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Be Careful with the Statute of Limitations (and Make Sure You Have an Attorney Who Knows the Nuances)!

It is vitally important that you choose an attorney who knows what he or she is doing in personally injury and wrongful death litigation.  Particularly with respect to what is known as the “statute of limitations” for the particular type of claim you may be involved in.  The limitations period for injury and wrongful death claims is set by statute in Illinois, and specifies a time period within which, if a claim is not settled, suit must be filed.  It could be two years but there are other factors that come into play, depending on who the particular defendant is, when knowledge of the injury occurred (particularly in medical negligence claims) and the age of the party who suffered the loss.

Some time ago we were approached by a widow with two children whose husband was tragically killed in a grain elevator accident.  She had been represented by an attorney who apparently did divorce work or real estate work in more of a general practice situation in the suburbs, and who obviously did not have much experience in either worker’s compensation claims or wrongful death and injury law.  This attorney created significant issues for the surviving family of this deceased worker.  The Illinois Worker’s Compensation Act has special exceptions for agricultural workers employed in ag enterprises with less that a certain threshold of hours in the field among their employees.  In these situations, an experienced practitioner would preserve the potential worker’s comp claim in the Commission, even if it should subsequently be determined that the elevator operator gets the exemption under the Act as an agricultural enterprise that qualifies for it; while at the same time preserving the common law wrongful death claim in civil court in the event the exemption is determined to apply.   The previous attorney failed to follow up appropriately on the comp claim and failed to follow through on proper service of the summons and complaint in the potential civil case.

Fortunately for the widow and her children, our firm, with the assistance of Attorney Tom Prindable of Cogan & Power in Chicago, were able to get a resolution for the minor children, saving their claim despite the expiration of the claim period for the surviving spouse, and generating a seven figure award for the benefit of the children.  A legal malpractice case has been filed against the earlier attorney, from which hopefully we can obtain some benefit for the surviving spouse, but the earlier attorney has no malpractice insurance it appears.  Also unfortunate.

The lessons here are (1) make sure the attorney you are consulting in these tragic situations is competent to handle the potential claim and has enough experience in this litigation, whether it is in the court room or before the Illinois Worker’s Comp. Commission; and (2) check to make sure the attorney and the firm carry adequate malpractice insurance.  The nuances in these areas of law are such that significant complications can develop if the law firm is not familiar with the law in the practice area.  You need to ask questions at the outset to determine these matters so that you can feel relatively confident in your representation going forward.