Cerveny v. American Family Ins. Co., 1-92-2940

• Decision Date: 28 September 1993
• Docket Number: No. 1-92-2940,1-92-2940
• Parties: , 193 Ill.Dec. 663 Gloria CERVENY, Plaintiff-Appellant, v. AMERICAN FAMILY INSURANCE COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1214

626 N.E.2d 1214

255 Ill.App.3d 399, 193 Ill.Dec. 663

Gloria CERVENY, Plaintiff-Appellant, v. AMERICAN FAMILY INSURANCE COMPANY, Defendant-Appellee.

No. 1-92-2940.

Appellate Court of Illinois First District, Second Division.

Sept. 28, 1993.

Rehearing Denied Oct. 20, 1993.

Tuohy and Martin, Ltd., Chicago (John L. Martin, of counsel), for plaintiff-appellant.

Coleman & O'Halloran, Ltd., Chicago (Robert N. Hilbert, of counsel), for defendant-appellee.

Justice SCARIANO delivered the opinion of the court:

On April 12, 1987, while driving her daughter's automobile, plaintiff Gloria Cerveny was involved in an automobile accident with a motorist who carried a liability insurance policy which had a $30,000 ceiling. Because she deemed that motorist's insurer's tender of the maximum policy amount inadequate, she made a claim pursuant to the underinsured motorist provision of her daughter's insurance policy, written by defendant American Family Insurance Company, and seeking damages in excess of the $30,000 she had already received. After the parties failed to reach agreement on an appropriate amount, they waived arbitration, and plaintiff filed suit against defendant in circuit court. The sole issue to be tried was the nature and extent of plaintiff's damages.

Plaintiff was waiting to make a left-hand turn while her traffic signal was green when her auto was broadsided by a motorist who drove a Ford Maverick through a red light, striking the driver's side of plaintiff's car. Plaintiff estimated that at the moment of the collision, the other vehicle was proceeding at 50 or 60 miles per hour, and never slowed before hitting her.

Christopher Wolff, who was in his vehicle directly behind plaintiff's, where he too was waiting to make a left-hand turn, testified that he noticed a Ford Maverick as it travelled down a hill east of the intersection where both his and plaintiff's cars were standing. He believed that the Maverick collided with plaintiff's car while proceeding at approximately 30 miles per hour. Mary Holtze also observed the accident from a vantage point approximately 25 feet west of the impact. She was travelling immediately behind the Maverick as it approached the intersection where the traffic signal for her and the driver of the Maverick had turned red. The Maverick, without heeding the signal, continued through the intersection and struck plaintiff's car. She estimated the speed of the Maverick to be 15 or 20 miles per hour at the time of impact, and she recalled that its brake lights were lit before it made contact with plaintiff's car, although she could not recall if its braking left any skid marks on the pavement. When Holtze went to offer her assistance to the victims of the collision, she found plaintiff to be very upset, but she did not see any blood in or around plaintiff's mouth, nor did she detect any other signs of physical injury that plaintiff may have sustained.

Robert Weiss, a firefighter/paramedic for the Lisle-Woodridge fire district, was the first medic to treat plaintiff after the accident. Upon his arrival at the scene, he took a history from plaintiff, noting that she was fully conscious and alert and had situation awareness of the events which had transpired. He observed that the steering wheel showed no signs of damage and concluded therefrom that she had suffered no blunt trauma to her chest. Weiss recorded no evidence of blood flowing from her mouth, yet the mouth, like the nose and the eyes, was one of the organs he normally checked as a part of his triage evaluation. Plaintiff at first complained only of painful knees, but later mentioned pain in her lower back as well. She informed Weiss that she was afflicted with arthritic knees, for which she took aspirin. He did not recall her exhibiting any difficulty in walking nor did he have any difficulty understanding her responses to his questions.

Weiss' overall impression was that she had suffered the minimal effects of a minor traffic accident. In fact, plaintiff declined a ride in the ambulance to the hospital, telling Weiss that she did not want to go there without her daughter. Consequently, the police who were called to investigate the accident drove her home where, upon arriving, she complained of experiencing dizziness and lower back pain while in the police car. Plaintiff's daughter, Diane Cerveny, recalled that she was assisting plaintiff out of the police car when plaintiff fainted. This prompted Diane to call for an ambulance to take plaintiff to the hospital, and Weiss responded to the call.

Diane related that once they had arrived at the emergency room of the hospital, she noticed that plaintiff was holding the top plate of her dentures, which was cracked in half and held together only by the skin-like membrane which covers the appliance. She asked plaintiff what had happened, and, although it was difficult to understand plaintiff, she informed Diane that she had hit her head in the accident and the impact had broken her denture.

On the day of the accident, Bruce Hendrickson, M.D., who was on duty in the emergency room of Edwards Hospital in Naperville, where plaintiff was taken for treatment following the accident, performed a full physical examination of her which disclosed no radical abnormalities. Her knees were not tender and had no effusions or fluid in the joints, nor were they unstable, thus suggesting no possible tears to the ligaments in the knees. But plaintiff did complain of pain when he conducted a range of motion test on the knees. His inspection of her head showed no apparent injuries, and although he could not recall if he examined her mouth, he made no notations on her chart indicating that he noticed blood flowing from it. He summarized his findings on the day of the accident by noting an absence of any objective evidence of trauma.

Plaintiff sought further medical treatment on April 27, 1987, from her personal physician, Allen Malnak, M.D., explaining that because she trusted no other doctor she waited for him to return from his honeymoon. Malnak had been her physician since 1981 and during that time, he had treated her for injuries which she had sustained in three prior automobile accidents, which treatments included the draining of fluid from her knees. Dr. Malnak also treated her for the onset of osteoarthritis in her knees, lower back, and wrists. In 1984, an x ray of one of plaintiff's knees showed a considerable arthritic change which Malnak interpreted to be psuedogout, which is the formation of non-uric acid crystals on the knee, and which he opined was caused by the wear and tear on the knees that accompany normal usage.

Dr. Malnak referred plaintiff to Henry Acuna, M.D., a board-certified orthopedic surgeon who first saw her in July 1985. At that time, she complained of pain in both knees and difficulty in climbing stairs. After an examination and a withdrawal of fluid from the knees, his diagnosis was that she had osteoarthritis, bursitis, and/or psuedogout, and he did not rule out the possibility of a torn cartilage. Acuna saw her again in 1985 and determined that she may have had patellar tendonitis or an irritated tendon.

The next time Dr. Acuna saw her was after the accident when his examination disclosed that she may have been suffering from chrondromalacia or a softening of the lining of the cartilage of the knee. His prognosis was that arthroscopic surgery on the knee was needed to repair the damage. In his expert opinion the deterioration of the knee was caused by the trauma plaintiff experienced in the accident of April 12, 1987, since one possible factor which would aggravate an osteoarthric knee was trauma. On cross-examination, Dr. Acuna reiterated that prior to the accident, she did suffer from osteoarthritis which, he admitted could have been caused by stress to the knees, heredity or the fact that plaintiff was markedly overweight.

Michael Grear, M.D., a board-certified orthopedic surgeon, next treated plaintiff for the continuing pain in her knees in November 1990. His examination disclosed that she was slightly overweight and suffered from muscle spasms in the lumbar region of her lower back. Her knees evidenced significant crepitation and did not have a full range of motion, but showed no effusions or fluid collection within the joint. Based on his objective findings and her subjective complaints of pain, he recommended a surgical debridement of the right knee. She did not immediately consent to surgery but returned to Grear in February 1991 with similar complaints and he again offered the same prescription. This time she agreed that surgery was necessary, and on February 2, 1991, Grear performed an arthroscopic abrasion athroplasty of her right knee and removed a torn meniscus. In a follow-up visit after the procedure, he noticed that she had regained some of the lost range of motion of the knees, but she still complained of intermittent pain and found it difficult to climb stairs or exit cars. He found that at that point, the cartilage of plaintiff's knees had degenerated so that, at the joints, there was bone-to-bone contact which had caused her legs to bow inward. Grear posited that the condition of the knees at that time was caused by an aggravation of her osteoarthritis by the trauma to the knees plaintiff endured in the 1987 accident. He estimated the cost of repair of the knees to be around $40,000.

On cross-examination, Grear admitted that he received compensation to testify for plaintiff. He also agreed that in general, bowleggedness had many possible root causes. He listed heredity, weight, or even degenerative arthritis. He clarified his opinion by stating that although he believed that the accident contributed to the deterioration of the knee, he had insufficient information regarding the accident to fix with any degree of precision the extent of its contribution.

Grear also was allowed to testify as an expert for the...