Allstate Insurance Co. v. Mahr

• Decision Date: 04 April 2002
• Docket Number: No. 2-01-0059.,2-01-0059.
• Citation: 263 Ill.Dec. 43,767 N.E.2d 494,328 Ill. App.3d 915
• Parties: ALLSTATE INSURANCE COMPANY, as Subrogee of Joseph Buczkiewicz, Plaintiff-Appellee, v. Richard L. MAHR, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

767 N.E.2d 494

328 Ill. App.3d 915

263 Ill.Dec. 43

ALLSTATE INSURANCE COMPANY, as Subrogee of Joseph Buczkiewicz, Plaintiff-Appellee, v. Richard L. MAHR, Defendant-Appellant.

No. 2-01-0059.

Appellate Court of Illinois, Second District.

April 4, 2002.

Keely Truax, Parrillo, Weiss & O'Halloran, Chicago, for Richard L. Mahr.

Thomas W. Dorsch, James M. O'Dea, Law Offices of James M. O'Dea, Orland Park, for Allstate Insurance Co., Joseph Buczkiewicz.

Justice GEIGER delivered the opinion of the court:

The plaintiff, Allstate Insurance Company (Allstate), as subrogee of Joseph Buczkiewicz, sued the defendant, Richard Mahr, for property damage resulting when Mahr's car rear-ended the car Buczkiewicz was driving. After a jury found the defendant negligent and awarded damages of $125, the trial court granted the plaintiff's motion for judgment notwithstanding the verdict (judgment n.o.v.) and increased the damages to $2,855.67. The defendant appeals, contending that the court could not grant judgment n.o.v. because there was conflicting evidence of liability. The defendant contends that the court in reality granted an additur, which it could not do without the defendant's consent.

Buczkiewicz testified that on November 10, 1999, he was stopped in traffic on Route 83. Construction had closed the right lane and three lanes merged into two. After being stopped for a few seconds, his car was rear-ended by one driven by Mahr. After the accident, Mahr apologized, saying that he had been looking to the right to merge and looked up too late to avoid the accident.

Buczkiewicz identified a repair bill for $2,855.67. He said that he paid the $250 deductible and his insurance company, Allstate, paid the rest. His car had not been damaged before the accident. Nothing happened to it between the accident and when he had it repaired. Although his car was hit in the rear, the bill showed repairs to the left side panel. That part had been damaged when the bumper was pushed underneath the vehicle and pushed out the running board.

Mahr testified that on the day of the accident he was in a hurry to get to work. He was driving north on Route 83 and never changed lanes. As he crossed the bridge over Irving Park Road, traffic in front of him suddenly came to a halt. He tried to stop but was unable to do so in time to avoid the accident. Buczkiewicz had stopped suddenly or was still stopping when the accident occurred. Mahr applied his brakes as soon as he saw Buczkiewicz stopping, but his wheels locked up and slid on fresh, oily asphalt.

The jury returned a verdict finding the defendant liable and awarded damages of $125. The plaintiff moved for judgment n.o.v., arguing that the evidence was undisputed that its damages were $2,855.67, the amount of the repair bill. The trial court granted the motion and increased the plaintiff's damages to that amount. The defendant filed a timely notice of appeal.

The defendant contends that the trial court should not have granted the plaintiff judgment n.o.v. because the evidence relating to liability was conflicting. In reality, the court granted the plaintiff an additur, which was improper because the defendant did not consent to that relief.

Based on the practices of the English common law, American courts have maintained the distinction that motions for a directed verdict or for judgment n.o.v. are limited to liability issues. Conversely, motions for remittitur or additur are used to contest the amount of damages. Compare Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 659-60, 55 S.Ct. 890, 892-93, 79 L.Ed. 1636, 1639-40 (1935), with Dimick v. Schiedt, 293 U.S. 474, 482, 55 S.Ct. 296, 299, 79 L.Ed. 603, 609 (1935). See generally Comment, Additur-Procedural Boon or Constitutional Calamity, 17 DePaul L.Rev. 175, 183-85 (1967). The trial court may grant judgment n.o.v. where the evidence so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Maple v. Gustafson, 151 Ill.2d 445, 453, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992). However, additur may be awarded only where the defendant consents to it as an alternative to a new trial, even where the damages are liquidated or the evidence of damages is essentially undisputed. Hladish v. Whitman, 192 Ill. App.3d 561, 565, 139 Ill.Dec. 682, 549 N.E.2d 5 (1989).

In Hughes v. Bandy, 404 Ill. 74, 87 N.E.2d 855 (1949), the supreme court disapproved the procedure followed here of using a motion for judgment n.o.v. to correct an apparent error in the jury's calculation of damages. There, the jury found for the plaintiff and awarded him $615. The trial court granted the plaintiff's motion for judgment of $1,218.25, citing uncontradicted evidence of damages in that amount. The appellate court reversed and the supreme court affirmed the appellate court, stating, as follows:

"A disputed question of fact as to ultimate liability was presented to the jury, and this question was decided in favor of plaintiff and against defendant. The mere fact that the evidence with respect to damages was not in dispute is beside the point so far as plaintiff's motion for judgment notwithstanding the verdict is concerned." Hughes, 404 Ill. at 80, 87 N.E.2d 855.

The court observed that in its previous cases approving increases in the damage award the trial courts had done so only with the defendants' consent as an alternative to granting new trials. Hughes, 404 Ill. at 80-81, 87...