Adler & Adler, P.C. In the News

Across the country, victims of automobile accidents are discovering that it is getting harder and harder to get insurance companies to pay for the medical costs involved in minor crashes. As reported on February 9, 2007, in CNN.com's article "Auto insurers play hardball in minor-crash claims," major insurance companies —including the two largest, Allstate and State Farm—have developed a take-it-or-leave-it strategy for soft-tissue injuries in crashes with little damage to the vehicles involved.

The consequences? More fender-bender cases are entering the court systems, and insurance policyholders are realizing fewer benefits for the same or increasingly higher premiums.

Recently, Adler & Adler was involved in just such a soft-tissue, minimal car damage case. While Adler & Adler won the case on behalf of the plaintiff, the Adlers have successfully appealed the verdict based on two important errors by the trial judge: first, that the trial judge did not promptly and correctly answer jury's questions regarding payment of bills by instructing them to disregard insurance in their deliberations; second, that photos should not have been admitted into evidence. The results of the 1st District Appellate Court brought the Adlers' case to the front-page headlines in the Chicago Daily Law Bulletin.

"Jury Questions Should Have Been Answered: Court"

By Stephanie Potter, Law Bulletin staff writer. Originally Published in Chicago Daily Law Bulletin Volume 153, No. 26: Tuesday, February 6, 2007

A woman who suffered neck injuries in a car accident will get a new trial in her suit against the other driver, the 1st District Appellate Court held on Tuesday.

The appeals court found that Cook County Circuit Judge Ralph Reyna should have answered jurors' questions about whether insurance covered plaintiff Grace Baraniak's medical bills.

"Although the jury was properly instructed, there was a duty to answer its questions, and the failure to do so resulted in prejudicial and reversible error, mandating a new trial," wrote Justice Leslie E. South.

The court had previously issued its ruling as an unpublished order on Dec. 26, 2006, but attorneys for Baraniak sought publication. In addition to the jury instruction issue, the appeals court found that defendant Cassandra Kurby should not have been allowed to admit photos of Baraniak's vehicle into evidence. The photos were used during Baraniak's cross-examination.

According to the opinion, Baraniak alleged that on May 31, 2000, Kurby rear-ended her while she was stopped at a red light in Morton Grove.

She said the impact was hard and caused her to strike her head on the headrest, injuring her neck and spinal cord. She sought more than $50,000 in damages, saying that her medical bills alone were more than $51,000.

Kurby admitted liability, the opinion said, but challenged the extent of Baraniak's injuries. She said the impact was at a speed of about five miles an hour, and Baraniak did not appear injured immediately after the accident. The jury awarded Baraniak $15,000.

At issue was a jury instruction Baraniak requested but did not receive, IPI Civil No. 30.22, which says:

"If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned your verdict the court will make whatever adjustments are necessary in this regard."

Kurby's attorney objected to the giving of that instruction, and Reyna sustained the objection, the opinion said. But then the jury asked two questions during deliberations, both seeking to know whether Baraniak or an insurer paid her medical bills.

Both times, Reyna refused Baraniak's attorney's request to give IPI Civil No. 30.22, instead telling the jury that it had all the evidence and instructions, and should continue to deliberate.

The jury's $15,000 verdict was itemized, with about $8,200 going to medical expenses, the opinion said.

Plaintiff attorney Valerie Harris Adler said she was concerned that the jurors might have adjusted the award of damages because they thought Baraniak received insurance payments, something that is not allowed.

"This case definitively holds that the judge must answer the question and must answer it with this collateral source instruction," Adler said.

Adler's husband, Mark G. Adler, also of Adler & Adler P.C., also represented Baraniak.

Baraniak relied on Hojek v. Harness, 314 Ill.App.3d 831 (2000), in which the 1st District Court ordered a new trial in a car accident case in which the judge did not answer a jury question about whether insurance covered medical expenses. The judge in that case was involved in another trial at the time the question was asked.

The appeals court found Baraniak's case was similar.

"The two notes sent out by the jurors within a few minutes of one another indicate they were concerning themselves over a matter with which they should not have been concerned," South wrote. "The simple expedient of giving IPI Civil No. 30.22 (2005) after the jurors sent out the first note, and certainly the second one, would have served a useful purpose by providing them with an accurate answer and eliminating their obvious confusion."

As for the photographs of Baraniak's vehicle, her attorneys argued they were irrelevant because no medical experts said the damage to her car could be correlated with the extent of her injuries.

South wrote that in DiCosola v. Bowman, 342 Ill.App.3d 530 (2003), the 1st District said courts should do a case-by-case analysis to determine whether the admission of photographs showing damage to a vehicle to prove the extent of a plaintiff's injury is an abuse of discretion.

Kurby, however, argued that the vehicle photos were used to aid the jury in judging Baraniak's credibility when she testified that the impat was "hard," the opinion said.

But the appeals court rejected that argument.

"If we were to accept defendant's reasoning, we would essentially be conducting an end run around the relevancy rule, and photographs of damaged vehicles would always be admissible in trials of this nature on the grounds that credibility is always an issue," South wrote. "The effect of such a ruling would be to allow parties to accomplish indirectly what the courts have already determined is improper absent expert testimony, i.e., to argue or even imply that there is a correlation between the extent of vehicular damage and the extent of a person's injuries caused by an accident."

Justices Warren D. Wolfson and Shelvin L. Hall concurred in the 12-page opinion.

Attorneys for both sides said there is a split between the 1st District and the 3d District on the issue of the use of vehicle photos. Defense attorney Kristin L. Ward said she would seek to appeal on that issue.

Ward and Robert W. Rohm of Taylor, Miller, Sprowl, Hoffnagle & Merletti represented Kurby.

Grace Baraniak v. Cassandra Kurby,No. 1-06-0518.

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