The Dead Man’s Act
The Illinois Dead Man’s Act is a law that constricts litigants from testifying about the actions and statements of a deceased individual defendant, if that testimony would provide beneficial evidence to the individual testifying and adverse to the defendant.
If a decedent’s lips are sealed by death then a survivor’s lips will be sealed by law
The Illinois Dead Man’s Act strongly constricts the ability of a Plaintiff to present evidence in cases in which the Defendant is deceased. As with any good rule based in old English common law, it comes with its own lyrical phrase: since a decedent’s lips are sealed by death, a survivor’s lips are sealed by law. The controlling statute in Illinois is 735 ILCS 5/8-201. The policy effectively bars testimony of any interested party as to the conduct and statements of a deceased defendant. The basis being that as the decedent cannot refute the testimony offered by an interested party in court, it should not be allowed at all.
As it relates to subrogation, in this case, an insured with a deductible (and potentially even without depending on the trial judge) is an interested party. As such, the insured cannot testify to a now deceased defendant’s negligent actions or admissions. Any testimony offered as to the conduct or statements would have to come from an uninterested party. Best case, an independent eyewitness, a police officer, or someone who had subsequent conversations with the defendant. And as in any case, a video works best. Cases like these highlight the need for keeping good information on all outside evidence from the insured and contact information for independent witnesses, even in the easiest of liability cases. Contact one of our subrogation attorneys if you think you have a case but the defendant is now deceased.