Ford v. Herman

• Citation: 249 Ill.Dec. 942,737 N.E.2d 332,316 Ill. App.3d 726
• Decision Date: 04 October 2000
• Docket Number: No. 5-99-0236.,5-99-0236.
• Parties: Jeffrey FORD and Grace Ford, Plaintiffs-Appellees, v. Wilbert HERMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

737 N.E.2d 332

316 Ill. App.3d 726

249 Ill.Dec. 942

Jeffrey FORD and Grace Ford, Plaintiffs-Appellees, v. Wilbert HERMAN, Defendant-Appellant.

No. 5-99-0236.

Appellate Court of Illinois, Fifth District.

October 4, 2000.

Beth C. Boggs, Robert P. Sass, Boggs, Backer & Bates, L.L.C., St. Louis, MO, for Appellant.

Robert W. Rongey, Kenneth P. Danzinger, Callis, Papa, Jackstadt & Halloran, P.C., Granite City, for Appellees. Justice KUEHN delivered the opinion of the court:

The defendant, Wilbert Herman, appeals from the trial court's March 5, 1999, order denying his posttrial motion. We affirm.

Facts

On August 19, 1996, Wilbert Herman (Herman) was working with others doing home construction. At the end of this particular workday, the men planned on waiting at the job site until the property owner arrived. While waiting, Herman left the site temporarily, returning with a 12-pack of beer he had just purchased. Herman admits to having consumed eight or nine of those beers in the following 90 minutes. The property owner never arrived, and although Herman realized that he was intoxicated, he decided that he would drive his motor vehicle home. Unfortunately, Herman did not make it home without incident.

Herman rear-ended another vehicle driven and occupied by Jeffrey and Grace Ford (Jeffrey, Grace, or the Fords). As Herman drove down a busy street in Granite City, he noticed a vehicle in front of his, which later turned out to be that of the Fords, and further noticed that this vehicle was approaching a traffic signal that had just turned from green to yellow. At that moment, Herman dropped a cigarette, instinctively bent to retrieve it, and in so doing took his eyes from the roadway. When he next looked up, the Fords' vehicle was stopped, and Herman realized that he had not enough time and space to safely bring his vehicle to a stop behind their vehicle. Herman slammed on his brakes, skidded 20 feet, and ultimately rear-ended the vehicle.

Jeffrey testified that he had the vehicle's window down and that he heard no tires squeal or any other sound indicating that a collision was imminent.

As a result of the accident, both Jeffrey and Grace sustained bodily injuries and associated damages. Jeffrey sustained left shoulder, neck, and left wrist injuries. Grace sustained a right shoulder injury and aggravations of preexisting injuries to her neck and lower back.

Following the wreck, Herman was arrested and charged with driving under the influence of alcohol (DUI). The August 19, 1996, DUI to which Herman pled guilty was his third. His first DUI was in February 1974 and his second was in September 1975. Not dissuaded by this accident and its related arrest, Herman continued to drive while intoxicated, picking up his fourth DUI in December 1996 and his fifth on January 1, 1999.

The Fords filed their suit for damages against Herman arising out of the August 19, 1996, accident on December 20, 1996. Herman was insured by Gallant Insurance Company (Gallant) with applicable bodily injury limits of $20,000 per person. Pursuant to his contract with the carrier, Gallant provided Herman with legal counsel.

On October 29, 1997, the trial court entered its case management order setting forth a discovery schedule and setting the case for trial on September 8, 1998. The case management order did not specifically set forth a date on which discovery was to cease. The case did not get reached for trial during the week of September 8, and so on September 25, 1998, the trial court reset the trial date for January 11, 1999.

On October 27, 1998, the Fords filed a motion seeking to amend their complaint to add a punitive damages prayer pursuant to section 2-604.1 of the Code of Civil Procedure (735 ILCS 5/2-604.1 (West 1996)). On November 20, 1998, the trial court granted this motion.

On November 3, 1998, Herman filed a motion seeking to have the Fords examined by a physician chosen by Herman pursuant to Supreme Court Rule 215 (166 Ill.2d R. 215). On November 20, 1998, the trial court denied this motion.

The case went to trial on January 11, 1999. At the pretrial conference, the trial court heard numerous motions in limine filed by both parties. Herman's motion seeking to keep the jury from hearing evidence of his prior and subsequent DUIs was denied.

Following the trial, the jury returned a verdict for Jeffrey in the amount of $49,728 for his damages and a verdict for Grace in the amount of $28,965 for her damages. The jury also returned a verdict for the Fords awarding them $6 million in punitive damages.

Following the trial court's March 5, 1999, denial of Herman's posttrial motion, Herman appealed.

Motions

As a preliminary matter, we must address motions renewed at oral argument that we ordered taken with the case. The Fords seek the dismissal of this appeal on mootness grounds. Gallant seeks to conditionally intervene. Following oral argument, the Fords filed a supplemental memorandum in support of a motion to reconsider this court's order denying their motion to dismiss appeal. In response to the Fords' oral motion, Gallant renewed its motion for leave to intervene and filed a request for time to respond to the Fords' supplemental memorandum.

Additional facts, necessary for a complete understanding of the motions, are included below.

The Fords' initial motion to dismiss Herman's appeal was denied by this court on September 14, 1999, and the Fords' motion to reconsider our decision was denied on December 14, 1999. During oral argument, counsel for the Fords asked that we consider the motion for the third time, and the matter was taken under advisement.

The recovery in this case was premised upon Herman's negligent operation of a motor vehicle insured by Gallant. On January 27, 1999, after a judgment was entered upon the jury's verdicts, Gallant tendered three drafts to the Fords' counsel in partial satisfaction of the compensatory damages portion of the judgment. The first draft in the amount of $20,111.87 was made payable to Jeffrey Ford. A second draft was made payable to Grace Ford in the amount of $20,065.17. The third draft was made payable to both Fords and was in the amount of $14,201.62. The amounts paid in the three drafts represented the $40,000 policy limits plus interest from the date of the judgment through their tender, plus the costs of the suit. Upon the receipt of these drafts, the Fords executed a partial satisfaction of judgment, which was filed in the circuit court on February 22, 1999.

Thereafter, in exchange for a release from further satisfaction of the judgment's balance, Herman assigned to the Fords his chose in action against Gallant and his attorneys for their bad faith in refusing to settle the Fords' claims within the $40,000 policy limits. Upon their receipt of the assignment, the Fords executed a covenant not to sue Herman on the judgment's balance.

The Fords continue to contend that as Herman stands released from further personal liability under the judgment, only Gallant's attorneys are pursuing the appeal. Therefore, the Fords argue that the appeal is moot since there is no real party in interest to pursue the matter. They attach correspondence to their supplemental memorandum which they contend support this argument. The first letter, dated July 26, 1999, was written by one of the attorneys hired by Gallant pursuant to the insurance agreement and was addressed to Herman's personal attorney. The second letter, dated August 25, 1999, was from Herman's personal attorney and was directed to his Gallant-hired attorney. Both letters involve the status of this appeal and Herman's interests. The Fords contend that these letters assert that Herman wants Gallant, through the attorneys it hired to represent Herman, to drop this appeal. These letters were previously attached to the Fords' September 17, 1999, motion to reconsider our order denying their motion to dismiss and were considered by this court in denying that motion.

We will briefly address the letters, as well as Herman's motivations for continuing this appeal.

As stated in our September 14, 1999, order, the partial satisfaction of judgment and covenant not to execute on the judgment's balance could not extinguish Herman's right to challenge the judgment on appeal.

With Herman as the real party in interest, his insurance company can insist upon his cooperation on appeal, as is required by his contract. It would obviously be in Herman's best interest to so cooperate, because to do otherwise could subject him to further liability-not from the Fords who signed the covenant not to execute, but to Gallant in the event that it becomes responsible to pay the judgment over and above its policy limits.

While not likely, the remote possibility always remains that somehow the covenant not to execute would be rendered void and Herman would again be responsible for paying the judgment. Furthermore, despite the existence of the covenant, the fact remains that Herman has a rather large judgment against him. Having such a large monetary judgment on file against Herman will undoubtedly lead to financial and credit repercussions. Therefore, seeking to have the judgment reduced or reversed could only serve to benefit Herman.

Reviewing Herman's assignment of his chose in action to the Fords, we note that nothing contained therein requires Herman to drop this appeal. While the Fords' counsel alludes to the fact that Herman could face an invalidation of the assignment and/or the covenant, neither document contains such language. Herman has simply agreed to cooperate in any subsequent suit filed against Gallant.

Finally, counsel for the Fords clearly overstates the importance of the language contained within the two letters as indicating that Herman in no way wanted this appeal to continue. We initially note that Herman has not in any way personally petitioned to have this appeal dismissed. As he clearly has personal counsel, it would have been...