by Attorney Anthony B. Gordon
Circumstances change and parents paying child support often need a reduction in their monthly support obligation. Those with a duty to pay child support, based on a Uniform Order of Support, cannot simply stop or reduce their child support payments. Child support may only be reduced by order of the court. To obtain such an order, one must first petition the court and request a reduction in child support. The other parent is allowed to respond to the petition for reduction and there is often a hearing where evidence is presented before the court grants a reduction.
Section 510 of the Illinois Marriage and Dissolution of Marriage Act deals with child support reductions. (750 ILCS 5/510). Under Section 510, the court will only allow a reduction or "modification" of child support if the petitioner, the one seeking a modification, shows a "substantial change in circumstances." Id. Examples of a substantial change in circumstances include, but are not limited to, a loss of job, a cut in pay, an injury or illness that limits one's ability to work, and retirement.
For this blog, I would like to focus on retirement. Naturally, when one retires from a job, it is assumed that they will no longer earn the same salary as when they were working. However, a court will review the totality of one's finances before agreeing that income was reduced by retirement.
For example, Michael J. Hickey earned $180,000 a year before he retired at age 64. In re Marriage of Cherie A. Verhines and Michael J. Hickey, 2018 IL App (2d) 171034, paragraph 1. Mr. Hickey petitioned for a modification of his child support. At a hearing, it was determined that his income in retirement was reduced from $180,000 a year to $78,000. Id. Thus, the court cut his child support obligation in half. Ms. Verhines appealed the trial court's reduction in child support claiming the court erred by not including as income $83,000 in deferred compensation and for not including any portion of a $400,000 withdrawal from Mr. Hickey's retirement account. Id. at paragraph 2.
The appellate court agreed with Ms. Verhines and found that the trial court erred by not including the deferred compensation and retirement withdrawals as income but also erred for not including other income of Mr. Hickey such as $2.585 million in brokerage accounts and his ownership of three homes. Id. at paragraph 3. The court noted that in certain circumstances, IRA withdrawals cannot be considered income for child support purposes but it did not find such circumstance existed for Mr. Hickey. Id. at paragraphs 65-67. The court found that Mr. Hickey's IRA withdrawal was not made for need but for the purpose of maintaining an expensive lifestyle. Mr. Hickey regularly traveled from his home in Naperville, Illinois, to his vacation home in Bozeman, Montana. He also regularly traveled to New England and to various vacation spots around the world, spending an estimated $60,000 in travel per year.
The Appellate Court stated: "Michael's spending patterns show the power of his capital and demonstrate that there has been no change in his financial circumstances to warrant a reduction in his support." Id. at paragraph 93.
Therefore, retirement does not automatically result in a "substantial change in circumstances" for purposes of a reduction in child support. The court will look to the totality of one's finances to determine actual income, such as in Hickey, where the court looked to Mr. Hickey's deferred compensation and his large withdrawal from his retirement account in addition to investment income, and his lifestyle to determine his actual income. Other factors that were discussed in Hickey, but not mentioned here, include the needs of the child and the other parent's income.
Filing a petition for modification of child support is very complex and should never be done without the assistance of an attorney. I regularly appear in court all over Northern Illinois on petitions for the modification of child support. Contact me for assistance with your petition for modification of child support at 773-616-3705 or email at firstname.lastname@example.org.
by Attorney Anthony B. Gordon
While I represent clients in many areas of law, today I would like to discuss an aspect of family law called "parenting time," formerly known in Illinois as "visitation." When a husband and wife with children divorce or when a boyfriend and girlfriend with children breakup, there usually is an emotional battle for parenting time with the children. The non-residential parent needs to be aware that their poor behavior during parenting time can lead to a restriction and removal of that parenting time. Recently, the Illinois Appellate court affirmed a trial court decision that restricted parenting time in a case titled: In re Marriage of Mayes, 2018 IL App (4th) 180149.
The Appellate Court in Mayes explained that the non-residential parent is entitled to reasonable parenting time unless there is evidence that the non-residential parent is somehow a danger to the children. Under section 603.10(a) of the Marriage and Dissolution of Marriage Act (750 ILCS 5/603.10(a):
"After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child's mental, moral, or physical health or that significantly impaired the child's emotional development, the
court shall enter orders necessary to protect the child." Mayes, 2018 IL App (4th) at Paragraph 55.
Orders necessary to protect a child may include, among other things, a reduction in parenting time, supervised parenting time or a requirement to complete a treatment program for behavior that served as the basis for restricting parental responsibilities. Mayes at Paragraph 55 citing 750 ILCS 5/603.10(a)(1), (2), (8).
It is the public policy of the State of Illinois for the non-residential parent to have liberal parenting time. Mayes at Paragraph 56 citing Heldebrandt v. Heldebrandt, 251 Ill. App. 3d 950, 957 (1993). The party seeking to restrict parenting time has the burden to prove the non-residential parent's conduct seriously endangered the children. Mayes at Paragraph 56 citing In re Marriage of Diehl, 221 Ill. App. 3d 410, 429 (1991).
A judge will look at all the evidence presented at a hearing and make a determination as to whether that evidence was sufficient for it to conclude that the non-residential parent's conduct placed a significant emotional and mental toll on the children. Mayes at Paragraph 58. If the judge finds sufficient evidence, the judge will then select an appropriate restriction on parenting time. Id.
In the Mayes case, the mother is the residential parent and she sought to restrict the father's parenting time because he had anger issues and regularly flew off the handle and treated the children inappropriately. The father responded to heated situations by using profanity, speaking poorly of the mother and threatening dangerous punishment, such as having his 15-year-old daughter exit his vehicle on a highway ramp and walk home.
After the hearing in the trial court, the judge found that the father's behavior placed a significant emotional and mental toll on the children. Mayes at Paragraph 60. In its order to protect the children, the trial judge ordered supervised parenting time and limited the amount of parenting time. Mayes at Paragraph 61.
The trial court order was affirmed on appeal. The Appellate Court expressed a concern that the father did not recognize that his behavior was harming the children. The court stated that the father is in control of his behavior and needed to make some changes, suggesting that the father enter an anger management program.
"Without positive change, visitation may continue to be filled with conflict or dwindle, and that would damage everyone." Mayes
at Paragraph 63.
The father's behavior in Mayes is not unique or unusual. In my cases, I see this sort of behavior with regularity. Parents need to realize that courts will protect the children. Non-residential parents cannot treat their children poorly during parenting time and expect the status quo. You will be hailed into court for your behavior and a judge will put you in your place.
I get it, there is lingering pain from the break-up but your children are not your former spouse and taking your anger out on your children will only harm you and your children. I advise my clients to enjoy the time with their children and partake in positive exercises to make positive memories and protect the emotional fragility of their children.
Now, unfortunately, the claims by the residential parent are not always true. I find this scenario much more common place than the other. Often the residential parent will make false claims of abuse against the non-residential parent in an effort to restrict parenting time solely to spite their former spouse. This sort of behavior is just as detrimental to the children as was the behavior in Mayes. Children do not have the emotional capabilities do deal with their parents using them as pawns in an emotional war. These parents attempt to pit the children against the other parent. The ones who suffer the most are the children.
The moral of the story is that if parents want healthy children, their children must have a healthy relationship with both parents. Neither parent should treat their children poorly and neither parent should use the children as a way to get back at or spite the other parent. Parents need to act like adults and love their children and help them become healthy adults. The courts are willing and able to help the children and force parents to act appropriately.
As you can see, parenting issues are emotional, complicated, and exhausting. I regularly help parents navigate the Illinois court system to get the best results for their situation. I would like to discuss your situation and your options with you. Please call 773-616-3705 for a free consultation or email me at email@example.com or stop by my office at 201 E. Dundee Road, Suite 1, Palatine, IL 60074.
by Anthony B. Gordon
For this blog, I would like to discuss some issues regarding child support. Under Illinois law, the non-custodial parent MUST pay child support to the custodial parent. By custodial parent, I mean the parent whose home is where the child resides. Illinois law requires the non-custodial parent to pay 20 percent of their net income to the custodial parent for one child. The amount of required child support increases with the number of children.
I largely represent low-income individuals and determining their income for child support can be difficult when the client does not have steady employment or is an immigrant with non-legal status. Therefore, folks in these situations MUST make sure that they receive payment for full, part-time or sporadic employment by check. We need a paper trail so we can determine the client's net income needed for the child support calculation.
When the non-custodial parent has no proof of income, determining the amount of child support that is required can be a terrific battle. Family law judges are not concerned with the non-custodial parent's immigration status. Rather, a judge's job here is to solely make a determination that is in the best interest of the child. It is ALWAYS in the best interest of the child that the non-custodial parent pay the largest amount of child support as possible. Therefore, without documentation of income, the non-custodial parent will most likely pay more than the statutory amount because a determination of income will include "hearsay" testimony from the custodial parent. "Hearsay" evidence in this type of case is generally a statement by one party that is not supported by any type of hard evidence. Such as, the custodial parent may present testimony that the non-custodial parent's income is larger than reported. Without a paper trail, the custodial parent has no way to prove such allegations are false.
For example, I have a client who works as a handyman and employment is infrequent. He does not have legal immigration status and is always paid in cash for his work. He also lives with his girlfriend who provides for all of his living expenses including car payments. The custodial parent, the mother, is aware that my client lives in a nice apartment and drives a nice car. Therefore, she believes, and her attorney argued before the judge, that my client is earning substantially more than he has reported to her on required financial disclosure documents. My difficulty here is refuting the mother's allegations because my client is paid in cash and I have no hard evidence as to his financial situation.
With slim evidence and the fact that the judge is required to make a determination that is in the best interest of the child, my client is required to pay more in child support than the statutory amount and more than he can reasonably afford. To complicate matters, when the non-custodial parent, such as in the case here, fails to make court-ordered child support payments, no matter if he/she has the funds or not, the custodial parent can file a motion that requires the custodial parent to pay up or face jail time. As an attorney, I can merely argue that my client does not have the funds to pay the required amount of child support in these situations. But without hard evidence, my arguments fall on deaf ears. Therefore, I cannot stress enough that non-custodial parents require any type of employer to pay them by check so your attorney will have hard evidence to argue your case. In addition, for those that work odd jobs, these folks need to keep a diary of each job, what work was performed, and a copy of the check they received as payment for their work.
Another matter I would like to discuss is the form in which the non-custodial parent pay their child support. I have found that my low-income clients generally make their child support payments directly to the custodial parent in cash. Once again we have evidentiary issues. I have a case where the custodial parent is claiming my client has never paid child support, going back three years. The custodial parent here is flat-out lying. My client has made every payment. Unfortunately, he has paid the custodial parent directly and in cash. Thus, we have no evidence that he has made any payments. The dishonest custodial parent has began legal action to collect three years worth of child support in which she already received every penny. Once again, I am handicapped in arguing this case because I have no hard evidence that child support payments were ever made. As a result, my client may be required to make three years worth of payments a second time.
As you can see, child support can be a brutal business. While the goal is always to make sure the child is provided for, the result is often a severe financial dilemma for the non-custodial parent and one that can provide a means for the custodial parent to commit fraud. For those facing these or any type of child support issues, contact me, Attorney Anthony B. Gordon, and I will help solve your issues whether it be advice on maintaining a paper trail or representing your interests in court. I can be reached at 312-767-9500 or by email at firstname.lastname@example.org.
For most people, their contact with a court room occurs when they are required to appear for jury duty. Folks complain regularly about jury duty. I, on the other hand, have no complaints about jury duty. I am honored to play my part in ensuring that my friends and neighbors receive their constitutional right to "due process" and a trial by jury. In addition, I am honored to possess a law license and work as an advocate for clients in Northern Illinois courtrooms. The U.S. Constitution is an amazing document and there is no place on Earth that provides the amount of rights and protections to its citizens than the United States. As such, there is no place in the country where the Constitution is as omnipresent as in a courtroom. Therefore, a courthouse is a place deserving reverence and those that attend court need to take heed and show respect for their country and its laws by displaying a little decorum when attending court.
In my view, there are too many people that attend court in the same manner they would WalMart. Some folks look like they just crawled out of a dumpster, others are intoxicated, while some folks take on an attitude. Folks need to show respect for the U.S. Constitution and the rights it provides by attending court in clean, nice clothes, and be properly groomed. If you are a defendant on a case, you are being judged the minute you step into a court room, so a clean appearance goes a long way towards your benefit. If you are going to ask a judge for a little more time to pay a fine, for example, he or she may be more apt to provide you that extra time when you appear presentable. Those that step up before the judge and look unkept, chances are, the judge will not provide extra time when needed. So it is in your best interest to show up to court, clean, well dressed and groomed.
Do not drink or ingest any drugs before attending court. Seems obvious but you would be surprised how many folks arrive to court intoxicated. As an attorney, I become a spectator once my client fails a court-ordered alcohol or drug test on the day of court. Judges become infuriated when a defendant is intoxicated. They see it as the ultimate sign of disrespect and will throw the book at the poor drunk sod. Recently, I was representing a client on a DUI case. At 8:30 a.m., the client had red glassy eyes and smelled of alcohol. I asked him if he drank prior to attending court. He said no but admitted to a few drinks the night before. I became worried because one of the first things the judge will require on a DUI case is an alcohol test. When we stepped up before the judge, the prosecutor wanted to throw the book at my client because he also had a charge for beating his daughter (which he claims he did not do). As a result, the judge ordered an alcohol test to be performed that day. I figured my client was drunk and stalled until noon when he took the test and blew a 1.34 when the legal limit is just .08. My client must have drank a bottle or two of vodka before court. I was amazed he was able to stand. We were required to go back before the judge where it was reported he blew the 1.34. The judge wanted to place my client in jail. I argued on his behalf and was able to negotiate a stay on jail and was able to schedule another alcohol test later in the week. However, the judge would not allow my client to leave the courthouse until he sobered up. As a result, he had to sit next to a deputy in the courthouse until 5 p.m.
I have had other occasions where my arguments fell on deaf ears and my clients were locked up for being intoxicated. The lesson here, is the obvious one, that no one should attend court under the influence of alcohol or drugs. The secondary lesson is that if you receive a ticket for DUI, you must give up alcohol and drugs because you will be tested at some point and a failure of that test could result in jail time. There are consequences to the reckless use of alcohol and the illegal use of drugs. In my book, it is not worth losing your freedom and being sent to prison -- so don't do it!
As far as attitude goes, keep in mind you are in a special place when you are in the courthouse -- the home of the U.S. Constitution. This isn't a back alley or a tavern, so use respectful language and make sure you are cordial to court personnel. The Sherriff's deputies are in the courthouse to keep it safe. So you will be searched and you and your possessions must be screened. There is no reason to provide lip service to a deputy. They do not have to let you into the courthouse. If you are in court on a traffic ticket and you mouth off to a deputy, who then kicks you out of the building, the judge will issue a warrant for your arrest when you fail to appear on your traffic ticket. Why fool around this way? Keep your mouth shut, do what the deputy asks, appear before the judge and be done with it. No matter what you think, neither you or I are more important than anyone else and we must all take heed to the deputies when entering and visiting a courthouse.
Lastly, I want to address nerves. Yes, it can be scary entering a courthouse and knowing the folks there have the power to place you in jail. However, being overly worried and nervous about the consequences will not help you. Everyone is entitled to "due process" so you will not be thrown in jail without a proper hearing. Therefore, it is incredibly important that you hire an attorney before attending court, to make sure you a fully protected. If you hire me, Attorney Anthony B. Gordon, I will fight tirelessly for you to ensure we get the best possible result. I am an individual attorney, not some cold giant law firm, so I provide grass roots legal service at a reasonable fee. Click the "Contact" tab above and send me a message and we can begin working on your case.
The following statement is very difficult for Illinois motorists to wrap their head around -- "Speeding is a very serious crime in the State of Illinois." If you drive your car 26 mile per hour (MPH) above the posted speed limit on any Illinois road, you have committed a crime and now have a criminal record. As such, a judge may sentence you to up to six months in jail for driving between 26 and 34 MPH over the speed limit or a year in jail for driving 35 MPH or more over the speed limit. Yes, you better believe that you can be sentenced to jail for breaking the law and driving well above the posted speed limit. In addition, you are subject to a hefty fine that can be as high as $2,500 for driving 35 MPH over the posted speed limit and up to $1,500 for driving between 26 MPH and 34 MPH over the posted speed limit.
A driver that has received a ticket for going between 26 MPH and 34 MPH has committed a Class B misdemeanor while a driver going over 35 MPH above the posted speed limit has committed a Class A misdemeanor.
When you go to court on a Class A or Class B speeding ticket, the first thing the judge will tell you is that he or she can sentence you to jail. The judge will then give you time to hire an attorney so you do not end up in jail. If you cannot afford an attorney, there is a financial form and application for a public defender that you can complete in the courtroom and have a public defender appointed on your behalf. If you earn a certain income, you are not eligible for a public defender and must hire a private attorney or risk going to jail. Most judges will not let you step before them on a Class A or Class B speeding ticket without an attorney. You will either have a public defender or a private attorney.
While you always have a Constitutional right to appear before the judge without an attorney, make sure you bring your tooth brush when you appear without an attorney, because if you ignore the judge's advice to hire an attorney, you will not be going home and will be spending the night in a concrete cell. Did I say speeding is a very serious crime in Illinois? You better believe that it is!
Most clients scoff when I tell them they risk going to jail. It is hard for most people to understand or believe that they will be sent to jail for a speeding ticket. Well, I am here to bring you to reality, because section 11-601.5(a) & (b) of the Illinois Vehicle Code gives a judge the authority to sentence you to jail. So anytime you enter a courtroom on a Class A or Class B speeding ticket, you risk being sent to jail.
When I verbally inform my clients of these consequences, they most often say that nobody goes to jail on a speeding ticket. The problem is that most clients are not in court on a daily basis, like I am. I have actually had clients in court on Class A speeding tickets receive jail time -- so, you better believe that it DOES happen.
Some more ugly fallout from receiving a Class A or Class B speeding ticket, is the fact that you now have a criminal record. If you are employed by a company or government agency that does not allow its employees to have a criminal record, you may lose your job. Also, if you are currently looking for work or plan on doing so in the future, prospective employers can view your criminal record during the hiring process and they will most likely hire the candidate that does not have a criminal record.
Therefore, it is in your best interest to hire a lawyer shortly after receiving a Class A or Class B speeding ticket. I am happy to discuss your speeding ticket and the consequences with you at no charge. If you decide to hire me as your lawyer, I will then charge you a reasonable fee.
As your lawyer, I am cannot make any guarantees on the results we will obtain in court. What I can guarantee is that I have appeared before most every judge in northern Illinois and have worked with all the various county state's attorney offices. I can also guarantee that I will work tirelessly on your behalf. My goal on Class A or Class B speeding tickets is to keep you out of jail and obtain the best possible results.
Once you receive a speeding ticket, you will be contacted by dozens of lawyers, all making some sort of guarantee. I find this practice dishonest and I won't do it. I will always be honest with you. If you want to hire an honest, compassionate lawyer to defend you in the face of your Class A or Class B speeding ticket, call me, Attorney Tony Gordon at 773-616-3705 or send me an email at email@example.com.
One of the basic tenants of American law is the guarantee of free speech under the First Amendment of the United States Constitution. However, since the First Amendment, also known as the Bill of Rights, was adopted in 1791, courts have regularly defined and limited the right to free speech. As a result, the constitutional right to free speech is anything but absolute. There may be criminal and civil consequences to your spoken and written words.
In 1919, U.S. Supreme Court justice Oliver Wendell Holmes formulated the “clear and present danger” test used to determine whether controversial speech is protected under the First Amendment. Schenck v. United States, 249 U.S. 47 (1919). Under this test, the court considers whether a defendant’s words are used in “such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Schenck, 249 U.S. at 52. Using the test, the court found that the defendant Charles Schenck did not have First Amendment protection to distribute leaflets urging resistance to the draft during World War I because such an act placed the U.S. in danger.
The court amended Schenck in 1969 and determined that leaflets, such as the ones distributed by Schenck, have First Amendment protection until they are directed at inciting or producing imminent lawless action or are likely to incite or produce such action. Brandenburg v. Ohio, 395 U.S. 444 (1969).
The bottom line is that there is no absolute right to free speech and there are consequences to both written and spoken words. For example, Americans do not have a constitutionally protected right, in part, to:
1. Make or distribute obscene materials;
2. To burn draft cards as an anti-war protest;
3. Students may not print articles in a school newspaper over the objections of the school administration;
4. Students may not make obscene speech at school-sponsored events;
5. Students may not advocate illegal drug use at school-sponsored events;
6. No one may make certain false statements;
7. No one may speak or write words that may provoke a fight or violent reaction;
8. No one may engage in speech that intentionally, knowingly or recklessly inflicts severe emotional distress;
9. No one may engage in speech the invokes threats of violence;
10. No one may engage in speech that is used for blackmail;
The Constitutional right to freedom of speech moved into a new arena with the modern advent of the Internet. For example, a public university my limit material stored on its server. Loving v. Boren, 956 F. Supp 953 (W.D. Okla. 1997). An investment bank was able to obtain a court order directing two public message boards to remove certain statements about the bank from its boards. Houlihan Smith & Company, Inc. v. Forte, 1:10-cv-02412 (Northern District of Illinois 2012).
A consulting firm successfully obtained a restraining order against a customer who posted online criticism of the firm. The customer was fined $2,400 for failing to take down his online critique. Anthes v. Callender, No. 1480 (Appell. Maryland 2014).
An internet service provider must remove a fraudulent profile after it promises to do so. Barnes v. Yahoo!, Inc., 570 F. 3rd 1096 (9th Cir. 2005)
The above is just a small sample of the many, many internet-related free speech lawsuits. Recently, the Illinois Supreme Court jumped into the fray holding that a defendant in a defamation action may not hide behind its anonymous moniker after leaving a comment on a newspaper forum.
In Hadley v. Subscriber Doe, June 18, 2015, No. 118000, the court found that Comcast must reveal the identity of the anonymous poster, who went by the moniker “Fuboy”.
The controversy goes back to 2011 when the Freeport Journal Standard published an online articles discussing plaintiff’s Bill Haldey’s decision to seek election to the county board of Stephenson County, Illinois. In the comment section of the story, “Fuboy” posted: “Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire from his front door.”
Hadley filed a defamation suit. The newspaper disclosed the name of Fuboy’s internet service provider as Comcast Cable. Hadley fought in both federal and state court to obtain the identity of Fuboy. In a state action, Hadley contended that Fuboy’s comment was defamatory per se because it imputed the commission of a crime to Hadley.
Hadley was able to learn the identity of Fuboy through the use of Illinois Supreme Court Rule 224 (Ill. S. Ct. R. 224 (Eff. May 30, 2008)). Rule 224 provides a means to identify potential defendants prior to the commencement of suit.
The trial court held that the “Sandusky” in Fuboy’s statement referred to Jerry Sandusky, the Penn State University football coach who was charged with sexual abuse of numerous boys, and this would be obvious to any reasonable person who read Fuboy’s statement. The court concluded that the comment imputed the commission of a crime to Hadley; that it was not capable of an innocent construction; and that it could not be considered an opinion. The court directed Comcast to provide the indentification of Fuboy. The appellate court affirmed.
The Illinois Supreme Court agreed to hear the appeal. The court dismissed Fuboy’s arguments that the statute of limitations had expired; Hadley had abandoned his original complaint; and that Hadley’s defamation claims would not withstand a motion to dismiss.
In sum, the courts did not yet rule on whether Fuboy’s speech was defamatory. However, the courts found that Comcast must release the true identity of Fuboy. Therefore, the lesson here is that anonymous internet speech may not be anonymous and a plaintiff may obtain the identity of an internet poster. The plaintiff will have his day in court to determine whether the internet speech is protected under the First Amendment.
Do you have free speech issues? Click the "Contact" button above to discuss the matter with Attorney Anthony Gordon.
AUTOMOBILE INSURER IS LIABLE IF IT FAILS TO INCLUDE A SPOUSE IN A POLICY AFTER IT IS REQUESTED TO DO SO
Your insurance agent has a legal duty to include everyone you request to have listed in your automobile insurance policy, according to a recent ruling by the Illinois Supreme Court in Skaperdas v. Country Casualty Insurance, 2015 IL 117201.
In Skaperdas, the plaintiff Steven Skaperdas applied for a new automobile insurance policy from a Country Casualty Insurance agent. Mr. Skaperdas requested that the policy cover his fiance Valerie Day. However, the agent failed to name Ms. Day on the policy but did list the driver has "female" in the declarations page. Subsequently, Ms. Day's minor son was seriously injured when an automobile struck him while he was riding his bicycle. The offending automobile driver's policy did not cover all of the boy's medical expenses so Ms. Day sought to recover funds from the underinsured motorist coverage on the new policy with Mr. Skaperdas. Country Casualty denied Ms. Day's claim for underinsured motorist coverage stating that neither she nor her son are named insureds under the policy. Skaperdas, 2015 IL 117201, paragraph 5. In response, the couple filed a lawsuit against the insurance agent and Country Casualty, claiming the agent was negligent in failing to name Ms. Day under the policy. In support of their claim, the couple contended that the agent owed them a duty to exercise ordinary care and skill in renewing, procuring, binding and placing the requested insurance coverage as required by section 2-2201 of the Illinois Code of Civil Procedure (735 ILCS 5/2-2201 (West 2010)).
The trial court in Champaign County dismissed the couple's lawsuit, finding that the insurance agent did not owe the couple a duty to include Ms. Day's name on the policy. On appeal, the court looked to the plain language of section 2-2201 along with section 500-10 of the Illinois Insurance Code (215 ILCS 5/500-10 (West 2010)) which establishes that "any person required to be licensed to sell, solicit or negotiate insurance has a duty to exercise ordinary care in procuring insurance." Based on these statutes, the appellate court reversed the decision of the trial court and found that the insurance agent owed Ms. Day a duty to include her in the policy when Mr. Skaperdas specifically requested that she be named in the policy.
In affirming the decision of the appellate court, the Illinois Supreme Court found that the plain meaning of the statutes supports the finding that the insurance agent owed the plaintiffs a duty of care to properly insert Ms. Day into the insurance policy as a name insured. In its analysis of section 2-2201, the court found that the legislature intended to include an insurance agent as an "insurance producer" under the statute, therefore, the agent owes the plaintiffs a duty of care. In addition, the fact the agent listed the driver as female is evidence that supports Mr. Skaperdas's claim that he requested the agent to insert Ms. Day in the policy. As a result, Country Casualty must provide underinsured motorist coverage to Ms. Day and her son.
What does this mean? This means that when you apply or renew your automobile insurance policy and request that certain individuals are covered by the policy, the insurance agent has a duty to make sure those individuals are named in the policy. So if the insurance agent fails to include your spouse, after you specifically request that the policy includes your spouse, your spouse may still be covered under the policy.
Insurance policies and the law governing these policies are complicated. To ensure that you and your family are covered and receiving all the requested types of coverage, attorney Anthony Gordon will be happy to review all of your insurance policies. Click the contact button above to make an appointment with attorney Gordon.