American Family Ins. Co. v. Village Pontiac-GMC, Inc.

• Decision Date: 16 January 1992
• Docket Number: No. 2-91-0435,2-91-0435
• Citation: 585 N.E.2d 1115,223 Ill.App.3d 624,166 Ill.Dec. 93
• Parties: , 166 Ill.Dec. 93 AMERICAN FAMILY INSURANCE COMPANY et al., Plaintiffs-Appellants, v. VILLAGE PONTIAC GMC, INC. et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1115

585 N.E.2d 1115

223 Ill.App.3d 624, 166 Ill.Dec. 93

AMERICAN FAMILY INSURANCE COMPANY et al., Plaintiffs-Appellants, v. VILLAGE PONTIAC GMC, INC. et al., Defendants-Appellees.

No. 2-91-0435

Appellate Court of Illinois Second District.

Jan. 16, 1992.

William C. Potratz, Roger A. Bixby, Bixby, Lechner & Potratz, Chicago, for American Family Ins. Co., Farmers Ins. Co., and William and Nancy Gill.

Diane I. Jennings, L. Anthony Lehr, John T. Williams, Lord, Bissell & Brook, Chicago, for General Motors Corp. Michael J. Toussiant, Kathryn M. James, Jay S. Judge, Judge & James, Ltd., Park Ridge, for Village Pontiac-G.M.C.

Presiding Justice REINHARD delivered the opinion of the court:

American Family Insurance Company, Farmers Insurance Company and William and Nancy Gill, plaintiffs, appeal from the orders of the circuit court of Du Page County which granted Village Pontiac-GMC, Incorporated's, and General Motors Corporation's, defendants', motions for sanctions pursuant to Supreme Court Rule 219 (134 Ill.2d R. 219) and summary judgment.

Plaintiffs essentially raise two issues on appeal: (1) whether the trial court erred in barring evidence as a sanction pursuant to Graves v. Daley (1988), 172 Ill.App.3d 35, 122 Ill.Dec. 420, 526 N.E.2d 679; and alternatively (2) even if the trial court properly barred certain evidence, whether the trial court erred in granting defendants' motions for summary judgment.

As shown through the pleadings, the motion for summary judgment and the response thereto, the facts in this case are the following. On October 1, 1981, William and Nancy Gill purchased a 1981 Pontiac Grand Prix from Village Pontiac-GMC, Incorporated (Village Pontiac), in Naperville, Illinois. The car was a demonstrator model. On October 7, 1981, William and Nancy Gill picked up the car from Village Pontiac. On the way home, several problems with the car occurred: the voltage regulator light was flashing red; the lights went dim; the car smelled as if it were burning, which was described as "a hot smell"; and the taillights went out.

Early in the morning of November 9, 1981, a fire occurred at the Gills' home. The fire severely damaged the home and other personal property. The next day, Nancy Gill telephoned Village Pontiac and told the service director that a fireman had told her that the car caused the fire.

On November 10 and 11, 1981, John K. Maurus investigated the fire for the Gills' homeowner's insurer, American Family Insurance Company. Maurus' opinion, which was based in part on the opinions of Richard W. Kraugh, an electrical engineer hired by Maurus, was that the origin of the fire was the area along the trunk light wire beneath the left end of the rear seat, and the cause of the fire was a short circuit which resulted when a copper trunk light circuit wire with damaged insulation contacted a grounded wire. Maurus removed the copper wire which he believed caused the short circuit.

The Gills subsequently transferred title of the car to their automobile insurance company, Farmers Insurance Company. The car was destroyed seven months later by a salvage company after Farmers Insurance had transferred the title.

On January 22, 1991, the court granted General Motors Corporation's (General Motors') motion to bar evidence regarding the car because it was destroyed. The order stated that "[p]laintiffs are barred from presenting any evidence, direct or circumstantial, concerning the condition of the Pontiac Grand Prix which is at issue in this case, at the trial of this cause." On March 18, 1991, the trial court granted defendants' motions for summary judgment based on plaintiffs' inability to use any evidence concerning the condition of the car.

Plaintiffs contend that the trial court erred in applying the holding of Graves v. Daley (1988), 172 Ill.App.3d 35, 122 Ill.Dec. 420, 526 N.E.2d 679, to this case. Essentially, plaintiffs contend that because all the evidence relating to the cause of the fire, including photographs, two wires and testimony concerning the scene, had not been destroyed, the trial court erred in barring any evidence relating to the condition of the car.

In Graves v. Daley (1988), 172 Ill.App.3d 35, 122 Ill.Dec. 420, 526 N.E.2d 679, the appellate court upheld a trial court's order barring all evidence relating to the condition of a furnace which was alleged to be the cause of a fire and which was destroyed by plaintiff prior to initiation of the litigation. (172 Ill.App.3d at 38, 122 ILL.DEC at 422, 526 N.E.2d at 681; see also Fire Insurance Exchange v. Zenith Radio Corp. (1987), 103 Nev. 648, 747 P.2d 911.) We believe that Graves is sound law and should be followed under the facts in the instant case.

Although other Illinois Appellate Court decisions have upheld sanctions for destruction of evidence in violation of a court order (Ralston v. Casanova (1984), 129 Ill.App.3d 1050, 1058, 85 Ill.Dec. 76, 473 N.E.2d 444) and for failing to comply with discovery orders after the evidence has been lost (Stegmiller v. H.P.E., Inc. (1980), 81 Ill.App.3d 1144, 1147, 37 Ill.Dec. 63, 401 N.E.2d 1156), it is similarly sound that sanctions may also be imposed despite the absence of a court order barring destruction (R. Johnston & K. Kandaras, Discovery in Illinois 181 (1985)).

Supreme Court Rule 219(c) authorizes a trial court to bar testimony if a party unreasonably refuses to comply with discovery rules and if the sanction is just. (134 Ill.2d R. 219(c)(iv).) Supreme Court Rule 214 allows a party to request the production of tangible things for inspection and testing. (134 Ill.2d R. 214.) Although the Illinois Supreme Court has not defined the phrase "unreasonable refusal to comply" (Wilkens v. T. Enterprises, Inc. (1988), 177 Ill.App.3d 514, 517, 126 Ill.Dec. 784, 532 N.E.2d 469), it has been defined in an appellate court decision as a deliberate and pronounced disregard for a discovery rule (Lavaja v. Carter (1987), 153 Ill.App.3d 317, 322, 106 Ill.Dec. 147, 505 N.E.2d 694). In determining unreasonable noncompliance, a court may focus on the importance of the information a party is seeking to have produced. (Comment, Policing Discovery Under Illinois Supreme Court Rule 219(c): A Search for Judicial Consistency, 21 Loy.U.Chi.L.J. 973, 982 (1990).) Production requests pursuant to Supreme Court Rule 214 may be frustrated by the destruction of the item sought. (Johnston & Kandaras, Discovery in Illinois, at 180.) Pretrial access to documents, tangible objects or property is often crucial to amassing a claim or defense. (Johnston & Kandaras, Discovery in Illinois, at 163.) Imposition of sanctions under Supreme Court Rule 219 is a matter within the discretion of the trial court, and a reviewing court will not disturb a trial court's decision absent an abuse of discretion. Wyrick v. Time Chemical, Inc. (1989), 191 Ill.App.3d 1041, 1044, 139 Ill.Dec. 139, 548 N.E.2d 524.

In this case, plaintiffs intentionally allowed the most crucial piece of evidence in this case to be destroyed. Plaintiffs should have known that potential defendants to a case alleging negligence and product liability would undoubtedly want to inspect, as plaintiffs' experts had done, and perhaps test the object alleged to have caused the damage. Further, Farmers Insurance Company had title to the car and, as an insurance company, unquestionably knew the importance of the car in allowing defendants to prepare a defense. Indeed, Farmers Insurance in anticipation of a subrogation claim allowed the car to be destroyed only after its experts had thoroughly examined the car and had issued their opinions on the cause of the fire.

Plaintiffs contend that, unlike Graves, all the evidence was not destroyed. This argument is without merit. Although two wires from the car were saved and plaintiffs have photographs of the car and other damaged property, defendants were unable to inspect, as plaintiffs' experts were, the most important evidence because of plaintiffs' actions. Plaintiffs were the only individuals with first-hand knowledge of the physical evidence which is far more probative under these circumstances in determining whether the vehicle caused the fire than photographs and two wires taken from the trunk area. The physical object itself in the precise condition immediately after an accident may be far more instructive and persuasive to a jury than oral or photograph descriptions. (Nally v. Volkswagen of America, Inc. (1989), 405 Mass. 191, 198, 539 N.E.2d 1017.) As a matter of sound public policy, an expert should not be permitted intentionally or negligently to destroy such evidence and then substitute his or her own description of it. (Nally, 405 Mass. at 198, 539 N.E.2d at 1021.) Under these particular circumstances, the existence of the two wires and the photographs is not a substitute for the car, the object on...