Jones v. O'Brien Tire and Battery

• Decision Date: 04 June 2007
• Docket Number: No. 5-04-0294.,5-04-0294.
• Citation: 871 N.E.2d 98
• Parties: Deborah L. JONES, Individually and as Special Administrator of the Estate of Thomas R. Jones, Deceased, Plaintiff, v. O'BRIEN TIRE AND BATTERY SERVICE CENTER, INC., and Ohio Casualty Insurance Company, Defendants and Third-Party Plaintiffs-Appellees and Cross-Appellants, v. Dave Macios, d/b/a Sugarloaf Landscape Nursery, Third-Party, Defendant, and Country Mutual Insurance Company, Third-Party, Defendant-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

871 N.E.2d 98

Deborah L. JONES, Individually and as Special Administrator of the Estate of Thomas R. Jones, Deceased, Plaintiff, v.O'BRIEN TIRE AND BATTERY SERVICE CENTER, INC., and Ohio Casualty Insurance Company, Defendants and Third-Party Plaintiffs-Appellees and Cross-Appellants, v.Dave Macios, d/b/a Sugarloaf Landscape Nursery, Third-Party, Defendant, andCountry Mutual Insurance Company, Third-Party, Defendant-Appellant and Cross-Appellee.

No. 5-04-0294.

Appellate Court of Illinois, Fifth District.

June 4, 2007.

Deborah C. Druley, Sonnenschein, Nath & Rosenthal LLP, St. Louis, MO, for Country Mutual Ins. Co.

Daniel G. Wills, Pretzel & Stouffer, Chartered, Chicago, for O'Brien Tire and Battery Service Center, Inc., and Ohio Casualty Ins. Co.

Justice CHAPMANdelivered the opinion of the court:

The parties to this appeal were all defendants in litigation arising from a fatal vehicle accident.O'Brien Tire and Battery Service Center, Inc.(O'Brien Tire), and Ohio Casualty Insurance Company(Ohio Casualty) filed a third-party complaint against Dave Macios and Country Mutual Insurance Company(Country Mutual) for negligent spoliation of evidence.Country Mutual appeals a judgment against it, arguing that the trial court erred in denying its motions for a judgment notwithstanding the verdict and a new trial.Country Mutual contends it was entitled to that relief because (1) it owed no duty to the third-partyplaintiffs to preserve the evidence at issue, (2) it did not breach any duty it owed, (3) the third-partyplaintiffs did not demonstrate that they had sustained any damages, (4) the actions of a nonparty were the sole proximate cause of the loss of the evidence, and (5) the jury's verdict was against the manifest weight of the evidence.Third-partyplaintiffs O'Brien Tire and Ohio Casualty cross-appeal, arguing that (1)the trial court erred by instructing the jury that, if it found Country Mutual to be liable, it was to determine the amount of damages that would fairly and reasonably compensate the third-partyplaintiffs(seeIllinois Pattern Jury Instructions, Civil, No. 30.01(2000)(hereinafter IPI Civil (2000))), (2)the court erred in denying their motion for leave to amend their complaint to add a count alleging willful and wanton spoliation of evidence, and (3)the court erred in denying their motion for leave to amend their complaint to request prejudgment interest.We affirm.

I.BACKGROUND

Country Mutual insured a truck owned by Dave Macios for use in his business, Sugarloaf Landscape Nursery (Sugarloaf).Mechanic Wesley Lowery, a Sugarloaf employee, was responsible for maintaining the business's vehicles.He performed minor repairs on the vehicles himself but took them to auto repair shops for major work.On September 7, 1994, Lowery took the truck to O'Brien Tire to have the tires inspected.The truck was a dual-wheel truck, meaning that each rear axle held two wheels, side by side.Lowery asked Mark Buenger, the general operations manager at O'Brien Tire, to inspect the truck's tires and do whatever was necessary for the truck to pass a safety inspection.Buenger and his brother, Scott, replaced all four rear tires.They also replaced the two left rear wheels because they noticed that the wheels were a type of wheel that was obsolete and unsafe.On September 27, 1994, the left rear wheel assembly came off the truck, and the outer wheel struck a car driven by Thomas Jones.This caused Jones to collide with a tractor-trailer.He died as a result of his injuries.

When Sugarloaf secretary Cathy Rothmeier reported the accident to Country Mutual, the case was assigned to claims adjustor Jerry Krone.Krone hired Tim Finley, an accident reconstruction specialist, to determine the likely cause of the accident.Finley visited Sugarloaf and inspected the truck and the wheels the day of the accident.He told Sugarloaf employees to keep the wheels.Within one week of the accident, Krone told Macios to preserve the wheels by keeping them "out of the weather".Macios stored both wheels, along with the truck, in an open barn.We note that, although both left rear wheels came off of the truck, it was the outer wheel that was critical to the case.On October 12, 1994, Krone sent Macios a letter, which read, in relevant part:

"This will confirm my telephone conversation with your secretary, [C]athy[,] on October 10, 1994.In our conversation[,] I indicated to her it would be crucial for our case for you to retain the two wheels and tires which came off of your vehicle during this collision.

I would ask that you label them clearly `evidence, do not touch' and store them in a secure place so that they may not be tampered with in the event we need these as evidence in a trial situation.

I would also ask that when you have your [truck] repaired that [sic] you save the wheel studs and attach them to the wheels and also mark them clearly as evidence for trial purposes."

Macios testified that he did not receive this letter.

Throughout the three months following the accident, Country Mutual was engaged in settlement negotiations with the Jones estate on behalf of Macios.Macios testified that, at least twice during this time, Macios asked Krone for permission to fix the truck, which he needed for use in his business.Repairing it entailed mounting a new wheel on the truck.It is not entirely clear whether both wheels were damaged and in need of replacement or only the outer wheel.Because the tire mounted to the outer wheel was not damaged in the accident, Macios intended to have it removed from the damaged wheel and mounted to a new wheel and then have the entire wheel assembly mounted again on the truck.It is not clear from the record why the truck had to remain out of service in order to preserve the evidence, apart from the expense of purchasing a new tire.According to Macios, each time he requested permission to get these repairs, Krone told him to wait.According to Krone, however, he never told Macios to wait to repair the truck.

On November 3, 1994, Finley issued his report.He concluded that the accident was caused by (1) the failure of the wheel installer to tighten the lug nuts and (2) the failure of the driver to conduct a pretrip inspection.

In mid-December 1994, according to Macios, he again asked Krone if he could have the truck repaired.This time, Krone told him yes.Although Macios did not specifically ask whether he could throw away the wheels and Krone did not explicitly state that he could, the truck remained out of service until this point precisely because Krone and Country Mutual had told Macios several times not to fix it.On December 29, 1994, Lowery took the truck to Patterson Brake and Front End Service (Patterson Tire) for repair.He did not take the truck to O'Brien Tire, the repair shop Sugarloaf ordinarily used for such repairs, because Krone had instructed Macios to take the truck elsewhere.The crucial outer wheel was apparently discarded by an employee of Patterson Tire.Krone denied telling Macios that he could repair the truck, that he could not repair the truck, or that he should not take the truck to O'Brien Tire for the repair.

On February 28, 1995, Jones's widow, Deborah, brought suit on behalf of his estate against Macios and his insurer, Country Mutual.The parties reached a $475,000 settlement in that case on October 27, 1995.In a letter dated December 12, 1995, Country Mutual informed Macios that the suit against him had been settled and dismissed.The letter stated, "This litigation is now at an end and you need no longer concern yourself with it."

On August 30, 1996, the Jones estate filed a suit against O'Brien Tire and its insurer, Ohio Casualty.The parties reached a $1.45 million settlement on October 29, 1998.On September 11, 1998, shortly before the settlement was reached, O'Brien Tire and Ohio Casualty filed a third-party complaint against Country Mutual and Macios and alleged negligent spoliation of evidence due to the loss of the wheels.The trial court granted Country Mutual's motion for a judgment on the pleadings and Macios's motion to dismiss.Ohio Casualty and O'Brien Tire appealed.We reversed on June 7, 2001, finding that the third-party complaint sufficiently stated a claim for negligent spoliation of evidence.Jones v. O'Brien Tire & Battery Service Center, Inc.,322 Ill.App.3d 418, 425, 256 Ill.Dec. 463, 752 N.E.2d 8, 14-15(2001).

On remand, in December 2003 and January 2004, Country Mutual filed motions for a summary judgment on the issues of causation and duty.In its motions, Country Mutual argued that it did not owe the third-partyplaintiffs a duty to preserve evidence and that they failed to demonstrate that the loss of the wheels left them completely unable to present a defense in the underlying suit.On January 9, 2004, the third-partyplaintiffs filed a motion for leave to amend their complaint to add a count alleging willful and wanton spoliation of evidence.The court denied all three motions on January 23, 2004.On February 5, the third-partyplaintiffs filed a motion for leave to amend their complaint to add a request for prejudgment interest, which was also denied.

On February 7, 2004, the case proceeded to a trial.At the opening of the trial, the court granted O'Brien Tire's oral motion to voluntarily dismiss Macios as a third-party defendant.On February 18, 2004, the jury returned a verdict of $475,000 in favor of O'Brien Tire and Ohio Casualty.The court entered a judgment on the verdict the following day.Country Mutual filed motions for judgment notwithstanding the verdict and a new trial, which the court denied.This appeal followed.

II.COUNTRY MUTUAL'S APPEAL

In order to prevail on a claim of negligent spoliation of evidence, a party must show that (1)the party alleged to have been negligent had a duty to preserve the evidence, (2)the party breached that duty, (3) the breach proximately caused an...