Hollowell v. Wilder Corp. of Delaware

• Decision Date: 31 January 2001
• Docket Number: No. 5-99-0293.,5-99-0293.
• Citation: 743 N.E.2d 707,318 Ill.App.3d 984,252 Ill.Dec. 839
• Parties: Glen HOLLOWELL, Plaintiff-Appellee, v. WILDER CORPORATION OF DELAWARE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

743 N.E.2d 707

318 Ill.App.3d 984

252 Ill.Dec. 839

Glen HOLLOWELL, Plaintiff-Appellee, v. WILDER CORPORATION OF DELAWARE, Defendant-Appellant.

No. 5-99-0293.

Appellate Court of Illinois, Fifth District.

January 31, 2001.

Patrick F. Schaufelberger, The Miller-Schaufelberger-Bauer Law Offices, Ltd., Vandalia, for Appellant.

Jack Johnston, Burnside, Johnston, Choisser & Sheafor, Vandalia, for Appellee.

Justice GOLDENHERSH delivered the opinion of the court:

Wilder Corp. of Delaware, a Delaware corporation (defendant), appeals the jury trial verdict and judgment entered on January 26, 1999, as well as the March 19, 1999, trial court's denial of defendant's posttrial motions. On appeal, defendant asserts four issues for review: (1) whether the trial court erred in denying defendant's motion for judgment notwithstanding the verdict as to punitive damages, (2) whether the trial court erred in denying defendant's motion for new trial as to compensatory damages, (3) whether the trial court erred in denying defendant's motion for a new trial as to punitive damages, and (4) whether the trial court erred in denying defendant's motion for remittitur. A timely notice of appeal was filed on April 19, 1999. For the reasons that follow, we affirm.

I. FACTS

On October 5, 1996, Glen Hollowell (plaintiff) was a farm laborer working for defendant on its Vandalia farm. On that day, plaintiff injured his back while riding a tractor over a ditch in the fields. Plaintiff informed his immediate supervisor, farm manager Kevin Hollowell (his brother), and proceeded home. While at home, the pain in his back was so severe that he went to the emergency room. He remained in the hospital for a few days and did not return to work for three weeks. On October 29, 1996, plaintiff returned to work under physician-ordered restrictions. The restrictions included no lifting more than 20 or 30 pounds and no bending. These restrictions continued from November and December of 1996 through January of 1997. On February 14, 1997, plaintiff again received a physician's order not to work. In February of 1997 plaintiff was referred to a neurosurgeon, Dr. Murphy, to be evaluated because his condition had not improved. Dr. Murphy ordered three epidural blocks over the period from late February until early March. The epidurals proved unsuccessful, and pain and discomfort persisted in plaintiff's lower back. Thereafter, Dr. Murphy ordered plaintiff to participate in a physical therapy/workhardening program, and he instructed plaintiff not to return to work until he completed the program.

After the epidural blocks, Wausau Insurance Company (Wausau), the workers' compensation carrier for defendant, contacted plaintiff about his medical care. After this telephone conversation in February, plaintiff retained counsel and began a workers' compensation action. On April 22, 1997, at the request of Wausau, plaintiff received an independent medical examination from Dr. Gapsis. In his examination, Dr. Gapsis concluded that the October 5, 1996, tractor incident aggravated a preexisting condition and that plaintiff could return to work immediately. On May 7, 1997, Kevin Hollowell went to plaintiff's residence and informed him that he must return to work immediately or face the consequence of being fired. Plaintiff stated that he could not return under Dr. Murphy's orders to finish the physical therapy program before returning to work. Plaintiff was fired.

A jury trial began on January 26, 1999. The trial revealed that the hierarchy within defendant went, from top to bottom, Peter Creighton to Doug Stallard to Kevin Hollowell, with Sandra Sharp reporting to Peter Creighton on workers' compensation matters. Testimony at the trial revealed that Kevin Hollowell was the primary source of information on the injury to plaintiff to the higher-ups within defendant's company. Kevin Hollowell did not believe plaintiff's claim as to the severity of his back injury. Testimony demonstrated that Kevin Hollowell inquired as to plaintiff's injury from mutual friends Doug and Marsha Frailey. The Fraileys testified that the tone of Kevin Hollowell's inquiry indicated skepticism as to plaintiff's injury. The Fraileys' testimony was the only testimony that was free of any ascertainable bias in the case. Multiple witnesses testified to conflicting reports of the use of profanity on the part of Kevin Hollowell towards plaintiff and that Kevin Hollowell did not believe that plaintiff was hurt. Kevin Hollowell accused plaintiff of being lazy and trying to get a free ride at the expense of defendant. Testimony contained conflicting stories of plaintiff being ordered to violate his physician-ordered work restrictions. Plaintiff asserted, and Kevin Hollowell denied, that when plaintiff was terminated, Kevin Hollowell stated that defendant did not want plaintiff's kind of people working for them.

II. ANALYSIS

Defendant argues that a punitive damages award is unwarranted in this case. Relying on the reasoning of various retaliatory discharge cases in Illinois (Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978); Motsch v. Pine Roofing Co., 178 Ill.App.3d 169, 127 Ill.Dec. 383, 533 N.E.2d 1 (1988); Heldenbrand v. Roadmaster Corp., 277 Ill.App.3d 664, 214 Ill.Dec. 405, 660 N.E.2d 1354 (1996); Clemons v. Mechanical Devices Co., 292 Ill.App.3d 242, 226 Ill.Dec. 141, 684 N.E.2d 1344 (1997), aff'd, 184 Ill.2d 328, 235 Ill.Dec. 54, 704 N.E.2d 403 (1998); Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill.2d 433, 204 Ill.Dec. 171, 641 N.E.2d 395 (1994); Hiatt v. Rockwell International Corp., 26 F.3d 761 (7th Cir. 1994); Kritzen v. Flender Corp., 226 Ill. App.3d 541, 168 Ill.Dec. 509, 589 N.E.2d 909 (1992)), defendant argues that the case at bar does not give rise to the "fraud, actual malice, deliberate violence[,] or oppression * * * as to indicate a wanton disregard of the rights of others" (Kelsay, 74 Ill.2d at 186, 23 Ill.Dec. 559, 384 N.E.2d at 359). Defendant's argument states initially that there is no direct evidence that defendant fired plaintiff over plaintiff's exercise of his rights under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)) and that Wausau received a "release" from Dr. Gapsis for plaintiff. Therefore, the action by defendant, even if resulting in compensatory damages for retaliatory discharge, does not rise to the level of wanton disregard for the rights of others as to warrant punitive damages.

On the other hand, plaintiff points to testimony indicating that Kevin Hollowell pressured plaintiff to violate his physician-ordered work restrictions and testimony that Kevin Hollowell stated that plaintiff was fired because defendant did not want his kind of people working for them. Plaintiff argues that it is for the trier of fact to assess the credibility of this testimony, denied by Kevin Hollowell, and give it whatever weight it sees fit. His argument continues that it is irrelevant whether the higher-ups in defendant's organization knew of Kevin Hollowell's conduct since he is an agent for defendant and, as such, defendant is potentially liable for his conduct.

Issues I and III presented for review address the punitive damages awarded in this case. In the first issue defendant asks this court to reverse the trial court's denial of its motion for judgment notwithstanding the verdict. The standard for review is, when the evidence is viewed in a light most favorable to the nonmoving party, does the evidence favor the movant so that no contrary verdict could stand? McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 131-32, 241 Ill.Dec. 787, 720 N.E.2d 242, 257 (1999). The measurement of the amount of punitive damages warranted in a case is a question for the trier of fact. Kelsay, 74 Ill.2d at 186,23 Ill.Dec. 559,384 N.E.2d at 359; Motsch, 178 Ill.App.3d at 177,127 Ill.Dec. 383,533 N.E.2d at 6; Hiatt, 26 F.3d at 766. However, whether the facts of a particular case justify the imposition of punitive damages is a question of law. Kelsay, 74 Ill.2d at 186,23 Ill.Dec. 559,384 N.E.2d at 359; Motsch, 178 Ill.App.3d at 177,127 Ill.Dec. 383,533 N.E.2d at 6; Hiatt, 26 F.3d at 766. Punitive damages act as a punishment for actions against Illinois public policy and as a warning to deter a defendant and others from committing similar offenses in the future. Kelsay, 74 Ill.2d at 186,23 Ill.Dec. 559,384 N.E.2d at 359; Heldenbrand v. Roadmaster Corp., 277 Ill.App.3d 664, 672, 214 Ill. Dec. 405, 660 N.E.2d 1354, 1360 (1996). Illinois recognizes that punitive damages are appropriate in cases of retaliatory discharge for filing a workers' compensation claim. Kelsay, 74 Ill.2d at 186,23 Ill.Dec. 559,384 N.E.2d at 360; Motsch, 178 Ill. App.3d at 177-78,127 Ill.Dec. 383,533 N.E.2d at 7. Absent punitive damages, there would be little deterrent preventing employers from terminating employees and paying a small fine for violating the Act (see 820 ILCS 305/26 (West 1996)). Kelsay, 74 Ill.2d at 186,23 Ill.Dec. 559,384 N.E.2d at 359. Punitive damages are warranted when the tort is committed with actual malice or fraud or when the defendant acts willfully or with such gross negligence as to indicate a wanton disregard for the rights of others. Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill.2d 433, 444, 204 Ill.Dec. 171, 641 N.E.2d 395, 400 (1994); Kelsay, 74 Ill.2d at 186,23 Ill.Dec. 559,384 N.E.2d at 359; Heldenbrand, 277 Ill.App.3d at 672,214 Ill.Dec. 405,660 N.E.2d at 1360; Hiatt, 26 F.3d at 766. Punitive damages are not presumed in a retaliatory discharge action; rather, the circumstances of each case must warrant punitive damages. Dixon Distributing Co.,161 Ill.2d at 443-44,204 Ill.Dec. 171,641 N.E.2d at 400.

The factual allegations presented by plaintiff paint a picture of an employee forced to choose between following the instructions of his physician or returning to work on a release by a physician with whom he does not...