Chubb/Home Ins. Companies v. Outboard Marine Corp.

• Decision Date: 13 November 1992
• Docket Number: No. 1-89-3474,1-89-3474
• Parties: , 179 Ill.Dec. 591 CHUBB/HOME INSURANCE COMPANIES, Plaintiffs-Appellants, Cross-Appellees, v. OUTBOARD MARINE CORPORATION, Defendant-Appellee, Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 423

606 N.E.2d 423

238 Ill.App.3d 558, 179 Ill.Dec. 591

CHUBB/HOME INSURANCE COMPANIES, Plaintiffs-Appellants, Cross-Appellees, v. OUTBOARD MARINE CORPORATION, Defendant-Appellee, Cross-Appellant.

No. 1-89-3474.

Appellate Court of Illinois First District, Fifth Division.

Nov. 13, 1992.

Fell & Spalding, Philadelphia, Pa. (Stephen R. Bolden and Bollinger & Ruberry, Chicago, of counsel), for plaintiffs-appellants.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (D. Kendall Griffith, Joshua G. Vincent, of counsel), for defendant-appellee.

Justice GORDON delivered the opinion of the court.

Kathleen Faul, who was injured by a boat propeller while in the water, filed suit against the boat operator, David Joss (Joss), and the boat owner, his father John Joss, alleging negligence in the operation and the entrustment of the boat. A settlement was reached between Faul and the Josses. This settlement was paid on behalf of the Josses by their insurance carrier, Chubb/Home Insurance Companies (Chubb). Chubb subsequently brought a contribution action against Outboard Marine Corporation (OMC), manufacturer of the boat's engine. Chubb sought recovery under products liability and negligence theories, alleging that the injuries suffered by Faul would have been much less severe if OMC's motor was equipped with a propeller guard. A jury returned a verdict finding that OMC was not liable. On appeal, Chubb argues that the trial court erred in denying its motion in limine which sought to exclude evidence of the boat operator's consumption of alcohol on the morning of the accident and that remarks made by OMC's counsel during closing arguments constitute reversible error.

FACTS

Except where otherwise indicated, the following facts are undisputed. David Joss, Kathleen Faul and Peggy McElroy, three college friends, made plans to take the Joss' family boat out to Cedar Island in Fox Lake and spend the afternoon of July 11, 1981, at the Joss family cottage. They were going to a concert at Alpine Valley that night.

After arriving at the marina, they bought some Bloody Mary mix and loaded There is further undisputed testimony that between 11:00 a.m. and 11:30 a.m. Joss, Faul and McElroy got back into the boat. They rode around for about twenty minutes with Joss driving the boat and McElroy and Faul sitting behind the driver. They decided to go water-skiing and went back to the cottage where Joss readied the water-skiing equipment and everyone changed into their swimsuits.

[179 Ill.Dec. 593] the boat, which was powered by a 1973 Evinrude outboard motor made by OMC. Upon arriving at the cottage, Faul went inside and made a round of Bloody Marys. They sat outside for about an hour talking during which time McElroy had two drinks. Joss drank about half of his Bloody Mary from an eight ounce glass when he put the glass down on an incline and the glass tipped over, spilling the rest of his drink. Joss testified that earlier that morning he ate a breakfast of bacon and eggs prepared by McElroy. McElroy denied preparing any breakfast for Joss. Joss further testified that he did not recall consuming any more alcohol prior to the occurrence in question.

Joss testified that he began water-skiing at age 11 and first learned to operate a boat at summer camp about the same time. Joss first operated the family boat when he was 18 or 19 years old. He estimated that he operated the boat between 50 and 100 times and that the boat was used for water-skiing between 10% and 20% of that time. Joss had been told by his father to stop the motor completely when talking to a skier.

Faul, who told Joss she knew how to water-ski, was the first to do so that day. She put on a red life vest which clipped together covering her shoulders and extended slightly down past her waist. They were going to ski in a channel which is a couple of hundred yards wide in Meyers Bay, part of Fox Lake. They all discussed the hand signals which would be used to communicate between the skier and the operator of the boat. McElroy sat in the back of the boat and was to relay Faul's signals to Joss.

McElroy testified that she brought a six-pack of beer with her onto the boat, but did not recall whether Joss consumed any beer while on the boat. She did recall that she consumed one beer on the boat. Joss testified that he did not remember Faul or McElroy bringing beer with them on the boat or consuming any. On cross-examination, Joss was not positive, but stated that he did not remember drinking or being offered a beer while on the boat. Joss said if he did consume any beer, he probably had only one. There was no other testimony to establish that Joss consumed any alcohol other than a portion of a Bloody Mary. McElroy stated that Joss' eyes were not blood shot, his speech was not slurred, and that he did not appear to be intoxicated or impaired in anyway while operating the boat.

Faul had been skiing for about twenty minutes during which time she fell two or three times. When she last fell, McElroy so advised Joss who then slowed down the boat and started to make a turn to the left. Joss testified that at the time the boat was going about ten to fifteen miles an hour. McElroy said she was unable to estimate the speed of the boat. Joss was attempting to pick up Faul by heading straight for her. Joss swung the boat to the right with Faul now on the starboard side of the boat. McElroy stated that the boat was slowing gradually while approaching Faul. Joss testified that he started to circle around Faul with the throttle of the boat just short of neutral and the boat going about five miles an hour.

According to Joss, as he started to make the turn he pulled back on the throttle and the front end of the boat moved up in the air because he was turning and slowing down. Joss testified he lost sight of Faul when he caught a wave or a wake. McElroy, however, testified that she did not remember any such wave or wake. The boat drifted over towards Faul and Joss lost sight of her. Joss stated that as soon as he lost sight of her, he pulled completely back on the throttle putting the boat into neutral. It was then they noticed that Faul was injured, at which time McElroy yelled ashore for people to call paramedics. Joss Kathleen Faul sustained seriously disfiguring and disabling injuries and lacerations, the full extent of which need not be specified for purposes of this appeal. On January 20, 1982, Faul filed suit against David Joss and his father, John Joss. On October 3, 1984, Chubb filed a motion for leave to file a third-party complaint, which was denied by the trial court. On October 10, 1984, a settlement agreement was reached under which Chubb agreed to pay Faul $2,297,590.86 on behalf of the Josses. Chubb asked for a "release as is the custom within the Circuit Court of Cook County."

[179 Ill.Dec. 594] jumped into the water and helped Faul into the boat.

On that date, Chubb advised the court that a settlement was reached and renewed its motion for leave to file a third-party complaint against OMC. The court granted Chubb leave to file its contribution claim instanter. Thereafter, on October 10, 1984, the third-party complaint was filed, and, on October 12, 1984, an order dismissing Faul's complaint against the Josses was entered.

In its complaint, Chubb sought recovery under products liability and negligence theories. Chubb alleged that Faul would have suffered only minor injuries if OMC had equipped the outboard motor of the boat with a people-protective propeller guard. Chubb further alleged that the severity of Faul's injuries was attributable to the absence of this guard and not to any negligence by Joss in the operation of the boat.

On October 18, 1984, Faul executed a release which purported to discharge the Josses from any liability connected with the July 11, 1981, accident. This release, however, did not provide for the discharge of OMC. OMC moved to dismiss the third-party complaint as untimely and because it failed to state a claim under the Contribution Act since OMC's liability was not extinguished by the release as required by section 2(e) of the Contribution Act. (Ill.Rev.Stat.1989, ch. 70, par. 302(e).) Chubb filed a motion to reform the release to provide for the discharge of OMC.

In addition, OMC filed a motion for summary judgment with respect to Chubb's motion to reform the release. In support of its motion for summary judgment, OMC filed the depositions of William Cahill, the attorney who represented Faul in the action against the Josses, and Jeremiah Connelly, the attorney who prepared the original release. Cahill's deposition testimony was that Chubb's attorneys never requested that the release include OMC. Cahill stated that he was aware that Chubb attempted to file a third-party complaint against OMC a week before the settlement was reached. Connelly's deposition testimony was that there were no specific discussion of whether the release was to discharge OMC, but that he did make it clear that Chubb wanted to sue OMC. Connelly stated that he intended to add OMC to the release but because he lacked "form" language which would conform with the Contribution Act, he forwarded the release which purported to discharge only the Josses by name.

On April 8, 1986, the trial judge denied OMC's motion for summary judgment and granted Chubb's motion to reform the release to specifically discharge OMC from liability with respect to Faul. OMC's motion to dismiss the third-party complaint was denied on August 22, 1986.

On July 6, 1989, after this matter was reached for trial, Chubb made an oral motion in limine attempting to exclude evidence that Joss, McElroy or Faul had been drinking alcohol on the morning of the accident. This motion was premised on the contention that OMC would be unable to demonstrate that Joss was impaired as a result of any alcohol consumption. The motion was denied. In denying Chubb's motion in limine, the trial court...