2011 IL App (2d) 101035
Ill. App. Ct.2011Background
- Burcham was injured in a 2007 motor vehicle accident involving an uninsured motorist claim; he was driving a truck owned by his employer, P & M Mercury Mechanical Corp., and acting within the scope of employment.
- P & M carried workers' compensation and an automobile policy with West Bend that included uninsured and underinsured motorist coverage.
- WC paid substantial medical expenses ($490,879.71 as of Jan. 2, 2010) and wage replacement >$100,000, with ongoing benefits of $925.11 per week; the WC claim remained open without permanency yet.
- The UM policy limits payments for “loss” to non-duplicative amounts and states one will not pay for any element of loss if the insured is entitled to that element under workers’ compensation or similar laws.
- The UM policy also contains an endorsement limiting underinsured motorist coverage by sums paid or payable under workers’ compensation or similar laws.
- Burcham filed a declaratory judgment action in 2010 seeking to arbitrate various loss elements under UM coverage, including disfigurement, loss of normal life, increased future harm, pain and suffering, medical expenses, and lost earnings beyond WC payments; the trial court granted partial summary judgment for Burcham.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disfigurement is recoverable under UM arbitration notwithstanding WC compensation. | Burcham argues disfigurement is not duplicative with WC and may be claimed. | West Bend contends disfigurement falls under WC 8(c) and should be barred. | Affirmed for Burcham on disfigurement. |
| Whether loss of a normal life is an element duplicative of WC disability and thus barred. | Burcham claims loss of a normal life is a separate element not duplicative of WC. | West Bend argues loss of a normal life is the same element as disability under WC. | Reversed; majority held loss of a normal life is synonymous with disability; barred in arbitration. |
| Whether the discounted medical expenses amount ($188,524.96) can be claimed in arbitration. | Burcham contends the discounted amount is a separate medical expense element not barred by WC. | West Bend asserts medical expenses are barred as an element of loss under WC. | Affirmed for West Bend; medical expenses not recoverable as a separate UM element. |
| Whether lost earnings in excess of WC payments may be recovered in UM arbitration. | Burcham asserts additional lost earnings beyond WC should be compensable. | West Bend argues lost earnings are already compensated via WC and cannot be claimed separately. | Affirmed for West Bend; extra earnings not recoverable. |
Key Cases Cited
- Corn Products Co. v. Industrial Comm'n, 51 Ill.2d 338 (Ill. 1972) (disallowing duplication of disfigurement awards where other WC options exist)
- Wills v. Foster, 229 Ill.2d 393 (Ill. 2008) (collateral source rule; full billed medical expenses may be sought from tortfeasor)
- Jones v. Chicago Osteopathic Hospital, 316 Ill.App.3d 1121 (Ill. App. 2000) (loss of normal life interpreted as component of disability)
- Stift v. Lizzadro, 362 Ill.App.3d 1019 (Ill. App. 2005) (disability and loss of normal life can be interchangeable under IPI instructions)
- Poliszczuk v. Winkler, 387 Ill.App.3d 474 (Ill. App. 2008) (pattern instructions limit dual instructions for disability and loss of life)