Illinois

Automobile Total Loss Thresholds

Total Loss Formula (See HERE for definition).

Insurer determines when vehicle is salvage/total loss. Total loss payment by carrier automatically makes vehicle salvage and makes insurer owner of vehicle; unless damage is from hail damage or a vehicle that is nine model years or older. In that event if the insurer and insured agree, insured can retain the vehicle. Vehicle is “salvage” when insurer makes total loss payment.

Deductible Reimbursement

Automobile: Pro-Rata. 215 I.L.C.S. § 5/143b provides: “Any insurance carrier whose payment to its insured is reduced by a deductible amount under a policy providing collision coverage is subrogated to its insured’s entire collision loss claim including the deductible amount unless the deductible amount has been otherwise recovered by the insured, but if the deductible amount has been otherwise recovered by the insured it shall not be included in the subrogated loss claim and shall be excluded from the amount of loss pleaded. If the deductible amount is included in subrogated loss claim, the insurance carrier shall pay full pro-rata deductible share to its insured out of net recovery on the subrogated claim. Administrative expenses of the insurance carrier cannot be deducted from the gross recovery, and only incurred expenses of the carrier, such as attorney’s fees, collection fees and adjuster’s fees, may be deducted there from to determine the net recovery. When the insurance carrier is recovering directly from a third-party a claim by means of installments, the insured shall receive his full pro-rata deductible share as soon as such amount is collected and before any part of such recovery is applied to any other use.” Note: Administrative expenses are those incurred as a normal cost of doing business but “incurred expenses” are “out of pocket” expenses related to a specific claim.

Administrative expenses cannot be deducted- only incurred expenses, such as attorney’s fees, collection fees and adjuster’s fees. Installment payments must be reimbursed pro-rata when paid.

Related Case Law: Morel v. Coronet Ins. Co., 117 Ill.2d 18 (Ill. 1987).

Property: None.

Diminution of Value

First Party: Evidence of diminution in value will lead to coverage for property damage even though there was no physical injury. Alleged diminution in value of homes from installation of plumbing system was not “physical injury to tangible property,” within meaning policies. Traveler’s Ins. Co. v. Eljer Mfg., Inc., 757 N.E.2d 481 (Ill. 2001). Illinois courts have also held that “[t]o expand the ordinary meaning of ‘repair or replace… with other of like kind and quality’ to include an intangible, diminished-value element would be ignoring the policy’s language or giving the policy’s text a meaning never intended.” Sims v. Allstate Ins. Co., 851 N.E.2d 701 (Ill. App. 2006). The term “like kind and quality,” means “sufficient to restore a vehicle to its pre-loss condition.” Use of non-OEM parts would not necessarily constitute a breach of the “like kind and quality” promise. Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801 (Ill. 2005).

Third Party: Illinois courts have stated that “[t]he measure of damages for a repairable injury to personal property, is ordinarily the cost of making the repair and the value of the use of the property while the owner is necessarily deprived of it by reason of the repair.” If the property is worth less after it is repaired than its value before the injury, the measure of damages is the difference in the market value before the injury and in its repaired condition in addition to the reasonable cost of repairs.” Trailmobile Div. of Pullman, Inc. v. Higgs, 12 Ill. App. 3d 323 (1973).

First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits

A liability insurer is under no obligation to weigh the seriousness of competing claims and place priorities in relation to the claims that present the greatest threat of liability for an excess judgment against the insured. Where there are multiple claimants and inadequate policy limits to satisfy them all, the insurer does not act in bad faith if the settlement with a specific claimant is reasonable under the circumstances. State Farm Mut. Auto Ins. Co. v. Murphy, 348 N.E.2d 491 (Ill. App. 1976).

Funeral Procession Traffic Laws

Illinois law gives funeral processions the right-of-way at intersections when headlights are lit. The lead vehicle must comply with stop signs and traffic lights, but once it has done so, all the following vehicles can proceed without stopping, provided they exercise due caution. Also, the procession must yield to an approaching emergency vehicle or when directed by a police officer. Vehicles not in the procession cannot enter it unless directed by a police officer and other vehicles cannot join the procession and turn on their headlights in order to gain the right-of-way granted to the procession. 625 Ill. Comp. Stat. 5/11-1420.

Imputing Contributory Negligence of Driver to Vehicle Owner

Imputed Contributory Negligence Law:  Negligence of a driver is not imputed to an owner or passenger unless there is a finding of a master/servant relationship or a joint enterprise. Liability attaches only if the owner is independently negligent. Bauer v. Johnson, 403 N.E.2d 237 (Ill. 1980).

Negligence of driver cannot be imputed to owner suing third party for damage to vehicle, absent showing of respondeat superior or joint enterprise relationship. Universal Underwriters Ins. Co. ex rel. Manley Ford v. Long, 574 N.E.2d 1284 (Ill. App. 1991).

Vicarious Liability/Family Purpose Doctrine:  No Vicarious Liability Statute.

No Family Purpose Doctrine. Any negligence or willful misconduct of the minor when driving a motor vehicle shall be imputed to the person who signed the application. White v. Seitz, 342 Ill. 266 (Ill. 1930).

Illinois is one of three states with a guest statute (See Ala. & Ind.). Driver not liable for injury to hitchhiker. 625 I.L.C.S. § 5/10-201.

However, there is a general presumption of agency as between the owner of a vehicle and a driver. The owner must show that the driver was, in fact, not acting in capacity of the owner’s agent at the time of the incident. DeLeonardis v. Checker Taxi Co., 545 N.E.2d 155 (Ill. App. 1989).

Sponsor Liability for Minor’s Driving:  No Sponsorship Liability Statute.

Laws Regarding using Cell Phones/Headphones/Texting While Driving

Cell Phone/Texting:  A person cannot operate a vehicle on a roadway while using an electronic communication device. Exceptions include law enforcement officers or emergency vehicle operators while doing their duty, or if the device is hands-free or the driver is parked or sitting in traffic. 625 I.L.C.S. ֻ§ 5/12-610.2.

A person under the age of 19 who has an instruction permit or a graduated license may not drive while using a wireless phone.  625 I.L.C.S. § 5/12-610.1

No person, regardless of age, may use a phone while driving if in a construction/maintenance zone or school speed zone, or within 500 feet of an emergency scene.  625 I.L.C.S. § 5/12-610.1

Other Prohibitions:  Drivers cannot wear a headset receiver while driving. Exceptions include single ear headsets/earpieces used with phones, hearing aids, or equipment used exclusively for safety or traffic engineering studies, law enforcement personnel on duty or medical/fire service personnel. 625 I.L.C.S. § 5/12/610.

Loss Of Use

Loss of Use: Yes. Individuals may recover for:

1. reasonable cost of repairs, as long as the cost of repairs does not exceed the diminution in the value of the vehicle resulting from the collision and without repairs having been made;
2. diminution in the value of the car even after the repairs; and
3. loss of use of the car for the time reasonably necessary for the repairs to be made. Loss of use is calculated by the rental value of another vehicle, regardless of whether another vehicle is actually rented.

Fairchild v. Keene, 416 N.E.2d 748, 749 (Ill. App. 1981). Actual rental of a substitute vehicle is not required, as long as credible testimony of the value is available. Welter v. Schell, 252 Ill. App. 586, 589 (Ill. App. Ct. 1929). There is no recovery for loss of use when a vehicle has been substantially destroyed or is not substantially repairable. Latham v. Cleveland, C. C. & St. L. R. Co., 164 Ill. App. 559 (Ill. App. 1911).

Lost Profits: Yes. With commercial vehicles, if feasible to rent a replacement vehicle while the commercial vehicle is undergoing repairs, the cost of renting a replacement is a reasonable measure of damages. However, net profits loss is an appropriate alternative measure of damages for loss of use of vehicle while undergoing repairs. The determination of net profits lost should be based on either normal income which would be necessarily lost over a similar period if the vehicle was unavailable or on the business which vehicle owner in fact lost due to loss of use of the vehicle during that period of time, deducting from either of such measures the cost of operating the vehicle over that period of time. Plesniak v. Wiegand, 335 N.E.2d 131, 139 (Ill. App. 1975).

Med Pay/PIP Subrogation

Med Pay: Claim for reimbursement and/or subrogation allowed if provided for in the policy language. Bernardi v. Home & Auto. Ins. Co., 212 N.E.2d 499 (Ill. App. 1965); Damhesel v. Hardware Dealers Mut. Fire Ins. Co., 209 N.E. 876 (Ill. App. 1965).

PIP: Not generally sold in Illinois. No special statute limiting suit or providing credit if PIP is present.

Made Whole: Previously the Made Whole Doctrine was not applicable and Plan language could override. Eddy v. Sybert, 783 N.E.2d 106 (Ill. App. 2003). Effective 11/1/13, the Health Care Services Act requires a lien reduction for: (1) the insured’s comparative fault, or (2) the uncollectability of the full value of claim due to limited liability insurance. 770 I.L.S.C. § 23/50. The HCSLA also codifies the Common Fund Doctrine.

Statute of Limitations: The two (2) year personal injury statute of limitations runs from the date of the insured’s accident. 735 I.L.C.S. § 5/13-202.

Owner Liability For Stolen Vehicles

Key In The Ignition Statutes: 625 I.L.C.S. § 5/11-1401.

Common Law Rule: It has been held that the theft of a car is a consequence too remote to have been reasonably contemplated by the owner, and the affirmative act of the thief amounted to an intervening cause insulating any negligence of the owner of the vehicle. Childers v. Franklin, 46 Ill. App.2d 344, 197 N.E.2d 148 (5^th Dist. 1964).

However, several cases have held that in regard to a vehicle owner leaving his keys in the ignition in violation of a statute on public property, the statutory violations were prima facie evidence of negligence, but not necessarily the proximate cause of injury caused by a thief driving the vehicle. Kacena v. George W. Bowers Co., 211 N.E.2d 563 (1965); Ney v. Yellow Cab Co., 117 N.E.2d 74 (1954).

With regard to a vehicle owner leaving his keys in the ignition on private property, Illinois courts have held that no duty exists to a third party injured by the defendant’s stolen vehicle absent special circumstances that made the theft foreseeable. Hallmark Insurance Co. v. Chicago Transit Authority, 534 N.E.2d 501 (1989); Hensler v. Renn, 520 N.E.2d 1110 (1988); Ruyle v. Reynolds, 357 N.E.2d 804 (1976).

Payment of Sales Tax After Vehicle Total Loss

First-Party Claims:  Insurer must (1) offer a cash settlement based upon the ACV of a “comparable auto”, If within 30 days the insured buys or leases a new vehicle, the carrier must pay the applicable sales tax, transfer, and title fees in an amount equivalent to the value of the total loss vehicle, or (2) offer a replacement comparable auto including all applicable taxes, license fees, and other fees, if the insured purchases a vehicle with a market value less than the amount previously settled upon, the company must pay only the amount of sales tax actually incurred and include transfer and title fees. Ill. Admin. Code tit. 50, § 919.80(C).

Exhibit A to § 919 states: “If within 30 days of a cash settlement, you can prove that you have purchased another vehicle, the company must pay the applicable sales tax, transfer and title fees in an amount equivalent to the value of the total loss vehicle. If you purchase a vehicle with a market value less than the amount previously settled upon, the company must pay you only the amount of sales tax that you actually incurred and include transfer and title fees.”

Third-Party Claims:  No applicable statute, case law, or regulation governing recovery of sales tax. In a third-party claim, you don’t have a direct contract with the party you’re seeking to recover from and their primary obligation is to their own policyholder. https://idoi.illinois.gov/consumers/consumerinsurance/total-loss-auto-claim.html; Cramer v. Ins. Exch. Agency, 174 Ill.2d 513, 531, 675 N.E.2d 897, 906 (1996).

Pedestrian and Crosswalk Laws

Statute:

625 I.L.C.S. § 5/11-1002: Vehicles must stop for pedestrians on or near vehicle’s half of crosswalk. Pedestrians must not leave curb when cars are too close to stop in time. 

625 I.L.C.S. § 5/11-1003: Pedestrians must yield to cars when outside of crosswalks. No crossing diagonally. At intersections with traffic signals, pedestrians must use crosswalk to cross. Pedestrians with disabilities may cross a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk where the intersection is physically inaccessible to them, but they shall yield the right-of-way to all vehicles upon the roadway.

Summary: Pedestrians crossing city street have duty to so conduct themselves as to be free from contributory negligence. Zeller v. Durham, 33 Ill. App.2d 273, 179 N.E.2d 34 (Ill. App. Ct. 1962). Pedestrian crossing at other than crosswalk was not guilty of negligence per se or as a matter of law. Both pedestrian and driver had mutual duties to look out for one another. King v. Ryman, 5 Ill.App.2d 484, 125 N.E.2d 840 (Ill. App. Ct. 1955). Where a 58-year-old pedestrian was familiar with the four-lane highway, knew the speed limit was 35 mph, crossed the highway in a diagonal direction away from cross-walk, in front of a bus that was not exceeding 35 mph, and without attempting to yield to or avoid the bus, was guilty of contributory negligence. Soic v. Richardson, 42 N.E.2d 884, 315 Ill. App. 213 (Ill. App. Ct. 1942).

Rental Car Company Physical Damage and Loss of Use Claims

Recovery From Renter: Illinois statutes regulate and limit the physical damage the company can recover from the renter to the lesser of the actual and reasonable cost of repairs or the FMV of rental car. Total liability cannot exceed $40,000. Diminution in value recoverable. Nothing prohibits recovery of loss of use damages from renter. Ill. Stat. Ch. 605 § 5/6-305.2. Collision Damage Waiver must appear in bold 10-pt. font in rental contract with a specific statement set forth in statute. Must be agreed to in writing. Must also be posted in rental office, including terms, price, coverage, and exceptions. Ill. Stat. Ch. 625 § 27/20. CDW is only a waiver of a right by the car rental company, not insurance. Chabraja v. Avis Rent-A-Car, 549 N.E.2d 782 (Ill. 1989).

Recovery From Third-Party: There is no statutory limit on recovery from third parties for vehicle damage. Case law allows for owner of commercial truck (tractor-trailer) to recover loss of use. Nothing specifically for rental cars. With commercial vehicles, if feasible to rent a replacement vehicle while the commercial vehicle is undergoing repairs, the cost of renting a replacement is a reasonable measure of damages. However, net profits loss is an appropriate alternative measure of damages for loss of use of vehicle while undergoing repairs. The determination of net profits lost should be based on either normal income which would be necessarily lost over a similar period if the vehicle was unavailable or on the business which vehicle owner in fact lost due to loss of use of the vehicle during that period of time, deducting from either of such measures the cost of operating the vehicle over that period of time. Plesniak v. Wiegand, 335 N.E.2d 131 (Ill. App. 1975). Net profits loss, which is suffered by vehicle owner’s rental business and which is necessarily sustained while vehicle is undergoing repairs, is an appropriate alternative measure of damages for loss of use of vehicle while undergoing repairs. Plesniak v. Wiegand, supra; Koch v. Pearson, 1920 WL 1234 (Ill. App. 1920).

Rental Car Company’s Liability Insurance Primary or Excess

Summary: Owners of rental vehicles must demonstrate financial responsibility by obtaining insurance coverage for these vehicles. 625 I.L.C.S. § 5/9-101; 215 I.L.C.S. § 5/143a. However, compulsory insurance does not mean primary insurance. Illinois’ financial responsibility requirements of its Vehicle Code and the financial responsibility statutes applicable to owners of rental vehicles for hire do not prevent car rental companies from including rental contract terms that shift primary liability under insurance policies covering the lessee. Neither the Vehicle Code nor public policy requires car rental companies’ insurers to provide primary liability coverage. State Farm Mut. Auto. Ins. Co. v. Hertz Claim, 789 N.E.2d 407 (Ill. App. 2003).

Slower Traffic Keep Right

Statute: 625 I.L.C.S. § 5/11-701 (a) and (d).

Summary: Motorist may only use the left lane for passing other vehicles. Upon an interstate highway or fully access controlled freeway, a vehicle may not be driven in the left lane, except when overtaking and passing another vehicle. However, this does not apply when (1) no other vehicle is directly behind the vehicle in the left lane; (2) traffic conditions/congestion make it impractical to drive in the right lane; (3) weather conditions make it necessary to drive in the left lane; (4) when obstructions or hazards exist in the right lane; (5) when a vehicle changes lane to comply with §§ 11-907, 11-907.5, and 11-908 of this Code; (6) when, because of highway design, a vehicle must be driven in the left lane when preparing to exit; (7) on toll highways when necessary to use I-Pass, and on toll and other highways when driving in the left lane is required to comply with an official traffic control device; and (8) to emergency vehicles engaged in official duties and vehicles engaged in highway maintenance and construction. Motorist must drive in the right lane, except when overtaking and passing another vehicle proceeding in the same direction.

Sudden Medical Emergencies While Driving

Act of God Instruction. An Act of God is an unforeseeable sudden illness which renders a defendant incapable of controlling his vehicle and can preclude tort liability for a resulting collision. Grote v. Estate of Franklin, 573 N.E.2d 360 (Ill. 1991); Burns v. Grezeka, 508 N.E.2d 449 (Ill. 1987).

Liability is only precluded if the alleged Act of God constitutes the sole and proximate cause of the injuries. Evans v. Brown, 246, 925 N.E.2d 1265 (Ill. 2010).

Suspension of Drivers’ Licenses

Administrative Suspension: An accident report form must be filed with the Illinois DOT if the accident results in personal injury, death, or property damage of at least $500. 625 I.L.C.S. § 5/7-201. If evidence supports probable liability on the part of the person(s) certified as uninsured, his driver’s license is suspended forty-five (45) days after the mailing of notice his driver’s license and/or vehicle registration is suspended. 625 I.L.C.S. § 5/7-205(a).

Judgment: If a judgment debtor has failed to satisfy a judgment for thirty (30) days, the Secretary of State shall suspend the driver’s license of the judgment debtor. 625 I.L.C.S. § 5/7-303. Suspension will remain in place for three (3) years or until the judgment is satisfied. 625 I.L.C.S. § 5/7-305.

Contact Information: State of Illinois, Secretary of State, Department of Driver Services, 2701 S. Dirksen Parkway, Springfield, IL 62723, (217) 782-6212, https://www.ilsos.gov/departments/drivers/home.html

Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles

Authority: Ill. Admin. Code tit. 50 § 919.80(d)(5); 815 I.L.C.S. § 308/15.

Summary: Insurers must guarantee that non-OEM parts are of equal quality to their OEM counterpart. Any non-OEM parts used must identify their manufacturer in some way on the part and the mark identifying the manufacturer should be visible after the part is installed, if at all practical. The insured must be informed in writing that non-OEM parts are going to be used and must be given an estimate that identifies the non-OEM parts and a disclosure informing them that the manufacturer/distributor warrants the non-OEM part, not the auto manufacturer.

Municipal/County/Local Governmental Immunity and Tort Liability

Legal Authority:

Local Governmental and Governmental Employees Tort Immunity Act:  Lists exceptions to the liability of local governments and their employees, including legislative or discretionary functions. 745 I.L.C.S. § 10/2-101, et seq.  The Act does not impose duties but, instead, only confers immunities and defenses.  Kirschbaum v. Village of Homer Glen, 848 N.E.2d 1052 (Ill. App. 2006).

Public Duty Rule Abolished: Illinois municipalities used to be able to claim this defense, which states that is no common law duty to the general public for a municipality’s failure to enforce an ordinance or building code. However, the Illinois Supreme Court abolished the Public Duty Rule in 2016 in Coleman v. E. Joliet Fire Prot. Dist., 46 N.E.3d 741 (Ill. 2016). This is retrospective, so parties can look back to claims that were not recoverable in 2016 due to this Public Duty Doctrine.

Notice Deadlines: Suit against local entity and/or public employee must be filed within one (1) year of date cause of action accrued. 745 I.L.C.S. § 10/8-101(a). Suit against local entity for patient care must be brought within two (2) years after date on which claimant knew or should have known of injury, but in no event longer than four (4) years. 745 I.L.C.S. § 10/8-101(b).

Claims/Actions Allowed: Local government liable if there is a duty, except for:

• Adopt or fail to adopt or enforce law. § 2-103.
• Administration of licenses. § 2-104.
• Negligent inspection of property. § 2-105.
• Unsafe conditions of property with notice. § 3-106.
• Failure to supervise activity on public property. § 3-108.
• Hazardous recreation activity. § 3-109.
• Absolute immunity for discretionary acts as opposed to ministerial acts. § 2-201.
• Ministerial act is merely execution of set task, which law imposes. Nothing remains for judgment or discretion. Must point to act/omission.

Duty to maintain property (stop signs) in safe condition. Bubb v. Springfield Sch. Dist. 186, 657 N.E.2d 887 (Ill. App. 1995). Must be actual or constructive notice of dangerous condition in sufficient time to remedy. Mostafa v. City of Hickory Hills, 677 N.E.2d 1312 (Ill. App. 1997).

Comments/Exceptions: 

Discretionary Act. Municipality immune from liability for discretionary acts. They involve personal deliberation and judgment.

Ministerial Act. Municipality not immune for acts which a person performs on a given state of facts in a prescribed manner, in obedience to legal authority and without reference to discretion of the propriety of the act.

Burden on government to prove. Case by case basis. Strictly construed against government. §§ 2-109 and 2-201; Gutstein v. City of Evanston, 929 N.E.2d 680 (Ill. App. 2010).

Two-Prong test: (1) Employee’s Position: Must determine policy and exercise discretion.  (2) Employee’s Act: Does claim involve “discretionary policy determination”? Collins v. Bartlett Park Dist., 997 N.E.2d 821 (Ill. App. 2013).  No duty to install traffic signs or street lights. Once decided, however, liable if not maintained. Parsons v. Carbondale Township, 577 N.E.2d 779 (Ill. App. 1991). Operation of a sewage system is subject to statutory and regulatory guidelines and is ministerial. Trtanj v. City of Granite City, 884 N.E.2d 741, 750 (Ill. App. Ct. 2008).

Damage Caps:  No punitive damages (unless employee sued in personal capacity). 745 I.L.C.S. § 10/2-102. Purchase of liability insurance does not waive immunity. 745 I.L.C.S. § 10/9-103(c).

State Sovereign Immunity And Tort Liability

Tort Claims Act:  State Lawsuit Immunity Act. 745 I.L.C.S. § 5/1 (1972).  State is immune unless legislative exception.

Court of Claims Act. 705 I.L.C.S. § 505/1. All claims against the State for damages in cases sounding in tort, if like cause of action would lie against a private person or corporation shall be heard before the Court of Claims (7 judges). 705 I.L.C.S. § 505/8.

Notice Deadlines:  Tort claims against the State shall be filed within two years from when the claim arose. 705 I.L.C.S. § 505/22.

Claims/Actions Allowed:  Tort claims made against the State involving the negligent operation of a State vehicle are to be heard by the Court of Claims and are not limited to the $100,000 cap. 705 I.L.C.S. § 505/8(d).

Comments/Exceptions: Illinois State employees are immune from liability if their act or omission is discretionary in function. Michigan Ave. Nat. Bank v. Cty. of Cook, 191 Ill.2d 493, 732 N.E.2d 528 (2000); Harinek v. 161 N. Clark St. Ltd. P’ship, 692 N.E.2d 1177 (1998).

Discretionary acts of a local government and its employees are entitled to absolute immunity. Johnson v. Mers, 664 N.E.2d 668 (Ill. App. 1996). Discretionary acts are unique to public office and require deliberation, decision, or judgment. White v. Village of Homewood, 673 N.E.2d 1092 (Ill. App. 1996). Ministerial acts are generally performed in prescribed manner in obedience to legal authority. Snyder v. Curran Township, 657 N.E.2d 988 (Ill. 1995).

Damage Caps:  Claims for tort damages are limited to $100,000 if it does not involve the operation of a State motor vehicle. 705 I.L.C.S. § 505/8.  If State-owned vehicle operated by State employee, no limit.

Anti-Indemnity Statutes

Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. Indemnification for Negligence Act, 740 I.L.C.S. § 35/0.01, et seq. (§ 35/1-3).

Not applicable to insurance contracts or agreements, or construction bonds.

Contribution Actions

Modified Joint and Several Liability. Joint and several liability, except when a defendant is less than 25% liable, which leads to joint and several liability for medical and related expenses, but several liability for plaintiff’s other damages. 735 I.L.C.S. § 10-5/2-1117; Unzicker v. Kraft Food Ingredients Corp., 783 N.E.2d 1024 (Ill. 2002).

Right of contribution exists between two or more parties liable for injury or property damage even if there is no judgment against any or all of them. Dunbar v. Latting, 621 N.E.2d 232 (Ill. App. 1993). Liability of contribution defendant must be extinguished. Contribution also allowed where contribution plaintiff settles and in good faith obtains release which extinguishes liability of both contribution plaintiff and contribution defendant. Also applies anytime a plaintiff collects damages inconsistent with jury’s finding of percentage of responsibility. No contribution against parties who settle in good faith. 740 I.L.C.S. § 100/2 (1987); Fed. Ins. Co. ex rel. Nat’l Mfg. Co. v. Helmar Lutheran Church, 2004 WL 2921874 (N.D. Ill. Dec. 14, 2004). The Contribution Act “promotes settlement by providing that a defendant who enters a good-faith settlement with the plaintiff is discharged from any contribution liability to a non-settling defendant.” BHI Corp. v. Litgen Concrete Cutting & Coring Co., 827 N.E.2d 435 (Ill. 2005).

If suit is not filed, the statute of limitations is two years from the date of the contribution plaintiff’s payment. 740 I.L.C.S. § 15/13-204. If suit is filed, the statute of limitations is two years from the date the contribution plaintiff is served. 740 I.L.C.S. § 15/13-204. However, a plaintiff may not add a third-party contribution defendant as a direct defendant if the relevant statute of limitations has run. Ponto v. Levan, 2012 Ill. App. 2d 110355 (2nd Dist. 2012).

Contributory Negligence/Comparative Fault

Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Damages will be reduced pro-rata by amount of plaintiff’s negligence. 735 I.L.C.S. § 5/2-1116.

Dog Bite Laws

Dog owner will be liable for all injuries, even if not caused by a bite, absent provocation or trespass by the victim. 510 I.L.C.S. 5/16 § 16. The statute reads:

“§ 16. Animal attacks or injuries. If a dog or other animal, without provocation, attacks, attempts to attack, or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby.”

As of 1/1/22, insurance companies that write homeowners insurance will be required to report to the best of their ability all dog bite claims to the state.

Economic Loss Doctrine

Intermediate Rule. Illinois follows the Intermediate Rule and refers to the ELD as the “Moorman Doctrine.” The Moorman Doctrine precludes recovery of purely economic losses in tort for failure to fulfill contractual obligations. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7^th Cir. 2012); Catalan v. GMAC Mortgage Corp., 629 F.3d 676 (7^th Cir. 2011); Rardin v. T & D Machine Handling, 890 F.2d 24 (7^th Cir. 1989). Illinois defines “economic loss” as “damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits-without any claim of personal injury or damage to other property, as well as the diminution in the value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold.” Moorman Mfg. Co. v. National Tank Co., 435 N.E.2d 443 (Ill. 1982). Where only the defective product itself is damaged, the Moorman Doctrine applies and the plaintiff is limited to recovery under contract law. Trans States Airlines v. Pratt & Whitney Canada, Inc., 682 N.E.2d 45 (Ill. 1997). This is so because “when the product damages itself only, the risks against which products liability law was designed to protect simply are not realized.” Id.

There are three exceptions to the ELD: (1) where the plaintiff has sustained personal injury or property damage resulting from a sudden or dangerous occurrence; (2) where the plaintiff’s damages are proximately caused by the defendant’s intentional, false representation; and (3) where the plaintiff’s damages are proximately caused by the defendant’s negligent misrepresentation where the defendant is in the business of supplying information to guide others in their business transactions.” Progressive N. Ins. Co. of Illinois v. Ford Motor Co., 259 F. Supp.3d 887 (S.D. Ill. 2017). A plaintiff may not recover for solely economic damages such as damage to the product alone in tort, unless accompanied by injury or damage to “other property”. Id. In Great West Casualty Co. v. Volvo Trucks North America, Inc., 2013 WL 617068 (N.D. Ill. 2013), a new Volvo truck caught fire and was destroyed due to a defect. The truck was purchased in January of 2006, a recall was issued shortly thereafter, and the fire occurred in November of 2006 before the trucks were repaired. Volvo argued that Chicago Logistics’ (Great West’s insured) remedy lie in contract law and its request for tort damages under theories of strict liability, failure to warn, and negligence were barred by the Moorman Doctrine. Great West argued that the damage to truck was separate from the damage to the engine within; i.e., the truck was other property excluded from the bar of the Moorman Doctrine. However, the federal district court rejected that argument, pointing out that the Illinois Supreme Court had announced in Trans States Airlines v. Pratt & Whitney Canada, Inc., 682 N.E.2d 45 (Ill. 1997), that the truck and engine constituted a single product. This is because the plaintiff bargained for a fully integrated truck.

Recovery depends upon the nature of defect and the manner in which damage occurred. When the defect causes an accident “involving some violence or collision with external objects,” the resulting loss is treated as property damage. On the other hand, when the damage to the product results from deterioration, internal breakage, or other non-accidental causes, it is treated as economic loss. Exceptions exist when fraud or negligent misrepresentation are involved. In re Chicago Flood Litigation, 680 N.E.2d 265 (Ill. 1997).

A “sudden and dangerous occurrence” has somewhat circularly been defined as an occurrence that is “highly dangerous and presents the likelihood of personal injury or injury to other property.” Exxon Mobil Oil Corp. v. Amex Constr. Co., Inc., 702 F.Supp.2d 942 (N.D. Ill. 2010). The Court in Moorman had in mind fires, explosions, or other calamitous occurrences due to the product and the resulting risk of harm to persons or property. Loman v. Freeman, 890 N.E.2d 446 (Ill. 2008). A sudden, dangerous, or calamitous event by itself is not sufficient – it must be coupled with personal injury or property damage. Mere damage to any property is not sufficient; instead, the property must be “other property,” extrinsic from the product itself. Allstate Ins. Co. v. Pulte Homes of St. Louis, LLC, 2010 WL 4482360 (N.D. Ill. 2010); Progressive N. Ins. Co. of Illinois v. Ford Motor Co., 259 F. Supp. 3d 887 (S.D. Ill. 2017). In a subrogation action to recover for damages to a Ford F-150 which started on fire, a federal district court held that manufacturing defects which caused a “sudden or dangerous occurrence”, such as a fire leading to the complete destruction of the vehicle, is not sufficient to overcome the ELD, where the only damage is to the truck itself. Progressive N. Ins. Co. of Illinois v. Ford Motor Co., 2017 WL 1425953 (S.D. Ill. 2017). When damages to other property are properly pleaded, “the sudden and calamitous event exception to the economic loss rule … allows a plaintiff to pursue non-economic damages.” Allstate Ins. Co. v. Pulte Homes of St. Louis, LLC, 2010 WL 4482360 (N.D. Ill. 2010). Illinois law is well-settled that the sudden or dangerous occurrence exception only applies when a plaintiff incurs either personal injury or damages to property other than the defective product itself. Progressive N. Ins. Co. of Illinois v. Ford Motor Co., 259 F. Supp.3d 887 (S.D. Ill. 2017).

One possible theory of recovery is the manufacturer’s breach of its duty under the Illinois UCC, 810 I.L.C.S. 5/2–314 (2016), which provides “a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” In once case, Progressive claims that the subject truck was not merchantable and not fit for the ordinary purposes for which a truck is used because “it had a defective speed control deactivation switch … which constituted a hazardous and defective condition.” However, it only has a four-year statute of limitations, which runs from the date the vehicle is delivered to the owner. In Progressive Northern Ins. Co. of Illinois v. Ford Motor Co., 259 F.Supp.3d 887, 890 (S.D. Ill. 2017), the vehicle was delivered on 10/19/06, but suit wasn’t filed until 4/22/16, more than 10 years later. Ford argued that it was entitled to summary judgment on this claim because the relevant statute of limitations expired well before Progressive brought suit. Under Illinois law, the statute of limitations for a claim of breach of implied warranty is four years. 810 I.L.C.S. 5/2–725. The statute states, in relevant part:

(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued….

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

In other words, “a breach of an implied warranty is complete when a defective product is delivered, and the statute of limitations begins running at delivery, even if the buyer could not discover the defect until later.” Singer v. Sunbeam Prod., Inc., 2015 WL 4555188 (N.D. Ill. 2015); Cosman v. Ford Motor Co., 674 N.E.2d 61 (Ill. App. 1996) (under the UCC, “an implied warranty of merchantability only applies to the condition of the goods at the time of sale—not to their future performance”); Owens v. Glendale Optical Co., 590 F.Supp. 32 (S.D. Ill. 1984) (holding claim of implied warranty was untimely because “breach of warranty occurs when tender of delivery is made” and “the alleged breach occurred more than four years before” suit was filed); LaPorte v. R.D. Werner Co., Inc., 561 F.Supp. 189 (N.D. Ill. 1983) (noting that Illinois authorities “uniformly support th[e] straightforward reading” that § 2–725(2) “denies applicability of the discovery doctrine to all implied warranty actions”).

Parental Responsibility

Property Damage / Personal Injury. Parents liable for willful or malicious property damage or personal injury. 740 I.L.C.S. § 115/3. The limit of liability is $20,000.00 plus attorney’s fees. Child must be unemancipated and under 18-years-old.

Felony Institutional Vandalism. Parents liable for child’s damage to church, mosque, synagogue, cemetery, etc. 720 I.L.C.S. § 5/21-1.2. The limit of liability is $20,000.00 plus attorney’s fees. Child must be unemancipated and under 18-years-old.

Retail Theft. Parents civilly liable for retail theft by minor. 720 I.L.C.S. §§ 5/16-25, 5/16-27. The limit of liability is $20,000 for actual damages for the first act or occurrence of a willful or malicious act; $30,000 if a pattern or practice of willful or malicious acts by a minor exists. Also can recover taxable court costs and attorney’s fees. Child must be between 11 and 18.

Spoliation

Tort of Negligent Spoliation: The Supreme Court of Illinois has declined to recognize spoliation of evidence as an independent tort and instead held that a spoliation claim can be stated under existing negligence principles. Dardeen v. Kuehling, 213 Ill.2d 329, 335, 821 N.E.2d 227, 231, 290 Ill. Dec. 176, 180 (Ill. 2004); Boyd v. Travelers Ins. Co., 652 N.E.2d 267 (Ill. 1995), as modified on denial of reh’g (June 22, 1995). The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute, or another special circumstance, and a defendant may voluntarily assume a duty by affirmative conduct. In order to state a negligence claim, a plaintiff must allege that the defendant owed him a duty, that the defendant breached that duty, and that the defendant’s breach proximately caused the plaintiff damages. The Court tailored the duty element to spoliation claims: “The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute or another special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct. In any of the foregoing instances, a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.” Id. This claim requires conduct that is “deliberate [or] contumacious or [evidences an] unwarranted disregard of the court’s authority” and should be employed only “as a last resort and after all the court’s other enforcement powers have failed to advance the litigation.” Adams v. Bath and Body Works, Inc., 358 Ill.App.3d 387, 392, 830 N.E.2d 645, 651-655, 294 Ill. Dec. 233, 239 – 243 (Ill. App. 1^st Dist. 2005).

Sanctions: Sanctions for discovery violations are imposed pursuant to Supreme Court Rule 219. Sanctions for spoliation require mere negligence, the failure to foresee “that the [destroyed] evidence was material to a potential civil action“. Dardeen, 213 Ill.2d at 336, 290 Ill. Dec. 176, 821 N.E.2d 227. Rule 219(c) permits sanctions only where a party unreasonably fails to comply with a discovery order and that a “party who had nothing to do with the destruction of evidence cannot be said to have unreasonably failed to comply with a discovery order” because “[b]efore noncompliance can be unreasonable, a party must have been in a position to comply”. A party confronted with the loss or destruction of relevant, material evidence at the hands of an opponent may either: (1) seek dismissal of his opponent’s complaint under Rule 219(c); or (2) bring a claim for negligent spoliation of evidence. The mode of relief most appropriate will depend upon the opponent’s culpability in the destruction of the evidence. There are circumstances when destroying potential evidence before a request for preserving it was ever made can lead to sanctions even if there is no specific statute that required that records be kept. The Illinois Supreme Court noted that failure to produce relevant evidence because it was destroyed prior to filing a lawsuit can be sanctioned because of the duty a potential litigant owes to preserve relevant and material evidence. Shimanovsky v. General Motors Corp., 692 N.E.2d 286 (Ill. 1998). The Court reversed a dismissal of the case as a sanction for pre-suit destructive testing by the plaintiff, but agreed that a sanction was warranted as the sanction must consider the level of prejudice to the opposing party. There is no specific sanction that is mandated as sanctions are in the court’s discretion and the court must consider several factors, according to Shimanovsky: (1) the surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party’s objection to the testimony or evidence; and (6) the good faith of the party offering the testimony or evidence.

Statute of Limitations

Personal Property5 Years735 I.L.C.S. § 5/13-205

Personal Injury/Death2 Years735 I.L.C.S. § 5/13-202*

Personal Injury/MalpracticeVaries735 I.L.C.S. § 5/13-212

Breach of Contract/Written10 Years735 I.L.C.S. § 5/13-205

Breach of Contract/Oral5 Years735 I.L.C.S. § 5/13-206

Breach of Contract/U.C.C./Goods4 Years735 I.L.C.S. § 28/2-725

Statute of Repose/Products/After Sale Date to User10 Years735 I.L.C.S. § 5/13-213**

Statute of Repose/Products/After Delivery Date to Owner12 Years735 I.L.C.S. § 5/13-213**

Statute of Repose/Real Property10 Years735 I.L.C.S. § 5/13-214***

Breach of Warranty4 Years810 I.L.C.S. § 5/2-725****

Workers’ Comp Third Party Case2 Years820 I.L.C.S. § 305/5(b)

Strict Product Liability/Personal Injury2 Years735 I.L.C.S. § 5/13-202

Strict Product Liability/Personal Property5 YearsI.L.C.S. § 5/13-205

Statute of Limitations Exceptions

*4 Year SOL may apply if “design, planning, supervision, observation, management of construction, or construction of an improvement to real property” is involved. 735 I.L.C.S. § 5/13-214(a); Fed. Ins. Co. v. Konstant Architecture Planning, Inc., 902 N.E.2d 1213 (Ill. App. 2009).

**Shorter of 10 Years from sale date to initial user or 12 Years from delivery to first owner. 735 I.L.C.S. § 5/13-213.

***10 Years from improvement to real property, but after person had knowledge, 4 Years. 735 I.L.C.S. § 5/13-214.

****Except when an express warranty covers future performance past four-year SOL period. 810 I.L.C.S. § 5/2-725.

Health and Disability Insurance

Statute of Limitations: 2 Years. 735 I.L.C.S. § 5/13-202. (Statutes for medical mal-practice actions vary as defined in 735 I.L.C.S. § 5/13-212.)

Subrogation of Medical and Disability Benefits are allowed. Gibson v. Country Mut. Ins. Co., 549 N.E.2d 23 (Ill. 1990); In re Estate of Scott, 567 N.E.2d 605 (Ill. App. Ct. 1991). Made Whole Doctrine does not apply. (Illinois lien reduction statute applies – pro-rata reduction for comparative fault or limited liability insurance. 770 Ill. Comp. Stat. 23/50.) Common Fund Doctrine applies. Bishop v. Burgard, 764 N.E.2d 24 (Ill. 2002); 770 I.L.C.S. § 23/50.

Admissibility of Expert Testimony

Admissibility Standards: Frye

Case/Statutory Law:  Ill. R. Evid. 702

The second sentence of Rule 702 enunciates the core principles of the Frye test for admissibility of scientific evidence as set forth in Donaldson v. Central Illinois Public Service Co., 767 N.E.2d 314 (Ill. 2002).

Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims

Duty To Disclose: No.

Failure To Disclose A Basis For Bad Faith: Being informed of the policy limits in evaluating a case and its aid in achieving settlements is relevant in a bad faith claim. The fact that no offer is made is merely one factor to be considered. Cernocky v. Indemnity Ins. Co. of North America, 216 N.E.2d 198 (Ill. App. 1966). When an auto accident is involved, the liability carrier must disclose the policy limits under a personal private passenger auto policy upon receipt of the following:

(a) a certified letter from a claimant or any attorney purporting to represent any claimant which requests such disclosure and

(b) a brief description of the nature and extent of the injuries, accompanied by a statement of the amount of medical bills incurred to date and copies of medical records.

The disclosure shall be confidential and available only to the claimant, his attorney, and personnel in the office of the attorney entitled to access to the claimant’s files. The insurer shall forward the information to the party requesting it by certified mail, return receipt requested, within 30 days of receipt of the request. 215 I.L.C.S. § 5/143.24b.

Recording Conversations

All-Party Consent (One-Party for “private electronic communications”): The law in Illinois is confusing and in flux. For years, § 5/14-2(a) made it a crime to use an “eavesdropping device” to overhear or record a phone call or conversation without the consent of all parties to the conversation, regardless of whether the parties had an expectation of privacy. Illinois courts have ruled that “eavesdropping” only applied to conversations that the party otherwise would not have been able to hear, thereby effectively making it a one-party consent state. However, there still appears to be confusion and debate over the law. The statute had repeatedly and controversially been used to arrest people who have video-taped police. In People v. Clark, 6 N.E.3d 154 (Ill. 2014) and People v. Melongo, 6 N.E.3d 120 (Ill. 2014), the Supreme Court held that § 5/14-2 made it a crime to knowingly and intentionally use eavesdropping devices to hear or record all or any part of any conversation, unless done with consent of all parties to conversation or authorized by court order, was unconstitutionally overbroad on its face, declaring it unconstitutional.

On December 30, 2014, the statute was amended to permit recording of conversations in public places, such as in courtrooms, where no person reasonably would expect it to be private. The new statute draws a distinction between a “private” conversation and other public communications. The new statute includes language indicating that in order to commit a criminal offense, a person must be recording “in a surreptitious manner.” It addressed a number of circumstances where there were no legitimate privacy interests. The statute provides no guidelines or factors with regard to when an expectation of privacy is reasonable. While the statute leaves open to debate whether a particular  “private conversation” falls within the purview of the revised law, some argue that the new statute leaves no doubt that Illinois remains firmly within the minority of “all-party” consent states. The amended statute requires that all parties to an oral communication consent to the use of an eavesdropping device for that use to be lawful.

On the other hand, by negative implication, the amended statute also appears to establish a “one-party” consent rule for private electronic communications, by prohibiting only someone who is not a party to a conversation from surreptitiously using an eavesdropping device to intercept, record or transcribe such a communication (e.g., telephone, video conference, etc.). A private electronic communication is defined as “any transfer of signs, signals, writing, images, sounds, data, or intelligence … transmitted in whole or part by a wire, radio, pager, computer, electromagnetic, photo or optical system, when the sending or receiving party intends the electronic communication to be private under circumstances reasonably justifying that expectation. Therefore, by negative implication, the revised statute appears to permit someone who is a party to a telephone or a video conference to electronically record the call without notifying any other party to the call or obtaining their consent.

A first offense is a Class 3 felony (maximum 2-5 years and $25,000 fine) and a subsequent offense is a Class 2 felony (maximum 3-7 years and $25,000 fine).

720 I.L.C.S. § 5/14-2(a) (Illinois Eavesdropping Law); People v. Beardsley, 503 N.E.2d 346 (Ill. 1986); People v. Clark, 6 N.E.3d 154 (Ill. 2014).

Section 5/14-2(a)(1)(2) was amended in 2014 to make “eavesdropping” a felony if a person:

(1) Uses an eavesdropping device, in a surreptitious manner, for the purpose of overhearing, transmitting, or recording all or any part of any private conversation to which he or she is not a party unless he or she does so with the consent of all of the parties to the private conversation; or

(2) Uses an eavesdropping device, in a surreptitious manner, for the purpose of transmitting or recording all or any part of any private conversation to which he or she is a party unless he or she does so with the consent of all other parties to the private conversation.

(3) Intercepts, records, or transcribes, in a surreptitious manner, any private electronic communication to which he or she is not a party unless he or she does so with the consent of all parties to the private electronic communication;

Section 5/14-1 defines “eavesdropping” (a felony) as using any device capable hearing or recording oral conversation or intercept or transcribe electronic communications whether such conversation or electronic communication is conducted in person, by telephone, or by any other means.

The use of an eavesdropping device is surreptitious if it is done with stealth, deception, secrecy, or concealment. Therefore, it permits recording of conversations in public places, such as courtrooms, that no person could expect to be private.

“Matching Regulations” And Laws Affecting Homeowners Property Claims

Statute/Regulation: None.

Caselaw: Where an insurer and insured disagreed about whether it was appropriate to spot repair a roof that had been damaged by hail, the Court ruled in favor of the insurer based on the particularized facts of the case, rather than an overarching principal of law. Mohr v. American Auto. Ins. Co., 2004 WL 533475 (N.D. Ill., March 5, 2004).

If the insurer is unable to locate any siding that matches the undamaged siding, they must pay to replace all the siding. Windridge of Naperville Condominium v. Philadelphia Indem. Ins. Co., 932 F.3d 1035 (7th Cir. 2019).

Comments: The appraisal clause in a typical residential and commercial property insurance policy provides for an appraisal if the parties disagree as to “the amount of loss.” ISO Form HO 00 03 05 11, and ISO Form CP 00 10 10 12. While most courts have concluded that ascertaining the amount of loss does not include interpreting the policy or making coverage determinations, little guidance has been provided as to what coverage means and whether an appraisal can still proceed even if coverage issues exist. Runaway Bay Condominium Ass’n v. Philadelphia Indem. Ins. Co., 2017 WL 1478114 (N.D. Ill. 2017).

Condominium/Co-Op Waiver of Subrogation Laws

Associations are required to maintain property insurance, general liability insurance, and fidelity bonds. Each unit owner is an insured person under the policy. Additionally, the insurer waives its right to subrogation under the policy against any unit owner or members of the unit owner’s household and against the association and members of the board of directors. The unit owner also waives his or her right to subrogation under the association policy against the association and the board of directors. 765 I.L.C.S. § 605/12.

Damage to Property Without Market Value

Service Value:  “Computation based on the life expectancy of the pole and the other materials should be confined to the materials damaged and the costs of the replacement items.” Central Illinois Light Co. v. Stenzel, 195 N.E.2d 207 (Ill. App. Ct. 1964).

Intrinsic Value:   “…we believe that the law in Illinois is that where the object destroyed has no market value, the measure of damages to be applied is the actual value of the object to the owner.” Jankoski v. Preiser Animal Hosp., Ltd., 510 N.E.2d 1084 (Ill. App. Ct. 1987).

Sentimental Value:   “The concept of actual value to the owner may include some element of sentimental value in order to avoid limiting the plaintiff to merely nominal damages.” Jankoski v. Preiser Animal Hosp., Ltd., 510 N.E.2d 1084 (Ill. App. Ct. 1987).

General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims

Payment and Depreciation of GCOP/Sales Tax: If repairing or replacing the property requires a general contractor, as opposed to a single tradesman, then the “cost of repair or replacement” includes the industry standard GCOP. It is necessary to determine what must be replaced or repaired, who is qualified to perform that work, and how much it costs. This includes determining whether a general contractor is required. If so, GCOP is part of the loss. If not, no GCOP is owed. Windridge of Naperville Condo. Ass’n v. Philadelphia Indem. Ins. Co., 2017 WL 372308 (N.D. Ill. 2017). It is industry standard for a general contractor making repairs to charge “10 and 10,” or 10% for profit and 10% for overhead on top of amounts the general contractor pays to the subcontractors. In Windridge, a hail damage case, the court held that disagreement over whether GCOP is owed is a disagreement over the “amount of loss” and subject to an appraisal per the policy.

Landlord/Tenant Subrogation

Residential Lease. Illinois has until recently avoided per se rules with regard to the “Sutton Rule” (see Oklahoma) and taken a more flexible case-by-case approach, holding that a tenant’s liability to the landlord’s insurer for negligently causing a fire depends on the intent and reasonable expectations of the parties to the lease as ascertained from the lease as a whole. Dix Mut. Ins. Co. v. LaFramboise, 597 N.E.2d 622 (Ill. 1992). Dix was a case involving a residential lease. The Supreme Court said that although a tenant is generally liable for fire damage caused to the leased premises by his negligence, if the parties intended to exculpate the tenant from negligently caused fire damage, their intent – as expressed in the lease agreement – will be enforced. To make this determination, the lease must be interpreted as a whole so as to give effect to the intent of the parties. Stein v. Yarnall-Todd Chevrolet, Inc., 241 N.E.2d 439 (Ill. 1968).

The court in Dix noted that the residential lease did not contain a provision expressly apportioning fault in the case of a negligently caused fire, so the Court construed the lease as a whole and concluded that it did not reflect any intent that the tenant would be responsible for fire damage. Absent any such intent, the court—applying equitable principles (because subrogation is an equitable doctrine)—held that a tenant is considered a co-insured with the landlord by virtue of having paid rent which contributed to the insurance premiums, and the subrogated insurer could not sue its own insured for subrogation.

The rule, therefore, appears to be that a tenant will be an implied co-insured and cannot be sued by the landlord’s subrogee for fire or other damage unless a contrary intent can be gleaned from the four corners of the lease itself. Auto Owners Ins. Co. a/s/o John Ellis v. Thomas Callaghan, 952 N.E.2d 119 (Ill. App. 2011). Where a lease reflects the parties’ intent to place the responsibility for water damage on the tenants, they will not be considered implied co-insureds. Pekin Ins. Co. v. Murphy, 2014 WL 6092187 (Ill. App. 2014).

In Sheckler v. Auto-Owners Ins. Co., 215 N.E.3d 883 (Ill. 2022), the Shecklers leased a house from Ronald McIntosh. The lease agreement required the landlord to “maintain fire and other hazard insurance on the premises only” and required the tenant to “be responsible for any insurance they desire on their possessions contained in the leased premises.” The lease also contained an indemnification clause, which further exculpated McIntosh from any damages or injury occurring on the premises. Auto-Owners insured the landlord with a policy which included (1) first-party dwelling coverage and (2) third-party landlord liability coverage. The first-party dwelling coverage provided, in relevant part, coverage for fire damage to the premises. The third-party landlord liability coverage provided coverage for claims brought by third parties that the insured “becomes legally obligated to pay as damages because of or arising out of bodily injury or property damage.” The third-party landlord liability coverage also provided a duty to defend any claim or suit for damages covered by the policy. However, the third-party landlord liability coverage excluded from coverage “property damage to property occupied or used by an insured or rented to or in the care of, any insured.” The policy declarations listed McIntosh and his wife as the only named insureds. The landlord paid the premiums for the Auto-Owners policy out of the rent payments he received.

The rental property had a traditional gas stove and range. In late August 2015, the tenant notified the landlord that the oven and burner on the gas stove were not working. On August 26, 2015, the landlord hired Wayne Workman, an appliance service technician. Workman inspected the appliance and left the property to obtain a repair part. After Workman left, the tenants smelled gas and attempted to mask the odor by spraying a deodorizer before they then turned on the stove, which ignited, resulting in a fire that caused substantial property damage. As a result of the fire damage, Auto-Owners paid the landlord for damages and subrogated against Workman. Workman filed a contribution action against the tenants, who, in turn, tendered their defense to Auto-Owners. Auto-Owners rejected the tenant’s tender of defense based on the fact that the tenants were co-insureds under their policy. The tenants filed a declaratory judgment action in which the trial court ruled in favor of the carrier and found that it did not need to defend the tenants. On appeal, the tenants argued that they were “co-insureds” under Insurer’s policy because their rent payment had been used by the landlord to purchase his insurance. The lease also stated that the landlord would buy fire insurance for the entire building. The Court of Appeals agreed and reversed the trial court, finding that the tenants were co-insureds under the landlord’s policy. It held that Auto-Owners had a duty to defend the tenants from the worker’s third-party claim. The court said, “It is inequitable to find that there is no duty to defend in this case … On the facts of this case, finding that the insurer has a duty to defend its co-insured is a natural and necessary extension of Dix (see above) to prevent a subversion of its ruling.” The Court of Appeals held that carriers pursuing subrogation for damage to rental property will need to defend tenants from contribution claims just as they would have to defend contribution claims filed against the landlord. Auto-Owners appealed to the Illinois Supreme Court.

On November 28, 2022, the Illinois Supreme Court reversed the Court of Appeals, holding that the tenants were not insureds and, therefore, were not entitled to defense or indemnity. It rejected the Court of Appeals’ interpretation of Dix to mean that tenants are always “implied co-insureds” under a landlord’s property insurance policy. The Supreme Court distinguished Dix because it was a subrogation action that did not apply in this case because no “equitable principles” were at issue. The court in Dix applied equitable principles (because subrogation is an equitable doctrine) in order to arrive at the conclusion that a tenant is considered a co-insured with the landlord by virtue of having paid rent which contributed to the insurance premiums, and the subrogated insurer could not sue its own insured for subrogation.

This new ruling in Sheckler v. Auto-Owners confirms that the “implied co-insured” fiction which is created in cases in which a landlord’s property carrier attempts to subrogation property damage against one of the landlord’s tenants does not apply outside of the subrogation contest. It should be noted also that the Auto-Owners policy in question did not specifically list the tenants as “additional insureds” or “named insureds.”

In Philadelphia Indemnity Ins. Co. v. Gonzalez, 2024 WL 3220409 (Ill. App. 2024), a fire caused by the tenant damaged the landlord’s property and the landlord filed suit for both negligence and breach of contract (failure to pay damages). The lease clearly provided that the tenant would be liable for any damages or repairs. The tenant moved to dismiss the case, and the trial court dismissed the negligence claim (due to tenant being an implied coinsured), but not the breach of contract claim. On appeal, the court said that a tenant will not be responsible for damages to the property caused by the tenant’s negligence “unless the parties’ contrary intent is clear” from the terms of the lease. It noted that that Philadelphia and Gonzalez did not intend for Gonzalez to be generally liable for negligently caused fire damage outside of individual apartment unit of the tenant, and therefore affirmed the circuit court’s order limiting Philadelphia’s recoverable damages to those in the apartment unit only. Their interpretation of the lease was supported by the fact that the areas outside of Unit 601 are repeatedly and exclusively described using other terms besides “[P/p]remises” throughout the Lease. Specifically, the Lease uses the terms “property,” “common areas,” or “elsewhere in building” in referencing areas outside of Unit 601 in no fewer than 12 other Sections or Rules/Regulations, demonstrating the parties’ intent that whether capitalized or not, the term “[P/p]remises” referred only to the tenant’s unit.

Oral Lease. The same outcome results from an oral lease which contains only basic terms such as rent and duration of the lease. Cincinnati Ins. Co. v. DuPlessis, 848 N.E.2d 220 (Ill. App. 2006).

Commercial Lease. The same anti-subrogation rule which applies to residential leases applies to commercial leases. Nationwide Mut. Fire Ins. Co. v. T & N Master Builder & Renovators, 959 N.E.2d 201 (Ill. App. 2011). In Nationwide, a provision of the commercial lease agreement provided that commercial tenants that held over were liable for all damages sustained to property while in the tenant’s possession. However, this clause did not render the tenants liable for damages caused by fire, because the lease specifically excepted losses caused by fire.

Product Liability Law

Statute of Limitations/Repose: 2 years for personal injury and wrongful death. 735 I.L.C.S. § 5/13-202. Discovery Rule applies. Statute of Repose is 12 years. 735 I.L.C.S. § 5/13-213(b).

Liability Standards: Negligence, Strict Liability, Warranty.

Fault Allocations: Modified Comparative. 735 I.L.C.S. § 5/2-1116.

Non-Economic Caps/Limits On Actual Damages: No.

Punitive Y/N and Limits: Yes.

Heeding Presumption?: No.

Innocent Seller Statute: Yes.

Joint and Several Liability: Yes. 735 I.L.C.S. § 5/2-1117.

Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Government Contractor Defense; Presumption; Compliance With Government Standards; Sophisticated User.

Restatement 2^nd or 3^rd?: Both.

Anti-Subrogation Rule

An Insurer may not subrogate against its own insured or any person or entity that maintains a “co-insured” status. Dix Mut. Ins. Co. v. LaFramboise, 597 N.E.2d 622 (Ill. 1992). ASR does not preclude an insurer from asserting a subrogation claim against its own insured where the policy does not cover the risk at issue. LaSalle Nat’l Bank v. Massachusetts Bay Ins. Co., 958 F. Supp. 384 (N.D. Ill. 1997). An insurer may subrogate against a party covered by a different policy issued by that same insurer, as long as the party’s policy limits are sufficient. Benge v. State Farm Mut. Auto. Ins. Co., 697 N.E.2d 914 (Ill. App. Ct. 1998). If the party’s limits are inadequate, the subrogating carrier may have a conflict of interest. Id. If a party is an insured under the liability policy, they can still be subrogated against under the collision policy. Universal Underwriters Group v. Pierson, 787 N.E.2d 296 (Ill. App. Ct. 2003). If a contract or lease requires an insured to carry insurance for the benefit of another, the other party might attain the status of co-insured. Reich v. Tharp, 521 N.E.2d 530 (Ill. App. Ct. 1987). Where a general contractor purchases a policy in the name of the property owner for the mutual benefit and protection of both the general contractor and the property owner, the insurer is barred from seeking indemnification from the general contractor when they are defending the property owner. Vandygriff v. Commonwealth Edison Co., 408 N.E.2d 1129 (Ill. App. Ct. 1980).

In LaSalle Nat. Bank, a man intentionally burns down the home that he and his wife live in, and as a result, the home’s insurers pay the wife for her losses and then seeks subrogation against the husband for payments made to the wife. The court rules that because the policy explicitly did not apply to intentional acts, the ASR did not bar the insurer from asserting subrogation claims against the husband. In Benge, the court considered whether an insurance carrier can exercise its subrogation rights under one policy against a party it insures under a different policy. The court held that the auto insurer could, without violating the ASR or public policy, assert a policy’s subrogation provision to avoid paying physical damage coverage benefits after it had already paid for the damage under the liability coverage of an unrelated policy it had coincidentally issued to the at-fault driver, where no conflict of interest existed insofar as the at-fault driver’s liability coverage exceeded the property damage coverage. In Pierson, Universal Underwriters Group (“UUG”) insured a car dealership that permitted Pierson to borrow a car. Pierson was subsequently involved in an accident and UUG paid for the damage to the car. UUG then brought a subrogation action against Pierson. The court permitted the subrogation action on the basis that because subrogation is allowed when there are two separate policies, UUG could defend Pierson under the third-party liability portion of the policy and subrogate for damage to the vehicle itself under the collision policy.

Criminal Restitution

If a defendant is convicted for a violation of the Illinois Criminal Code, and the victim suffered a personal injury or damage to his/her property as a result, a court can order the appropriate criminal restitution.

According to the Illinois statute, an insurance carrier who has indemnified the victim may be entitled to restitution of the appropriate “out-of-pocket expenses, losses, damages, or injuries” but specifically disavows restitution for damage awards of pain and suffering. 730 I.L.C.S. § 5/5-5-6.

Made Whole Doctrine

Illinois does not apply the Made Whole Doctrine as a blanket rule, and it does not recognize the Made Whole Rule the way other states do. In re Estate of Scott, 567 N.E.2d 605 (Ill. App. 1991). Illinois recognizes the validity of subrogation clauses in insurance policies and enforces them. Principal Mut. Life Ins. Co. v. Baron, 964 F. Supp. 1221 (N.D. Ill. 1997). In Illinois, the effect of a subrogation clause is identical to that of a reimbursement clause. Id. Illinois state courts will enforce contractual subrogation rights even if the insured is not fully compensated for all of his or her injuries. Id.; Capitol Indem. Corp. v. Strikezone, 646 N.E.2d 310 (Ill. App. 1995); Eddy v. Sybert, 783 N.E.2d 106 (Ill. App. 2003). However, Illinois still encourages the use of the Made Whole Doctrine in “appropriate circumstances.” In re Estate of Scott, supra; In re Estate of Schmidt, 398 N.E.2d 589 (Ill. App. 1979) (insurer had no right to be subrogated to insured’s widow’s right of recovery and wrongful death action where terms of subrogation contained in policy specifically provided that insurer was to be subrogated to insured’s right of recovery for loss and, under the Wrongful Death Act, the insured decedent has no right to recover for his own death). In Illinois, the doctrine of subrogation will be applied according to the dictates of “equity, good conscience, and public policy considerations” whenever a contractual subrogation provision is not present. In re Scott, supra. Case law in Illinois indicates that the Made Whole Doctrine can be overridden by contract terms in a policy or Plan. Hardware Dealers Mut. Fire Ins. Co. v. Ross, 262 N.E.2d 618 (Ill. 1970). Such a clause in a policy need not be specific, but must be enforceable. Strikezone, supra; Eddy v. Sybert, 783 N.E.2d 106 (Ill. App. 2003).

A new twist on the Made Whole Doctrine was passed by the Illinois Legislature on August 21, 2012 and became effective on January 1, 2013. Effective January 1, 2013, the Health Care Services Lien Act (HCSLA) was amended to add a new § 23/50. 2012 Ill. Legis. Serv. P.A. 97-1042 (H.B. 5823) (Eff. Jan. 1, 2013). This amendment codifies the Made Whole Doctrine in subrogation cases and other reimbursement actions by proportionately reducing such claims by the plaintiff/insured’s comparative fault or by proportionately reducing such claims in the amount in which a claim is deemed to be uncollectible due to limited liability insurance. 770 I.L.C.S. § 23/50.

Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule

Collateral Source Rule: Common law CSR since 1970. It is both a rule of evidence and a rule of damages. Damages not reduced by collateral sources. Pitts. C. & St. L. Ry. Co. v. Thompson, 1870 WL 6491 (Ill. 1870); Arthur v. Catour, 833 N.E.2d 847 (Ill. 2005). Benefits from source independent of, and collateral to, the tortfeasor will not diminish damages, and are inadmissible. Illinois follows Restatement (Second) of Torts § 920(A)(2). Wills v. Foster, 892 N.E.2d 1018 (Ill. 2008).

Recovery of Medical Expenses Rule:

Medicare/Medicaid: “Reasonable value” approach used. Plaintiff can recover the reasonable value of services without distinguishing between those who have insurance or government benefits and those who do not. Wills v. Foster, 892 N.E.2d 1018 (Ill. 2008).

Private Insurance: “Reasonable value” approach used. Plaintiff entitled to submit the full, reasonable value of her medical bills to the jury and was not limited to recovery of the discounted amount. any windfall involving the apportionment of damages should be awarded to the plaintiff rather than the defendant. Plaintiff may present in evidence amount that was actually billed by the healthcare providers. Arthur v. Catour, 833 N.E.2d 847 (Ill. 2005).

Related Law/Comments:

Medical Malpractice: Two types of post-verdict reductions (1) 50% of benefits paid to the plaintiff by collateral source for lost wages or disability income related to the injury, and (2) 100% of medical expenses paid to plaintiff by collateral source. 735 I.L.C.S. § 5/2-1205. Doesn’t apply if: (1) reduction not sought in 30 days; (2) subrogation exists; (3) no reduction beyond 50% of verdict; (4) verdict increased by premiums plaintiff paid; and (5) charges attributable to negligent act. Medical bills “written off” by third party are not “actually paid” to the medical provider or the plaintiff, thus verdict cannot be reduced by this written-off amount. Miller v. Sarah Bush Lincoln Health Ctr., 56 N.E.3d 599 (Ill. App. 2016).

Employee Leasing Laws

Illinois’ statute provides that unless the employee leasing contract specifies otherwise, both the employee leasing company and the client employer are protected by the Exclusive Remedy Rule. 215 I.L.C.S. 113/45.

Hospital Lien Laws

Statute: Illinois Statute Chapter 770 §§ 23/1 – 23/999. Health Care Services Lien Act.

Perfecting Lien: To properly protect a lien in Illinois:

(1) The lien shall include a written notice containing name and address of injured person, date of the injury, name and address of health care professional or health care provider, and name of party alleged to be liable to make compensation to the injured person for injuries received. 770 § 23/10 (b).

(2) The lien notice shall be served on both the injured person and party against whom the claim or right of action exists. Notwithstanding any other provision of this Act, payment in good faith to any person other than the healthcare professional or healthcare provider claiming or asserting such lien prior to the service of such notice of lien shall, to the extent of the payment so made, bar or prevent the creation of an enforceable lien. 770 § 23/10 (b).

(3) Service shall be made by registered or certified mail or in person. 770 § 23/10 (b).

Comments: The total amount of all liens under this Act shall not exceed 40% of verdict, judgment, award, settlement, or compromise secured by or on behalf of the injured person on his or her claim or right of action. 770 § 23/10 (a).

If total amount of all liens under this Act meets or exceeds 40% of verdict, judgment, award, settlement, or compromise, then: (1) all liens of health care professionals shall not exceed 20% of verdict, judgment, award, settlement, or compromise;  and (2) all liens of health care providers shall not exceed 20% of verdict, judgment, award, settlement, or compromise; provided that health care services liens shall be satisfied to the extent possible for all health care professionals and health care providers by reallocating the amount unused within the aggregate total limitation of 40% for all health care services liens under this Act;  and provided further that the amounts of liens under paragraphs (1) and (2) are subject to the one-third limitation under this subsection. 770 § 23/10 (c).

Notice of judgment or award. A judgment, award, settlement, or compromise secured by or on behalf of an injured person may not be satisfied without the injured person or their authorized representative first giving notice of judgment, award, settlement, or compromise to the health care professional or health care provider that rendered a service in treatment, care, or maintenance of injured person and that has served a lien notice pursuant to subsection (b) of § 10. The notice shall be in writing and served upon the lienholder or, in the case of a lienholder operated entirely by a unit of local government, upon the individual or entity authorized to receive service under § 2-211 of the Code of Civil Procedure. 770 § 23/15.

Items to which lien attaches. The lien of a health care professional or health care provider under this Act shall, from and after time of service of lien notice, attach to any verdict, judgment, award, settlement, or compromise secured by or on behalf of injured person. If verdict, judgment, award, settlement, or compromise is to be paid overtime by means of annuity or otherwise, any lien under this Act shall be satisfied by party obligated to compensate injured person to fullest extent permitted by § 10 before establishment of annuity or other extended payment mechanism. 770 § 23/20.

OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases

OCIP Law: No statute or case law specifically dealing with effect of OCIP/CCIP.

Statutory Employer Law: Owner or contractor who contracts any part of work to a subcontractor is liable for workers’ compensation benefits to the employees of any such contractor or subcontractor unless the direct employer has provided benefits. 820 I.L.C.S. § 305/1(a)(3).

Comments: Owner or contractor who provides workers’ compensation benefits to the employees of an uninsured subcontractor may not claim immunity under the Exclusive Remedy Rule as a “statutory employer. Laffoon v. Bell & Zoller Coal Co., 359 N.E.2d 125 (Ill. 1976); Statewide Ins. Co. v. Brendan Constr. Co., 578 N.E.2d 1264 (Ill. App. 1991).

Recovery Of Increased Workers’ Compensation Premiums By Employer

Recovery For Increased Premiums? Undecided.

Statute/Case Law: Mount Mansfield Insurance Group v. American International Group, Inc., 2006 WL 6203621 (Ill. App. 2006).

Rule Summary: There is no authority or precedent allowing or prohibiting the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor. In Mount Mansfield, an insurance group sued AIG with whom they’d contracted to form a captive insurance program, seeking recovery for increased workers’ compensation premiums that each company experienced, and would continue to experience, due to increases in each of the company’s experience modifiers as a result of defendant’s improper claims handling. Unfortunately, the viability of a claim for recovery of increased premiums from a tortfeasor was not discussed.

Which Workers’ Compensation “Benefits” Can Be Subrogated?

Section 305/5 provides that the employer/carrier is entitled to reimbursement of “the amount of compensation paid or to be paid by him.” If the carrier prosecutes the third-party action, it must pay to the employee “any amount in excess of the amount of such compensation paid or to be paid under this Act.”

Illinois has declared items such case management fees and expenditures unrecoverable because such medical rehabilitative services provided by the claims coordinator at the insurance company’s direction were presumably provided for the benefit of the carrier and were not reimbursable necessary medical or rehabilitative services. Cole v. Byrd, 656 N.E.2d 1068 (Ill. 1995). In Cole, the particular expense at issue was the medical rehabilitation coordinator services of a licensed professional nurse provided by Professional Rehabilitation Management (PRM). The court noted that the Illinois Act authorizes reimbursement for necessary medical and rehabilitation services, not for an insurer’s expenses, even though the insurer’s expenses may in some way provide a benefit to an injured employee.

An employer’s obligation to provide medical and rehabilitative services has been interpreted broadly. An employer has an obligation to provide such things as assisted home care, nursing care, and remodeling expenses. Burd v. Industrial Comm’n 566 N.E.2d 35 (Ill. App. 1991) (fiancée’s nursing services to paralyzed employee were necessary medical expense); Zephyr, Inc. v. Industrial Commission, 576 N.E.2d 1 (Ill. App. 1991) (modification of home to make it wheelchair accessible to accommodate employee’s paralysis was necessary medical expense); But see Rousey v. Industrial Comm’n, 587 N.E.2d 26 (Ill. App. 1992) (spouse’s housekeeping services and supervision of employee were not necessary medical expense). An argument can be made that an employer’s right to reimbursement must be just as broad as the employer’s obligation to provide medical care.

With regard to recovery by the carrier of attorneys’ fees paid to the employee’s workers’ compensation claim attorney, an unpublished decision appears to include 20% attorneys’ fees in the worker’s compensation lien even though this was not the issue on appeal. Sanchez v. Rental Serv. Corp., 2013 WL 860039 (Ill. App. 2013).

Workers’ Compensation Subrogation Waiver Endorsements

Subrogation Statute: 820 I.L.C.S. § 305/5(b)

Waiver Allowed? Yes. Chicago Transit Auth. v. Yellow Cab Co., 442 N.E.2d 546 (Ill. App. 1982).

Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided.

Other Applicable Law: Waivers in the property insurance area are also routinely upheld. Intergovernmental Risk Mgmt. v. O’Donnell, 692 N.E.2d 739 (Ill. App. 1998). Further, Illinois courts have distinguished waivers of subrogation from indemnity agreements. Intergovernmental Risk Mgmt. v. O’Donnell, 295 Ill. App. 3d 784 (1^st Dist. 1998).

Workers’ Compensation

Statute of Limitations:  2 Years. 820 I.L.C.S. § 305/5(b).

Can Carrier Sue Third Party Directly:  Yes, 3 months before the statute of limitations runs.

Right to Intervene:  Yes.

Recovery from UM/UIM Benefits:  No.

Subrogation Against Medical Malpractice:  Yes.

Subrogation Against Legal Malpractice:  No.

Recovery Allocation/Equitable Limitations:  The carrier gets first money off the top, less attorney’s fees.

Employer Contribution/Negligence:  No, Kotecki Contribution only, up to Kotecki cap.

Attorney’s Fees/Costs:  Pro-Rata. Limited to 25%.

Future Credit:  Yes, 25% of the future benefits owed as attorney’s fees.

Auto No-Fault:  No.

Workers’ Compensation Claims by Undocumented Employees

Y/N/U:  Y

Statute: Expressly includes “aliens” as employees.  820 Ill. Comp. Stat. § 305/1(4)(b)(2).

Case Law:  Econ. Packing Co. v. Ill. Workers’ Comp. Comm’n, 901 N.E.2d 915 (1st Dist. 2008).

Comments/Explanation/Other: Econ. Packing Co. held that the Illinois Workers’ Compensation Act allows benefits including PTD benefits to be awarded to undocumented aliens, and it is not preempted by federal immigration law.