Chicago Trial Attorney: Personal Injury & Business Litigation - Trucking Accidents

Trucking accidents can be the most deadly. It is obvious and goes without saying that the sheer weight and force behind such a 5-ton+ behemoth can result in serious injuries by even the slightest bump much less at "normal", or worse, high speeds.

According to the most recent data from the U.S. Department of Transportation found here, thousands were killed and injured in 2012 (most recent data). In fact, the Department of Transportation noted:

In 2012, there were 3,921 people killed and 104,000 people injured in crashes involving large trucks (gross vehicle weight rating greater than 10,000 pounds) . . . In the United States, 333,000 large trucks were involved in traffic crashes during 2012.

Federal and State law / regulations differ on what truck drivers can or cannot do - that is, for example, whether the truck driver must maintain certain records and the extent of record keeping. After a crash, it is critical to immediately attempt to preserve evidence of such through what is called a "spoliation of evidence letter" by an attorney (fancy legal language for "you must preserve evidence" and "don't throw evidence / records in the garbage or delete it").

In fact, I often send an immediate, detailed letter with "instructions" to a potential defendant truck driver insurance company demanding that the following (perhaps not exclusive list) be preserved and not destroyed:

o   The tractor and trailer involved in the accident at issue;

o   Permits and licenses covering the vehicle involved in the accident at issue;

o   Any and all permits and/or licenses held by Mr. ____________________;

o   Bills of lading and any other documents in relation to the freight on board on the vehicle involved in the accident at issue on the day of the accident;

o   Mr. ____________________’s daily logs or “diary” of each hour spent on the road and any “resting” for the two (2) years prior to the date of the accident referenced above and in accordance with 49 C.F.R. 395.8 and/or 395.15 and any devices/books used to so record same shall also be preserved, not destroyed, concealed, modified, changed or altered in any way, shape or form;

o   Inspection reports for the tractor (semi cab) and trailer involved in the collision at issue;

o   Any and all maintenance and repair records for the tractor and trailer;

o   Mr. ____________________’s qualification file;

o   Any and all photographs, video, and records of all of the vehicles (not just the tractor-trailer) involved in the accident at issue and of the scene of the accident;

o   Mr. ____________________’s alcohol and/or drug testing results in relation to this incident;

o   Any and all contracts involving the tractor-trailer at issue (e.g., including, but not limited to, any independent use, subcontracted use or other use);

o   Any and all contracts involving the tractor-trailer at issue and its freight;

o   Any and all data from any and all on-board recording devices such as, but not limited to, black boxes;

o   Mr. ____________________’s personnel file and driving history;

o   Any and all GPS tracking data and the devices/software used to so track;

o   Any and all statements obtained from any witness or person in relation to the accident at issue;

o   Any and all dispatch records in relation to Mr. ____________________ and/or his tractor and/or trailer for the two months prior to this incident at issue;

o   Any and all hiring and employment records of Mr. ____________________;

o   Any and all electronic data on any ECM, PCM or other device—whether internally or externally mounted (on the engine or inside any electronic modules internally);

o   Any and all audio and video recordings in relation to the tractor-trailer from any time and from this incident or any investigation in relation thereto; and

o   Any and all data relating to the use of any cell phones or other communication devices of Mr. ____________________ or others in the vehicle at the time of the incident at issue.

Thereafter, I even work with the truck driver / trucking company to arrange to have the truck inspected as soon as reasonably possible. I essentially "wrap up" with a note warning the truck driver / trucking company about the law: "As you may know, Defendants’ failure to comply with this notice can result in severe sanctions being imposed by Court and possible liability in tort for spoliation of evidence or potential evidence."

It is critical to preserve such evidence. Make sure to speak with a lawyer immediately following a trucking accident.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who has been a victim of a trucking crash or negligence - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.  

Chicago Trial Attorney: Personal Injury & Business Litigation - Injury Claims 101

Auto Accident? Truck accident? Motorcycle accident? Workers compensation claim (injured at work)? Nursing home injury or death? Dog bite? Any other injury from any source / reason? Claims 101 Information on the first few steps below - if negligence is involved, you deserve compensation.

No matter the type of injury, first and foremost, get to the Emergency or Doctor. Take care of yourself first - or your loved ones, friend or family.

Next, write down information - on the back of a piece of scrap paper / on ANYTHING! Within a day or two, for example, you might forget who was there (a witness) - even a physical description of the person if you do not know their last (or first) name. List out:

- names

- phone numbers

- addresses

- description of events by time / day / weather / surrounding / facts and other circumstances

CALL A LAWYER after you or your loved one or friend or family member is stabilized.

TALK TO NO INSURANCE COMPANY! Insurance companies might "pretend" to care or be your friend. In reality, you might be recorded and every single word spoken around the time of the accident will most likely be used against you if possible 6 months, 2 years or more down the road. TALK TO A LAWYER - that is confidential and privileged.

Focus on getting better physically. Update your lawyer regularly on your health progress and leave all of the legal burdens to the lawyer. Simple.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who has been a victim of a crash or negligence - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small. 

Chicago Trial Attorney: Personal Injury & Business Litigation - Digital Assets (Digital Evidence?)

A recent article found here explains how difficult access to e-mails or "digital assets" can be after death. Evidence can "lurk" in e-mails and such "assets". Where are your passwords stored? 

Philip J. Berenz, CPA, JD  - Exclusive invitation and selected! Proud and honored to be a member!

The National Trial Lawyers: Top 100 an invitation-only organization composed of the premier trial lawyers from each state in the nation who meet stringent qualifications as civil plaintiff and/or criminal defense trial lawyers. Selection is based on a thorough multi-phase process which includes peer nominations combined with third-party research. Membership is extended solely to the select few of the most qualified attorneys from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who has been a victim of a crash or negligence or "business pain" (plaintiff or defense) - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small. 

Chicago Trial Attorney: Personal Injury & Business Litigation

Exclusive invitation and selected! Proud and honored to be a member!

The National Trial Lawyers: Top 100 an invitation-only organization composed of the premier trial lawyers from each state in the nation who meet stringent qualifications as civil plaintiff and/or criminal defense trial lawyers. Selection is based on a thorough multi-phase process which includes peer nominations combined with third-party research. Membership is extended solely to the select few of the most qualified attorneys from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile.

 

Chicago Trial Attorney: Personal Injury & Business Litigation: The Reality of Pain due to Personal Injury and "Pain" (aka "Damages") due from Bad Business Deals, Fraud and The Like

We have probably all experienced some sort of pain - physically, emotionally and what can easily be called "pain" from a business or personal perspective when money is lost in a business deal. We can call this "business pain" or "business damages". 

Obviously, real, physical and emotional (or mental) pain cannot literally be "equated" with the business pain. One truly hurts the body and/or mind. The other hurts mainly the pocketbook; however, business pain can also wreck a family, a home and/or a business and be coupled with true emotional pain that may actually give rise to mental anguish (and real mental injury perhaps). In any event, neither type of pain can ever be taken lightly.

A real lawyer must demonstrate empathy with either type of pain. A real trial lawyer must be infused with your projected feelings of either type of pain. It is the trial lawyer who must convey that pain to not only a jury at the "end" of a case -- but from day one -- to the opposing attorney, to the other "side" (the "bad guys" on the other side), to the insurance company, to the Judge. Sometimes, we trial attorneys go beyond and must convey the pain all the way to the appellate courts and Supreme Court if necessary. The pain must be conveyed not once, not twice, not at trial time only -- but from the moment of initial advocacy, from the moment of comprehension, daily and incessantly without hesitation. That is what separates the "men from the boys" so to say in terms of what a real trial lawyer is.

I have personally experienced multiple types of physical pain that I would not wish on my worst enemies. I can empathize with my clients who have experienced pain from personal injury. I understand that it can linger. Pain can destroy the ability to function in your job while it tears at your thoughts when pain medicine "wears off". Pain can destroy your relationships at home. Pain can destroy your inner sense of self. Sometimes, pain doesn't seem to ever go away. Hopefully, it does--and for good. But if not, what next? 

Business pain can "seem" just as bad. Business pain wrecks businesses first, but then migrates into wrecking homes, families and friendships. Sometimes, it wrecks the very person or people you called your brother, your sister, your mother, your father. I have seen it first hand. I have experienced it first hand. I know and understand. It is never "pretty" and actually quite a shame. Hopefully, business pain, too, can "go away" and "for good" just as physical pain often does. But if not, what next?

What's next for either type of pain if it doesn't go away? Fix it. See your doctors religiously for physical pain. Go and visit your business partner -- or your brother, your sister, your mother, or your father -- over coffee and remind him or her (or them) how short life is and try to resolve your differences. Fix your pain as best you can without a legal battle that may be unnecessary in either case.

For personal injury pain, sometimes, money can "repay" the "cost" of the pain (medical bills and related issues). Lawyers often seek the "right" amount of money to at least bring some type of peace and closure to a matter. Sometimes, no amount of money can "turn back the clock" on a permanent problem or, worse, a death. Sometimes, the money awarded or won "sends a message" for safer driving in the future, better products, better professionalism, better structures.

For business pain, again, sometimes money can "repay" the "cost" of the pain (lost profits, lost commissions, lost revenue, lost business). Again, lawyers often seek the "right" amount of money to at least make the original "loser" whole again (or darn close). Sometimes, too, no amount of money can replace a lost business, career, family devastation and personal assets lost. Sometimes, the money awarded or won "sends a message" to others not to defraud, not to breach deals, not to cause damages and to be fair.

In any event, when you next need a real lawyer -- a real trial lawyer -- I'll be here to be infused with a true empathetic understanding of your type of pain and to comprehend it so that I can advocate for you to help you try to "fix it" so you can move on in life and never look back. I am hear to listen to you. I am always honored to help.

It is my mission in life to help people with either type of pain through the legal system -- and to try to find the right amount of "repayment". If you need a real trial lawyer for defense matters, "repayment" may sometimes equate to $0 (or darn close with everything being relative to the overall situation). No matter what, there are most often solutions that can be "lived with". 

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who has been a victim of a crash or negligence or "business pain" (plaintiff or defense) - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.

Snow and Ice = NO EXCUSE for Drivers!

Some drivers that rear-end my clients think they can blame the snow and ice - or bad weather. Wrong. Drivers must slow down even more, be extra cautious and keep a proper lookout - all per Illinois law - or risk liability for an accident.

In fact, such accidents may even warrant "partial" summary judgment in Court (if not settled before Court action is taken). Summary judgment is a legal term for an entry of judgment on liability or damages or both when the Court finds there is "no genuine issue of material fact(s)".

In a rear-end car accident, insurance companies and defendants will often fight even these situations. A plaintiff (the person suing) should move for summary judgment at the appropriate time if evidence is appropriate. Pursuant to 735 ILCS 5/2-1005(c), summary judgment is appropriate and the “judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Further, “[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Id.

Alternatively, Plaintiffs may seek a “directed verdict” at trial time. Notably, at least one Court has made it clear that, at trial time (as opposed to seeking partial or full judgment earlier in the case via summary judgment) the Court may “direct a verdict” on negligence as to a driver because: 

[a] driver . . . has a duty to maintain a sufficient distance from the vehicle in front in order to stop or slow down (Hickox v. Erwin, 101 Ill.App.3d 585), to maintain a safe lookout for traffic ahead (Hickox; Joseph v. Schwartz, 96 Ill.App.3d 749; Snedden v. Lavenka, 92 Ill.App.3d 979) in order to avoid colliding with it (Droese v. Fleming, 93 Ill.App.3d 781), and to take into account the prospect of having to suddenly stop (Droese, 93 Ill.App.3d 781; Snedden, 92 Ill.App.3d 979) or slow his vehicle (Gullberg v. Blue, 85 Ill.App.3d 389). Thus, while a trial court cannot hold a driver, such as defendant, negligent as a matter of law by virtue of a rear-end collision alone, nothing prohibits it from taking the issue of his negligence away from the jury where the evidence overwhelmingly reveals his breach of the foregoing duties. See e.g. Korpalski v. Lyman, 114 Ill.App.3d 563.

Zeifert v. Cox, 182 Ill.App.3d 926 (1st Dist. 1989).

Plaintiffs should fight hard – even on a rear end car accident. Snow and ice is generally not an “excuse” to avoid liability. It’s a reason to slow down and pay attention even more closely.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you or your loved one who has been a victim of a crash or accident - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation: Texting and Driving Can Lead to "Punitive Damages"

Under Illinois personal injury law, "punitive damages" (those meant to deter and "punish" the wrongdoer) must be brought pursuant to "permission" by the Court. See 735 Ill. Comp. Stat. Ann. 5/2-604.1 (Lexis 2014).

Many clients want to seek the "maximum" in certain automobile accidents and seeking punitive damages would clearly be an attempt to do just that. However, the facts and circumstances must be proper and evidence (also known as "proof") must exist or be readily available.

A plaintiff (the person suing) has the "burden of proof" in a lawsuit for an automobile accident. Assumptions are generally not allowed (although "inferences" may meet the test).

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you or your loved one who has been a victim of a crash or accident - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: CTA Commuter Train ("L") Crash Injures Numerous People

You can  On Monday, September 30, 2013, numerous people were injured when Chicago Transit Authority (CTA and sometimes called the L by some and here the "Blue Line") commuter trains collided during rush hour at Harlem Station in Forest Park, Illinois.

Train drivers and train companies owe their passengers a duty of care to avoid causing injuries to their passengers and situations can turn into severe hazards and extraordinary damages when an accident occurs involving such immense 'vehicles.'

Apparently, upwards of 33 people were injured per various reports.

As stated previously by us in another posting, the law requires train drivers--like other motorists--to exercise due care and caution and to follow the "rules of the road (here tracks)" and Illinois law so that a lawsuit for negligence will not be brought against him/her/them for some or all of the following (but not necessarily limited to):

◦ Carelessly and negligently operating, managing, maintaining, and/or controlling a vehicle;

◦ Carelessly and negligently operating a motor vehicle at a rate of speed which was greater than reasonable and proper with regard to conditions and the use of the tracks, or which was greater than the applicable speed limit established in violation of the revised Statutes of the State of Illinois;

◦ Carelessly and negligently failing to equip a motor vehicle with proper brakes although such a device was necessary to insure the safe operation of the vehicle;

◦ Carelessly and negligently failing to keep a proper lookout and to stop or alter the course of a motor vehicle to avoid striking the vehicle (or, here, another train); and/or

◦ Being otherwise careless and negligent (simply not paying attention).

Contact an attorney immediately to preserve your rights. Do not talk to any insurance people without an attorney present. 

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you or your loved one who has been a victim - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation: Settlements and Timing of Payment-FINALLY HERE!

It's finally here -- the Governor has signed! 

After settling a case (some types of cases excepted below), a Plaintiff can now have some form of a "deadline" to expect payment of funds provided certain conditions are met.

The new law takes effect January 1, 2014 -- just 5 months from now. Note well that this is just the "deadline" by which the defendant must pay. That is, other issues can still delay "final" fund transfer to the Plaintiff such as, but not limited to (a) lien resolution (doctor / healthcare provider liens); 
(b) Medicare and/or Medicaid issues; (c) calculation of costs and other documentation; (d) simple "clearance" of the check(s); and (e) numerous other issues. The new law will, hopefully, avoid unnecessary work to see Judges when settlement payments seem to be held up and should start the "clock ticking" on payments.

Here is the new law -- it should be read in its entirety and carefully, word-for-word for a true understanding.

735 ILCS 5/2-2301 (Emphasis added where noted in bold/underline/italic)

Sec. 2-2301. Settlement of claims; payment.

 (a) In a personal injury, property damage, wrongful death, or tort action involving a claim for money damages, a release must be tendered to the plaintiff by the settling defendant within 14 days of written confirmation of the settlement. Written confirmation includes all communication by written means.  

 (b) In a personal injury, property damage, wrongful death, or tort action involving a claim for money damages in which the law requires court approval of a settlement, the plaintiff shall tender to the defendant a copy of the court order approving the settlement.  

 (c) In a personal injury, property damage, wrongful death, or tort action involving a claim for money damages in which there is a known third-party right of recovery or subrogation interest (including attorney's liens, healthcare provider liens, or rights of recovery claimed by Medicare, the Centers for Medicare and Medicaid Services, the Illinois Department of Healthcare and Family Services, or private health insurance companies), the plaintiff may protect the third-party's right of recovery or subrogation interest, where applicable, by tendering to the defendant:

 (1) A signed release of the attorney's lien.

 (2) Either:

 (i) a signed release of a healthcare provider lien; or

 (ii) a letter from the plaintiff's attorney agreeing to hold the full amount of the claimed lien in the plaintiff's attorney's client fund account pending final resolution of the lien amount; or  

 (iii) an offer that the defendant hold the full amount of the claimed right to recovery pending final resolution of the amount of the right of recovery; or

 (iv) documentation of any other method of resolution of the liens as agreed by the parties.

(3) Either:

 (i) documentation of the agreement between the plaintiff and Medicare, the Centers for Medicare and Medicaid Services, the Illinois Department of Healthcare and Family Services, or the private health insurance company as to the amount of the settlement that will be accepted in satisfaction of right of recovery; or

 (ii) a letter from the plaintiff's attorney agreeing to hold the full amount of the claimed right to recovery in the plaintiff's attorney's client fund account pending final resolution of the amount of the right to recovery; or

 (iii) an offer that the defendant hold the full amount of the claimed right to recovery pending final resolution of the amount of the right of recovery; or

 (iv) documentation of any other method of resolution of the liens as agreed by the parties.

 (d) A settling defendant shall pay all sums due to the plaintiff within 30 days of tender by the plaintiff of the executed release and all applicable documents in compliance with subsections (a), (b), and (c) of this Section.

 (e) If, after a hearing, the court having jurisdiction over the parties finds that timely payment has not been made by a defendant pursuant to subsection (d) of this Section, judgment shall be entered against that defendant for the amount set forth in the executed release, plus costs incurred in obtaining the judgment and interest at the rate specified under Section 2-1303 of this Code, calculated from the date of the tender by the plaintiff under subsection (d) of this Section.

 (f) As used in this Section, "tender" means personal delivery or delivery by a means providing a return receipt.

 (g) This Section applies to all personal injury, property damage, wrongful death, and tort actions involving a claim for money damages, except as otherwise agreed by the parties.

This Section does not apply to:

 (1) the State of Illinois;  

 (2) any State agency, board, or Commission, as defined in Section 1-7 of the Illinois State Auditing Act;

 (3) any State officer or employee sued in his or her official capacity;

 (4) any person or entity that is being represented by the Attorney General and provided indemnification by the State pursuant to the State Employee Indemnification Act;

 (5) any municipality or unit of local government as defined under Article VII of the Illinois Constitution; and

 (6) class action lawsuits.

Section 99. Effective date. This Act takes effect January 1, 2014.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you or your loved one - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation: Texting Even OUTSIDE a Vehicle Could Get You Sued!

In a recent decision, it was reported here that a New Jersey Appeals Court held that a person who is texting a driver could very well become a defendant in a lawsuit and be liable to someone who was injured due to such texting.

Texting another driver while you are NOT driving could get you sued! Don't text and drive and don't text someone you know is driving! Just don't do it!

Apparently, the Court issued a statement which said: "We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving."

While the "bar" may be high to get past to sue such a person, we are seeing Defendants routinely sending subpoenas for cell phone records and investigating. Phones are becoming "ultra" mini-computers that people seem to be "addicted" to. It can wait--don't send texts. Don't read e-mails. Keep your eyes on the road so others can arrive safely to where they are going.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you or your loved one who has been a victim of a crash or accident - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). We would be honored to help you with your matters - large or small.