries.  Please contact our attorneys to discuss how we can help you win your case.

By Jason G. Schutte

By: Jason G. Schutte

Can an insurance carrier “stack” liability policy payments received by a personal injury claimant as a set off against the claimant’s under-insured motorist claim?  The First Appellate Court says no, but limits insurance company exposure in Illinois Emcasco Insurance Company v. Tufano.

Defendant Tufano was a passenger in a vehicle that collided with another vehicle.  She suffered significant, permanent personal injuries which were valued at millions of dollars.  The drivers of the automobiles had liability policies with limits of $100,000.00 and $300,000.00.  The policies were tendered to Tufano, resulting her receipt of $295,000.00.[1]

Tufano asserted a claim against her under-insured motorist coverage, which had limits of $500,000.00. Tufano’s insurer, Illinois Emcasco Insurance Company (herein Emcasco) filed a declaratory judgment action asserting that it was only required to cover the difference between the amount Tufano recovered from the drivers’ policies ($295,000.00) and the under-insurance policy limits of $500,000.00. Emcasco would be limited to $105,000.00 exposure under their theory.[2]

Defendant Tufano argued that the $500,000.00 under-insured motorist coverage should be applied separately to each driver in the accident.  Thus, Emcasco’s liability could be $400,000.00 for the $100,000.00 driver policy and $205,000.00 for the driver whose policy paid $295,000.00.  Emcasco’s exposure would be capped at $605,000.00 under Tufano’s argument.[3]

The trial court granted Emcasco judgment on the pleadings. The First District Appellate Court overturned the trial court.  The court reasoned that Emcasco cannot “collectively offset the total amount paid by the two drivers’ insurers against the $500,000.00 under-insured motorist policy issued to defendant.[4]

The appellate court discussed extensive case law interpreting under-insured motorist coverage.  The appellate court noted three overriding principles governing under-insured motorist claims:

  1. Under-insured motorist coverage should place the insured in the same position that the insured would have occupied if the tortfeasor (at fault driver) held insurance in the same amount as the insured;
  2. Under-insured motorists coverage exists to fill the gap between the amount an insured receives from the tortfeasor’s insurance and the amount of the insured’s under-insured motorist policy limit;
  3. Under-insured motorist coverage is not intended to allow the insured to recover amounts from the insurer in excess the insured’s under-insured motorist policy limit.[5]

The court noted that a case involving one claimant, but multiple tortfeasors could complicate a claim by creating apparent conflict between the three governing principles listed above. For instance, did the first principle require that the underinsured motorist coverage put the insured in the position of the tortfeasors each having a $500,000.00 liability policy, or a total of $500,000.00 between tortfeasors?  Additionally, did the “fill the gap” provisions under the second principle require filling the gap between the cumulative amount received by the claimant underinsured motorist, or did it require filling the gap between the amount received from each tortfeasor independently?

After reviewing extensive case law, the court determined that “where multiple tortfeasors are involved in an accident in which an underinsured motorist policyholder is injured, the policyholder must be placed in the same position as if each tortfeasor carried the same amount of insurance as the policyholder.”  The court emphasized that payments made by one at fault driver could not be used to reduce the under-insurance gap of another at fault driver. [6]

The court emphasized that “each instance of under-insurance must be viewed distinctly.”[7] Meaning that any each time a particular at fault driver’s insurance policy limits are less than the under-insured claimant’s under-insurance limits, a separate claim against the under-insured driver coverage is created; however, the insurance company’s under-insured motorist obligation is not without limits.  The Emcasco court noted that the total amount of coverage “the policy holder can receive from the under-insured motorist carrier is capped by the overall limit of the under-insured motorist policy.”[8]

The Emcasco court noted that the underinsured coverage should be capped at the policy limits because an insurer should not be required to pay a policy holder more than promised or more than the amount the policy holder paid in premiums.[9]

The court determined that claimant Tufano was entitled to separate consideration of each at fault driver’s payment.  Essentially, each liability insurance payment signified a separate claim.  Tufano theoretically would have had a claim for $400,000.00 and $205,000.00 based upon the payments received from the at fault drivers, for a total of $605,000.00; however, Tufano had a total under-insured limit of $500,000.00.  This means that Emasco will never have to pay more than the $500,000.00 limit and Tufano’s claim was capped at this amount.[10]  

For plaintiff’s attorneys, remember to assert separate claims for each liability policy that tenders less than the under-insured policy limit.  For defense counsel and claims handlers, do not forget that that policy limit creates a cap for all claims.

[1] Illinois Emcasco Insurance Comp. v. Erin Tufano, et al., 2016 IL App (1st) 151196, ¶1

[2] Id. at ¶2

[3] Id. at ¶2

[4] Id. at ¶4

[5] Id. at ¶25

[6] Id at ¶41

[7] Id. at ¶41

[8] Id. at ¶41

[9] Id. at ¶41

[10] Id. at ¶42

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