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DID YOU KNOW THAT

Useful Information from Parad Firm's Files 

To be used for educational purposes only and should not be construed as legal advice.

Contracts

 
  • Anyone who signs a contract has a duty to read it.

  • If a party has an opportunity to read a contract, but doesn't, that party will not later be able to claim ignorance.

  • Exceptions: 

    • ​If a party signs a contract under the belief that it is in fact another type of instrument, the contract is void.

    • If party is shown only the signature page of the contract, the duty to read does not apply.

  • The Merger Doctrine - latest contract supersedes prior contracts and current understandings

    • A complete, valid, written contract merges and supersedes all prior and contemporaneous negotiations and agreements dealing with the same subject matter.

    • A subsequent contract is executed which relates to the same subject matter and embraces the same terms as a previous contract, then actions by the parties, based upon the contract, must be based upon the provisions of the subsequently executed contract.

    • Merger will fail if the second contract does not satisfy all the terms of the original agreement.

    • Merger may not occur when the last contract covers only a part of the subjects embraced in the prior one, and it plainly appears, from the character of the contracts, that the last one was not intended to be in performance of the former one, and that the provisions in the former, not embraced in the latter, were intended to remain unaffected.

  • Proof of a breach of contract:

    • Show the existence of a verbal or written contract by letters, emails, text messages;

    • The plaintiff's complete performance of all contractual obligations;

    • The defendant's breach of that contract and resulting damages.

  • Elements of contract novation:

    • A previous, valid obligation

    • A subsequent agreement of all the parties to the new contract

    • The extinguishment of the old contract

    • The validity of the new contract.

 

Rules for Pedestrians

  • Pedestrians Shall: 

    • ​​​Obey the instructions of any official traffic control device applicable to him, unless otherwise directed by a police officer.

    • Move, whenever practicable, upon the right half of crosswalks.

    • Walk only on a shoulder, as far as practicable from the edge of the roadway, where a sidewalk is not available, while walking along and upon a highway.

    • Walk only on the left side of the roadway while walking along and upon a two-way roadway highway and as near as practicable to an outside edge of a roadway, and, if where neither a sidewalk nor a shoulder is available.

    • Yield the right-of-way to all vehicles upon the roadway when a pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection.

    • Yield the right-of-way to all vehicles upon the roadway when crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided.

    • Yield the right-of-way to all vehicles upon the roadway while walking upon a roadway.

    • Yield the right-of-way to the authorized emergency vehicle upon its immediate approach using audible and visual signals, or a police vehicle properly and lawfully using an audible signal only.

  • Pedestrians Shall Not: 

    • Suddenly leave a curb or other place of safety and walk or run into the path of a moving vehicle which is so close as to constitute an immediate hazard.

    • Walk or be upon a highway except on a sidewalk if a pedestrian is under the influence of alcohol or any drug to a degree which renders himself a hazard shall.

    • Walk along and upon an adjacent roadway where a sidewalk is provided and its use is practicable.

    • Cross at any place except in a marked crosswalk if traffic-control signals are in operation between adjacent intersections.

    • Cross a roadway intersection diagonally unless authorized by official traffic-control devices pertaining to such crossing movements.

    • Enter or remain upon any bridge or approach thereto beyond the bridge signal, gate, or barrier after a bridge operation signal indication has been given.

    • Pass through, around, over, or under any crossing gate or barrier at a railroad grade crossing or bridge while such gate or barrier is closed or is being opened or closed.

    • Enter, remain upon or traverse over a railroad grade crossing or pedestrian walkway crossing a railroad track when an audible bell or clearly visible electric or mechanical signal device is giving warning of the presence, approach, passage, or departure of a railroad train or railroad track equipment.

    • Pass through, around, over, or under any crossing gate or barrier at a railroad grade crossing or bridge while such gate or barrier is closed or is being opened or closed.

    • Enter or remain upon any bridge or approach thereto beyond the bridge signal, gate or barrier after a bridge operation signal indication has been given.

  • Pedestrians shall not cross:

    • A roadway other than in a crosswalk on any through street  or between intersections

    • The roadway of a limited-access street or highway other than constructed pedestrian crossings or within marked crosswalks.

    • A roadway where a public pedestrian tunnel or bridge has been provided and where appropriate signs or fencing are erected.

  • Vehicle drivers should consider child’s unpredictable behavior:

    • Ignoring the "walk" signal at an intersection

    • Entering traffic and disrupt the flow

    • Failing to use marked crosswalks

    • Darting in front of a vehicle

    • Looking into their iPads, texting or talking on cell phones while walking

    • Running onto roadways after a ball, playing tag, or to get to an ice cream truck.

  • Parents’ responsibility and vigilance tips for keeping children safe on the streets:

    • Watch your children constantly, especially when they are playing near the roads

    • Hold your child’s hand while walking along or crossing the street

    • Talk to / teach your child about stopping and looking both ways before crossing

    • Do not let the kids play without an adult’s supervision particularly at dusk

    • Do not let them ride a bike not equipped with light reflectors.

 

Litigation

  • Amendments to complaint could be made at any time before final judgment if the proposed amendment:

    • Cures the defective pleading 

    • No prejudice or surprise to other parties 

    • Is timely.

  • Judgment by default may be entered when the defendant is served and: 

    • Does not appear and answer the filed complaint, 

    • But not for a greater sum than stated in the plaintiff’s affidavit.

  • Prejudgment interest is 5% per year for 

    • ​All moneys after they become due on any bond, bill, promissory note, or

    • Other instrument of writing.

  • Post-judgment interest is 9% per year from the date of judgment until satisfied. 

  • A foreign judgment is recognized as an original Illinois judgment from the day the foreign judgment is filed with the Illinois Circuit Court. 

  • Proof of spoliation of evidence:

    • Loss or destruction of evidence made the plaintiff unable to prove an underlying lawsuit.

    • Actual damages that plaintiff has suffered due to an inability to succeed in an otherwise valid, underlying cause of action.

    • There is no other source for obtaining destroyed evidence.

    • A threat of future harm, not yet realized, is not actionable.

 

Worker Compensation

WC Claim + ADA 

  • If an injured worker was fired while being treated for work injury, this employee may request the Equal Employment Opportunity Commission (“EEOC”) to issue a notice of right to sue the employer for discrimination under:

    • ​Title VII of the Civil Rights Act

    • the Americans with Disabilities Act of 1990.

Work Injury Compensation

  • An employee is entitled to benefits provided under the Illinois Worker Compensation Act (“IWCA”) for injury arising from and in the course of employment.

  • Illegal aliens (who came from Poland, Ukraine, Lithuania, Bulgaria, Mexico and other countries) have the right to receive compensation for work injuries, and in case of their death or disability resulting from work injury, their children and spouse are entitled to compensation.

  • Employee who caused the injurious incident is entitled to all WC benefits for work injury.

  • An Independent contractor paying for own taxes, insurance, vacation and sick days is not entitled to worker compensation benefits.

Misclassification of Employees as Independent Contractors 

  • Trucking and construction companies may misidentify their employed workers and drivers as independent contractors to avoid payment of required taxes, fringe benefits and WC insurance premiums.

  • Workers/ drivers may in fact be the employees eligible for WC benefits in view of the “economic reality” tests and case-specific factors as the hiring trucking company usually:

    • Had a continuous work relationship with this driver

    • Required the driver to devote full time to its business

    • make oral or written reports of progress, and follow its order of work

    • Provided tools, vehicle/ trailer and materials for the job performance

    • Made it impossible for the driver to work for other employers at the same time

    • Had the right to discharge/terminate the driver’s employment at will

    • Set the cargo delivery deadlines

    • Forced the driver to work per company’s own schedule

    • Set the pay rate for the job requiring no special skills or training, except the CDL/driver’s license

    • Made a driver’s job an integral part of the business depending on the driver’s performance success

    • Purchased gas and vehicle insurance

    • Did not permit to have passengers or assign their driving duties to other drivers

    • Maintained the driver’s employment records

    • Required drivers to report the vehicle collisions, perform pre-trip inspections, keep a logbook,

    • provide call-in status updates daily, facilitate truck or trailer lease

    • Instructed the driver as to when, where, and how to complete the tasks (e.g., a cargo delivery to designated destinations on certain dates.

  • Employers must have WC insurance which covers:

    • Payment of medical bills for injury treatment;

    • Payment of 2/3 of average weekly wage for time off work due to injury;

    • Loss of use of injured body parts;

    • Vocational counseling and occupational retraining.

  • Employee’s 2 choices for doctor selection.

    • Injured employee may choose two medical providers and any other providers to whom the employee is referred by these initial 2 providers and

    • Choose any doctor or hospital, even if the provider is outside the employee’s regular insurance network, and

    • Go to any doctor to whom the employee is referred by that provider or employer.

    • Employee may then choose another doctor or hospital,

    • If the employee chooses a third doctor without the employer’s approval,

    • The employer is not required to pay for those services.

    • First aid and emergency care are not considered to be one of the worker’s two choices.

  • The employer lacking worker compensation insurance for employee:

    •  May be fined up to $500 for every day it lacked insurance, with a minimum $10,000 fine.

    • The employee should give the employer's name and address, and the date of injury, to the Commission's Insurance Compliance Division (inscompquestions.wcc@illinois.gov; toll-free 866/352-3033).

    • Loses the protections of the Workers’ Compensation Act for the period of noncompliance:

    • An employee who was injured during the period of noncompliance may sue in civil court, where there are no limits on awards.

  • Injury must arise from and in the course of employment:

    • Proof of injury at work and related to employer’s business includes

    • Witness statements as to the incident events

    • Complaints of pain/ injury to colleagues and medical providers

    • Records of paramedics who took the injured worker from the place of the injury

    • CCTV camera video recordings

    • Employer’s and/or police investigation reports

    • All medical records and employment records,

    • Electronic communications and other evidence tracing the injured worker’s pain and movement restriction complaints to the employer’s nurses, co-workers and supervisors, treating physicians and hospitals.

  • A functional capacity evaluation (“FCE”): 

    • Tests conducted by physical or occupational therapists to determine

    • The restrictions on work-related activities after the work injury treatment completion so to

    • Resolve disputes as to the extent and duration of injures, vocational planning and return to job.

 

Injuries in Nursing Homes

  • Nursing home residents often die from COVID-19 because the facilities:

    • Are shorthanded as employees have gotten sick or quit out of fear of constant exposure 

    • Conduct no new employee orientation and give adequate training

    • Provide no personal protection equipment (gowns, respirators, gloves…) to the staff

    • Cannot attract and retain the qualified personnel for low-wage, high-stress jobs

    • Do not report to the government that the facility is understaffed

  • Residents’ Injuries at Nursing Homes: Elderly and fragile residents in nursing homes are vulnerable, confused and completely reliant upon the nursing home for their wellbeing in view of their medical diagnoses, and therefore require a high level of vigilance of care and supervision. For example, staff’s failure to monitor residents who are at risk of falling, may cause their fall-caused fractures, brain injury, death, irreversible health deterioration, loss of cognition and independence in doing daily activities.

  • Nursing Homes are sued for their failure to:

    • Prevent and promptly treat pressure / bed sores of bedridden residents

    • Adequately nourish and hydrate a resident

    • Protect the resident from abusive or hostile acts of staff or another resident

    • Prevent improper use of restraints or prescribed medication’s administration

    • Notify a physician or family member of a significant change in resident’s condition

    • Develop and implement a care plan to meet the resident’s unique needs

    • Monitor the residents to avoid their falls, wandering, choking on food or elopement.

  • Duty to preserve evidence by nursing homes:

    • Each skilled nursing facility shall designate an employee as the person responsible for ensuring that the facility's medical records are completed, maintained and preserved.

    • The nursing facility shall keep an active medical record for each resident.

    • This resident record shall be kept current, complete, legible and available at all times.

 

Vehicle Insurance 

  • Car rental companies must provide statutory minimum coverage of at-fault driver-renter:

    • ​A motor vehicle liability bond in the penal sum of $100,000.

    • Proof of insurance for minimum of $50,000 person/$100,000 occurrence.

    • A certificate of self-insurance issued by the Ill. Dept. of Insurance.

    • Self-insured rental car company is liable for entire judgment for damages caused by driver of rental car under IL Vehicle Code.

  • Car rental company’s self-insurance is not insurance but assurance – assurance that judgments will be paid.

  • Car rental company’s payments to injured victims (for its direct tort liability) are not reduced by uninsured motorist carrier’s payment to the victim according to their contract. 

  • Minimum Insurance Policy Limits: 

    • No one may operate a motor vehicle or allow a vehicle to be operated without obtaining sufficient insurance.

    • $25,000 per person or $50,000 per accident for personal injury or death and $20,000 for property damages.  

 

  • Underinsured / UIM auto insurance policy covers the compensation for injuries:

    • In excess of the at-fault party’s liability policy surrendered to the insured / injured

    • Driver and passenger in case of their insufficient injury compensation.

    • There must be either direct or indirect physical contact between the hit-and-run vehicle and

    • The insured person (e.g., a pedestrian) or vehicle.\

  • Insurance policy as coverage denial is enforceable where:

    • The insured occupies a vehicle she owns, but which is not the insured vehicle

    • Vehicles located for use as a residence, such as motor homes

    • Vehicles designed primarily for off-road use.

  • A car insurance coverage and defense of the insured in case of car accident may be denied if:

    • The insured stated a wrong residence address in an insurance application

    • Car was used for business purposes not mentioned in the application

    • Insurance premium was paid late.

Corporations + Executives 

 
  • A corporation is a legal entity separate and distinct from its shareholders, directors, and officers. In re Rehabilitation of Centaur Insurance Co., 158 Ill. 2d 166, 172 (1994).

    • ​A corporate entity will be disregarded, and the corporate veil pierced, where the corporation is an alter ego or business conduit of the governing or dominant personality. 

    • To Pierce the Corporate Veil:

    • There must be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist;

    • Circumstances exist that adherence to the fiction of a separate corporate existence would sanction a fraud, promote injustice, or promote inequitable consequences

Animal Attacks + Injuries 

 
  • The owner of a dog or animal is liable for injuries

    • Directly caused by that dog /animal’s attack, without provocation, or

    • On any peaceably conducting person in any place.

  • “Owner” of the dog/animal who caused injuries to any person is:

    • Any person having a right of property in an animal, or

    • Who keeps or harbors an animal, or

    • Who has it in his care, or

    • Acts as its custodian, or

    • Who knowingly permits a dog to remain on any premises occupied by him or her.

847.418.2020 / 773.725.2020

© 2020, Parad Law Offices, P.C.

*“Selection to America’s Top 100 High Stakes Litigators® is by invitation only and is reserved to identify the nation’s most exceptional trial attorneys in high value, high stakes legal matters. To be considered for selection, an attorney must have litigated a matter (1) with at least $2,000,000 in alleged damages at stake or (2) with the fate of a business worth at least $2,000,000 at stake. These minimum qualifications are required for initial consideration. Thereafter, candidates are carefully screened through comprehensive Qualitative Comparative Analysis based on a broad array of criteria, including the candidate’s professional experience, litigation experience, significant case results, representative high stakes matters, peer reputation, and community impact in order to rank the candidates throughout the state… less than one-half percent (0.5%) of active attorneys in the United States will receive this honor — truly the most exclusive and elite level of attorneys...” June 14, 2020 Press Release – Announcing the selection of Boris Parad among America’s Top 100 High Stakes Litigators® for 2020. www.Top100HighStakesLitigators.com