Lorenz v. Air Illinois, Inc.

• Decision Date: 18 April 1988
• Docket Number: No. 87-0873,87-0873
• Citation: 168 Ill.App.3d 1060,522 N.E.2d 1352,119 Ill.Dec. 493
• Parties: , 119 Ill.Dec. 493, 46 Ed. Law Rep. 997 Patsy Hashey LORENZ, Special Administrator of the Estate of Jerome R. Lorenz, Deceased, Plaintiff-Appellee, v. AIR ILLINOIS, INC., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1352

522 N.E.2d 1352

168 Ill.App.3d 1060, 119 Ill.Dec. 493,

46 Ed. Law Rep. 997

Patsy Hashey LORENZ, Special Administrator of the Estate of Jerome R. Lorenz, Deceased, Plaintiff-Appellee, v. AIR ILLINOIS, INC., a corporation, Defendant-Appellant.

No. 87-0873.

Appellate Court of Illinois,

First District, First Division.

April 18, 1988.

Pretzel & Stouffer, Chartered, Chicago (Michael J. Merlo, Robert Marc Chemers, Michael G. Bruton, of counsel), for defendant-appellant.

Feirich, Schoen, Mager, Green, Carbondale (John C. Feirich, Michael F. Dahlen, of counsel), for plaintiff-appellee.

Justice BUCKLEY delivered the opinion of the court:

This is the third in a series of actions arising out of the crash of Air Illinois, Inc. (defendant), Flight 710, enroute from Springfield to Carbondale, Illinois on October 11, 1983. ^* Patsy Hashey Lorenz, special administrator of the estate of her husband Jerome E. Lorenz (decedent), a passenger on Flight 710, was awarded $925,000 following a jury trial on the issue of damages. The trial court subsequently reduced the verdict by $232,346 to account for a settlement reached by plaintiff and other named defendants (settling defendants). Defendant now appeals this judgment, alleging numerous errors regarding certain evidence and jury instructions. Defendant also urges error with respect to the trial court's dismissal of its third-party claims against settling defendants, its refusal to grant defendant's requests for continuances, and its alleged failure to discount the settlement in the same manner as the jury's award. For the reasons discussed below, we affirm.

The evidence at trial revealed that decedent was born on August 21, 1944, and received a bachelor's degree, a master's degree, and a Ph.D. from the University of Wisconsin. At the time of his death, decedent, who was in excellent health, was a full professor and Director of the Rehabilitation Institute at Southern Illinois University in Carbondale earning an annual income of approximately $43,716. In this position, decedent taught as well as administered programs involving academics, rehabilitation of the handicapped, and child abuse.

The evidence further disclosed that decedent was survived by his widow and two daughters, ages 13 and 16 at the time of decedent's death, all three of whom were dependent upon decedent for financial support. Decedent had a close and loving family relationship, performed various household chores, and participated in his children's moral and intellectual development.

On appeal, defendant initially contends that the trial court erred in dismissing its third-party claims against those who settled with plaintiff and granting "good faith" findings in their favor. Specifically, defendant argues that the trial court's actions were taken without a hearing thereby depriving defendant of its constitutional right to due process, and that the Illinois Contribution Act (Ill.Rev.Stat.1985, ch. 70, pars. 301-305) (Act), upon which these actions were taken, is vague and ambiguous, and denies defendant equal protection under the law. The Act provides, in substance, that a tortfeasor who settles with a claimant in good faith is discharged from all liability for any contribution to any other tortfeasor. Perez v. Espinoza (1985), 137 Ill.App.3d 762, 92 Ill.Dec. 377, 484 N.E.2d 1232.

We note that nowhere in defendant's post-trial motion and supporting memorandum, or in its brief in opposition to the good faith finding does defendant raise any of the above constitutional challenges. Accordingly, they are deemed waived. (Danielson v. Elgin Salvage & Supply Co. (1972), 4 Ill.App.3d 445, 280 N.E.2d 778.) Despite defendant's contention to the contrary, we believe that raising these issues in a prior appeal or in a motion for Rule 308 certification is an insufficient basis upon which to preserve them for our review.

In any event, based on counsels' representations at a hearing held on March 31, 1986, to set an immediate trial date, it appears that a hearing was in fact conducted on the issue of good faith on March 19, 1986, although the transcript of this proceeding was not furnished by defendant in the record on appeal. In addition, defendant argued at length the parties' "bad faith" in reaching the settlement at the March 31 hearing, and was permitted to file a brief in opposition to the court's good faith finding.

Notwithstanding these facts, defendant was not entitled to the hearing it seeks as a matter of law. In Lowe v. Norfolk & Western Railway Co. (1984), 124 Ill.App.3d 80, 79 Ill.Dec. 238, 463 N.E.2d 792, Barreto v. City of Waukegan (1985), 133 Ill.App.3d 119, 88 Ill.Dec. 266, 478 N.E.2d 581, and Perez v. Espinoza (1985), 137 Ill.App.3d 762, 92 Ill.Dec. 377, 484 N.E.2d 1232, the appellate court, after noting that the Act makes no provision for such a hearing, declined to require separate evidentiary hearings for the determination of good faith. Rather, it chose to leave the type of hearing necessary to fully adjudicate the issue to the discretion of the trial court. Here, the trial court heard arguments of counsel, an appropriate basis upon which to make a determination of good faith. (Barreto v. City of Waukegan (1985), 133 Ill.App.3d 119, 88 Ill.Dec. 266, 478 N.E.2d 581.) Consequently, the trial court did not err in reaching its decision without conducting a trial.

Defendant next maintains that the trial court improperly admitted the testimony of Dr. Sam Goldman, the former dean of the college of human resources at Southern, that had decedent lived, he would have become dean of the University. Defendant argues that this event was not likely to happen, and therefore such testimony permitted the jury to speculate about future salary increases decedent would have obtained in that position.

After reviewing the record, it appears that Goldman's projection was reasonably certain to occur. In reaching his conclusion, Goldman, whose testimony was based upon his own experience as well as his familiarity with decedent's career and potential for advancement, considered the fact that decedent had already achieved the highest professorial rank, had held a very strong administrative post at the University, and was quite young. Thus, unlike the plaintiff in Christou v. Arlington Park Race Tracks (1982), 104 Ill.App.3d 257, 60 Ill.Dec. 21, 432 N.E.2d 920, where such testimony was in error, becoming dean of the University was not merely an "ambition" of decedent's, but rather a goal which decedent had the ability to attain. Clearly, any lack of certainty concerning decedent's advancement was elicited by defense counsel on cross-examination of the witness. Despite Goldman's testimony that decedent would have eventually become dean, he offered no opinion as to salary or income that might have resulted therefrom. Rather, the record reveals that Goldman only discussed those salary increases decedent would have received in his current position as director. Accordingly, his testimony was proper.

Defendant also argues that the trial court erred when it permitted plaintiff's expert economist, Dr. Charles Linke, to testify regarding information contained in a report he prepared in 1986 on the present value calculation of decedent's earning capacity. Specifically, defendant contends that this report, which it received shortly before trial, contained assumptions and conclusions different from those in Linke's original 1984 report, and as a result, the 60-day requirement of Supreme Court Rule 220(b) was violated. (107 Ill.2d R. 220(b).) As noted in our related decision Singh v. Air Illinois, Inc. (1988), 165 Ill.App.3d 923, 117 Ill.Dec. 501, 520 N.E.2d 852, where we addressed the same challenge to Linke's testimony, the 60-day limitation in Rule 220(b) is implemented to insure that discovery regarding expert witnesses not otherwise disclosed is completed sufficiently before trial. Here, Linke was otherwise disclosed to defendant, and thus Rule 220(b) does not apply. Moreover, having reviewed the two reports, there appears to be no material change in the basic methodology or tables used by Linke to calculate present cash value. Any changes appearing in the 1986 report merely update the prior report with more recent data and sources, an issue on which defense counsel was permitted to depose Linke prior to trial.

Defendant further urges that the trial court erroneously permitted the jury to consider an editorial, published in the Journal of Rehabilitation Administration of which decedent had been editor, commemorating decedent's accomplishments. Defendant asserts that the editorial was not only irrelevant, but also constituted hearsay as its authors were not available for cross-examination. Defendant's hearsay objection clearly has no merit as the record discloses that the editorial in question was introduced through the testimony of Dr. William Emener, one of its co-authors. With respect to defendant's relevancy objection, we must presume that the trial court acted properly in admitting the exhibit into evidence as it was not made part of the instant record. In re Estate of Friedman (1984), 123 Ill.App.3d 82, 78 Ill.Dec. 573, 462 N.E.2d 692 (appellate court is bound to review the circuit court's judgment solely in light of the evidence contained in the record on appeal).

As in the prior two wrongful death actions this court has considered arising from the crash of Flight 710, defendant attacks the trial court's exclusion of the annuity testimony of Robert Ross, an insurance broker, and Mitchell Serota, an actuary. Specifically, pursuant to the offer of proof made in Exchange National Bank of Chicago v. Air Illinois, Inc., (1st Dist., 1988), 167 Ill.App.3d 1081, 118 Ill.Dec. 691, 522 N.E.2d 146, Mr. Ross would have attested to the cost of a particular annuity, while the offer of proof made in Singh for Mr. Serota, indicated that he would describe to the jury the mathematical calculations underlying that...