Archive for the ‘ Wrongful Death ’ Category

What Is The Illinois Survival Act?

Posted on: August 26, 2017 by in Wrongful Death
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Most people have a rather general idea what a wrongful death lawsuit is. A wrongful death in Illinois is a death caused by another person’s negligence. A wrongful death claim can be brought by the survivors of the deceased against the individual whose negligence allegedly caused the death, even if there was no intent or premeditation. The Illinois Wrongful Death Act gives the surviving family members of wrongful death victims the legal right to recover the financial compensation they need to move forward with their lives after a wrongful death strikes a family.

Historically, however, a victim’s own right to sue for damages evaporated upon his or her death. This reality sometimes led to financial hardships for surviving family members, who might be responsible for the victim’s final medical and funeral costs but had no legal way to claim reimbursement for those costs. In response to families in such circumstances, lawmakers in our state passed the Illinois Survival Act. The Illinois Survival Act permits a deceased person’s estate to recover those damages that the deceased person may have recovered if he or she had not passed away.

HOW ARE THE SURVIVAL ACT AND THE WRONGFUL DEATH ACT DIFFERENT?

The Illinois Survival Act and the Illinois Wrongful Death Act can both be used to help the surviving family members of wrongful death victims, but the two statutes have different functions and work in different ways, so if you lose a loved one unexpectedly, you may need to know the distinction. The Illinois Wrongful Death Act allows a decedent’s next of kin to sue an at-fault party for damages suffered by family members as a result of a loved one’s death. Such damages can include a decedent’s share of the household income, emotional support, loss of companionship, and for surviving spouses, loss of consortium.

Unlike the Illinois Wrongful Death Act, which recognizes the legal rights of surviving family members, the Illinois Survival Act is not concerned directly with the survivors but only with the victim of a wrongful death. The Survival Act preserves the deceased person’s right to pursue a legal claim even beyond that person’s death. To take advantage of the Illinois Survival Act, the wrongful death victim’s surviving family members must first establish an estate on behalf of the decedent.

WHAT CAN A DECEDENT’S ESTATE OBTAIN WITH A SURVIVAL CLAIM?

In Illinois, the executor of the decedent’s estate will be appointed by the probate court. The executor may then file a claim under the Illinois Survival Act to recover damages that the decedent would have claimed if the decedent had survived, including compensation for all medical expenses, lost earnings, and related losses from the time of the fatal accident through the time of death. The decedent’s estate may also receive reimbursement for funeral and burial or cremation costs.

Additionally, if the wrongful death victim was a plaintiff at the time of the wrongful death in any pending personal injury, discrimination, or defamation lawsuit in the state of Illinois, his or her estate may continue to press that claim under the Illinois Survival Act. However, compensation for a decedent’s pain, suffering, and emotional distress are not made available through the Survival Act.

Stated simply, the Illinois Wrongful Death Act allows survivors to recover the family’s damages, while the Illinois Survival Act allows a decedent’s estate to recover the decedent’s damages. To receive all of the compensation available to an Illinois family after a wrongful death, surviving family members may choose to take advantage of both the Illinois Wrongful Death Act and the Illinois Survival Act. However, under either statute, family members must demonstrate that their loved one’s death was a wrongful death caused by negligence.

Many wrongful death lawsuits are triggered by fatal traffic crashes caused by careless and negligent drivers, but wrongful deaths also happen in a variety of scenarios. If a doctor fails to diagnose a patient’s kidney disease, or if a landlord fails to replace or repair a dilapidated stairway, a wrongful death could occur. Families need time to grieve and heal after losing a loved one, but after a wrongful death, they also need immediate and sound legal advice.

When a survival claim is filed on a decedent’s behalf, any damages obtained belong to the estate and are used to satisfy the deceased person’s creditors. In some cases, survivors might choose to forego a survival action, especially if the compensation available to the estate is limited, such as a modest auto insurance policy. Because every family’s circumstances will be different, having the expertise and insights of an experienced Chicago wrongful death attorney is imperative.

IS THERE A TIME LIMIT FOR WRONGFUL DEATH AND SURVIVAL CLAIMS?

In 2015, an Illinois appeals court determined that this state’s two-year statute of limitations – the amount of time you have to file a lawsuit – begins on the date of the wrongful death for both wrongful death lawsuits and survival claims. Who can file a wrongful death lawsuit in Illinois? Survivors entitled to pursue a wrongful death action are the “next of kin,” a spouse or a blood-related family member who would routinely and automatically inherit from a decedent if the decedent died without a will (or in legal terms, died “intestate”).

Clearly, when someone loses a beloved family member through a wrongful death, no sum or amount will assuage the pain, but wrongful death and survival claims can help the survivors satisfy their immediate financial obligations and avoid potential hardship. Wrongful death and survival claims can also hold accountable the person or persons whose negligence caused the wrongful death. Although it will be difficult at a time of grieving, in the greater Chicago area, it is imperative to speak with an experienced Chicago wrongful death attorney as swiftly as you can if your own family suffers the wrongful death of a loved one.

What is Loss of Consortium Worth?

Posted on: August 17, 2016 by in Wrongful Death
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“Loss of consortium” is a legal claim for damages suffered by the spouse or another immediate relative of a person who has been injured or killed as a result of a defendant’s negligent, intentional, or otherwise wrongful act or acts. The term refers to the deprivation of the benefits of family relationships due to the injuries or wrongful death. While some jurisdictions only recognize spousal consortium (generally meaning sex), others recognize parental consortium (love and affection) and allow children to recover for the death or disability of a parent and vice versa.

In a wrongful death case argued before the Indiana Court of Appeals in July, the three-judge panel heard arguments regarding several of the most basic questions about loss of consortium claims in wrongful death cases. How much compensation is too much for the loss of consortium? What kind of proof should be required for a loss of consortium claim to prevail? How much discretion should a jury have in such cases? And when should a jury’s award for loss of consortium damages be overturned by an appeals court?

WHAT WERE THE DETAILS OF THE CASE?

When Phillip Amsden helped another truck driver change a tire on I-65 in 2010, an impaired driver named Jeffrey Cleary crashed into Amsden’s truck, killing him instantly. Cleary’s blood alcohol content (BAC) level measured three times the legal limit, and he was sentenced to fourteen years on the Class B felony criminal charge of operating a motor vehicle with a Blood Alcohol Concentration level over 0.15 percent.

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Patricia Amsden filed a wrongful death claim against Jeffrey Cleary, and the two bars where Mr. Cleary was drinking. She was represented at the five-day trial by wrongful death attorney Stephen D. Phillips of the Chicago-based Phillips Law Offices. Jurors awarded the Amsden estate $25 million. The award was selected by both Verdict Search and the National Law Journal as one of the top verdicts of 2015.

WHAT WAS THE ISSUE BEFORE THE COURT OF APPEALS?

Before the Indiana Court of Appeals in July 2016, defendants alleged that the jury’s award was based exclusively on emotion, not economic facts. However, Chicago wrongful death attorney Stephen D. Phillips cited precedent that cautions appellate courts from second-guessing jurors’ decisions. Judge Patricia Riley questioned whether the Court of Appeals should even consider overturning the jury’s verdict. “That was the value they put on it,” she said. “Why should we supplant our judgment for the judgment of the jury?”

Responding to the claim that the jury’s award was based exclusively on emotion, Judge James Kirsch said, “Isn’t that true of consortium claims in every case where there’s a loss of spouse? I don’t know what economist is going to come in and quantify the monetary value of the loss of a spouse. So it’s always a very gray area for a jury.”

Chicago wrongful death attorney Stephen D. Phillips disputed the claim that the verdict was the product of emotion alone. “It’s not as though we stood up and we just said ‘Look, he was killed by a drunk who got hammered in two bars and you should give her a lot of money,’” he said. “We spent a lot of time making sure they got evidence to avoid the claim this is all sympathy and we’re just up here tugging at your heartstrings.”

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Attorney Phillips also cited an Indiana Court of Appeals ruling in Ritter v. Stanton (2001). In that case, a jury awarded $55 million for an injury claim that included $12 million for loss of consortium. The Court of Appeals held that when damages cannot be precisely calculated, a jury has the right to make an educated decision regarding the case, and the “Supreme Court of Indiana has said multiple times that appellate courts and supreme courts and trial courts should be very, very, very loath to set aside a jury verdict unless they can find a really good reason,” attorney Phillips added. The case was argued July 27 before Judges Kirsch, Riley, and Rudolph Pyle III.

Phillips Law Offices’ Verdict Selected As One Of The Top 100 Verdicts Of 2015

Posted on: April 30, 2016 by in Wrongful Death
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In 2010, when Phillip Amsden stopped to change a tire for another trucker on I-65 in Indiana, an intoxicated driver named Jeffrey Cleary crashed into Amsden’s truck, pinning Amsden between the two trucks and killing him instantly. Attorneys Stephen D. Phillips and Jill M. Webb of the Phillips Law Offices represented Mr. Amsden’s wife of 40 years, Patricia, who represented her husband’s estate, and after a five-day trial, a jury awarded the Amsden estate $25 million. The verdict was selected by Verdict Search, a top provider of verdict and settlement research, as one of the Top 100 Verdicts of 2015. Read the details and their coverage of the case here:

Verdict Search’s Top 100 Verdicts of 2015

The Most Infamous Wrongful Death Cases

Posted on: March 20, 2015 by in Wrongful Death
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When someone is accused of contributing to the death of someone through their negligent actions, they may face two different types of charges.  The criminal charges will argue that a crime has been committed, and the person that broke the law should be punished with incarceration.  In the civil suit, which seeks to reward compensation to the families of the victim, a person that has contributed to or caused the death of another, will be faced with a heavy financial amount that they will be ordered to pay the victim’s relatives.  Below, our wrongful death attorneys take a look at some of these most infamous wrongful death cases and the results.

The O.J. Simpson Case

In recent history, this has to be the most well-known wrongful death case.  After a very lengthy trial covered round the clock on television, O.J. Simpson was found not guilty in the criminal trial for the death of his ex-wife, Nicole, and her friend Ron Goldman.  After the verdict, the families of Nicole and Ron filed a wrongful death suit, which was held in civil court.  The families were awarded over $33.5 million.  This case has been tied up by the court, and neither family has received much of anything from the case.

The Death of Michael Jackson

In 2010, Michael Jackson’s father, Joe, filed a wrongful death lawsuit against Dr. Conrad Murray, Michael’s personal physician.  He has testified that Michael had trouble with insomnia.  The doctor had administered regular doses of Propofol, which is an anesthetic given to patients before surgery.  It is not recommended as a sleeping aid.  Dr. Murray administered it in such a large dosage that it killed the pop star.  The suit that Joe Jackson filed was not successful.

Melissa Ducket (Nancy Grace’s Guest)

Nancy Grace, who works for CNN, was preparing for her talk show on CNN, when things took a turn for the worse when Nancy started to badger the young woman, who was a guest on the show and whose son had disappeared. Melissa killed herself before the show aired.  Her family received a settlement of $200,000 in 2010.  The money is to be paid to the child, if he is found. Since 2006, and to this day, no one knows his whereabouts.

1970’s Ford Motor Pinto Explosions

Ford may never live down the Pinto debacle.  Pinto’s were manufactured with a gas tank that was mounted to the car in the back.  When they were involved in an accident, it didn’t take much to turn them into an explosive, fiery blaze.  This endangered drivers, passengers, and first responders to accidents.  There were numerous wrongful death claims filed against Ford, and they were settled or adjudicated in court, and the car was taken off the market.

The Phil and Brynn Hartman Case

Many people loved comedian Phil Hartman… especially his work on the popular Saturday Night Live show.  It was shocking when the nation learned that he had been killed by his wife, Brynn.  After she killed her husband, she used the gun to kill herself.  Brynn had been taking Zoloft at the time, as treatment for panic attacks.  After her death, her brother sued Pfizer, the company that manufactures Zoloft, in a wrongful death suit.  Pfizer settled the case out of court, and the amount of the settlement has been kept secret as a condition of the settlement.

For more information, speak to a wrongful death lawyer at our law firm today.