Illinois Appellate Court Affirmed the Dismissal of Counterclaim in Injury Lawsuit Finding No Private Right of Action Existed Making Counterclaim Moot

Plaintiff Mary Carmichael was injured in a car accident while she was riding in a six-passenger van owned and operated by Professional Transportation Inc. (PTI). The vehicle was being driven by Dwayne Bell. The van was used to shuttle Union Pacific employees between job sites.

Carmichael sued PTI, Dwayne Bell and others, but eventually dismissed PTI because evidence indicated that Bell’s sole negligence was the cause of her injury.

Bell had minimum liability insurance coverage required by the Illinois Vehicle Code of just $20,000 per person, $40,000 per occurrence.

Carmichael settled with Bell for the $20,000. PTI was insured by American Insurance Co. The insurer had a $5 million liability limit, but the minimum underinsured motorist coverage of $20,000 per person, meaning that Carmichael could not recover any additional damages.

In October 2012, she filed suit against PTI, the insurer and Union Pacific arguing that PTI was required as a contract carrier to obtain the minimum of $250,000 per person in underinsurance motorist insurance according to the amended terms of Section 8-101(c) of the Illinois Vehicle Code.

PTI then filed a countersuit, arguing that the amendment “violated the special legislation, equal protection, due process and commerce clauses of this state and federal constitution” and that it neither contained nor implied a private right of action.

Carmichael then voluntarily dismissed her claim against PTI, but PTI sought to continue their counterclaim challenging the constitutionality of Section 8-101(c). On a motion filed by the state, the trial judge dismissed PTI’s counterclaim. PTI appealed.

On appeal, PTI did not dispute they had failed to comply with the amended provisions of Section 8-101(c) of the code, which applied specifically to contract carriers and vehicles designed to contain 15 or fewer passengers.

PTI asserted that the appellate court “need not reach the constitutional issues . . . because, as a threshold matter, the trial court erred in finding that a private right of action exists” to enforce the mandatory insurance requirements. PTI disputed that the statute does not, on its face, provide for such a private right of action.

In order to find an implied private right of action, the court must determine that the statute was enacted to benefit the class to which the plaintiff belongs, that the statute was designed to prevent injuries like the plaintiff’s, that a private right of action is consistent with the statute and that it is necessary to imply a private right of action in order to provide an adequate remedy for violations.

It was the last requirement that PTI challenged, arguing that violations of Section 8-101(c) carried both criminal and regulatory penalties, including fines and imprisonment as well as suspension of the improperly insured vehicle.

PTI argued that these penalties were sufficient to fulfill the statute’s purpose, implying a private right of action was not necessary. The appellate court found that these penalties were not demonstrably inadequate, and therefore refused to imply a private right of action to enforce Section 8-101(c) of the code.

Accordingly, the appellate court affirmed the trial judge’s dismissal of PTI’s counterclaim on different grounds, finding that since no private right of action exists for Carmichael to file suit against PTI, the counterclaim was moot.

Mary Terry Carmichael v. Union Pacific Railroad Co., Professional Transportation Inc., et al., 2018 IL App (1st) 170075 (June 26, 2018).

Kreisman Law Offices has been handling automobile accident cases, bicycle accident cases, motorcycle accident cases, bus accident cases and truck accident cases for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Wilmette, Glenview, Northbrook, Wheeling, Buffalo Grove, Norridge, Harwood Heights, Frankfurt, Gurnee, Zion, Round Lake Beach, Evergreen Park, Blue Island, South Holland, Chicago (North Ravenswood, Old Town, Pill Hill, Pilsen, Portage Park, Printer’s Row, Ravenswood, Lakeview, Kenwood, Bronzeville, Hyde Park, Wrigleyville, Irving Park, Edgewater, DePaul University, Bucktown, Back of the Yards), River Grove, Schaumburg, Mount Prospect and Palatine, Ill.

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