How Does a Personal Injury Claim Work in Ilinois?
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After an accident, many people know they may have the right to seek compensation, but they may not know what actually happens after a personal injury claim is made.
Do you contact the insurance company first? Do you need to file a lawsuit? How are medical bills handled? What happens if the other person says the accident was your fault?
The answers depend on the circumstances of the injury and the type of claim involved.
In Illinois, a personal injury case generally involves determining whether another party was legally responsible for the injury, documenting the losses that resulted, and pursuing compensation through an insurance claim, settlement, litigation, or another appropriate legal process.
Understanding the general process can help injured individuals for harm caused by another person's conduct.
Personal injury cases can arise from many different situations, including:
Car and truck accidents
Motorcycle accidents
Pedestrians accidents
Slip-and-fall incidents
Premises liability
Construction accidents
Dog bites
Defective products
Certain workplace-related incidents
Other situations involving negligence or wrongful conduct
The legal theory involved depends on the circumstances.
In a typical negligence case, the injured person generally must establish that the defendant owed a duty of care, failed to use the required level of care, and that the failure was a proximate cause of the injury.
The Illinois Pattern Jury Instructions identify negligence, injury, and proximate cause among the issues a plaintiff may need to establish in a negligence action.
Step 1: Seek Medical Attention
After and accident, medical treatment should be the first priority when someone is injured.
Some injuries are immediately obvious, while others may not become apparent until later.
Medical records can also provide important documentation concerning:
The nature of the injury
Treatment received
Diagnostic testing
Recommended follow-up care
Physical limitations
Prognosis
Future treatment
Following medical recommendations and keeping records of treatment can help create a clear history of the injury.
Step 2: Preserve Evidence
Evidence can become harder to locate as time passes.
Depending on the circumstances, potentially relevant evidence may include:
Photographs of the accident scene
Photographs of injuries
Vehicle or property damage
Medical records
Police reports
Witness contact information
Surveillance video
Employment records
Pay records
Insurance information
Accident reports
Relevant text messages or emails
The type of evidence needed will depend on the specific case.
For example, a motor vehicle accident may involve photographs, crash reports, vehicle damage, witness statements , and insurance information. A premises liability claim may involve photographs of the condition that allegedly caused the injury, incident reports, surveillance footage, and information about who controlled the property.
Step 3: Determine Who May Be Legally Responsible
Not every accident automatically creates successful personal injury claim.
The circumstances must be examined to determine whether another party may be legally responsible.
For example, in a negligence case, an attorney may investigate:
What happened?
What was the other person or business required to do?
Was that duty breached?
Did the breach cause the injury?
What losses resulted?
The Illinois Pattern Civil Jury Instructions explain that a plaintiff in a basic negligence case has the burden of proving the defendant's negligence, an injury or property damage, and the defendant's negligence was a proximate cause of the injury or damage.
Step 4: Identify the Full Extent of the Damages
An injury can create more than immediate medical expenses.
Depending on the circumstances, damages may involve:
Medical Expenses
These can include costs associated with:
Emergency treatment
Hospitalization
Surgery
Physician visits
Prescription medication
Physical therapy
Diagnostic testing
Rehabilitation
Lost Income
An injury may prevent someone from working or reduce their ability to earn income.
Documentation may include:
Pay stubs
Tax records
Employer statements
Work schedules
Records of missed work
Pain and Suffering
Personal injury claims can also involve non-economic losses.
Illinois law recognizes non-economic damages as losses that are intangible, including matters such as pain and suffering, disability, disfigurement, loss of consortium, and loss of society.
Other Losses
Depending on the case, damages may also involve future medical expenses, reduces earning capacity, property damage, and other losses supported by the evidence.
The Illinois Pattern Civil Jury Instructions contain separate instructions addressing damages, future damages, mitigation, and other damages-related issues.
Step 5: Deal With the Insurance Company
In many personal injury case, an insurance company becomes involved.
The insurance company may investigate:
How the accident occurred
Who was involved
The extent of the injuries
Available insurance coverage
Medical treatment
Property damage
Other claimed losses
An insurance claim may ultimately result in a settlement.
However, an insurance company's initial evaluation or settlement offer does not necessarily establish the full value of a claim.
Before accepting a settlement, an injured person should understand what the settlement resolves and whether it releases future claims related to the incident.
Step 6: Determine Whether a Settlement Is Appropriate
Many personal injury claims are resolved through settlement rather than a trial.
A settlement is an agreement in which the parties resolve the dispute without requiring a court to decide the case after trial.
Settlement negotiations may involve consideration of:
Liability
Medical evidence
Lost income
Future damages
Insurance coverage
Evidence concerning the accident
The strengths and weaknesses of the claim
Illinois law also contains specific provisions concerning the settlement of personal injury and other tort claims, including requirements concerning written confirmation, releases, and certain third-party reimbursement or subrogation interests.
Because settlement documents can have significant legal consequences, an injured person should understand the terms before signing a release.
Step 7: File a Lawsuit When Necessary
If the parties cannot reach an appropriate settlement, filing a lawsuit may become necessary.
A lawsuit generally involves:
Filing a complaint
Serving the defendant
The defendant responding
Discovery
Motions and other pretrial proceedings
Settlement negotiations
Trial, if the case is not resolved beforehand
Discovery allows the parties to obtain information and evidence relevant to the claims and defenses.
Depending on the case, discovery may involve:
Written questions
Requests for documents
Requests for admissions
Depositions
Medical records
Expert testimony
Not every lawsuit reaches trial. Cases may settle at different stages of litigation.
Step 8: Understand Comparative Negligence
One of the most important concepts in Illinois personal injury law is comparative negligence.
An injured person does not necessarily lose a claim simply because they may have contributed to an accident.
Under 735ILCS 5/2-1116, a plaintiff in an applicable negligence or strict-liability action is barred from recovering damages if their contributory fault is more than 50% of the proximate cause of the injury or damage.
If the plaintiff's contributory fault is 50% or less, the damages awarded are reduced in proportion to the plaintiff's percentage of fault.
For example, if a plaintiff were found to be 20% at fault and the proven damages were $100,000, the damages would generally reduce by 20%, resulting in $80,000.
This is only an illustration. Actual cases involve evidence, legal arguments, and factual determinations that can be much more complicated.
Step 9: Pay Attention to Illinois Filing Deadlines
A personal injury claim cannot necessarily be pursued indefinitely.
Illinois generally provides a two-year statute of limitations for actions for damages for an injury to the person under 735 ILCS 5/13-202.
However, the applicable deadline can vary depending on the type of claim and the circumstances.
For example, claims involving medical treatment, governmental entities, minors, wrongful death, or particular statutory causes of action may involve different rules or deadlines.
For that reason, someone who has been injured should not assume that every Illinois personal injury case has the same filing deadline.
Waiting until the deadline is close can also make it more difficult to investigate the claim and preserve evidence.
What Happens if the Case Goes to Trial?
If a personal injury case proceeds to trial, both sides have an opportunity to present evidence.
Depending on the case, evidence may include:
Witness testimony
Medical records
Photographs
Expert testimony
Accident reports
Financial records
Other relevant documents
The plaintiff generally has the burden of proving the required elements of the claim.
The Illinois Court's Pattern Civil Jury Instructions include the instructions addressing negligence, burden of proof, causation, comparative negligence, and damages.
At the end of the trial, the judge or jury makes the applicable determinations under the law and evidence presented.
How Long Does an Illinois Personal Injury Claim Take?
There is no universal timeline.
Some claims may resolve relatively quickly through insurance negotiations. Others may take considerably longer, particularly when:
The injury is severe
Treatment is ongoing
Liability is disputed
Multiple parties are involved
Insurance coverage is complicated
Expert testimony is necessary
A lawsuit is filed
The case proceeds toward trial
The lenght of a case should not be determined simply by how quickly an insurance company wants to settle.
The circumstances of the injury and the available evidence should be considered when evaluating how to proceed.
Common Mistakes to Avoid After an Injury
Waiting Too Long to Seek Medical Care
Delaying treatment can make it harder to establish a clear medical record.
Failing to Keep Records
Keep copies of medical bills, treatment records, receipts, employment documentation, and other relevant information.
Giving a Recorded Statement Without Understanding the Purpose
Insurance companies may request statements about an accident. Before providing a statement, it can be useful to understand what is being requested and why.
Posting About the Accident on Social Media
Public posts, photographs, and videos can potentially become relevant to a dispute.
Avoid making public statements about fault, injuries, or the value of your claim without understanding how those statements could be used.
Accepting a Settlement Without Reviewing the Release
A settlement may involve signing a release that affects future claims related to the incident.
Understand what you are agreeing to before signing.
When Should You Talk to a Personal Injury Attorney?
Consider seeking legal advice if:
You suffered significant injuries
Your medical treatment is ongoing
Another party disputes responsibility
An insurance company denies your claim
You are being asked to provide a recorded statement
Your injuries affect your ability to work
You may need future medical treatment
Multiple parties may be responsible
You are unsure about the applicable deadline
An attorney can review the circumstances and explain what legal options may be available.
Frequently Asked Questions
Do I have to file a lawsuit to receive compensation?
-Not necessarily. Some personal injury claims are resolved through insurance negotiations and settlement. A lawsuit may become necessary when the parties cannot reach an agreement.
How long do I have to file a personal injury lawsuit in Illinois?
-For many personal injury actions, Illinois law provides a two-year limitations period under 735 ILCS 5/13-202. However, exceptions and different deadlines can apply depending on the type of claim and circumstances.
What if I was partially responsible for the accident?
-Illinois uses a modified comparative negligence rule for applicable claims. If your contributory fault is 50% or less, your damages are generally reduced proportionally. If your contributory fault is more than 50%, the statute bars recovery.
What if the insurance company offers me a settlement?
-You do not have to assume that an initial settlement offer represents the full value of your claim. Consider the extent of your injuries, treatment, financial losses, potential future damages, and the terms of any proposed release before accepting an offer.
What happens if my injury requires future treatment?
-Future medical expenses and other future damages may be relevant in an appropriate case. The evidence needed to establish those damages will depend on the circumstances and the nature of the injury.
A personal injury claim in Illinois is more than simply contacting an insurance company after an accident.
The process can involve investigating what happened, establishing liability, documenting injuries and financial losses, dealing with insurance companies, negotiating a settlement, and potentially filing a lawsuit.
Illinois law also places important limits and requirements on personal injury claims, including the state's statute of limitations and comparative negligence rules.
If you have been injured because of someone else's conduct, understand the process early can help you protect important evidence and make informed decisions about your legal options.
An experienced Illinois personal injury attorney can review the facts of your situation, explain the applicable law, and help you understand the steps that may be available.
DISCLAIMER: This article is for informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Laws change regularly and the application of any rule depends on the specific facts of each case. For guidance regarding your specific situation, please contact A & L, Licker Law Firm, LLC directly.
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