Giardino v. Fierke
| Decision Date | 21 September 1987 |
| Docket Number | Nos. 2-86-1175,2-86-1038,s. 2-86-1175 |
| Citation | 513 N.E.2d 1168,160 Ill.App.3d 648,112 Ill.Dec. 559 |
| Parties | , 112 Ill.Dec. 559 Peter GIARDINO, Plaintiff, and Mavis Giardino, Plaintiff-Appellant, v. Frederick FIERKE, Defendant-Appellee, (Automobile Insurance Company of Hartford, Connecticut, Garnishee-Appellee). |
| Court | United States Appellate Court of Illinois |
Zimmerman & Smith, Charles M. Zimmerman, Elgin, Marmarie J. Kostelny, Elgin, for Mavis Giardino.
Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Katherine S. Dedrick, Thomas M. Hamilton, D. Kendall Griffith, Chicago, for Auto. Ins. Co. of Hartford.
Schroeder & Seeley, Ltd., Therese S. Seeley, John L. Schroeder, Geneva, for Frederick Fierke.
Plaintiff, Mavis Giardino, appeals from the order of the circuit court of Kane County in appeal No. 2-86-1038 denying her motion for a new trial on the issue of damages on her claim for personal injuries against defendant, Frederick Fierke. She also appeals the subsequent decision of the circuit court denying her nonwage garnishment against defendant's insurer, Automobile Insurance Company of Hartford, Connecticut, in appeal No. 2-86-1175. The appeals were consolidated.
Plaintiff raises the following issues on appeal: (1) whether the trial court erred in denying plaintiff's motion for a new trial on the issue of damages for her personal injuries; and (2) whether the trial court erred in granting judgment in favor of the nonwage garnishee, the Automobile Insurance Company of Hartford, Connecticut.
The facts concerning the proceedings are generally not in dispute. Plaintiff and her husband, Peter Giardino, filed a two-count amended complaint seeking damages for injuries sustained after both were struck as pedestrians by an automobile driven by defendant, Frederick Fierke. Plaintiff also sought damages for loss of consortium. Following a jury trial, a verdict was returned in favor of plaintiff and her husband. Damages were assessed in the amounts of $535,500 for Peter Giardino, and $4,200 for plaintiff's personal injuries, and $12,500 for her loss of consortium. Plaintiff filed a motion requesting a new trial on the issue of her damages for personal injuries which was denied. Defendant's insurer, Automobile Insurance Company of Hartford, Connecticut (Aetna), tendered $100,000 to plaintiff's husband for his injuries and $4,200 to plaintiff for her injuries under the limits of liability provision of its policy allowing for $100,000 per person and $300,000 per occurrence.
Plaintiff filed a nonwage garnishment against Aetna seeking to collect for the unpaid judgment of $12,500 awarded her for loss of consortium. Aetna appeared and answered that it had tendered the entire policy limit available and that pursuant to Gass v. Carducci (1964), 52 Ill.App.2d 394, 202 N.E.2d 73, it was not liable for the additional $12,500 judgment for loss of consortium. The trial court later found that Aetna had tendered its policy limits and denied recovery for plaintiff.
Plaintiff first contends that the trial court erred in denying her motion for a new trial on the issue of damages for her personal injuries as the jury improperly and erroneously assessed the damages at $4,200. She argues that the evidence established that she incurred medical expenses, loss of wages, experienced pain and suffering, and sustained permanent injuries, all of which were proximately caused by defendant's negligence in operating his motor vehicle. She asserts that her specific out-of-pocket medical expenses as shown
[112 Ill.Dec. 561] by her exhibits admitted into evidence are as follows:
City of Elgin--ambulance $ 50.00
St. Joseph Hospital 3,526.47
Dr. Winters 243.00
St. Joseph Hospital 36.70
Dr. Hemmer 234.00
Elgin Radiologists 43.00
Elgin Radiologists 175.00
---------
TOTAL $4,308.17
Defendant did not dispute these expenses below or in his appellate brief.
Plaintiff also offered testimony of several physicians to support her claims for pain and suffering and permanent injuries. Her physician testified to the extent and duration of her pain and suffering and that in his opinion the pain and suffering resulted from the accident. Plaintiff's chiropractor also testified to treating plaintiff on numerous occasions for back pain subsequent to the accident.
Additionally, a specialist testified to the nature and extent of plaintiff's hearing loss and postural vertigo (dizziness). He stated that although plaintiff's hearing loss was mild, it is permanent. He also testified that in his opinion there was very little chance that her postural vertigo would improve.
Defendant offered no expert witnesses of his own to contradict plaintiff's witnesses. Further, although defendant did cross-examine plaintiff's witnesses, he did not challenge testimony related to pain and suffering or achieve any equivocation as to the testimony regarding the permanency of plaintiff's hearing loss or dizziness.
Finally, plaintiff offered two office ledgers that she claimed demonstrated her loss of wages. Defense counsel, during cross-examination, introduced other office ledgers from the same time period indicating that the plaintiff had in fact not suffered lost wages. No other testimony or evidence was introduced by either party as to the lost wages claim.
Plaintiff contends that the jury award of $4,200 was inadequate and she should therefore receive a new trial on damages only. Defendant responds that this case is replete with conflicting evidence regarding plaintiff's injuries, lost wages and pain and suffering and that the jury verdict is supported by the evidence.
The amount of a verdict is generally within the discretion of the jury, and a reviewing court will not order a new trial on damages unless the damages awarded are manifestly inadequate or if it is clear that proved elements of damages have been ignored or if the amount of the award bears no reasonable relationship to the loss suffered by the plaintiff. (Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill.2d 401, 407, 92 Ill.Dec. 449, 485 N.E.2d 4.) Additionally, even if the damage award meets one of the above criteria, a new trial on damages only, rather than on all issues, will be granted if the jury's verdict on the question of liability is amply supported by the evidence, if the questions of damages and liability are so separate and distinct that a trial limited to damages is not unfair to the defendant, and if the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the inadequate damages also affected the verdict as to liability. 108 Ill.2d 401, 408, 92 Ill.Dec. 449, 485 N.E.2d 4.
We find the jury award of $4,200 to be inadequate. Plaintiff offered uncontroverted evidence of her medical expenses of $4,308.17. It is further undisputed that she spent nine days in the hospital for treatment of her injuries immediately following the accident and endured pain and suffering during that time. Although defendant contends there is conflicting evidence and plaintiff's witnesses' credibility is in doubt, the record does not support this contention. Defendant did not cross-examine plaintiff regarding her hospital stay or her pain and suffering during that period. Defendant offered no expert witnesses to contradict plaintiff's physicians and at most performed a cursory cross-examination of plaintiff's experts.
In light of plaintiff's proved medical expenses, pain and suffering, and disabilities, the jury could not have considered all these damage elements in arriving at its $4,200 award. Under these circumstances, the We also find that a new trial on damages only is appropriate in this case. First, the jury's liability verdict was clearly supported by the evidence. Second, there is no doubt that the questions of liability and damages are separate and distinct such that a trial limited to damages would not be unfair. Finally, there is nothing in the record to suggest that the $4,200 award was the result of a compromise verdict by the jury. See Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill.2d 401, 408-10, 92 Ill.Dec. 449, 485 N.E.2d 4.
[112 Ill.Dec. 562] jury award is manifestly inadequate and ignores proved elements of damages.
Although defendant contends that a special interrogatory submitted to the jury as to the proximate cause of the accident could have resulted in a compromise verdict, we disagree. The special interrogatory asked the jury whether a mechanical defect in the defendant's vehicle was the sole proximate cause of the accident. The jury responded "no" to the interrogatory. We find that the jury's answer to the interrogatory is consistent with its liability verdict (see First National Bank of Elgin v. Szwankowski (1969), 109 Ill.App.2d 268, 273-75, 248 N.E.2d 517) and are unable to say, without undue speculation, that the jury in any way compromised its verdict. We therefore reverse and remand to the circuit court for a new trial limited to damages only.
Plaintiff next contends that the trial court erred in granting judgment in favor of Aetna on her nonwage garnishment action arguing that as her loss of consortium is an injury separate from her husband's claim for bodily injuries within the meaning of the insurance policy, the trial court's finding that the damages for loss of consortium can only be paid pursuant to the limits for bodily injury liability for the injured spouse is erroneous.
Aetna responds that in Illinois, a separate liability limit is not available to a plaintiff successful in a loss of consortium action, arguing that Gass v. Carducci (1964), 52 Ill.App.2d 394, 202 N.E.2d 73, is dispositive of this issue. It asserts that the loss of consortium is an injury to a personal relationship, not a bodily injury, and that the bodily...
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