 |
Home | Search | Browse | About IPO | Staff | Links |
|
Home | Search | Browse | About IPO | Staff | Links |
|
Legal/Legislative Scene General Assembly sends Governor insurance/tort reform bill By Peter M. Murphy Legal/Legislative Counsel
The Illinois General Assembly endorsed a bill designed to address the insurance issue on June 30th. The measure passed the Senate on a partisan roll call of 30 to 23 with five Republicans voting present, and it passed the House by a 76 to 41 vote. The bill. Senate Bill 1200, included the following changes to the Governmental and Governmental Employees Tort Immunity Act: • Abolished the waiver of immunities which results from the purchase of insurance from a private carrier. This will have the effect of putting all governmental bodies within the protection of the Act regardless of whether they self insure, pool or buy commercial insurance. • Extends the partial immunity for the condition of property used for recreational purposes to indoor rec reational facilities. • Extends protection to governmental bodies, unless wilful and wanton, for injuries to participants in hazardous recreational activities. Such activities are defined as those which create a substantial risk of injury to a participant or spectator. Hazardous recreational activity also means: (1) water contact activities, except diving, in places where or at a time when lifeguards are not provided and reasonable warning thereof has been given or the injured party should reasonably have known that there was no lifeguard provided at the time, and (2) diving at any place or from any structure where diving is prohibited and reasonable warning as to the specific dangers present has been given. The bill also includes specific activities such as archery, bicycle racing or jumping, rock climbing, body contact sports (i.e., sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants), trampolining, water skiing and wind surfing — to name a few itemized by the bill. • Reduces the statute of limitations from two years to one year but also eliminates notice provisions. • Makes it a matter of public policy to forbid the indemnification of a public employee for punitive damages. • Provides that funds raised pursuant to the taxing authority of the Act may be used for operating and administrative costs and expenses, including the cost of legal services and the wages and salaries of employees in connection with defending or protecting a local unit of government. The bill also clarifies that the levy for liability insurance can include insurance to cover property damage or loss. Joint and several liability Joint and several liability was addressed by continuing to make all defendants jointly liable for all plaintiff's past and future medical and medically-related expenses. In regard to other damages, a defendant who is less than 25 percent at fault is severally liable (i.e., only responsible to pay his percentage of fault). All defendants 25 percent or more at fault are jointly liable to pay all damages.
Modified comparative negligence Illinois' pure comparative system of negligence has been modified under Senate Bill 1200 to provide that in cases where a plaintiff is more than 50 percent at fault, he is precluded from recovery. The court is required to instruct the jury in writing that the defendant shall be found not liable if the plaintiff is more than 50 percent at fault. A plaintiff will continue to have his award reduced by his percentage of negligence as was done under the old system. Changes in collateral source In all cases on account of bodily injury or death or physical damage to property, based on negligence, the amount in excess of $25,000 of the benefits provided for medical, hospital, nursing or caretaking charges which have been paid, or which have become payable by the date of judgment to the injured person by any insurance company or fund in relation Illinois Parks and Recreation 20 July/August 1986 to a particular injury, shall be deducted from any judgment. However, the bill provides that: • application must be made within 30 days to reduce the judgment. • such reduction shall not apply to the extent that there is a right of recoupment through subrogation. • the reduction shall not reduce the judgment by more than 50 percent of the total amount of the judgment entered on the verdict. • the damages awarded shall be increased by the amount of any insurance premiums or the direct costs paid by the plaintiff for such benefits in the two years prior to the plaintiff's injury. Loss information Senate Bill 1200 also requires insurers to provide loss information for the preceding three years upon request by an insured or with notification of cancellation or nonrenewal. That information shall contain data on closed claims, open claims and notices of occurrence regarding the amounts of losses and reserves. Such information is not discoverable by third parties, but may be requested by another insurer.
Cancellation and renewal The bill further requires 60-day notice of cancellation, nonrenewal or a more than 30 percent increase to the insured. Where the insurer fails to give 60-day notice but gives 30-day notice, the policy is automatically extended for 60 days. Where the insurer fails to give the 30-day notice, it is extended for a year. An insured has the option of replacing the extended policy with other insuranca Additional information about Senate Bill 1200 and other legislation considered by the General Assembly this spring can be obtained from Peter M. Murphy, Legal/Legislative Counsel, Illinois Association of Park Districts, 217 E. Monroe, Suite 101, Springfield, IL 62701. Phone (217) 523-4554.
Antiporek v. Village of Hillside (Upheld by the Illinois Supreme Court, May 21, 1986) Local public entities are granted certain immunities from tort liability by the Local Government and Governmental Employees Tort Immunity Act, but such immunities have heretofore been waived where the public entity is protected by a policy of insurance issued by a commercial insurance carrier. (See Senate Bill 1200.) The rationale for extending tort immunity to local governments is to protect governmental funds, assuring that they will be directed and used for governmental purposes. As a result, if the local government decides to protect individuals against its negligent conduct by acquiring commercial insurance, the immunity is waived since government funds are no longer in jeopardy and immunity would inure to the benefit of private investors who have assumed the risk of insurers. On the other hand, when a municipality self-insures, it bears all risks itself, and settlements or awards are paid directly from government funds.
Although section 9-103 (c) of the Governmental Tort Immunity Act does not expressly provide that self-insurers enjoy immunity, the appellate court, in Beckus v. Chicago Board of Education (1979), held that retention of funds by a local public entity for self-insurance does not constitute a waiver under section 9-103 (c). In Antiporek, the Supreme Court now extends the rationale of Beckus to Intergovernmental Risk Management Agency (IRMA), of which the Village of Hillside was a member, since it provides a type of protection tantamount to self-insurance within the meaning of section 9-103. The court further opined that there was no reason for allowing large public entities, with greater resources and diversification of risk, to self-insure without suffering waiver of their immunities while denying to smaller local public entities the opportunity to act in concert to provide for their own self-protection without conditioning that cooperative effort upon waiver of their immunities. Illinois Parks and Recreation 21 July/August 1986 |
|
|
