Chesny v. Marek, 79 C 4186.

• Decision Date: 03 September 1982
• Docket Number: No. 79 C 4186.,79 C 4186.
• Citation: 547 F. Supp. 542
• Court: U.S. District Court — Northern District of Illinois
• Parties: Alfred W. CHESNY, etc., Plaintiff, v. J. MAREK, et al., Defendants.

547 F. Supp. 542

Alfred W. CHESNY, etc., Plaintiff, v. J. MAREK, et al., Defendants.

No. 79 C 4186.

United States District Court, N. D. Illinois, E. D.

September 3, 1982.

James D. Montgomery, James D. Montgomery & Associates, Chicago, Ill., for plaintiff.

Donald G. Peterson, Schaffenegger, Watson & Peterson, Ltd., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Alfred W. Chesny ("Chesny"), individually and as administrator of the estate of his deceased son Steven, sued defendants under 42 U.S.C. § 1983 ("Section 1983") and a number of state tort laws based on the allegedly unlawful fatal shooting of Steven. After trial on the merits a jury found in part for Chesny and awarded a total of $60,000 against defendants Marek, Wadycki and Rhode. Chesny now moves for an additur to the judgment as well as an award of attorneys' fees. Defendants move for judgment n. o. v. as well as an award of attorneys' fees. For the reasons stated in this memorandum opinion and order Chesny's motions are granted in part and denied in part and defendants' motions are denied.

Additur

Loss of Future Earnings

Though the jury failed to award Chesny any amount as compensation for the loss of Steven's future earnings, Chesny claims he is entitled to such recovery as a matter of law.¹ Chesny's expert economist testified that based on Steven's wage rate at the time of his death ($5.50 an hour), less a 30% deduction for personal consumption, the present value of his future lost earnings amounted to $504,859.

But a plaintiff is not absolutely entitled to recover such future earnings in a death action. Recovery is limited to the damage suffered by the next of kin. That damage can take two forms:

1. what amount decedent would have spent on next of kin during his lifetime, and

2. what amount would have accumulated in decedent's estate by the time of his death.

Keel v. Compton, 120 Ill.App.2d 248, 256 N.E.2d 848 (3d Dist. 1970); Denton v. Midwest Dairy Products Corp., 284 Ill.App. 279, 1 N.E.2d 807 (4th Dist. 1936).

As to the first of those elements, there was ample evidence from which a jury could conclude Steven was not supporting anyone and his entire future earnings would have gone either into savings or personal consumption. Thus a jury could reasonably have limited its award to the amount (if any) Steven would have left in an estate at the time of his death (assuming a normal life expectancy).

As for the second factor, this Court also finds the jury could reasonably conclude Steven would not have left any money in his estate. It is true the testimony of Chesny's expert was that Steven would personally consume only 30% of his total future earnings and the remaining 70% would be left as an estate. Defendants offered no expert testimony on that score. But a plaintiff carries the burden of proof as to all damages, and the jury was entitled to reject the expert's testimony and draw its own conclusions.² This Court cannot overturn the jury's implicit determination that Steven would have left no estate at his death.

Funeral Expenses

Chesny also claims the uncontradicted testimony demonstrated he was entitled to recover $3,000 in funeral expenses. Defendants correctly contend that the verdict forms approved by Chesny's counsel, providing separate lines for separate categories of damages, asked only for the jury's listing of (1) compensatory damages for the constitutional injury and (2) lost earnings. They say Chesny failed to ask for pecuniary damages and therefore lost his chance to get recovery for funeral expenses.

Under the circumstances Chesny cannot prevail:

1. If funeral expenses could not be within the "compensatory damages" awarded by the jury, Chesny effectively waived his right to their recovery by failing to provide a separate instruction for such an award.

2. If funeral expenses could be part of the "compensatory damages" award, the jury must be viewed as having included it within the damage award.

Once again (as with the issue described at n.1) Chesny wrongly seeks to exercise hindsight.

Defendants' Motion for Judgment N.O.V.

Defendants' motion for judgment n. o. v. is based on this Court's failure to instruct the jury on the requirements of the Illinois Criminal Code for police conduct. That failure does not constitute error because (1) federal law not state law establishes the proper standard of conduct and (2) in any case defendants have failed to point to any substantive difference between the standard of conduct outlined in the Illinois Criminal Code and the actual instruction given by this Court. Again the jury's resolution of the factual issues was rational. Accordingly defendants' motion for judgment n. o. v. and their related motion for fees and costs must be denied.

Fed.R.Civ.P. ("Rule") 68

Rule 68 provides:

At any time more than ten days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued .... An offer not accepted shall be deemed withdrawn and the evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

Defendants made a proper Rule 68 offer of judgment to Chesny for $100,000 plus costs and attorneys' fees then accrued. Because the eventual jury award was only $60,000, Rule 68 comes into play. It poses several problems in the context of this case.

If Rule 68 is applicable, there is no doubt Chesny cannot collect from defendants any "costs" incurred after the date of the offer of judgment. That in turn poses the question whether "costs" as used in Rule 68 include attorneys' fees, preventing Chesny from recovering fees incurred after the date of the offer.

Chesny first contends Rule 68 should not apply because the $100,000 offer was not reasonable in light of the nature of this action. Rule 68 does not literally require a "reasonable" offer, but Chesny cites August v. Delta Air Lines, Inc., 600 F.2d 699 (7th Cir. 1979) to support a reasonableness requirement.

In August the plaintiff eventually lost at trial after a nominal Rule 68 offer of judgment. Our Court of Appeals held Rule 68 would not apply because the offer was not a good faith attempt to settle the action. But the Supreme Court affirmed on entirely different grounds, Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). It held Rule 68 did not apply at all to a situation where a plaintiff lost a trial after a valid Rule 68 offer of judgment. Instead Rule 68 operates only where a plaintiff eventually prevails at trial but for an amount less than the offer of judgment. Chesny in essence argues the Seventh Circuit August rule should still apply in that event.

That reading is dubious at best in light of the Supreme Court's treatment of the issue. If a plaintiff wins at trial, but is awarded a judgment for less than the earlier Rule 68 offer, it is really a contradiction in terms to label that offer a sham. As the Supreme Court said, 450 U.S. at 355, 101 S.Ct. at 1151-1152:

But the plain language of the Rule makes it unnecessary to read a reasonableness requirement into the Rule. A literal interpretation totally avoids the problem of sham offers, because such an offer will serve no purpose, and a defendant will be encouraged to make only realistic settlement offers.

Moreover, even if a reasonableness requirement were incorporated into Rule 68 this Court would find defendants' offer of $100,000 met that test. In August the sham or unreasonable offer with which our Court of Appeals was concerned was a truly nominal offer whose only purpose was to put the plaintiff at peril under Rule 68. While Chesny might have been of the opinion the $100,000 offer was low, and while defendants may well have been prepared to go higher in negotiations, the offer was certainly a good faith attempt to settle the action and not simply a sham designed to invoke Rule 68. That Rule must be held to apply here.

As already indicated, the real question then becomes whether attorneys' fees are part of the post-offer "costs" Chesny cannot recover. Authority on that question is sparse. Two early cases may arguably be said to support the proposition that costs under Rule 68 should not include attorneys' fees. Gamlen Chemical Co. v. Dacar Chemical Products Co., 5 F.R.D. 215, 216 (W.D. Pa.1946); Cruz v. Pacific American Insurance Corp., 337 F.2d 746 (9th Cir. 1964).³ But more recent cases stand for a different result when an underlying statute specifically provides for an award of fees as part of costs to a prevailing plaintiff.

In Waters v. Heublein, Inc., 485 F.Supp. 110 (N.D.Cal.1979) a plaintiff prevailed at trial after a Rule 68 offer of judgment, but like Chesny obtained a judgment for less than the offer. Waters involved the Equal Pay Act, which like Section 1983 permits an award of attorneys' fees to prevailing plaintiffs. "Costs" in Rule 68 were held to include fees for several reasons:

1. Under the statutory scheme the award of fees was treated as a component of plaintiff's entitlement to costs.

2. Case law under Title VII required an award of fees to prevailing plaintiffs unless there was a showing of special circumstances.

3. Defendant's offer of judgment had included an offer of costs and attorneys' fees then accrued.

4. Including fees within Rule 68's definition of "costs" would promote the policy of encouraging settlements.

See also Scheriff v. Beck, 452 F.Supp. 1254, 1260 (D.Colo.1978).

Two other cases lend support to the Waters position. In Greenwood v. Stevenson, 88 F.R.D. 225 (D.R.I.1980) a Section 1983 plaintiff accepted a Rule 68 settlement offer, which defendants then contended did not include attorneys' fees. Prevailing ...