Plooy v. Paryani

• Decision Date: 13 October 1995
• Docket Number: No. 1-94-2041,1-94-2041
• Citation: 657 N.E.2d 12,275 Ill.App.3d 1074,212 Ill.Dec. 317
• Parties: , 212 Ill.Dec. 317 Josine PLOOY, Plaintiff-Appellant and Cross-Appellee, v. Haroon PARYANI, Checker Taxi Association, and Checker Motors Corporation, Defendants-Appellees and Cross-Appellants.
• Court: United States Appellate Court of Illinois

Page 12

657 N.E.2d 12

275 Ill.App.3d 1074, 212 Ill.Dec. 317

Josine PLOOY, Plaintiff-Appellant and Cross-Appellee, v. Haroon PARYANI, Checker Taxi Association, and Checker Motors Corporation, Defendants-Appellees and Cross-Appellants.

No. 1-94-2041.

Appellate Court of Illinois First District, Fifth Division.

Oct. 13, 1995.

Paul K. Vickrey, Mary Kay McCalla and Hopkins & Sutter, Chicago, for appellant.

Allen L. Wiederer, Chicago, William V. Johnson, Johnson & Bell, Ltd., Chicago (Thomas H. Fegan and Kelly N. Warnick, of counsel), for appellee.

Presiding Justice COUSINS delivered the opinion of the court:

The plaintiff, Josine Plooy, filed a complaint alleging a battery by defendant, Haroon Paryani, in a taxi fare dispute. The complaint also alleged counts of vicarious liability against defendants Checker Taxi Association (Checker Taxi) and Checker Motors Corporation. A jury returned a verdict for the plaintiff against all the defendants, awarding her $152,500 in compensatory damages against all the defendants and $150,000 in punitive damages against Checker Motors and Checker Taxi. The trial court granted the defendants' motion for judgment notwithstanding the verdict (judgment n.o.v.) as to the count for punitive damages, but the trial court denied the defendants' other post-trial motions. The plaintiff appeals the court's grant of judgment n.o.v., while all three defendants have cross-appealed the court's denial of judgment n.o.v. as to the plaintiff's compensatory damages, claiming that the plaintiff did not demonstrate that her injuries resulted from Paryani's battery. In addition, Checker Motors' cross-appeal claims that the court erred in allowing the plaintiff to add Checker Motors as a defendant after the expiration of the statute of limitations on the plaintiff's claim; Checker Taxi's cross-appeal claims that the court erred in requiring a jury instruction which conceded Paryani's agency with Checker Taxi and precluded the jury's consideration of the issue; and Paryani's cross-appeal claims the court erred by allowing the plaintiff to testify that the defendants' investigator offered her $200 to settle her claim.

We reverse the judgment against the defendants, and we remand this cause for a new trial as to defendants Paryani and Checker Taxi.

BACKGROUND

On August 25, 1989, the plaintiff entered a taxi driven by Paryani. Paryani leased his taxi and his taxi medallion from Checker Motors, and Checker Motors contracted with Checker Taxi for the trademark right to lease cabs bearing Checker Taxi's colors and insignia. The plaintiff had a fare dispute with Paryani and fled his taxi without paying. Paryani caught her outside the taxi to demand his money. Paryani claims he merely grabbed the plaintiff's jacket, while the plaintiff claims she was injured when Paryani slammed her repeatedly against the side of the taxi. Several months after the incident, the plaintiff suffered severe pain in her hip and was diagnosed with sacroiliac joint dysfunction.

The plaintiff filed a complaint against Paryani and Checker Taxi on October 20, 1989. The plaintiff filed her amended complaint on March 6, 1990, and her second amended complaint on January 31, 1991. The second amended complaint contained seven counts: count I alleged battery by Paryani, count II alleged false imprisonment by Paryani, count III alleged intentional infliction of emotional distress by Paryani, count IV alleged a breach of a duty to protect by Checker Taxi, count V alleged a breach of implied contract by Checker Taxi, count VI alleged a breach of duty to supervise by Checker Taxi, and count VII alleged ratification of Paryani's actions by Checker Taxi. Counts I, II, and VII sought punitive damages in addition to compensatory damages.

On January 23, 1992, the plaintiff filed a motion for leave to file a third amended complaint naming Checker Taxi Company as an additional defendant. The proposed complaint had the same seven counts but added Checker Taxi Company to the allegations against Checker Taxi in counts IV, V, VI, and VII. The court granted the motion on January 30, 1992. On March 18, 1992, defendant Checker Motors filed its appearance on behalf of Checker Taxi Company, explaining that it had been incorrectly named because Checker Taxi Company was a division of Checker Motors.

On April 8, 1992, Checker Motors moved to dismiss the third amended complaint under section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1992)) on the grounds that the new claims against Checker Motors were barred by the two-year statute of limitations for personal injuries. The plaintiff's memorandum in opposition argued that section 2-616(d) of the Code of Civil Procedure (735 ILCS 5/2-616(d) (West 1992)) allowed the plaintiff to add Checker Motors because the addition related back to the filing of her original complaint. The plaintiff stated that she first began to learn of Checker Motors through a deposition of John Rohr in the summer of 1991, when she was informed that Paryani leased his taxi and his taxi medallion from Checker Motors. She claimed the failure to join Checker Motors had been inadvertent, a requirement under section 2-616(d), because of the confusing structure of the Checker entities at the time of filing her original complaint. In its reply, Checker Motors explained that because the plaintiff had admitted full knowledge of Checker Motors' identity by June 12, 1991--the date of the deposition of Rohr--the plaintiff's failure to add Checker Motors before the limitations period expired on August 25, 1991, had not been inadvertent. However, the motion to dismiss was denied on September 11, 1992.

On February 1, 1994, the case was returned to the trial call after change was taken by the defendants' attorneys. The plaintiff attempted to file a fourth amended complaint on February 2, 1994, but it was struck by the trial court. On February 7, 1994, the trial court granted Paryani's motion in limine to prevent plaintiff's counsel or witnesses from commenting on insurance coverage available to Paryani.

Opening statements for the jury trial began on February 4, 1994. The plaintiff testified that on August 25, 1989, she was at her apartment at 1250 N. LaSalle St. in Chicago when her roommate Lisa Christiansen arrived from work at 5 p.m. and asked the plaintiff if she wanted to go to the health club with her. The plaintiff said yes, after which Ms. Christiansen told her, "You have to hurry because I have arranged for a cab and we need to hurry downstairs." Ms. Christiansen wanted to arrive on time for her aerobics class. The plaintiff testified that "Lisa changed her clothes, grabbed a bag, and I grabbed my coat and we ran out the front door." It took the women four or five minutes to leave the apartment. When the women went outside, they found Paryani standing outside a taxicab which had "CHECKER TAXI ASSN. INC." written on its side. On previous occasions the plaintiff had called Checker after looking at an advertisement for Checker in the Yellow Pages which stated, "Dial for prompt dependable service."

The two women went in the taxi, and they noticed the meter was already running and stated a fare of $1.80 plus 50 cents for the extra person. Ms. Christiansen asked Paryani to start the meter over, but Paryani yelled that he had been waiting and could charge what he wanted. Ms. Christiansen asked if they could get out of the cab, but Paryani refused and pulled out onto the street going north towards the health club. As Paryani drove, he turned around and verbally abused and cursed the women for four blocks, ignoring the plaintiff's demand to be let out.

As Paryani slowed down for a red light, both women opened their doors and jumped out of the taxi. The plaintiff crossed three lanes of traffic to the other side of the street when Paryani grabbed her hair and coat and dragged her back to the taxi. Paryani threw her up against the car by her back and started slamming her against the car screaming and spitting and telling her "I'm going to make you pay." Paryani shoved her into the car, the plaintiff struggled out, and Paryani began slamming her against the car again. A man with a gun came up and told Paryani to let plaintiff go, which Paryani did. The man told the girls to run to the police, and they went across the street and dialed 911.

The plaintiff later called Checker to complain that she had been attacked. The plaintiff testified that the next contact she had with Checker was a Checker investigator who came to her home. The following testimony occurred:

"MR. VICKREY (Plaintiff's counsel): What happened next?

MS. PLOOY: He put the tape recorder away I think, and he offered me $200--a couple hundred dollars.

MR. WIEDERER (Paryani's counsel): Objection, and I'd ask that that be stricken. That's improper.

THE COURT: The objection is overruled. This man identified himself?

MS. PLOOY: Yes.

THE COURT: As being associated with the cab company?

MS. PLOOY: He was an investigator with Checker.

THE COURT: All right. Go ahead.

MR. VICKREY: Before he did that did you say anything to him about what had happened?

MS. PLOOY: I gave a brief synopsis of what happened.

Q Did--you said something about $200, what is it that this man said to you.

A He offered me some money to settle the problem, I suppose."

The plaintiff testified that she was sore in her groin the day after the incident. In late November of 1989, the plaintiff had severe pain in her leg as if her hip was dislocated. The plaintiff testified that she went to an emergency room but she didn't have insurance and they wanted $250 to see her. An objection to this testimony was sustained. The plaintiff's pain subsided for a while, but grew again the following spring. Plaintiff's counsel asked if she had medical insurance at this time, and she responded "no" after the defendants' objection was overruled. The plaintiff went to Dr. Mitchell Goldflies and...