Areas & Topics

October 2018 Archives

Medicare Set-Off Disallowed in Medical Malpractice case against the United States

The United States District Court for Southern Illinois has disallowed a set-off requested by Medicare in a medical malpractice case against the United States under the Federal Tort Claims Act.  Illinois law applies under the act.  Under the Illinois Collateral Source Rule the $31,000,000 received by the Plaintiff could not be decreased by the benefits the plaintiff received from Medicare for treatment, because the Medicare benefits were from a source wholly independent of, and collateral to, the tortfeasor.  The United States argued the Medicare benefits paid to , or on behalf of, the plaintiff came from general revenue funds, not special revenue funds, and therefore the Medicare lien should be off-set against the award.  The Court rejected that argument.  CLanton v United States (U.S. dist Ct, So. dist. Ill., 2018).

Attorney Fee Awards offset by student loan, tax and child support obligations

Federal Law allows judges to award attorney fees to the prevailing party in a civil action against the United States.  Attorneys would not take such cases without the prospect of being paid out of the attorney fee award.  But such attorney fee awards may be offset, requiring that they be paid to the U.S. Treasury, or to ex-spouses due child support payments from the plaintiff, for student loan or tax or other to obligations to the United States, or to ex-spouses for child support, under the Federal Debt Collection Improvement Act of 1996.  The Unnited States Supreme Court had previously ruled the attorney fee awards are to be paid the plaintiffs, not their attorneys.  The attorney fee awards are distinct from any  monetary award to the plaintiff for disabilities, etc.  As a result fewer attorneys will be willing to handle these cases if their prospective clients owe the U.S. Government for student loans or taxes or are behind on their child support obligations.  The net result will be fewer cases against the United States, and fewer awards that could be used to repay student loans, taxes and child support obligations.  Harrington v. Berryman, U.S. Court of Appeals for the Seventh Circuit, 2018.

How job interruptions affect the quality of the work being done

Many construction disputes center around a low quality of work. In some cases, it is more cosmetic than anything. The crew installs the kitchen counters but does not take the time to level them, for instance. They still work, but they do not look as good as they should and it detracts from the aesthetic appeal of the kitchen.

Warrantless use of drug-detection dog is an illegal search

The use of a drug-detection dog at the door of an apartment in an unlocked apartment building, without a search warrant, is an illegal search in violation of the  fourth amendment of the U.S. Constitution, ruled the Illinois Supreme Court.  The Court had previously ruled that the warrantless use of a drug-detection dog at the apartment door of the defendant in a locked apartment building was illegal.  It extended that ruling to unlocked apartment buildings in People v Bonilla on October 18, 2018.

Award for Personal Injury Due Former Spouse For Child Support

A personal injury award for pain and suffering, disability and broken ribs was subject to the Plaintiff's obligations to pay child support to a former spouse under the Illinois Dissolution of Marriage Act. In Re Marriage of Plowman (Ill. App. June 19, 2018).

Material Breaches of Construction Contracts By (1) Non-Payment, (2) Non-Performance, (3) Defective Performance and (4) Wrongfully Terminating the Contractor

Material breaches of construction contracts and subcontracts occur when (1) a contractor is not paid (2) the contractor walks off the job (3) the contractor's performance is defective and (4) when a contractor is wrongfully terminated. As a general rule, the first breach of a construction contract relieves the opposing party from further performance of that contract. Who breached first frequently determines the outcome. Decisions to terminate, to not pay, and to walk off the job are major decisions for owners and for contractors. The United States Court of Appeals for the Eighth Circuit recently affirmed a case which applied these principles and awarded a subcontractor $215,578.00, finding that the general contractor had breached the subcontract first by its delays, by wrongfully terminating the subcontractor and by failing to pay the subcontractor. Randy Kinder Excavating, Inc. vs. JA Manning Construction Company, Inc. (Decided August 7, 2018).

Prudent planning can help prevent business disputes

Starting a new business means taking on any number of important tasks before even officially launching the new venture. Structuring the company, setting hiring practices, working with vendors and many other pertinent decisions have to happen up front, which can mean a high propensity for error in the planning process.

Trade Secret Protection

The unauthorized disclosure of trade secrets, frequently by former employees, may result in an award of compensatory damages, punitive damages, attorneys fees and injunctive relief under both Federal Law and State Law, so long as the employer takes reasonable measures to protect the secrecy of the information.  Reasonable measures include confidentiality agreements, marking the information as secret and limiting access to the information.

Life Insurance--Proof of Death

Letters and a certified copy of the death certificate, sent to the life insurance co. before suit was filed, were insufficient to meet the Life Insurance Policy requirement of Due Proof of Death.  The Plaintiff's claim that Due Proof of Death was presented during trial was rejected as too late, and an award of $1,001,000.00 was reversed by the Illinois Appellate Court in Tsichlis v. Country Life Ins. Co, Ill. App. 1st dist. 2018.

How do you know if your car is a lemon?

Cars break down. It's just an unfortunate reality. However, that does not mean you simply have to accept that this product you purchased -- the most expensive thing many people will ever buy outright -- is going to fail. If it is bad enough, you may have a lemon.

David M. Duree and Associates, P.C.
312 South Lincoln Avenue
O'Fallon, IL 62269
Phone: 618-589-0956
Fax: 618-628-0259
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