HB5369 94TH GENERAL ASSEMBLY

LRB094 19406 RCE 55100 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB5369

Introduced 01/26/06, by Rep. Jay C. Hoffman

SYNOPSIS AS INTRODUCED:

735 ILCS 5/8-105 new
735 ILCS 5/8-405 new

Amends the Code of Civil Procedure. Provides for an affidavit by a person rendering services to a party in an action or proceeding that states the services the person rendered were necessary and that the charge for the services was reasonable. Provides that the affidavit is sufficient evidence to support a finding of fact by a judge or jury, unless a party files a controverting affidavit. Provides time limits as to when these affidavits must be filed. Provides that an affidavit of business records is sufficient to have the records attached to the affidavit be admissible as a business record, subject to other objections. Provides for the time by which a business records affidavit must be filed and the form of affidavit to be used.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by adding Sections 8-102 and 8-405 as follows:

(735 ILCS 5/8-102 new)

Sec. 8-102. Affidavits and counter affidavits. This Section shall apply to any action or proceeding.

(a) Unless a controverting affidavit is filed as provided by this Section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by a judge or jury that the amount charged by that person was reasonable and that the service was necessary.

(b) The affidavit shall:

(1) be taken before an officer with authority to administer oaths;

(2) be made by the person, or that person's designee, who provided the service;

(3) include an itemized statement of the services and charges.

(c) The party offering the affidavit in evidence or the party's attorney shall file the affidavit with the clerk of the court and serve a copy of the affidavit on each other party to the case at least 30 days before the day on which evidence is to be first presented at the trial of the case.

(d) A party intending to controvert a claim based upon the affidavit shall file a counter affidavit with the clerk of the court and serve a copy of the counter affidavit on each other party or the party's attorney of record no later than (i) 30 days after the day he or she receives a copy of the affidavit; (ii) at least 14 days before the day on which evidence is first to be presented at the trial of the case; or (iii) with leave of the court, at any time before evidence is first presented at trial.

(e) The counter affidavit shall give reasonable notice of the basis on which the party filing it intends at trial to controvert the claim which is based on the initial affidavit and must be taken before a person authorized to administer oaths. The counter affidavit shall be made by a person who is qualified, by knowledge, skill, experience, training, education, or other expertise, to testify in contravention of all or part of any of the matters contained in the initial affidavit.

(735 ILCS 5/8-405 new)

Sec. 8-405. Form of affidavit.

(a) Any records or copies of records that have been photographed, microphotographed, microfilmed, optical imaged, or otherwise reproduced either in the usual course of business, or pursuant to any statute of this State authorizing the reproduction of public records, papers, or documents, and the reproduction, in either case, complies with the minimum standards of quality for permanent records approved by the State Records Commission, then such reproduction shall be admissible as a business record, subject to other substantive or procedural objections, in any action or proceeding upon the affidavit of the person who would otherwise provide the records attached to the affidavit.

(b) No party shall be permitted to offer business records into evidence pursuant to this Section unless all other parties to the action have been served with copies of the records and the affidavit at least 7 days prior to the day upon which trial of the cause commences.

(c) The affidavit permitted by this Section may be in form and content substantially as follows:

"THE STATE OF ........................

COUNTY OF ...........................

AFFIDAVIT

Before me, the undersigned authority, personally appeared ........., who, being by me duly sworn, deposed as follows:

My name is ..............., I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:

I am the custodian of the records of .......................

Attached hereto are ............ pages of records from ........ These ....... pages of records are kept by ................ in the regular course of business, and it was the regular course of business of ............ for an employee or representative of ....... with knowledge of the act, event, condition, opinion, or diagnosis recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time of the act, event, condition, opinion, or diagnosis. The records attached hereto are the original records or exact duplicates of the original records.

In witness whereof I have hereunto subscribed my name and affixed my official seal this ...... day of ............, 20....

................ .................

(Signed) (Seal)"