Harriss v. Elliott

• Decision Date: 15 January 1991
• Docket Number: No. 2-90-0001,2-90-0001
• Citation: 152 Ill.Dec. 359,207 Ill.App.3d 384,565 N.E.2d 1041
• Parties: , 152 Ill.Dec. 359 Michael William HARRISS, Plaintiff-Appellee, v. Kenneth E. ELLIOTT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1041

565 N.E.2d 1041

207 Ill.App.3d 384, 152 Ill.Dec. 359

Michael William HARRISS, Plaintiff-Appellee, v. Kenneth E. ELLIOTT, Defendant-Appellant.

No. 2-90-0001.

Appellate Court of Illinois,

Second District.

Jan. 15, 1991.

Robert Steven Wilson, Sycamore, for Kenneth E. elliott.

Richard L. Turner, Jr., Sycamore, for Michael William Harriss.

Justice WOODWARD delivered the opinion of the court:

Defendant, Kenneth Elliott, appeals from the judgment entered in favor of plaintiff, Michael Harriss, in the amount of $5,140.75. Defendant raises five issues on appeal: first, whether plaintiff can recover punitive damages when there was no injury; second, whether the trial court erred in granting plaintiff's motion in limine which excluded evidence of a settlement with a codefendant; third, since the settlement exceeded the actual damages, whether there were any actual damages to form a basis for punitive damages; fourth, whether punitive damages of $5,000 are excessive when the actual damages were only $140.75; and finally, whether defendant was entitled to a credit in the amount of the codefendant's settlement payment against both the actual and the punitive damage awards.

Defendant has failed to file the reports of proceedings in this cause or an acceptable substitute (see 107 Ill.2d Rules 323(b), (c), (d)). The appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with the law and had a sufficient factual basis. (Foutch v. O'Bryant (1984), 99 Ill.2d 389, 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958.) Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. W.E. Mundy Landscaping & Garden Center, Inc. v. Hish (1989), 187 Ill.App.3d 164, 166, 135 Ill.Dec. 85, 543 N.E.2d 320.

The record does reflect that on February 11, 1988, plaintiff filed a complaint in which he alleged that he was struck by a tow truck driven by defendant. In paragraph four of the complaint, plaintiff alleged that defendant's actions were negligent, but in paragraph five of the complaint he alleged the actions were willful and wanton. Plaintiff also named Patricia Elliott, d/b/a Pat's Towing, as a defendant. On February 14, 1989, pursuant to a stipulation by plaintiff and Patricia Elliott, the cause was dismissed with prejudice as to Patricia Elliott. The order stated that the court found the matter fully compromised and settled as it concerned Patricia Elliott and that all costs had been paid, but the order did not address whether the settlement was made in good faith. The subsequently filed release stated that Patricia Elliott was released in consideration of $500. On September 13, 1989, plaintiff filed a motion to amend his complaint, supported by his affidavit pursuant to section 2-604.1 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-604.1), in which he added a prayer for punitive damages. An order granted the motion on September 20, 1989.

On October 3, 1989, the court conducted a trial, and the jury entered the following verdict:

"We, the Jury, find for the plaintiff and against the defendant and assess the total amount of damages as follows:

                The nature, extent and duration of the injury                    $       "0"
                                                                                    -----------
                The disability resulting from the injury                         $       "0"
                                                                                    -----------
                The pain and suffering experienced as a result of the injuries   $       "0"
                                                                                    -----------
                The reasonable expense of necessary medical care, treatment and  $    140.75
                  services received
                                                                                    -----------
                Punitive damages                                                 $  5,000.00
                                                                                    -----------
                Total amount of damages                                          $  5,140.75  "
                                                                                    -----------
                

The court entered judgment for $5,140.75 on the verdict. Defendant filed a motion to vacate the judgment and/or for a new trial, which the trial court denied. The trial court granted plaintiff's motion for additur pursuant to section 5-108 of Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 5-108), in which plaintiff sought $129 for costs expended in the cause. Defendant appeals.

Defendant's first argument is that plaintiff is not entitled to any award because he suffered no injury. However, plaintiff did receive compensation for "reasonable" and "necessary" medical expenses. There is nothing in the record before us to contradict this finding by the jury, and we must presume the award had a sufficient factual basis. Foutch, 99 Ill.2d at 392, 76 Ill.Dec. 823, 459 N.E.2d 958.

Defendant's second and third issues are that the trial court erred in granting plaintiff's motion in limine by which evidence of the settlement with the codefendant was excluded. Defendant maintains that, since the settlement exceeded the plaintiff's actual damages, the jury would not have granted any additional damages and, therefore, there would have been no basis for granting punitive damages.

As a general rule, evidence of a settlement with one defendant is inadmissible against a plaintiff in his action against a remaining defendant. (Casson v. Nash (1978), 74 Ill.2d 164, 170, 23 Ill.Dec. 571, 384 N.E.2d 365; see also Batteast v. Wyeth Laboratories, Inc. (1990), 137 Ill.2d 175, 184, 148 Ill.Dec. 13, 560 N.E.2d 315; Palmer v. Avco Distributing Corp. (1980), 82 Ill.2d 211, 227, 45 Ill.Dec. 377, 412 N.E.2d 959.) The trial court and not the jury should apply a setoff based on a settlement after the jury has determined the total damages without knowledge of any prior settlement. (Singh v. Air Illinois, Inc. (1988), 165 Ill.App.3d 923, 935, 117 Ill.Dec. 501, 520 N.E.2d 852.) However, a claim for punitive damages cannot stand where there is no existing claim for compensatory damages. (Ecker v. Big Wheels, Inc. (1985), 136 Ill.App.3d 651, 655, 91 Ill.Dec. 293, 483 N.E.2d 639.) Defendant contends that if the jury had been informed that the setoff exceeded the actual damages, there would have been no basis for assessing punitive damages, citing Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill.App.3d 712, 718, 99 Ill.Dec. 397, 495 N.E.2d 1132.

In Thrall, the plaintiff sued three defendants for a conspiracy to defraud. Plaintiff settled with the principal defendant for the full amount of the compensatory damages, i.e., the amount of which the plaintiff was defrauded. The other two defendants were dismissed on the ground that they owed no duty to the plaintiff. The court then ruled that because the plaintiff had already been fully compensated for his actual damages, the claims for punitive damages against the other defendants could not stand and were thus properly dismissed. 145 Ill.App.3d at 718, 99 Ill.Dec. 397, 495 N.E.2d 1132.

Thrall is distinguishable because in that case the actual damages were known prior to trial. In the cause before the court, the actual damages for unliquidated claims for pain and suffering and the like were not known until the jury verdict determined them. Plaintiff also notes that in Thrall the court stated that the plaintiff had been compensated for its actual damages "and no others [were] alleged." In the cause before the court, there is no indication in the record that the $500 settlement received from the codefendant satisfied all the alleged damage claims of plaintiff. The prayer for relief in the amended complaint sought $15,000 in damages.

Defendant's fourth argument is that the $5,000 punitive damage award was excessive. Defendant argues that punitive damages are not favored in the law (Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 188, 23 Ill.Dec. 559, 384 N.E.2d 353), that the punitive damages are out of proportion to the actual damages, and that the legislature voiced its objections to the assessment of punitive damages by enacting section 2-1207 of the Code (Ill.Rev.Stat.1989, ch. 110, par. 2-1207), which permits a court to enter a remittitur, grant a new trial, or apportion the award to the Illinois Department of Rehabilitation Services.

However, a reviewing court will not disturb an award of punitive damages that is allegedly excessive unless it appears that the award is a result of passion, partiality, or corruption. (Deal v. Byford (1989), 127 Ill.2d 192, 204, 130 Ill.Dec. 200, 537 N.E.2d 267.) Defendant has presented no evidence that the award was a result of passion, partiality, or corruption. This court has affirmed other awards of punitive damages that far exceeded the actual damages. (See Poeta v. Sheridan Point Shopping Plaza Partnership (1990), 195 Ill.App.3d 852, 857, 142 Ill.Dec. 507, 552 N.E.2d 1248.) There is no evidence that defendant's behavior was not willful and wanton. (See Loitz v. Remington Arms Co. (1990), 138 Ill.2d 404, 417, 150 Ill.Dec. 510, 563 N.E.2d 397.) There is no evidence that defendant was denied his rights of due process of law from the jury's unfettered discretion in assessing such an award. (See Browning-Ferris Industries v. Kelco Disposal, Inc. (1989), 492 U.S. 257, ----, 109 S.Ct. 2909, 2921, 106 L.Ed.2d 219, 239; see also Pacific Mutual Life Insurance Co. v. Haslip (Ala.1989), 553 So.2d 537, cert. granted (1990), 494 U.S. 1065, 110 S.Ct. 1780, 108 L.Ed.2d 782.) We also note that jury's discretion was not without control as the trial court had the opportunity, but declined, to grant a remittitur (Ill.Rev.Stat.1989, ch. 110, par. 2-1207).

Finally, defendant contends he is entitled to a credit against the...