Do Not Let Medical Bills Pile Up After an Accident

If you are or were injured in an accident, your medical providers may be looking to get more money then they would be getting from insurance. In Illinois, the law allows medical providers to file what is a called a lien with the car insurance companies involved in the accident. That lien requires the car insurance companies to pay the medical providers one hundred percent of the amount that they bill.

If you have ever looked closely at a medical bill, there is an amount charged that is determined by the medical providers themselves and often times the amount charged for service is highly inflated, sometimes it is ten times more than what the insurance, Medicare or Medicaid actually pays for the services.

The more money that has to be paid out to medical providers means that less money would be coming to you for the pain and suffering and lost wages from an accident. Say for example that the medical providers Billed One Hundred Thousand Dollars ($100,000.00) for your medical treatment from an accident and our office was able to secure an award of Five Hundred Thousand Dollars ($500,000.00). If no car insurance, health insurance, Medicare or Medicaid paid those bills, you would be paying the full One Hundred Thousand Dollars ($100,000.00) out of your award back to the medical provider.

Our office strives to require the medical providers to follow the law and bill insurance when required. Any no-fault car insurance policy that is accessible to you, which can include any policy that you own or is related to the vehicle you are driving independent of whether you are driving your own vehicle or that of someone else, is the primary insurance. Under Illinois law, our office is able to secure deductions from what is required to be paid back to the no-fault company out of an award in any injury case so that more money goes to you. If that no-fault coverage is either not available or exhausted, our office does everything available under the law to require health insurance, Medicare or Medicaid to pay a fraction of what the medical providers bill so that more money goes to you. Private health insurance is required to pay at that point, but as it pertains to Medicare and Medicaid, in many instances the law allows the medical providers to choose whether to see if they can get their full bill paid out of the award or from Medicare of Medicaid. Our office has been very successful in negotiating with the providers to either compel them to bill Medicare or Medicaid or accept a fraction of their bill to provide you with more money for your accident case.

I do not believe all injury attorneys focus on the medical bills because the payment of those bills is ultimately the responsibility of the client, but our office disagrees with that approach and we make it our problem to solve and we do the best we can to minimize the amount of money that goes to the medical providers unnecessarily .

Please contact us if you have an injury matter promptly after it occurs so we have the best opportunity to assist in reducing the bills and getting you as much money as possible for your injury case.

Steven J. Greeley

Joseph C. Ponitz Named Partner of Franks, Gerkin & McKenna, P.C.

Franks, Gerkin & McKenna, P.C. is pleased to announce that Joseph C. Ponitz has been named a Partner of our firm.

Joe has an extensive legal background that encompasses a wide range of practice areas, including Criminal and DUI Defense, Family Law, and Commercial Litigation. Prior to joining Franks, Gerkin & McKenna, P.C., Joe served as a Prosecutor with the Winnebago County State's Attorney's Office.

Joe attended the Southern Illinois University School of Law, where he was a published author and an editor of the School's Law Review. Joe was also awarded the Southern Illinois University Alumni Scholarship Award. In addition, Joe served as a graduate assistant to a prominent professor and his research was accredited in the Duke Environment of Law and Policy Forum.

Joe is fluent in Spanish and volunteer with and serves on the Governance Committee of the Healing Pathways Cancer Research Center.  He is a member of the Cosmopolitan Club of Boone County. He also serves as an Arbitrator for the Seventeenth Judicial District. From 2007 to 2010, Joe served on the Executive Committee of the Board of Directors of McHenry County Youth Service Bureau.

Joe is a member of the Illinois, Winnebago, McHenry and Boone County Bar Associations and serves as Chair of the Boone County Bar Association's Criminal Law Committee.

The Wrongful Tree Cutting Act

As a lawyer practicing in mostly rural McHenry County, Illinois, I have clients come to our office frequently who have had trees cut down by neighbors who do not bother to find out where the property line is located.  You would think this type of claim would be simple because liability is not an issue where there is no dispute as to the property line but there always seems to be a dispute on value.  The client wants the same 80 foot tall tree dropped into the ground but that is impossible.  The insurance company and/or tree cutter think they did the client a favor and increased the property value by taking down an old tree.  Or each party has a position somewhere in between these two extreme examples.

Valuing the loss in Illinois involves the Wrongful Tree Cutting Act, 740 ILCS 185/0.01 et seq., which provides treble damages on the "stumpage value", or the value of a standing tree.  Almost the entire act defines the responsibilities of the Director of the Illinois Department of Natural Resources and the discretionary ability of the court to order the Director to obtain 3 appraisals of the stumpage value and to take the average to decide the issue of valuation.

Every case I have been involved it as plaintiff included a motion by the defendant to obtain these appraisals but 17 Ill. Adm. Code 1585.20(b)(1) causes those appraisals to be worthless in most situations because the appraisers are not allowed to assign values "to any tree that will not meet the definition of commercial timber. This Part does not apply to replacement, aesthetic, shade-tree or landscaping value."  Despite this clear flaw in the regulations, the court in Marsella v. Shaffer, 324 Ill.App. 3d 134, 142 (2d Dist. 2001) confirmed that the Wrongful Tree Cutting Act extends to all trees, not just trees designed for use as timber.  In addition, the court in Wujcik v. Gallagher, 232 Ill. App. 3d 323, 329 (2d Dist. 1992) reviewed a case involving tree cutting and confirmed that treble damages are appropriate for "acknowledging environmental injuries and holding wrongdoers accountable for actual damages."

An expert appraiser must then be retained by the injured property owner to prove its damages and certified arborists that utilize the American Society of Consulting Arborists Guide for Plant Appraisal should be sought for a proper appraisal.  The arborist will rate the condition and location of the cut trees and apply those ratings to a formula involving the species and trunk size to determine the value of the tree.

Treble damages are then calculated from the value and the extent of possible damages under the Act that can be awarded will be known. The injured client must realize that this value will not result in a mature tree being able to be planted for that price but it will be sufficient for a reasonable size tree with additional money left over to compensate the victim for the loss. The parties should also be aware that the finder of fact can, in lieu of treble damages, award actual and punitive damages as it deems just.  The court in Aaron v. Hendrickson, 221 Ill. App. 3d 842, 849 (5th Dist. 1991) confirmed that the Act was a remedy "additional [] to trespass."  While judgment could not enter on the treble damages and punitive damages, the alternative pleading of trespass with a prayer for punitive damages would allow the finder of fact to assess fore than treble damages if the fact support it.  See Marsella at 143. Punitive damages are warranted even against the unknowing tree cutter who does not check a survey to determine the property line location.  In Rodrain v. Seiber, 194 Ill. App. 3d 504, 510 (5th Dist. 1990), the court upheld a punitive damages award where the defendant ordered a survey but did not bother to wait for it to be drafted before the tree cutting commenced. Therefore, based on the net worth of the defendant and the egregiousness of the situation, much more than treble damages could be awarded.

In sum, tree cutting cases tend to be litigious due the varying ideas that people have about the value of trees, however, plaintiffs can be awarded significant damages and can use that leverage in negotiation. Defendants can also attempt to persuade the finder of fact of the minimal value and the lack of malice to avoid punitive damages.

Olivia P. Dirig Joins Franks, Gerkin & McKenna P.C.

Franks, Gerkin & McKenna is pleased to announce that Attorney Olivia Dirig has joined our firm.
Olivia is an accomplished attorney with impressive experience. Olivia has an extensive background in civil litigation with particular emphasis in banking, real estate, creditors rights and family law.

Before joining FGM, she spent five years representing major financial institutions throughout the State of Illinois. She is an accomplished legal writer. During law school, Olivia won a state prize for an article she co-authored on employee rights.

Prior to moving to Illinois in 2005, Olivia held positions with the New York City Administration for Children’s Services and the Legal Aid Society - Juvenile Rights Division.

She attended Hofstra University School of Law in New York where she graduated with honors and was the research editor for the Hofstra Labor and Employment Journal. Olivia obtained her undergraduate degree with honors at the State University of New York at Stonybrook.

Currently, she serves as a member of the Illinois State Bar Association and the McHenry County Bar Association.

Franks, Gerkin and McKenna - Law firm of forty years, with practice areas including personal injury, workers’ compensation, litigation, real estate, estate planning, criminal defense, family law, land use and zoning, probate, commercial transactions, bankruptcy, and traffic violations. The firm has five partners; Herb Franks, Peggy Gerkin, Terry McKenna, Jack Franks, and Steve Greeley. Associates include: James Mullally, David Montenegro, Joe Ponitz, Sheila Amiry, and Olivia P. Dirig. The firm has Spanish speaking lawyers and staff.

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