2018 Claims Handling Seminar

Heyl, Royster, Voelker & Allen, P.C.
33rd Annual Claims Handling Seminar

To request full written materials, please email marketing@heylroyster.com

"Lighting the Way"

Casualty & Property, Workers' Compensation, Governmental and Professional Liability Sessions
Thursday, May 3, 2018 - Itasca, Illinois
Thursday, May 10, 2018 - Bloomington/Normal, Illinois

Casualty & Property Materials

Something Shiny and Bright – A Picture Is Worth 1,000 Words: The Use of Technology at Trial
– Mike Denning, Rockford & Tyler Robinson, Springfield
Nearly all jurors, young and old alike, use technology involving a visual component (phone, computer, tablet) to access or retrieve information that they trust and believe. Whether it’s from Facebook, Twitter, a news site, a banking website, or an online billpay service, people interact with visual technology on an hourly basis. Technology is - literally - everywhere. Once a jury is told about what they’ll hear in a complex trial, the jurors will expect to see technology in the courtroom.

Shining a Light on Investigation of New Claims and Preservation of Evidence/Evidentiary Issues for the Claims Adjuster
– Joe Guyette, Champaign; Doug Pomatto, Rockford & Chicago
Common sense and evidence rules have a peculiar relationship. After all, information that looks crucial and relevant may never make it into the courtroom. Maybe the information would win the case or reduce damages, but there are a bevy of rules that could keep it out. From deceased witnesses to evidence of smoking cigarettes, certain evidence will never reach the jury.

Now That’s Illuminating! Discoverability of Pre-Suit Investigation and Surveillance
– Steve Ayres & Susannah Price, Chicago; Doug Heise, Edwardsville
An investigation is the report, analysis, and evaluation of an incident based on information gathered by a designated person. Early investigations may assist a claims handler in assessing compensability and other initial claim defenses. Generally, an investigation may include taking written or recorded statements from those with knowledge, taking pictures/videos of the location of the incident, gathering relevant documents, and making a recommendation as to the findings. Sometimes, pre-suit investigations reveal information that is both helpful and harmful to the defense.

Out of the Shadows: E-Discovery, Social Media and Cybersecurity
– Mike Kokal, Springfield & Theresa Peverly, e-Discovery Coordinator
E-Discovery is the process by which relevant electronic documents are preserved, collected and exchanged. The complexity of e-Discovery lies in the fact that electronic documents possess “metadata” – hidden information not visible on the face of a document. Without the right skills and experience, it is very easy to alter or write-over a document’s metadata, potentially destroying valuable evidence in your case.

Insurance companies, law firms, and every business that handles financial information or other confidential customer or employee data is a potential target for a cyber attack. What precautions should a business take to take to minimize potential liability from a security breach, what policies and action plans should be in place, and what should a business do if an attack happens?

Lighting Up the Verdict Form – Overview of Currently Available Damages in Illinois
– Mallory Sanzeri, Chicago
Determining the damages available to a plaintiff is one of the most important aspects of evaluating a claim. The Illinois Pattern Jury Instructions provide the basis for assessment of damages and what damages are recoverable in Illinois.

Darkness Falls: Exposure to Extracontractual Liability
– Patrick Cloud, Edwardsville
Typically, an insurer’s liability during a claim is tethered to the types of risks insured by a particular coverage and capped by the applicable limits of liability. In certain circumstances, an insurer’s exposure to liability during a claim may exceed the limits of liability for the applicable coverage and/or may expose the insurer to liability unrelated to the types of risks covered by the policy at issue – including exposure to liability stemming from a bad faith failure to settle, a breach of the duty to defend, a violation of Section 155 of the Insurance Code, and additional common law tort theories.

Throwin’ Shade: How to Reptile the Reptile – Countering Reptile Tactics
– Andy Roth, Chicago
This trial tactic is an attempt to manipulate jurors by playing on their fears. In essence, the theory works to trigger survival instincts in a juror who will then view evidence in a manner that promotes community safety as a whole and lead to larger verdicts.

The New Dawn: Recent Case Updates
– Jessie Sarff, Peoria
Recent case updates include: Social host liability and negligence, negligence and the restroom access act, the biometric information privacy act, and the first amendment and defamation. Currently pending Illinois Supreme Court cases include: Physician-Patient Privilege under 735 ILCS 5/8-802(4), and evidence.

Workers' Compensation Materials

Accident Caused by Risks Resulting from Everyday Activities: Moving Toward a New Standard? A Panel Discussion
– Kevin Luther, Rockford & Chicago; Craig Young, Peoria; Brad Elward, Peoria; Lynsey Welch, Rockford & Chicago
Many of today’s workers’ compensation claims involve accidents that seemingly could occur to anyone regardless of their presence at work or their particular job. Employees suffer injuries while walking, bending, stooping, reaching, walking down stairs, and other activities of everyday life. When these accidents occur, employers are wise to closely scrutinize what the employee was doing at the time of the accident. A claimant must prove the occurrence of an accident that “arose out of” and occurred “in the course of” employment. To succeed, a claimant must prove both of these elements.

Effective Defenses of Medical Causation Claims
– Bob Bassett, St. Louis
While Missouri and Illinois may share a border, the standards for workers’ compensation claims are different, and those differences require careful consideration. In Missouri, for example, Mo. Rev. Stat. § 287.020 sets forth the statutory standard for proving medical causation. That section states that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. This outline discusses several important differences between Workers’ Compensation law in Illinois and Missouri.

Spotlight on Sexual Harassment Claims: Defense Strategies in the Era of the #MeToo Movement
– Dana Hughes, Peoria
Sexual harassment is typically thought of in the employment context. Liability can arise from federal and state statutes that directly address sexual harassment, but also from the Illinois Workers’ Compensation Act as well as common law torts like battery. Employers should take opportunities to examine sexual harassment policies and general employment policies about reporting of all claims.

Combating the Opioid Crisis in the State of Illinois
– Toney Tomaso, Champaign & Edwardsville
On the battlefields during World War II, morphine was used to treat injuries for our soldiers. Fast-forward 75 years and we have a drug, originally designed to treat cancer patients who were suffering from intractable pain, being commonly prescribed for injured workers. How can we all work together to combat this crisis?

Case Law Update
– Jessica Bell, Peoria & Springfield
Featured updates include: traveling employee, jurisdiction, section (6)f presumption, average weekly wage, TTD benefits, arising out of/risk analysis, wage differential considerations, penalties, medical opinions/surveillance, 19(h)/8(a) petitions, death benefits, interviewing accident/theory of accident, and causation/pre-existing condition.

Utilization Review and Medical Payment Defenses
– Bruce Bonds, Champaign
The 2005 amendments to the Illinois Workers’ Compensation Act codified a political trade-off between business and labor. Business, concerned over rapidly rising medical costs, which comprised approximately 50 percent of total workers’ compensation outlays, agreed to a 7.5 percent increase in the schedule of benefits (excluding person as a whole claims), increased minimums, and increased death benefits in exchange for a medical fee schedule, utilization review, and fraud provisions. What is a utilization review and in what types of situations should it be used?

Cybersecurity / HIPAA / E-Filing
– Lynsey Welch, Rockford & Chicago
Insurance companies, law firms, and every business that handles financial information or other confidential customer or employee data is a potential target for a cyber attack. What precautions should a business take to take to minimize potential liability from a security breach, what policies and action plans should be in place, and what should a business do if an attack happens?

E-Discovery is the process by which relevant electronic documents are preserved, collected and exchanged. The complexity of e-Discovery lies in the fact that electronic documents possess “metadata” – hidden information not visible on the face of a document. Without the right skills and experience, it is very easy to alter or write-over a document’s metadata, potentially destroying valuable evidence in your case.

Governmental Materials

Sexual Harassment Update for Public Employers
– Tony Ashenhurst, Peoria & Chicago; Emily Perkins, Peoria
On November 16, 2017, Governor Rauner signed into law Public Act 100-0554, which amended several statutes to add specific requirements for governmental entities pertaining to sexual harassment. The Illinois State Officials and Employees Ethics Act (“Ethics Act”) was amended to 1) explicitly prohibit sexual harassment; 2) require state government leaders and employees in the General Assembly, state executive branches, and state agencies to undergo annual sexual harassment training; and 3) require the above-listed state authorities and agencies to institute an anti-harassment policy.

Tort Immunity & Civil Rights Update
– John Heil, Peoria & Chicago; Andy Keyt, Peoria
Illinois’ Tort Immunity Act purpose is to “protect local public entities and public employees from liability arising from the operation of government.” 745 ILCS 10/1-101.1(a). The Tort Immunity Act grants immunities but it does not prevent plaintiffs from bringing claims and suits against local public entities. This outline provides an overview of the Tort Immunity Act and discusses recent case law relating to discretionary immunity, premises immunity, trail immunity, and other immunities articulated under the Act. The Civil Rights Update covers an overview of 42 U.S.C. §1983 actions and other civil rights claims and immunities.

Litigation in the Context of OMA and FOIA
– Andy Keyt, Peoria
Illinois has strong Sunshine laws governing the work of local governmental bodies. The Illinois Freedom of Information Act (FOIA) provides the public access to governmental records. Meanwhile, the Illinois Open Meetings Act (OMA) provides the public access to the public bodies’ discussions, deliberations and actions. The law provides for avenues for civil suits for violations of OMA or FOIA. There are standardized procedures for handling those matters, set out by the statutes, Attorney General Opinions and case law. The trickier scenarios are handling FOIA and OMA in cases in which the underlying case is unrelated to the Sunshine laws (i.e., an auto accident case or workers’ compensation case). Governmental entities, lawyers, and the courts struggle with how to handle Sunshine laws in the context of general litigation. Here, we present some potential solutions to the common pitfalls.

Responding to a Potential Data Breach in an Illinois Governmental Entity – First Steps
– Deanna Mool, Springfield
There are many laws that address a potential breach, however, these materials focus on the Illinois Personal Information Protection Act (PIPA), and the Health Insurance Portability and Accountability Act (HIPAA), as amended.

Preserving Evidence: The Local Government Perspective
– Syed Ahmad, Peoria & Theresa Peverly, e-Discovery Coordinator
E-Discovery is the process by which relevant electronic documents are preserved, collected, and exchanged during litigation. This may include pdfs of key files, but also Microsoft Word documents, Excel spreadsheets, PowerPoint slides, emails, text messages, instant messages, website captures, photographs, audio or video files, phone records, and social media posts. The complexity of e-Discovery lies in the fact that electronic documents possess “metadata” – hidden information not visible on the face of a document. And, without the right skills and experience, it is very easy to alter or write-over a document’s metadata, potentially destroying valuable evidence in your case. Examples of highly probative metadata include authorship, date created, date modified, and even GPS coordinates.

Professional Liability Materials

A Quick Guide to Millennials as Jurors
– Dave Sinn, Peoria & Alisha Sheehan, Edwardsville
Known as the “always connected” generation, Millennials are the most educated and informed generation because of growing up with technology – computers, cell phones, internet, Google, and social media. Born between 1982 and 2000, also known as Generation Y, Millennials have surpassed Baby Boomers, as the nation’s largest living generation. This generation is idealistic and optimistic about their futures. But how do you effectively communicate to a Millennial juror?

Preparing the Witness to Testify & Countering Reptile Tactics
– Andy Roth, Chicago
This trial tactic is an attempt to manipulate jurors by playing on their fears. In essence, the theory works to trigger survival instincts in a juror who will then view evidence in a manner that promotes community safety as a whole and lead to larger verdicts.

EMRs and Audit Trails – Friend or Foe?
– Tyler Pratt, Champaign
In medical malpractice cases, metadata is often contained in the electronic medical record (EMR) and created by audit control systems. Notably, many of these systems are now being used for purposes they were not originally intended.

Update on Agency Theory in Medical Malpractice
– Alisha Sheehan, Edwardsville
Traditionally, a hospital could be found liable for an employee’s negligence. Under the doctrine of apparent agency, plaintiffs attempt to hold healthcare entities liable for the negligent acts of a staff physician or other healthcare providers, even if the staff member is an independent contractor, and Illinois courts have extended an independent contractor’s negligence to hospitals and healthcare entities in certain circumstances. Courts are continually asked to broaden agency law. From a practice standpoint, there are policies and procedures that hospitals and healthcare entities can folllow in order to protect themselves from liability based on the present case law.

Overcoming the Sticker Price: The Reasonable Value Damage Rebuttal Theory
– Tyler Robinson, Springfield
Increasingly, legal practitioners and insurance industry professionals encounter exorbitant life care plans in cases that contain future estimated medical charges for an injured plaintiff’s needs during his or her life expectancy. In most states, practitioners attempting to rebut medical charges with negotiated amounts actually paid by third-party payers often encounter statutory or common law collateral source rule objections. An emerging body of case law in several states, however, has seemingly carved a path for a dynamic rebuttal approach to significantly minimize exposure created by life care plans.

A Picture is Worth 1,000 Words: The Use of Technology at Trial
– Mike Denning & Scott Salemi, Rockford
Nearly all jurors, young and old alike, use technology involving a visual component (phone, computer, tablet) to access or retrieve information that they trust and believe. Whether it’s from FaceBook, Twitter, a news site, a banking website, or an online billpay service, people interact with visual technology on an hourly basis. Technology is - literally - everywhere. Once a jury is told about what they’ll hear in a complex trial, the jurors will expect to see technology in the courtroom as well. While using technology at trial is essential to presenting a winning case, it has its limitations.

Techniques to Reduce Finger-Pointing and Standstill Agreements
– Rick Hunsaker, Edwardsville & St. Louis
In med mal cases that proceed to trial with multiple defendants, finger-pointing among those defendants could significantly help the plaintiff’s case impact the likelihood of obtaining a large verdict. The reality of modern medicine is that there is both competition and responsibility-shifting among the sometimes overlapping specialty practices in the American health care system. Acknowledging these realities and addressing complications in a productive and non-adversarial manner early in the course of litigation can make the difference in a case’s ultimate outcome.

Medical Studies Act & Patient Safety Organizations
– Matt Thompson, Peoria
Protecting information relating to peer review and quality investigations from discovery in a medical malpractice case can be critically important. In such a case, the privileged nature of the documents could make the difference between successfully defending the case and settling. It is important to understand what is, and what is not, privileged under the Medical Studies Act (MSA) so that hospitals and other facilities can develop appropriate procedures for peer review and quality investigations.

Getting into the Jury’s Head: An Introduction to Focus Groups and Mock Trials
– Renee Monfort, Champaign
For all the apparent majesty of law (the tradition, the black robes, the marble courthouses, the legal jargon), everything ultimately comes down to what twelve lay people in the jury box think. Unsurprisingly, the “how” and “why” of juror thought is a mystery closely guarded by the law. Fortunately, there are tools available to defense counsel, risk managers, claims specialists, and insurers striving to assess how a jury might perceive a given case. Two such tools are focus groups and mock trials. An overview of these options including a basic description of each along with some of their key strengths and weaknesses.