First Midwest Trust Co. v. Rogers
| Decision Date | 03 April 1998 |
| Docket Number | No. 4-96-0788,4-96-0788 |
| Parties | , 233 Ill.Dec. 833 FIRST MIDWEST TRUST COMPANY, as Administrator of the Estate of Jerry Mallady, Deceased, and Gaythel Mallady, Individually, Plaintiffs-Appellants and Cross-Appellees, v. Paul Ty ROGERS and The Town of Arcola, commonly known as Arcola Township, Defendants-Appellees and Cross-Appellants. Fourth District |
| Court | United States Appellate Court of Illinois |
John F. Martin (argued), David J. Ryan, Dukes, Martin, Ryan, Meyer & Krapf, Ltd., Danville, for First Midwest Trust Company.
Karen L. Kendall (argued), Heyl, Royster, Voelker & Allen, Peoria, James C. Kearns, Fred K. Heinrich, Heyl, Royster, Voelker & Allen, Urbana, Stephen L. Corn (argued), Kathleen M. Stockwell, Craig & Craig, Mattoon, for Paul Ty Rogers.
MODIFIED UPON DENIAL OF REHEARING
In July 1993, plaintiffs Jerry Mallady and his wife Gaythel sued defendants, Paul Ty Rogers and the Town of Arcola (Arcola), for damages resulting from a collision between Jerry's automobile and a snowplow driven by Rogers during the course of his employment with Arcola. In July 1996, the jury awarded damages based on Rogers' negligence and found Jerry 50% comparatively negligent.
Plaintiffs appeal, arguing that (1) an enforceable settlement agreement existed; (2) defendants' reconstruction expert should not have been allowed to testify; (3) the trial court erred by allowing defendants to present section 11-205 of the Illinois Vehicle Code (Code) (625 ILCS 5/11-205 (West 1992)) to the jury; (4) the court should have set aside the comparative negligence finding and entered a judgment notwithstanding the verdict (judgment n.o.v.) on liability; and (5) the damages award is inadequate. Defendants cross-appeal, arguing that the court erred by (1) denying defendants' motion to reduce the damages award by the amount of funeral expenses and medical expenses for which plaintiffs had no liability; and (2) failing to apply section 2-1115.1(a) of the Code of Civil Procedure, as amended (735 ILCS 5/2-1115.1(a) (West Supp.1995)), to limit the damages award for count III. We affirm in part, vacate in part, reverse in part and remand with directions.
On February 26, 1993, Rogers was working for Arcola plowing county roads in that township. Rogers stopped at the intersection of County Road 500N and Route 45, looked in both directions, and began to drive across Route 45. Jerry was driving north on Route 45 and collided with the snowplow. Rogers testified that he did not see Jerry's car. He later pleaded guilty to the offense of failure to yield the right-of-way (625 ILCS 5/11-904 (West 1992)).
Jerry suffered severe injuries, including a closed head injury resulting in bleeding into the brain, facial lacerations, multiple rib fractures, a lacerated and ruptured lung, broken left leg and hip, dislocated hip, and right ankle, spinal, skull, and jaw fractures for which he underwent several surgical procedures. He remained hospitalized for 3 1/2 months during which he was given an artificial airway and feeding tube and placed on a respirator. He remained in a coma for many months, gradually regaining consciousness during the summer of 1993. In June 1993, he was moved to a nursing home. He had continuous difficulty with infections and was occasionally readmitted to the hospital for treatment. In September 1993, he returned to the hospital for rehabilitation.
In December 1993, he was discharged to the Oddfellows Nursing Home, where Dr. Mark Dettro took charge of his medical care. Dr. Dettro testified that Jerry's head injury had caused a central nervous system dysfunction, leaving him unable to walk, speak, swallow, feed himself, or reposition himself in bed. He never regained those functions, receiving all food, liquid, and medication through a feeding tube and spending 95% of his time in bed. On October 14, 1995, Jerry died of pneumonia. Jerry's medical treatment and nursing home care costs totaled $761,531.70.
In July 1993, Jerry and Gaythel sued defendants for negligence and loss of consortium. In April 1995, the circuit court appointed (1) First Midwest Trust Company (First Midwest) as guardian of Jerry's estate and (2) Gaythel as guardian of Jerry's person. In June 1995, they were substituted as party plaintiffs for Jerry.
Jerry died at 4:45 p.m. on October 14, 1995, and on October 16, 1995, the circuit court appointed Gaythel as special administrator for Jerry's estate. The parties had negotiated throughout the pretrial period and plaintiffs claim that they had agreed to settle on October 14, 1995, two days prior to trial. On October 19, 1995, plaintiffs filed a motion to compel settlement. The trial court denied the motion in February 1996.
In March 1996, Gaythel, individually and as administrator for Jerry's estate, filed an amended complaint adding a cause of action for wrongful death. In April 1996, the trial court granted Gaythel's motion to substitute First Midwest as administrator for Jerry's estate. The final complaint alleged 16 counts, including causes of action based on negligence against both Rogers and Arcola for (1) survival, (2) family expenses, (3) loss of consortium, and (4) wrongful death.
Following a trial in July 1996, the jury returned a verdict finding defendants negligent and awarding damages for each of three counts, as follows: count I, survival action: verdict--$1,504,708.50; count II, loss of consortium: verdict--$755,000; and count III, wrongful death: verdict--$1 million. The jury also found Jerry 50% comparatively negligent and reduced his damages awards to $774,354.25, $377,500, and $500,000, respectively, for a total of $1,651,854.25.
Plaintiffs first argue that a valid settlement agreement existed for the trial court to enforce and the court erred by denying their motion to compel settlement. We disagree.
The parties began negotiating prior to trial and continued to do so before the trial was scheduled to begin on October 16, 1995. On October 14, 1995, the parties' attorneys talked again and discussed a settlement figure of $4.5 million. Plaintiffs claim that the parties had agreed to settle at this amount, based on a 2:30 p.m. recorded telephone message between the parties' attorneys.
On October 13, 1995, Jerry went to the hospital to have his feeding tube replaced. He returned to the nursing home after the procedure, but his condition worsened and he was readmitted to the hospital at about 2:30 a.m. on October 14, 1995. Gaythel arrived at the hospital at about 3 a.m. She telephoned her son Shawn at about 6 a.m. and told him that Jerry was in serious condition.
Around 8 a.m., Shawn telephoned Carroll Dukes (the attorney representing Gaythel and the guardians of Jerry's person and estate). Shawn told Dukes that Jerry was hospitalized and asked him what effect this would have on the trial that was set to begin two days later. Dukes informed him that this was another reason why settlement should be pursued. Dukes told Shawn that he would recommend settlement if defendants would "come up with [about] $4,500,000." Shawn agreed with the suggestion. Later that day, Gaythel agreed with Shawn, but she did not speak to Dukes about it.
After talking with Shawn, Dukes telephoned Jim Kearns, an attorney for defendants, around 9 a.m. on October 14, 1995, concerning the settlement negotiations. Dukes indicated that he was preparing for trial, but that defendants' October 12, 1995, settlement letter suggested that there might be a chance for settlement. Kearns indicated that defendants would probably settle for $4.5 million and that he would recommend that amount. Dukes stated that he wanted to settle the matter that day. Dukes did not tell Kearns that Jerry had been hospitalized that morning. At the end of the telephone conversation, Dukes informed Kearns that he would be unavailable during the day and that Kearns could leave his response on Dukes' telephone answering machine.
Around 3 p.m. on October 14, 1995, Kearns called Dukes and left the following message on his answering machine:
Before Dukes called Kearns back, Dukes received a message from Shawn informing him that Jerry had died around 4:45 p.m. that afternoon (October 14, 1995). At 6:43 p.m. that same day, Dukes left a message on Kearns' answering machine, indicating that the $4.5 million and the two conditions were acceptable.
At some point after Dukes left the 6:43 p.m. message on Kearns' machine, Kearns learned from a third party that Jerry had died earlier in the day. Kearns telephoned Dukes and they discussed Jerry's death and the effect it might have on the settlement discussions. Kearns indicated to Dukes that they may have a valid settlement, but that he wished to research the matter further before arriving at a final decision.
The trial court provided a detailed and cogent analysis in its nine-page memorandum of decision denying plaintiffs' motion to compel settlement. The court found that (1) Dukes' 9 a.m. phone conversation constituted continuing negotiations, not an offer; (2) even if Dukes' statements during...
To continue reading
Request your trial
-
Franks v. Prudential Health Care Plan, Inc.
...(8th Cir.1999)(enforcing an HMO's "reasonable value" language in subrogation provision), First Midwest Trust Co. v. Rogers, 296 Ill.App.3d 416, 233 Ill.Dec. 833, 701 N.E.2d 1107, 1118-119 (1998)(upholding an HMO's right to recoupment under an HMO plan document); Medica, Inc. v. Atlantic Mut......
-
In re Commitment of Sandry
...(see Harris v. Cropmate Co., 302 Ill.App.3d 364, 368, 235 Ill.Dec. 795, 706 N.E.2d 55 (1999); First Midwest Trust Co. v. Rogers, 296 Ill. App.3d 416, 427, 233 Ill.Dec. 833, 701 N.E.2d 1107 (1998)). We also note that jurisdictions applying the test set forth in Daubert v. Merrell Dow Pharmac......
-
Jacobs v. Yellow Cab Affiliation, Inc.
...resolving questions of fact? [Citation.] If not, then the evidence should be excluded." First Midwest Trust Co. v. Rogers , 296 Ill.App.3d 416, 430, 233 Ill.Dec. 833, 842, 701 N.E.2d 1107, 1116 (1998). Furthermore, even relevant evidence may have drawbacks that require it to be excluded, in......
-
Perkey v. Portes-Jarol
...1125. Here, the jury awarded $310,000 for the medical charges associated with the claim. Cf. First Midwest Trust Co. v. Rogers, 296 Ill.App.3d 416, 433, 233 Ill.Dec. 833, 701 N.E.2d 1107 (1998), overruled on other grounds by Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 2......