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.
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.
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.
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.
The appellate court discussed extensive case law interpreting under-insured motorist coverage. The appellate court noted three overriding principles governing under-insured motorist claims:
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. 
The court emphasized that “each instance of under-insurance must be viewed distinctly.” 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.”
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.
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.
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.
By: Jason G. Schutte
Overview of case.
Plaintiff filed a lawsuit against Defendant, Bickford Senior Living, asserting violations of the Nursing Home Care Act and various common law claims in Fiala v. Bickford Senior Living Group, LLC. Bickford filed a Motion to Dismiss the Complaint and enforce the arbitration agreement included in the assisted-living establishment contract. Susan Kahanic, plaintiff’s daughter and his health-care power of attorney, executed the contract on plaintiff’s behalf. The trial court denied the Bickford’s motion.2
Facts of the Case:
Upon admission to Bickford’s facility, Kahanic as attorney-in-fact executed the establishment contract which set forth the obligations and duties of the plaintiff and Bickford while plaintiff resided at the facility. The contract obligated Bickford to provide numerous services, including meals, snacks, housekeeping and laundry. Additionally, services available to the plaintiff included oversight of medication, assistance in bathing, dressing, ambulation and transfer.3
The contract also included a “Binding Arbitration Provision” which provided that “Any controversy, claim or dispute arising out of or relating to this Establishment Contract or breach thereof, shall be settled by arbitration administered by the American Arbitration Association …” The arbitration provision was an integral part of the establishment contract. A prospective resident’s agreement to the arbitration provision was required in order to secure admission to Bickford’s facility.4
Scope of the Arbitration Provision
Illinois law states that parties are only bound to arbitrate those issues that they have clearly agreed to arbitrate.5 A “generic” arbitration clause provides that all claims arising out of or relating to the contract at issue shall be decided at arbitration; whereas, an arbitration clause stating “arising out of the agreement” (or a variation thereof), but fails to contain the phrase “or relating to [the agreement]” (or a variation thereof), is narrower in scope and any arbitration should be limited to the specific terms of the contract or agreement containing the more limited arbitration clause.6
The trial court in Fiala found that the language of the arbitration clause in the contract at issue was not a generic clause. Hence, “the arbitration provision was limited narrowly to the terms of the establishment contract.”7 The Fiala Appellate Court found that the language within the arbitration provision, specifically “any claim … arising out of or relating to” in the establishment contract indicated that the arbitration provision was generic and should be construed broadly.8
The Fiala Appellate Court then analyzed the provisions of the establishment contract to determine if the allegations of the Complaint “arose out of or were related to” the establishment contract. The court noted that the plaintiff’s allegations against Bickford asserted that Bickford administered plaintiff medications that were not included in his medical chart. The establishment contract contained provisions stating “oversight/supervision of medications” were available to plaintiff; also, that a resident “may receive …assistance with medication.”9
The court found that the underpinnings of the plaintiff’s claims arose out of and were related to the establishment contract since they were services within contemplation of the establishment contract. Hence, the arbitration clause language encompassed the issues included in the plaintiff’s complaint.
Authority of Healthcare Power of Attorney to Enter into Establishment Contract
The Fiala court next examined whether Kahanic, as plaintiff’s healthcare power of attorney, had authority to execute the contract containing the arbitration provision. The court noted that the power of attorney law is intended “to allow an individual to designate an agent to stand in his or her shoes and to make health-care decisions in the event of disability” to the same extent as if the individual made them.10 Further, the Power of Attorney Law provides the agent under the health-care power of attorney agreement authority to make any type of healthcare decision, including admitting the principal into an assisted living facility such as Bickford.11
The Appellate Court in Fiala also noted that Kahanic and the plaintiff executed a statutory short form power of attorney from the Illinois Probate Act. The court cited specific sections of §45/4-10(c), part of the statutory form, authorizes the agent to “make any and all health care decisions on behalf of the principal” and to “sign and deliver all instruments, negotiate and enter into all agreements and do all other acts reasonably necessary to implement the exercise of the powers granted” by the health-care power of attorney. This authority extends to making decisions on medical care, admitting and discharging the principal from care facility and contracting with providers for services.12 The Power of Attorney Law expressly includes the power to enter into necessary contracts for the provision of health care services.13
In the Fiala case, Kahanic, as plaintiff’s agent, entered into an agreement for Bickford to provide living quarters and health care related services for the plaintiff. The agreement included the arbitration provision which is an integral part of the contract. Acceptance of the arbitration provision was a prerequisite to admission into Bickford’s facility. Under the power of attorney statute, Kahanic had authority to bind the plaintiff to the establishment contract, including the arbitration provision.14
The court further noted that heath care powers of attorney are generally limited in scope to matters involving the principal’s health care and that such an agent has no authority over the principal’s property or financial matters. After analyzing cases from foreign courts, the Fiala court accepted the principle that “if an arbitration provision is required for admission to a care facility then it becomes part and parcel of the health-care decision to admit the patient to the facility.”15
In this case, consent to arbitration was integral to admission into Bickford’s facility. Hence the health care power of attorney authorized Kahanic to bind plaintiff to the arbitration provision because it was part of the establishment contract that gained plaintiff admission into Bickford’s facility which provided health care services.16
Enforceability Under the Federal Arbitration Act
The Fiala court next analyzed whether the plaintiff’s causes of action under the Illinois Nursing Home Care Act could be arbitrated pursuant to the arbitration clause of the establishment contract. The court noted that §3-606 of the Act states that “[a]ny waiver by a resident or his legal representative of the right to commence an action under Sections 3-601 through 3-607 … shall be null and void and without legal effect.”17 Further, “any party to an action pursuant to 3-601 through 3-607 shall be entitled to a trial by jury and any waiver of the right to a trial by jury …shall be null and void…”18
The Fiala court noted that sections 3-606 and 3-607 of the Nursing Home Care Act conflicted with and were preempted by the Federal Arbitration Act.19 Further, the Illinois Supreme Court had “definitively held that the Nursing Home Care Act’s prohibition of arbitration agreements between a nursing home and a resident was precluded by the Federal Arbitration Act.”20
Effect of Case:
A healthcare power of attorney has authority to bind a long term care facility resident to arbitrate claims that the resident may hold against the long term care facility, provided certain prerequisites are met. First, the individual signing the admission contract with the facility must be operating under a valid power of attorney for the anticipated resident. Second, the arbitration provision of the admission contract must be sufficiently broad to include the issues and causes of action complained of by the plaintiff. Finally, the arbitration contract must be an integral portion of the admission contract where agreement to arbitration is a requirement for entry into the facility.
1 Fiala v. Bickford Senior Living Group, LLC, 2015 Il App (2d) 141160
2 Fiala at ¶¶1-6.
3 Fiala at ¶ 7.
4 Fiala at ¶ 8.
5 Keeley & Sons, Inc. v. Zurch American Insurance Co., 409 Ill.App. 3d 515, 520 (2011);
6 Fiala at ¶19, internal citation omitted.
7 Fiala at ¶ 13.
8 Fiala at 21.
9 Fiala at 22.
10 Fiala at ¶ 30, discussing 755 ILCS 45/4-1 (2012).
11 Fiala at ¶ 31
12 Fiala at ¶ 33, 755 ILCS 45/4-10(c)(1)-(3)(2012)
13 Fiala at ¶ 35
14 Fiala at ¶ 39
15 Fiala at ¶ 45
16 Fiala at ¶45
17 Fiala at ¶52, 210 ILCS 45/3-606 (2012)
18 Fiala at ¶52, 210 ILCS 45/3-607 (2012)
19 Fiala at ¶53
20 Fiala at ¶53, Carter v. SSC Odin Operating Company, 237 Ill.2d 30, 47, 50
By: Jason G. Schutte
Workers compensation laws have developed in most major countries and in the states of the United States. Similarly, Illinois has a workers compensation system, which is governed by the Illinois Workers Compensation Commission, an administrative body.
The primary purpose of workers compensation is to provide employees of the state of Illinois with prompt and definite compensation and remedies for injuries or death suffered by employees in the course of their employment. An added goal of workers compensation is that the cost of work related injuries be borne by the industry itself, rather than the individual members of the workforce.
The Illinois Supreme Court discussed the basis of workers compensation, in Kelsay v. Motorola, Inc., 74 Ill.2d 172 (1978). The court stated that the Workers Compensation Act:
The overarching goal of the Illinois Workers Compensation law is to provide prompt, sure compensation to employees at a fixed cost to employers.
Contact the attorneys at Koepke & Hiltabrand with any questions you may have regarding workers compensation claims.
The Illinois Workers Compensation laws have provided some very precise guidelines for certain types of injuries. These laws indicate that the loss of certain body parts are valued in a specific number of weeks of “average weekly wage”. These awards are detailed below.
For example, if an employee loses a thumb in a work related injury after 2/1/06, he is entitled to an award of 76 weeks of his average weekly wage. Hence, if the average weekly wage for this employee was $100.00, he would be entitled to an award of $7600.00 for the loss of his thumb.
Parts of Body pre 2/1/06 post 2/1/06
Thumb: 70 weeks 76 week
Index Finger: 40 weeks 43 weeks
Middle Finger: 35 weeks 38 weeks
Ring Finger: 25 weeks 27 weeks
Little Finger 20 Weeks 22 Weeks
Great Toe: 35 weeks 38 weeks
Each other toe: 12 weeks 13 weeks
(The loss of the first or distal phalanx of the thumb or any finger or toe is = to ½ of the above; the loss of more than one phalanx is considered 100% loss of above)
Hand: 190 weeks 205 weeks
(190 weeks if the accidental injury occurs on or after 6/28/11 and if the injury involves carpal tunnel, in which case the PPD shall not exceed 15% loss of hand except for cause shown by clear and convincing evidence)
(The loss of 2 or more digits or 1 or more phalanges may be compensated by partial loss of hand; loss of use of 4 digits in same hand shall constitute complete loss of hand)
Arm: 235 weeks 253 weeks
Foot: 155 weeks 167 weeks
Leg: 200 weeks 215 weeks