Purpose of the Illinois Workers’ Compensation Act

In Illinois, Workers’ Compensation is designed to promote the general welfare by providing compensation for accidental injuries, illnesses, or death suffered in the course of employment to most workers with job-related injuries. According to the Supreme Court of Illinois, “the primary purpose of the Act is to provide employees a prompt, sure, and definite compensation, together with a quick and efficient remedy for injuries or death suffered by such employees in the course of their employment (O’Brien v. Chicago City Railway Co. 305 Ill. 244; Raymond v. Industrial Com. 354 Ill. 586) and to require the cost of such injuries to be borne by the industry itself and not by its individual members.” O’Brien v. Rautenbush, 10Ill. 2d 167 (1956). In other words, the purpose is to provide protection to employees by providing them with prompt, and equitable, compensation for their injuries. The Act is a substitute from the harsh fault-based common-law rights and liabilities of employees and employers regarding work-related injuries or deaths. In this regard, the Act requires payment of benefits regardless of fault.  This means that the general requirement for an injured party to prove the other party was at fault for their injury  is not applicable to Workers Compensation cases. In this way, the Act provides financial protections for injured workers by providing benefits to those workers without forcing them to show negligence on the part of the employer. Under the Act an injured or sick worker can receive a portion of their wages, medical benefits, and expenses.

The Act also frees injured workers from harsh common-law defenses. For example, employees will not be punished for making a mistake because the Act prohibits a reduction in those benefits under the common-law defense of “contributory negligence.”

If you, or a loved one, has been injured at work, then you need information about your rights. At Shunneson Law Office, I am devoted to demanding an insurance company cover your injuries following accidents. Call 847.693.9120 for more information or contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday – Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

-Drake Shunneson (copyright 2012)

NOTICE: The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problems. This article, by itself, does not create an attorney-client relationship and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual, attorney, entity or individual. Photos courtesy of FreeDigitalPhotos.net While the author has utilized his experience and knowledge of workers compensation law in writing this article, as well as many articles, books, statutes, regulatory rules, treatises, and internet sources, some of the ideas and material for this article were obtained from the Illinois Institute for Continuing Legal Education’s Illinois Workers’ Compensation Practice Guide (2011), which deserves special recognition.

Anatomy of a Workers Compensation Claim: Notifying Your Employer and Hiring an Attorney Before Your Time Runs Out

This article is designed to explain the basics of a typical Workers’ Compensation claim to help injured workers protect their rights.

Workers Compensation in Illinois is designed to promote the general welfare by providing compensation for accidental injuries, or death suffered in the course of employment to most workers with job-related injuries. The benefits are paid regardless of fault. The Supreme Court of Illinois put it best when it stated “the primary purpose of the Workmen’s Compensation Act is to provide employees a prompt, sure, and definite compensation, together with a quick and efficient remedy for injuries or death suffered by such employees in the course of their employment…and to require the cost of such injuries to be borne by the industry itself and not by its individual members.” O’Brien v. Rautenbush, 10 Ill.2d 167 (1956).

Further, this Act obliterates the general requirement for an injured party to prove the other party (employer) was at-fault for their injury. In this way, the Act provides financial protections for injured workers by providing benefits to those workers without forcing them to show negligence on the part of the employer. It also frees injured workers from being punished for making a mistake by prohibiting a reduction in those benefits by contributory negligence. In this way, an injured or, in some cases, a sick worker can receive a portion of their wages, medical benefits, and expenses.

The Act also is designed to give you the right to a “quick and efficient remedy” when you are not receiving the benefits you deserve. In order to accomplish this, the legislature has established the Illinois Workers’ Compensation Commission. For a typical Workers’ Compensation case, an arbitrator is assigned to decide cases. For all intents and purposes, most Workers’ Compensation attorney’s view this individual as the “judge” for your case. As is discussed later, if a worker is not pleased with the decision of the arbitrator he, or she, may appeal the decision by following the Illinois Workers’ Compensation Commission’s rules and, eventually, end up in Court, but that is extremely uncommon.

Even though the Act does provide for benefits, the employers, and their insurance companies, have no duty to file a claim with the Workers Compensation Illinois Workers’ Compensation Commission. This is true regardless of whether they began paying you benefits for lost time from work, medical bills, and expenses immediately following your injury or illness. In fact, the law makes it clear that it is your job to protect your own rights in two very important ways.

First, it is your duty to notify your employer that you have been injured. In this regard, an employee must notify an employer that they have suffered an accidental injury arising from the employment. This notice period is very quick and must generally be done within 45 days of the injury. Fortunately, notice may be accomplished orally (by simply telling the employer you have been injured). Even though notice can be accomplished orally, to avoid problems I always recommend that an injured worker give the employer a written notice with the following:

1. The date and location of the accident;
2. A brief description of the accident, injury or disease; and
3. The employee’s name, address, and telephone number; and
4. Be sure to give notice to a manager and not a co-worker.
a. I also recommend sending notice to Human Resources, the Registered Agent, and the    President of the Company.

Second, you must file a claim with the Illinois Workers’ Compensation Commission. Failure to file your claim can have drastic and irreversible damage on your case and rights! In this regard, you must file a claim within the time limits set by the Act itself or YOU WILL LOSE ALL OF YOUR RIGHTS TO COMPENSATION. Although the exact time limit that applies varies based on your particular injury, illness, and facts, you should act quickly. As such, I highly recommend that you contact our office so that we can discuss your case.

After you have made the decision to discuss your case with an attorney it is time for your Initial Meeting With Your Attorney and Preparation for Filing Day.

If you, or a loved one, has been injured at work, then you need information about your rights. At Shunneson Law Office, I am devoted to demanding an insurance company cover your injuries following accidents. Call (847) 693-9120 for more information or contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday – Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

-Drake Shunneson (copyright 2012)

NOTICE: The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problems. This article, by itself, does not create an attorney-client relationship and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual, attorney, entity or individual. Photos courtesy of FreeDigitalPhotos.net

Distracted Driving Causes Almost Half a Million Car Accident Personal Injuries a Year and Could Hurt Your Personal Injury Case

Most people will admit that they have, at one point or another, texted or talked on a cell phone while driving. This is especially true for young people and many teenagers will readily tell you that texting or talking on a cell phone while driving is just what teenagers do. Most people believe that they can talk or text on a cell phone and drive safely. In addition, many believe texting is okay because it’s pretty quick, unlike a phone conversation. The fact is distracted driving kills and is a very serious safety concern. Talking or texting on a cell phone is among the most dangerous activities you can engage in on the road. In fact, talking on a cell phone while driving is equivalent to having a blood alcohol content above the legal limit of 0.8. If you were pulled over with this 0.8 blood alcohol content, you would be guilty of driving under the influence in Illinois. Of course, most people wouldn’t drive drunk, but it is interesting just how many will engage in actions that amount to drinking and driving.

One of the biggest causes of car accidents is related to distracted driving. According to the Department of Transportation, one in five (or 20%) of personal injury crashes are caused by distracted driving. Further, nearly one in seven (or 16%) of fatal car accidents involved reports of distracted driving. In 2009, 448,000 people were injured and 5,474 people were killed in distracted driver related car accidents.

Teen drivers are particularly at risk for dying in such automobile accidents due to their comfort level in texting and/or talking on a cell phone while driving. Car accidents are
the leading cause of death among teenagers. A recent survey also indicated nearly 84% of teens text or use a cell phone while driving even though they are aware of the danger.

Contrary to popular belief, even though it is true that talking on a cell phone is a safety concern, texting while driving is by far the most dangerous activity that you can engage in while driving. This is because it involves manual, physical, and cognitive distraction all at the same time. It also takes your eyes off the road for 4.6 seconds. If you are traveling at 55 MPH while texting, then you are willingly driving the length of a football field while completely blindfolded. Many might say that you might as well have a cigarette in your mouth and a group of people pointing guns at you!

The results can be beyond tragic. For example, in 2010 a five-year old who dreamed of becoming a football player was
struck while crossing the street by a young woman who was texting while driving. Following the accident he was paralyzed from the chest down. In another incident, a couple both lost their left leg because a 19-year-old sideswiped them after crossing a double yellow line while texting.

This problem is only expected to get worse as text and cell phones become more widespread. In June 2011 alone, 196 billion text messages were sent or received in the United States. This was a 50% increase from June 2009.

With regards to your personal injury case, it can have a major impact on your case in three very important ways.

First, if you were texting or talking on a cell phone and caused severe injuries to others, you are going to get sued. You will also likely lose because, in order to win a personal injury case, the other side will generally need to prove two things (that you were at fault and that they have injuries as a result). With the sheer amount of scientific data demonstrating the dangers of using a cell phone while driving, it is going to be virtually impossible for you to argue that you were paying attention. The research showing that talking on a cell phone while driving is equivalent to being a drunk driver will almost certainly be the nail in the coffin for anyone that thinks they will be able to argue that they were not distracted. This fact is so well accepted in courts that at least one judge is considering making the person texting the driver also liable for the injuries.

Second, Illinois law made it illegal to text while driving as of January 1, 2010. Additionally, Illinois law makes it illegal to talk on a cell phone while driving if you are in a school zone, construction zone, and those under 19. Illinois is also currently considering HB 3972, which would ban talking on a cell phone statewide if it becomes law. General personal injury law allows for courts to determine that the accident is your fault if you break a law (this is known as negligence per se). This means that, even if you were capable of making some argument as to why you were not at fault for the accident, then the court will look you straight in the eyes and tell you that they don’t care because you broke a law that was meant to protect people from harm.

Third, if you are using a cell phone when you get injured, then the other side is going to tell you that you are actually the one at fault. In Illinois, like in most states, if the other driver can prove that you were the primary cause of the accident, then the court can reduce the amount of money you are entitled to. If you are determined to be enough at fault for the accident, then the court will outright deny you any money for your claim. Given that there is now a law against using your cell phone while texting, and driving in some situations, the insurance companies now have a new tool readily available to them to try to reduce the amount of money you deserve. And trust me, as a former defense attorney, I assure you that they will use this tool.

If you, or a loved one, has been injured by a distracted driver, then you need information about your rights. At Shunneson Law Office, I am devoted to demanding an at-fault party’s insurance company cover injuries following accidents. Call (847) 693-9120 for more information or contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have ability to meet with you at any convenient Chicagoland location from 9:00 a.m. to 5:00 p.m., Monday – Friday. However, evening and weekend appointments are available upon request by calling 847.693.9120.

-Drake Shunneson (copyright 2012)

NOTICE: The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problems. This article, by itself, does not create an attorney-client relationship and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual, attorney, entity or individual.

Is It Going to Cost Me A Lot of Money to Pursue an Injury Claim?

Most of our clients want to know whether or not they will need to spend a large amount of money to hire us to pursue a personal injury claim. The answer is no. In virtually every injury case that we handle, you will not need to pay us a dime after the initial consultation to hire us until the case settles or a court award is issued. This is because Shunneson Law Office represents people on a “contingency” fee basis for personal injury and workers compensation claims. The Supreme Court of Illinois has long recognized that everyday people do not have infinite amounts of resources like the large insurance companies. In order to level the playing field, the law allows for people to hire attorneys by agreeing to allow the attorney to accept a percentage of the funds recovered at trial or settlement. This allows for clients to obtain the legal representation they deserve without worrying about how they are going to pay for an attorney in addition to their rent, food, gas, utilities, and other necessities of life.

We also agree to pay for all out-of-pocket costs associated with pursuing our clients’ personal injury claims in the vast majority of cases. The Supreme Court of Illinois requires attorneys keep track of these costs separately and obtain reimbursement for those costs at the conclusion of the case, whether by settlement or court award.

These costs are the bills associated with a lawsuit such as medical record bills, police reports, filing fees, court reporter costs, trial exhibits, photographs and/or videos, service of process fees, expert consultant and witness fees, deposition costs, photocopying, mailing and other related costs. These costs are only incurred when necessary to resolve claims and are almost always an insignificant amount compared to our clients recovery from an at-fault party (usually paid for by an insurance company).

We understand that injured persons, and surviving family members of someone fatally injured, are often living paycheck to paycheck and it is our philosophy our clients do not need the additional financial burdens placed on them to get payment from at-fault parties.  This allows clients to obtain the legal representation they deserve without worrying about how they are going to pay for rent, food, gas, utilities and other necessities of life.

The big insurance companies have virtually unlimited resources and we understand that people can’t afford to fight them on their own without a little financial help. There is no reason to take on the massive resources of big insurance alone. We will protect your rights and make sure you are not abused by the companies’ massive resources.

At Shunneson Law I am devoted to demanding an at-fault party’s insurance company cover injuries following accidents. Call (847) 693-9120 for more information or Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847-693-9120.

-Drake Shunneson (copyright 2012)

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual.Photos courtesy of FreeDigitalPhotos.net

Avoid Tragic Bicycle Accidents By Following These Safety Tips

As the weather in Chicago and Illinois improves, many bicyclists will dust off their bikes and start riding again. Biking is great exercise and a wonderful way to enjoy the nice weather. However, when a bicyclist is riding on a street, road, or other areas where they are likely to encounter vehicles, they need to be aware of the very real danger that sharing the road with motorists presents. It is really quite difficult to explain just how vulnerable a person is when a car-bicycle collision occurs. The only way I can explain it is to ask people to imagine that they are walking down the street when they are suddenly hit by a six-foot, three hundred pound man running at full speed around a corner. Now, turn that man into steel, increase his speed by three and make him weigh seven times more. A pretty scary thought, isn’t it?

There really is no way to completely eliminate this risk except by only riding a bicycle on paths where vehicles are prohibited. However, there are several safety tips that you can, and should, do to reduce the potential risks associated with riding a bike in Chicago and Illinois:

• Wear a Helmet! There is absolutely nothing more tragic than cases where a bicyclist is hit by a vehicle and, because he or she was not wearing a helmet, the car-bicycle accident causes the person to hit their head on the pavement at forty-miles per hour. The resulting injuries are virtually always death or major brain trauma. If you wear a helmet, this near certainty is significantly reduced or eliminated.
            o IT DOES MATTER. Too many of my clients believe that there is no point in wearing a helmet. These clients believe that if they get hit by a car, the result will be the same anyway so why bother? This is absolutely not true. For example, in one case I had, our client was hit by a motorist that wasn’t paying attention. The bicyclist was thrown from her bike, hit her head on the pavement, and was taken by ambulance to a local hospital. Because she was wearing her helmet, she survived the accident with very little long-term effects and was biking again by the next summer!

• Follow the Laws of the Road, But Change the Mindset that Cars Have to Look Out for You. While it is true motorists and drivers are required by law to share the road with a bicyclist, the consequences of you getting hit are far more serious than if you hit a car. Cars and trucks are bigger, faster, stronger and the vehicle’s safety protections are vastly superior to yours. All too often a bicycle accident occurs because the bicyclist is relying on his or her experience as a driver and expects the motorists to follow the rules of the road. Unfortunately, there are too many people out there that are not as careful as they should be and bicyclists should always be aware of this fact. Always look out for motorists, even when you know they should be looking out for you. I usually ask clients to imagine all cars are being driven by the cast of Jersey Shore and that you should act accordingly.

• Use Headlights, Signal by Waving, Wear the Bright Colored Safety Vests, Slow Down and Ride Further to the Left. In one of my recent cases, a bicyclist was injured as she passed by a local parking garage. The vehicle that hit this bicyclist was pulling out of the parking garage at the time and simply didn’t see the bicyclist. Bicyclists are often struck when a car that doesn’t see them suddenly, and unexpectedly, pulls out in front of them. This situation is particularly common in Chicago where the parking garages’ exits are located in the middle of busy streets. By making yourself more visible, you are far more likely to avoid this situation.

• Try Not to Ride Close to Parked Cars, Slow Down, and Ride as Far to the Left as Possible. Many a bike messenger will tell you what a harrowing experience it is to be cruising along a street and suddenly have a motorist that just parked their car open the door in front of you. If you are riding your bike too fast, or are too close to the cars, you will not have enough space or time to react and will find yourself suddenly stopped.

• Walk, Do Not Ride, Your Bike Across Intersections and Crosswalk. Probably the most common tragic bike accident takes place when a car hits a bicyclist that is trying to cross a street. At least once a year there is a news article about a tragic car-bike accident where a bicyclist is killed crossing a street. There is nothing so urgent that you should be risking your life needlessly by riding your bike across a crosswalk or intersection.

• Avoid Riding Your Bike on a Sidewalk. As already stated, motorists must share the road with bicyclists. However, many people feel that it is unsafe to ride on the streets because of all the large, fast moving vehicles. However, riding on the sidewalk can lead to many of the accidents that occur (ie getting hit by vehicles pulling out of driveways/garages, intersection accidents). It is also dangerous because you could hit pedestrians. The problem about pedestrians is especially problematic near schools for obvious reasons.

• Biking is Not a Fashion Statement. Wear the Safety Gear. Ever see that James Dean movie where his leather jacket looked cooler as it swished up and down as he peddled his ten speed? Yeah, me neither. Biking is a lot of fun, great exercise, and, by engaging in the exercise, you are already going to look cooler then your buddies that sit on a couch all the time. If you really believe wearing bright colored clothes, helmets, elbow pads, and other safety gear is cramping your style then just imagine the cramp permanent hair loss and a metal plate in your head will be! Please wear the proper safety gear and protect yourself.

Of course, this is not an extensive list, and bicyclists are well advised to educate themselves further on bicycle safety. For further reading, I suggest people visit the Department of Transportation, Federal Highway and Administration’s website on Pedestrian and Bicycle Safety. Another good article about bicycle safety is available here.

In Illinois and Chicago these problem are compounded by the changing weather. During the winter months very few people will ride bikes and motorists simply forget to look out for them. Many bicyclists are well advised to be aware of this issue and be extremely safety conscience during the spring (and summer) months.

At Shunneson Law Office, we have years of experience in handling bicycle accidents with motor vehicles. Given the potential severity of the injuries, you need an experienced attorney to help you through these difficult times. I am devoted to demanding an at-fault party’s insurance company cover injuries following accidents. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos courtesy of FreeDigitalPhotos.net.

How Long Does a Car Accident Claim Take to Resolve?

For many injured people facing rising medical bills, damage to property, and lost wages as a result of a car accident (or other personal injury), resolving the case in an efficient, timely manner is of the utmost importance. Understandably, many people want to know how long it will take before their car accident case will resolve. Many people feel like this is a simple question that should have a simple answer. However, this is not a simple question for many reasons.

Whether your claim resolves quickly depends mostly on your medical history, the extent of your injuries, and the amount of medical “damages” (medical bills). Although some attorneys may disagree with me, it is my opinion that it is extremely unwise to attempt to settle a claim until you are fully recovered from you injuries. If you are never going to make a full recovery, then you should wait until you are as recovered as you are ever going to get (in legalese this is known as Maximum Medical Improvement). After the full extent of your injuries are known, it is easier to analyze your case and prepare a settlement proposal to the car insurance companies.

Also, if you have a very serious injury, and very high medical bills, the insurance company may want to do their own investigation into the matter. This could include a request for examination by the insurance company’s physicians, extensive medical history review to ensure you do not have any major pre-existing conditions, and an accident reconstruction performed by expert accident reconstructionists. This process could take a very long time indeed and, unfortunately, those with the most serious injuries are the hardest to resolve quickly.

Beware of any attorneys that tell you that they can get you money on the same day that you come in. These attorneys have almost certainly not taken the necessary time to analyze your case, review your medical records, and determine what your case is worth. I have heard horror stories where injured people who have had their limbs broken, or amputated, have accepted $5,000 on a $200,000 case. Even though you may feel tempted to take the money today, it will hurt you in the long run since it is unlikely the paltry amount the insurance company gave you will pay for even a fraction of your current, or future, medical costs. Remember “a man who is a master of patience is a master of everything else.” – George Saville. At Shunneson Law Office, we typically discuss with our clients the settlement offer we are going to make to the car insurance companies and explain why we think the offer is reasonable. This is because if you settle, you will also be asked to sign a contractual Release where you will agree not to pursue the claim forever. This will COMPLETELY BAR you from suing the insurance company after accepting the settlement.

At Shunneson Law I am devoted to demanding an at-fault party’s insurance company cover injuries following accidents. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos courtesy of FreeDigitalPhotos.net.

Nebraska District Court “Believes” Prior Nebraska Supreme Court Ruling Holding that Defendants Recorded Statements Given to an Insurance Company is Against “Modern Jurisprudence” and Indicates the Entire Insurance Investigative File Should Be Discoverable in Keeping with the Nebraska Discovery Rules.

April 20, 2012

Any experienced lawyer will tell you that obtaining documents and information an insurance company obtains during their investigation of a personal injury case is very difficult, if not impossible in Nebraska. Very often this file contains invaluable information and documents vital to determining whether the other party (called the insured) was responsible for the accident. It also often contains additional information about the full extent of the injuries suffered by everyday people. This “insurance investigative file” is prepared long before a case is filed by an insurance adjuster and before any attorney gets involved to represent the other party.

One of, if not the, most crucial part of the investigative file is a recording the insurance company obtains from the other party immediately following the accident. This recording is often taken very shortly after the accident and contains the complete understanding of the events from that person’s point of view. Obviously, such a recording can be very useful to an injured party as they try to negotiate with the insurance companies, and/or the other side’s attorneys after a lawsuit has been filed, to reach a resolution for their clients. Although the reasons are almost limitless, three very important reasons make these recordings invaluable:

  • These recordings are taken at, or near, the time of the accident. Lawsuits usually take years and, in virtually every case, injured persons’ attorneys (called “plaintiffs attorneys” or “plaintiffs lawyers”) will not be able to “depose” (question the other party) to obtain their statements until after a lawsuit is filed years later. It is almost guaranteed that the other party will forget something important and a recording could be used to help them remember the same. Without the recording though, it is possible the insurance company will be able to keep something buried due simply to the ability of people to forget. Worse, the other party may inadvertently have added details to their story over the years putting blame on the injured person in their own memory.
  • Insurance companies always demand that injured persons’ attorneys have their clients give a recorded statement to them near the time of the accident. At the same time, an insurance company will tell the other party not to talk to the attorneys for the injured person. If an injured person’s attorney is lucky      enough to get a recorded statement from the other side, the insurance      companies will become outraged and try everything in their power to keep      from paying for any injuries. Ask any injured person’s attorney if they will get a recorded statement from the other party before filing a lawsuit and they will assuredly tell you that it is impossible and, if done, is detrimental to their client’s case. Thus, insurance companies get to know what the injured person’s version of events are and  what the other person’s version of events      are up until the trial. This is an unfair system that prejudices injured      persons, and their attorneys, by providing the defense with an unfair      advantage. Injured persons’ attorneys need the recordings to level the      playing field.
  • It is very hard to see how any discovery (legal investigations) can realistically replace a prior recorded statement. This is especially true when witnesses pass away or otherwise can no longer provide testimony in a case.

Despite the need for these recordings, insurance companies have long hid behind a legalese known as the “work-product doctrine” to refuse to give injured persons’ attorneys these recordings. This rule protects, among other things, recordings between an attorney (or the attorney’s representative) and his/her client made to facilitate legal services to the client. Despite the fact recordings given to an insurance agent are not given to attorneys, Nebraska’s Supreme Court held in 1973 (based on older discovery rules) that the statements made to insurance agents were statements made to agents of an attorney and protected such statements in the case of Brakhage v. Graff.

Of course, many state and federal courts, and even one judge in the 1973 case, disagree with this line of thought and have held that statements made by the other party to an insurance agent are not protected because they are not acting at the direction of an attorney and, thus, are not “agents” of an attorney.

Recently, following a Motion to Compel drafted by myself, Drake Shunneson, and attorney Jeremy Jorgenson, the Nebraska District Court judge Timothy P. Burns issued an Order today wherein he blasted the reasoning of the 1973 Nebraska Supreme Court opinion as against “modern jurisprudence,” and, citing case law, argued that “[a] substantial and growing minority of state courts [and federal courts]…have concluded that statements made to an insurer by the insured are generally not protected by the attorney-client privilege” and that the recordings are “a routine part of an insurance investigation, and express a grave concern about the advisability of making such statements immune from discovery as a matter of policy, for fear of…creating a new privilege (insured-insurer).”

The judge agreed with our opinion that “a verbatim witness statement, even one solicited by counsel, is per se necessary to the full and efficient development of a case.” The judge even went a step further and indicated that the entire “investigative file” should be “subject to discovery without regard to any work product restrictions.” (The order is available in the District Court of Nebraska, Douglas County Case No. CI 11-4177. the case law cited is the Alaska opinion of Langdon v. Champion and 55 ALR 4th, and the Federal Case of Dobbs v. Lamonts Apparel).

This opinion by the Nebraska District Court judge could be the beginning of a major turning point in the fight against the insurance companies for injured victims everywhere. Even though the judge found our arguments “to be persuasive, even more so as to recorded statements, and believe [they] accurately reflect the purposes of the Nebraska Rules of Discovery” he was forced to rule against us on the basis that there was a Supreme Court decision to the contrary.

However, the order clearly indicates that the Nebraska District Court judge strongly disagrees with the unfairness of the current system, the logic that an insurance agent is an “agent” of an attorney before there is any attorney, and clearly believes the current interpretation of the rule is against the purpose of the Nebraska Rules of Discovery. Accordingly, Jeremy Jorgenson and I intend to appeal the decision to the Appellate Court in the hope that they too agree with Judge Burns and ourselves and hold that this 1973 rule is against modern jurisprudence. If we are successful, it will be a small victory in the constant battle to level the playing field against big companies for injured persons throughout the state and, if we’re lucky, throughout the nation.

At Shunneson Law I am devoted to demanding an at-fault party’s insurance company cover injuries following accidents. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual.