Turner v. Williams

• Decision Date: 17 December 2001
• Docket Number: No. 2-00-1438.,2-00-1438.
• Citation: 762 N.E.2d 70,260 Ill.Dec. 804,326 Ill. App.3d 541
• Parties: Linda L. TURNER, Indiv. and as Guardian of Brian Wong and Kevin Wong, Minors, Plaintiffs-Appellees, v. Larry L. WILLIAMS and C.R. England and Sons, Inc., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

762 N.E.2d 70

326 Ill. App.3d 541

260 Ill.Dec. 804

Linda L. TURNER, Indiv. and as Guardian of Brian Wong and Kevin Wong, Minors, Plaintiffs-Appellees, v. Larry L. WILLIAMS and C.R. England and Sons, Inc., Defendants-Appellants.

No. 2-00-1438.

Appellate Court of Illinois, Second District.

December 17, 2001.

James T. Ferrini, Edward M. Kay, Melissa A. Murphy-Petros, Clausen Miller P.C., Chicago, Thomas H. Ryerson, Clausen Miller P.C., Wheaton, for C.R. England & Sons, Inc., Larry L. Williams.

T. Patrick Rice, Rice & Mathys, Wheaton, for Linda L. Turner, Guardian, Brian Wong, Kevin Wong.

Kurt A. Carlson, Stock, Carlson, Flynn & Bloese, Wheaton, for Bruce Danbom.

Ronald D. Sutter, Querrey & Harrow, Ltd., Wheaton, for Estate of Jack Wong.

Edward V. Crites, Law Offices of Frederic W. Nessler, Springfield, for Jean Chin, Special Administrator. Justice McLAREN delivered the opinion of the court:

In this automobile collision case, defendants, Larry Williams and C.R. England & Sons, Inc., appeal the judgment entered on the jury's verdict in favor of plaintiff, Linda L. Turner, individually and as guardian of Brian Wong and Kevin Wong, minors, in the amount of $5,863,115.15. On appeal, defendants contend that the trial court erred in (1) failing to consolidate a related wrongful death action; (2) instructing the jury on loss of a normal life as an element of damages; and (3) excluding the testimony of defendants' accident reconstruction expert. Defendants seek the reversal of the jury's verdict and a new trial or, alternatively, a judgment notwithstanding the verdict, a new trial on damages, or a remittur in the amount of $3,700,000. We reverse and remand for a new trial.

On June 7, 1998, Brian Wong, age 15, and Kevin Wong, age 13, were passengers in a Mazda van driven by their father, Jack Wong. Mr. Wong was traveling westbound on Route 38, or Roosevelt Road. While attempting to make a left turn at the intersection of Route 38 and Fabyan Parkway in West Chicago, the van was struck by a semi-tractor trailer driven by defendant Larry Williams and owned by C.R. England & Sons. Jack Wong died in the collision. Brian Wong and Kevin Wong were severely injured. They have no memory of the collision.

On August 31, 1998, Linda L. Turner, as guardian of Brian Wong and Kevin Wong, filed a negligence action against defendants, Williams and C.R. England & Sons. Although the record does not reflect that the estate of Jack Wong was ever a party to the suit, the trial court approved the minor plaintiffs' petition for settlement on September 24, 1998. The plaintiffs entered into a settlement with the automobile insurance carrier for Jack Wong, not the estate of Jack Wong, for the policy limits of $200,000, with $100,000 being awarded to each minor plaintiff.

On April 28, 2000, Yok Tsun Gong, the administrator of the estate of Jack Wong, filed a separate wrongful death action arising from the same automobile collision against defendants, Williams and C.R.England & Sons. Since plaintiffs Brian Wong and Kevin Wong were the sole heirs of their father, Jack Wong, the wrongful death action sought to compensate plaintiffs for damages sustained as a result of the death of their father.

On May 23, 2000, defendants moved to consolidate the wrongful death action with the negligence action brought on plaintiffs' behalf. They argued that allowing the actions to proceed separately would allow plaintiffs to split their cause of action and essentially obtain a double recovery for the same injury. The trial court denied the motion to consolidate.

Prior to trial, defendants filed a motion in limine to bar plaintiffs from introducing evidence of emotional damage sustained by the minor plaintiffs as a result of the death of their father and other evidence concerning damages available under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2000)). The motion asserted that the minor plaintiffs could not be compensated in the negligence action for emotional damage sustained in the automobile collision due to the death of their father because it is not an element of their claim for negligence. The motion was denied.

Plaintiffs filed a motion in limine to exclude the testimony of defendants' accident reconstruction expert, Wesley Grimes. The motion asserted that the testimony of Mr. Grimes should be barred because there was an inadequate foundation to support his testimony. The motion was granted, and Mr. Grimes was barred from testifying at trial.

The case proceeded to trial. In their case in chief, plaintiffs called five eyewitnesses to the collision and numerous damage witnesses, including five treating physicians, a treating psychology clinician, two treating speech pathologists, and two guidance counselors at plaintiffs' school. Defendants called two physicians who conducted independent medical examinations on plaintiffs in their case in chief.

The trial court instructed the jury on loss of a normal life as an element of damages, among other things. The jury entered a verdict in favor of Brian Wong and against defendants in the amount of $2,480,000, itemized as follows: $1,500,000 for loss of a normal life; $30,000 for disfigurement; $600,000 for past pain and suffering; and $350,000 for future pain and suffering. The jury entered a verdict in favor of Kevin Wong in the amount of $3,390,000, itemized as follows: $2,200,000 for loss of a normal life; $40,000 for disfigurement; $800,000 for past pain and suffering; and $350,000 for future pain and suffering. A verdict in favor of Linda Turner was returned in the amount of $193,115.15, which reflected medical expenses paid for Brian Wong and Kevin Wong.

The jury answered a special interrogatory that apportioned negligence at 60% for defendants Williams and C.R. England and 40% for Jack Wong. Since Jack Wong was not a party to the suit, the special interrogatory was given to test the jury's verdict against defendants' theory that Jack Wong was the sole proximate cause of the collision.

Judgment was entered on the jury's verdict in the amount of $5,863,115.15; that amount provided for a setoff against the verdict in favor of each minor plaintiff in the amount of $100,000 each, which reflected the settlement reached with Jack Wong's insurance carrier prior to trial. Following the denial of defendants' posttrial motion, they filed a notice of appeal.

I. CONSOLIDATION

Defendants first contend that the trial court erred in failing to consolidate the wrongful death action filed on behalf of Jack Wong, deceased, with the negligence action filed on behalf of the minor plaintiffs. Defendants contend that, since plaintiffs in the present action were allowed to introduce evidence concerning the emotional damage sustained by the minor plaintiffs due to their father's death in the collision and to argue that they should be compensated for such grief, the failure to consolidate the two cases was prejudicial in that it allows for a double recovery for these damages in both suits.

Defendants claim that this issue should be decided under the de novo standard of review through a res judicata analysis, which indicates that plaintiffs impermissibly split the wrongful death action from the negligence action by filing two separate suits. We disagree. The issue of res judicata is not determinative of the issue of whether the two causes of action should have been consolidated.

In all of the cases cited by defendants, the doctrine of res judicata was used defensively and a second, subsequent cause of action was barred due to the resolution of an earlier cause of action involving the same parties and the same issues. See, e.g., People ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill.2d 285, 176 Ill.Dec. 874, 602 N.E.2d 820 (1992)

; River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 234 Ill.Dec. 783, 703 N.E.2d 883 (1998); Marvel of Illinois, Inc. v. Marvel Contaminant Control Industries, Inc., 318 Ill.App.3d 856, 253 Ill.Dec. 30, 744 N.E.2d

312 (2001); Marshall v. Mayflower, Inc., 817 F.Supp. 922 (D.C.Kan.1993). None of the cases cited by defendants address the issue of the trial court's failure to consolidate two cases arising from the same occurrence that were pending simultaneously.

Section 2-1006 of the Code of Civil Procedure provides for the consolidation of actions pending in the same court "as an aid to convenience, whenever it can be done without prejudice to a substantial right." 735 ILCS 5/2-1006 (West 2000). The trial court has broad discretion in determining the propriety of consolidation. Horn v. Rincker, 84 Ill.2d 139, 147, 49 Ill.Dec. 315, 417 N.E.2d 1329 (1981). Its decision will not be overturned on review absent a finding of an abuse of discretion. Anderson v. Anchor Organization for Health Maintenance, 274 Ill.App.3d 1001, 211 Ill.Dec. 213, 654 N.E.2d 675 (1995).

Consolidation has three different applications: (1) where several actions are pending involving substantially the same subject matter, the court may stay proceedings in all but one and see whether the disposition of the one action may settle the others, thereby avoiding multiple trials on the same issue; (2) where several actions involve an inquiry into the same event in its general aspects, the actions may be tried together, but with separate docket entries, verdicts, and judgments, the consolidation being limited to a joint trial; and (3) where several actions are pending that might have been brought as a single action, the cases may be merged into one action, thereby losing their individual identity, to be disposed of in one suit.Adr-Ex, Inc. v. City of Chicago, 241 Ill.App.3d 97, 187 Ill.Dec. 125, 617 N.E.2d 333 (1993). Where separate causes are of the same nature, involve the same or like issues and depend largely upon the same evidence, as in the third example noted above, consolidation is not an abuse of discretion. Peck v. Peck, 16 Ill.2d 268, 275,157 N.E.2d 249 (1959).

The negligence action...