News and Events

Anticipated Prejudgment Interest In Illinois

April 26, 2021Joseph Panatera
Joseph A. Panatera

ANTICIPATED PREJUDGMENT INTEREST IN ILLINOIS

On March 18, 2021, the Illinois Legislature passed a bill to amend 735 ILCS 5/2-1303 to require prejudgment interest on all personal injury and wrongful death matters in which a judgment is entered for the plaintiff. This bill is expected to be signed by Governor Pritzker and become effective on July 1, 2021. The amendment requires prejudgment interest at a rate of 6% per annum. The prejudgment interest begins to accrue on the date the action is filed, but it does not apply to punitive damages, sanctions, statutory attorney’s fees, or statutory costs. The bill also does not apply to public entity defendants.

The current bill is a compromise of a prior House Bill that required 9% prejudgment interest per annum, which would have begun to accrue at the time a defendant had notice of an injury. See Illinois House Bill 3360, January 13, 2021. Based on the 2-year statute of limitations for most personal injury matters and the 4-year statute of limitations for construction negligence claims in Illinois, the prior bill would have essentially resulted in 18%-36% prejudgment interest being added to a potential judgment at the time a plaintiff filed their personal injury or wrongful death lawsuit. The prior version of the bill was passed by the Illinois Senate. However, Governor Pritzker requested that the bill’s sponsors engage in discussions with the defense bar to discuss how to make the bill fairer to defendants. Governor Pritzker’s request was prompted by significant objections from the defense bar and the business community in Illinois. Based on the compromise reached in the current bill and the prior passage of the House Bill by the Illinois Senate, it is expected that this amendment will be signed by Governor Pritzker and become effective on July 1, 2021. The current bill will also apply to all personal injury and wrongful death cases currently pending at the time the bill is enacted and prejudgment interest on those cases will begin to accrue from the time the bill is enacted.  

The Illinois Court’s statistical summary for 2019 indicates that the time between a lawsuit being filed and a verdict is approximately 33.8 months for personal injury cases seeking in excess of $50,000. This means that a plaintiff in Illinois could expect prejudgment interest of approximately 18% for the average personal injury case seeking in excess of $50,000. The prejudgment interest will apply to the total amount of the judgment based on all damages. This will include prejudgment interest on damages related to past medical billing, as opposed to actual payment for past medical costs, as well as expected future medical expenses, lost wages, future loss of earning capacity, and non-economic damages.

Based on this bill providing a significant incentive to plaintiffs to delay litigation, the bill sets a 5-year time limit for prejudgment interest. This will limit prejudgment interest to 30% of any judgment in a personal injury matter. Moreover, prejudgment interest does not continue to accrue during the time that a plaintiff voluntarily dismisses an action. In Illinois a plaintiff may voluntarily dismiss an action at any time prior to trial and refile within 1 year or within the original statute of limitations, whichever is greater. See 735 ILCS 5/2-1009 and 735 ILCS 5/13-217. Prejudgment interest will then continue to accrue upon refiling.

One of the concessions in the current bill is related to written settlement offers made by a defendant within 12 months of the filing of a lawsuit. If a plaintiff does not accept a written offer within 90 days or rejects the written offer, then any prejudgment interest added to the amount of the judgment shall be based on the difference between the judgment and the amount of the written offer. If the judgment is equal to or less than the highest written offer, then no prejudgment interest shall be added to the judgment. Based on this section of the bill, it may be beneficial for a defendant to make a written settlement offer to a plaintiff within 12 months of the filing of a lawsuit. However, it is expected that this section of the bill will be an incentive to plaintiff’s counsel to delay discovery during the first 12 months of a case in an effort to reduce any potential written settlement offer and to increase the punitive effect of the prejudgment interest statute.  

Overall, the passing of this bill furthers Illinois’ status as a plaintiff friendly jurisdiction. This bill punishes defendants that defend themselves against personal injury and wrongful death lawsuits and provides an incentive for plaintiffs to file suit and to delay litigation for up to 5 years. We anticipate that this bill will create more litigation, increase costs of litigation for defendants, and cause further congestion of the Illinois Courts, which have not conducted civil trials in more than a year due to the COVID-19 pandemic. At this time, the defense bar and the business community are requesting that the bill be further amended to extend the time frame for settlement offers to 36 months, to delay interest from starting to accrue until the parties are at issue, to remove interest from being added to non-economic and future damages, and to add that plaintiffs would be responsible for a defendant’s costs and fees if they reject a written settlement offer that is equal to or exceeds the judgment.  

Joseph A. Panatera is a partner at Cassiday Schade LLP. Joseph concentrates his practice on civil litigation, with an emphasis on transportation, products liability, medical malpractice, and civil rights. Joseph has tried multiple cases to verdict in both Illinois and Indiana, and frequently resolves cases through arbitration and mediation.

   

About Us

Cassiday Schade is a litigation law firm headquartered in Chicago, with a presence throughout the Midwest. We focus on providing our clients with exceptional and efficient representation and act as national or regional counsel for clients facing nationwide exposures.

With experience in virtually all areas of civil litigation, we have a diverse client base and our attorneys provide companies of various sizes with extensive trial experience and case preparation acumen. Throughout our history, we have represented individuals and companies in a variety of industries, including long-term care, insurance, financial services, manufacturing, construction, professional services and transportation. In addition to trial and appellate work, we provide both organizations and individuals with the tools to analyze and prevent risk before litigation arises.

We take pride in working with our clients and not just for them. Every case is different, and determining the best possible outcome is what our attorneys deliver. Sometimes this means aggressive preparation for trial, other times it may involve seeking an early resolution through alternative means, such as mediation or arbitration. Ultimately, our clients receive the benefit of having their matters handled with maximum efficiency and skill.

Attorneys

Practices

Cassiday Schade’s Admiralty & Maritime practice group represents clients in a wide range of maritime matters and understands the legal complexities that are an integral part of the marine industry.

At Cassiday Schade, we recognize the important distinction between trial and appellate work and the need for appellate specialists. Our attorneys have outstanding research, writing and oral advocacy skills and bring an original perspective and tailored strategy to each appeal. A significant portion of our strategy includes analyzing whether or not an appeal is the best course of action for our clients. Our practice group provides an appellate perspective when issues arise at trial, including the introduction of prejudicial evidence by an opponent, an opponent's efforts to limit the introduction of evidence favorable to the defense and jury instructions. We also become involved after litigation concludes, and offer guidance on post-trial motions and responses.

Cassiday Schade’s Civil Rights & Correctional Healthcare practice is dedicated to providing expert, cost-effective legal defense to correctional healthcare employers, as well as the doctors, nurses and other healthcare providers they employ. Our attorneys aren’t just excellent litigators, we are also industry experts and are intimately acquainted with trends, changes and legal developments that may impact our clients.

Cassiday Schade’s Commercial attorneys serve as advocates and business advisors to clients from a wide range of industries including banking, real estate financing and investment, health care, automobile sales and finance, financial services, insurance, manufacturing, and construction.

The representation of contractors, developers and design professionals has been a focus of Cassiday Schade since the inception of the firm. The depth of our experience covers the broad spectrum of all points where construction and the law intersect. Our list of clients includes the largest general contractors in Illinois as well as owners, architects, engineers and specialty subcontractors. We routinely represent these companies in their biggest and most problematic cases. While we have the ability to staff large accounts, we keep our client teams small so that our attorneys remain familiar with the client’s background and needs. This ensures efficiency and consistency in our representation of our clients.

Cassiday Schade’s Employment practice group represents organizations in a wide range of employment related disputes. As part of our litigation strategy, our attorneys provide an early assessment of each case to determine the best avenue toward resolution, considering both the nature and potential exposure of the claim and the needs of the client.

Cassiday Schade’s Environmental and Toxic Injury practice group serves clients who are, or may be, exposed to claims arising from the manufacture, sale or use of potentially toxic and hazardous substances, and to the threat of litigation arising from environmental claims attendant to land, air and water pollution. Our firm is often retained to handle not only the litigation of active lawsuits, but to monitor litigation for nationwide corporations, advise corporations on risk reduction and coordinate the nationwide defense strategy for corporations facing toxic tort, product liability and other commercial issues. Our success is determined by a skilled team of attorneys with industry acumen and access to a large network of experts and consultants. No matter the issue, our overarching goal is the same: to bring our clients the best possible result through proactive and individualized service.

The family law practice at Cassiday Schade covers a broad spectrum of work, from simple separation agreements to the most intricate and delicate situations. Our success stems from the precision, persistence and care to which we apply ourselves with respect to the law, as well as the ability to communicate thoroughly and compassionately with our clients, from the initial consultation to the final agreement or judicial ruling.

Cassiday Schade’s Hospitality and Retail practice represents a wide-range of clients in complex litigation matters, including hotels and hotel chains, hotel management companies, hotel property owners, franchisees, restaurants, bars, shopping malls, and event production companies. In addition, our skilled team of attorneys is committed to providing our clients with guidance and risk-management strategies to avoid future litigation. This includes but is not limited to, legal counseling, alternative dispute resolution and pre suit negotiations.

Cassiday Schade’s Insurance practice group provides full-service litigation, transactional and alternative dispute resolution capabilities to insurance carriers and other commercial entities. Our expert team of attorneys is focused on providing clients with prompt, direct advice regarding the risks presented in any given situation, both preventively and when litigation arises. Our team also frequently utilizes litigation alternatives such as contractual resolutions, standstill agreements and mediation, all of which can be of great assistance in complex insurance matters.

We represent some of the nation’s top hospitals and other healthcare providers in the successful defense of malpractice litigation. The actions we defend are approached with the highest level of professional consideration and we have tried hundreds of cases to verdict in over 50 counties nationally. Our industry expertise and innovative use of technology to create demonstrative evidence during trial provides clients with the most successful defense possible. We also have access to a network of the most qualified consultants and experts who provide guidance and work closely with our team of attorneys on these lawsuits.

Cassiday Schade’s Nursing Home & Long-Term Care practice group represents nursing homes, assisted living facilities, hospices, home health care agencies and rehabilitation centers. At the core of our practice is an understanding of the difficulty inherent in effectively addressing the quality of care provided to individuals whose health is compromised. Our attorneys are a dedicated group of litigators with extensive industry knowledge of OBRA Regulations, the Illinois Administrative Code and the Nursing Home Care Act. We are committed to partnering with our clients in the investigation, planning, direction and defense of a case to determine the most efficient and practical resolution.

Cassiday Schade’s Products Liability practice group has extensive knowledge of state and federal product liability laws and the applicable standards governing the design, manufacture and distribution of products. Our attorneys’ first step is product identification, specifically to examine our clients’ involvement in the design, manufacture, and/or distribution. This includes following paper trails and pursuing investigation to locate and preserve evidence. We also immediately analyze whether any legal defenses, such as statutes of limitations or repose, can be asserted. Our experience in the industry provides us with access to the most sophisticated experts. We act quickly to retain the best consultants, provide them with all applicable materials and obtain their input in order to present the best legal and technical defense.

Professional liability cases are often complex, both factually and procedurally. Cassiday Schade’s Professional Liability practice group services a wide range of clients including accountants, architects and engineers, attorneys, nursing homes, officers and directors, paramedics and psychologists. Our attorneys realize the importance of understanding burdens of proof, standards of care and the need to promptly identify the right consultants and experts. We stay abreast of case law and developments in the profession so that we can bring the highest level of knowledge and understanding to a given case. Our practice team involves our clients in all aspects of litigation, keeping them informed and seeking their input.

Cassiday Schade’s Transportation practice group represents motor carriers, owners, operators, trucking companies and insurance carriers in what are often catastrophic accidents involving trucks, trains, buses, vans, automobiles and other modes of transportation. Our rapid response team of attorneys, accident reconstructionists and transportation investigators is on-call 24 hours a day and can be immediately dispatched to preserve and document physical evidence, inspect vehicles and perform a download of the electronic control module. We also frequently defend cases where the first notice is the lawsuit. Our attorneys perform early assessments of both the liability and damage aspects of each case. This analysis often leads to an early resolution by way of alternative dispute methods including mediation.

Headlines

Blog

Anticipated Prejudgment Interest In Illinois

On March 18, 2021, the Illinois Legislature passed a bill to amend 735 ILCS 5/2-1303 to require prejudgment interest on all personal injury and wrongful death matters in which a judgment is entered for the plaintiff. This bill is expected to be signed by Governor Pritzker and become effective on July 1, 2021. ... [ read more ]

view all