NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2026 IL App (3d) 250303-U Order filed September 2, 2026
IN THE
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
2026
JAMES BROWNING, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, Plaintiff-Appellee, ) Will County, Illinois, )
v. ) Appeal No. 3-25-0303 ) Circuit No. 20L341 )
KATELYN BREEN, as Special ) Honorable Representative for Thomas ) Barbara N. Petrungaro, Collins, Deceased, ) Judge, Presiding.
)
Defendant-Appellant. )
JUSTICE HOLDRIDGE delivered the judgment of the court.
Presiding Justice Hettel and Justice Davenport concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in denying the defendant's motion for a new trial. However, the trial court erred in denying the defendant's motion for remittitur, because the plaintiff, by acquiescing in the appointment of a special representative for the deceased defendant under section 2-1008(b)(2) of the Code of Civil Procedure, elected to proceed under that section and thereby limited his recovery to the proceeds of the liability insurance available to the estate.
¶2 Plaintiff James Browning sued Thomas Collins for injuries Browning claimed to have sustained when he was rear-ended by a vehicle driven by Collins. Collins died while the case
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was pending, and defendant Katelyn Breen was appointed as Collins' special representative to defend the action. Following a jury trial, the jury awarded Browning $655,000 in damages. The trial court denied Breen's posttrial motions for remittitur and for a new trial, and Breen appeals. For the following reasons, we affirm in part, reverse in part, and remand the cause with directions.
¶3 I. BACKGROUND ¶4 Browning sued Collins for injuries he claimed to have sustained when he was rear-ended by a vehicle driven by Collins. Collins died while the case was pending. After filing a motion to spread Collins' death of record, defense counsel orally moved to substitute Katelyn Breen, defense counsel’s secretary, as a “special representative” of Collins to defend the litigation. Browning's counsel stated that she had no objection to the appointment. The trial court's written order appointed Breen as Collins' special representative pursuant to section 2-1008(b)(2) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1008(b)(2) (West 2024)) “on oral motion of the parties.”
¶5 Following a jury trial, the jury awarded Browning $655,000 in damages, plus costs. Breen filed a posttrial motion for judgment notwithstanding the verdict and for remittitur of the verdict. The trial court denied the motion and declined to reduce the jury's award. Breen then filed a motion for a new trial, again seeking remittitur and requesting a new trial on various grounds. The trial court denied that motion as well.
¶6 Breen appeals, arguing that the trial court erred in (1) denying her motion for remittitur under section 2-1008(b) of the Code, and (2) denying her motion for a new trial because (a) plaintiff's counsel improperly elicited testimony that Collins had automobile liability insurance and (b) the court admitted improper rebuttal testimony from Browning's expert.
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¶7 II. ANALYSIS ¶8 A. Remittitur ¶9 Breen first argues that the trial court erred in denying her motion for remittitur, which she contends was required under the plain terms of section 2-1008(b)(2) of the Code. The decision whether to grant a motion for remittitur lies within the trial court's discretion and will not be overturned absent an abuse of that discretion. Miyagi v. Dean Transportation, Inc., 2019 IL App (1st) 172933, ¶ 20. An abuse of discretion occurs when the trial court's ruling is arbitrary, fanciful, or unreasonable, when no reasonable person would adopt the same view (Cimino v. Sublette, 2015 IL App (1st) 133373, ¶ 102), or when the decision is based on an error of law (Thompson v. Gordon, 356 Ill. App. 3d 447, 461 (2005)).
¶ 10 This case requires us to interpret section 2-1008(b)(2) of the Code. Issues of statutory interpretation present a question of law, which we review de novo. In re Marriage of Rogers, 213 Ill. 2d 129 (2004). The primary goal of statutory interpretation is to ascertain and give effect to the intent of the legislature. Id. The best indicator of the legislature's intent is the plain language of the statute, and when the language is clear, it must be given effect without resort to other tools of interpretation. Id. We may not read into the clear language of the statute exceptions that the legislature did not express. In re Marriage of Lindman, 356 Ill. App. 3d 462 (2005).
¶ 11 Section 2-1008(b)(2) provides, in relevant part:
“If a person against whom an action has been brought dies, and the cause of action survives and is not otherwise barred, his or her personal representative shall be substituted as a party. If no petition has been filed for letters of office for the deceased's estate, the court, upon the motion of a person bringing an action and after the notice
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to the party's heirs or legatees as the court directs and without opening an estate, may appoint a special representative for the deceased party for the purposes of defending the action. If a party elects to have a special representative appointed under this paragraph *** , the recovery shall be limited to the proceeds of any liability insurance protecting the estate and shall not bar the estate from enforcing any claims that might have been available to it as counterclaims.” (Emphasis added.) 735 ILCS 5/2-1008(b)(2) (West 2024).
¶ 12 Breen argues that, because Browning joined defense counsel's motion to appoint Breen as Collins’ special representative under section 2-1008(b)(2), Browning's recovery must be limited to the proceeds of Collins’ liability insurance policy, which amounts to $100,000.
¶ 13 Browning responds that the motion was filed by the defense, not by him, and that his counsel's mere acquiescence in the motion did not constitute an election to have a special representative appointed under section 2-1008(b)(2). Browning further argues that the statute's requirements were not satisfied because Collins’ heirs and legatees were not notified of the appointment. Accordingly, Browning maintains that he is not subject to the recovery limitation of section 2-1008(b)(2).
¶ 14 Breen has the better of the argument. Although section 2-1008(b)(2) is awkwardly worded, the statute authorizes only a plaintiff to move for the appointment of a special representative. It provides that such an appointment may be made “upon the motion of a person bringing an action.” (Emphasis added.) 735 ILCS 5/2-1008(b)(2) (West 2024); see also Lichter v. Carroll, 2023 IL 128468, ¶ 34 (noting that, in order for a special representative to be appointed under section 2- 1008(b)(2), “a plaintiff must move the court to appoint [one]” (emphasis added)). The purpose of
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section 2-1008(b)(2) is to allow a plaintiff to avoid the costs and delays of opening a probate estate in exchange for a limitation on his recovery. Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 564-65 (2005).
¶ 15 There is no statutory mechanism for a defendant to move for the appointment of a special representative. When a defendant dies, defense counsel may file a motion to spread the death of record. The plaintiff then has 90 days to move to appoint a representative of the defendant for the purpose of defending the litigation. A plaintiff may move to appoint either a “personal” representative or a “special” representative. A personal representative is the executor of the defendant’s will or the administrator of the defendant’s probate estate. Relf v. Shatayeva, 2013 IL 114925, ¶ 44. A personal representative may be appointed only after a probate proceeding has been opened, either by the executor or by the plaintiff.
¶ 16 Alternatively, if the plaintiff wishes to avoid the costs and delay involved in opening a probate proceeding, he may move to appoint a “special” representative under section 2-1008(b)(2). In that event, the plaintiff's recovery is limited to the limits of any liability insurance policy protecting the estate. 735 ILCS 5/2-1008(b)(2) (West 2024).
¶ 17 Here, defense counsel moved to appoint his secretary as a special representative under section 2-1008(b)(2). Although defense counsel had no statutory authority to make such a motion, Browning's counsel stated that she had no objection to the appointment. By acquiescing in the appointment, Browning's counsel elected to proceed under section 2-1008(b)(2) and thereby triggered that section's limitation on recovery. To conclude otherwise would allow Browning to reap the benefits of section 2-1008(b)(2)—avoiding the costs and delays of opening a probate proceeding—without accepting the corresponding limitation on recovery prescribed by that section. It would also improperly allow Browning to obtain a judgment in excess of the estate’s insurance coverage that would be enforceable against the estate without the estate being afforded
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the protection and supervision of the probate court and Probate Act. 735 ILCS 5/2-1008(b) (West 2024); Knauerhaze, 361 Ill. App. 3d at 565.
¶ 18 We also reject Browning's argument that the requirements of section 2-1008(b)(2) were not met because Collins' heirs and legatees were not notified of Breen's appointment. The statute provides that a special representative may be appointed “after the notice to the party's heirs or legatees as the court directs.” The phrase “as the court directs” arguably suggests that whether, and to what extent, the heirs or legatees are to be notified is committed to the discretion of the trial court. Regardless, the failure to give notice to the heirs and legatees under section 2-1008(b)(2) does not render the appointment of a special representative void ab initio. Clay v. Huntley, 338 Ill. App. 3d 68, 75 (2003).
¶ 19 Moreover, Browning’s argument is self-defeating. If we were to accept Browning’s contention that the requirements of section 2-1008(b)(2) were not satisfied, then the appointment of Breen as Collins’ special representative would be invalid. Collins himself would be the only named defendant. In that event, the jury’s verdict would be unenforceable, because a judgment may not be obtained against a deceased person. Relf, 2013 IL 114925, ¶ 22 (“Under the common law of Illinois, a dead person is a nonexistent entity and cannot be a party to a suit.”); see also Volkmar v. State Farm Mutual Automobile Insurance Co., 104 Ill. App. 3d 149, 151 (1982).
¶ 20 Accordingly, the trial court erred in denying Breen's motion for remittitur. Browning's recovery is limited to the proceeds of the liability insurance protecting the estate, which is $100,000.
¶ 21 B. Reference to Insurance ¶ 22 Breen next argues that she is entitled to a new trial because plaintiff's counsel improperly injected evidence that Collins had automobile insurance. Breen maintains that the trial court erred in denying her motion for mistrial and her posttrial motion on this basis.
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¶ 23 We review a trial court's denial of a motion for a new trial for an abuse of discretion. Cimino, 2015 IL App (1st) 133373, ¶ 102. An abuse of discretion occurs when the trial court's ruling is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the same view. Id., ¶ 102. The standard of review for a trial court's grant or denial of a motion for a mistrial is also abuse of discretion. People v. Foster, 394 Ill. App. 3d 163, 166 (2009). A mistrial should be declared only if there is some occurrence at trial of such a character and magnitude that the party seeking a mistrial is deprived of a fair trial. Id.
¶ 24 During her direct examination of Browning, plaintiff's counsel showed Browning a photograph of the damage to his trailer hitch. The photograph was taken by a representative of State Farm, Collins' insurer. Counsel asked Browning whether he was present when the photograph was taken, and Browning answered “[y]es, he was there.” When counsel asked who “he” was, Browning referred to “the gentleman that was there.” Counsel then asked whether the gentleman had told Browning that he was there on behalf of the defense, and Browning responded, “yeah, on behalf of State Farm.” Counsel then asked, “[o]n behalf of the defense?” Browning answered, “yeah.”
¶ 25 Defense counsel moved for a mistrial. After hearing argument during a recess, the trial court denied the motion, finding that the reference to insurance had not been intentionally elicited by plaintiff's counsel.
¶ 26 The trial court did not abuse its discretion in declining to grant a mistrial. Our supreme court and our appellate courts have repeatedly recognized that, now that virtually everyone carries automobile insurance, a reference to such insurance is not as prejudicial as it once was. See, e.g., Neyzelman v. Treitman, 273 Ill. App. 3d 511, 515 (1995); Kitsch v. Goode, 48 Ill. App. 3d 260, 266 (1977); Hinrichs v. Mabrey, 138 Ill. App. 3d 160, 161 (1985). A reference to insurance by a
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witness does not require a new trial where the reference is isolated, unresponsive, and not deliberately intended to cause prejudice. Williams v. Consumers Co., 352 Ill. 51, 56 (1933) (affirming trial court’s denial of defendant’s motion for mistrial where “the witness had simply volunteered his unresponsive remark concerning the insurance company without any obvious design or intent, either on the part of the witness or the attorney, to prejudice defendant”); Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258, 275 (1990) (“A mistrial is not appropriate where the subject of insurance is introduced by an isolated, inadvertent or unresponsive reference by someone other than a plaintiff's counsel with no apparent intent to prejudice the defendant.”); Nolan v. Elliott, 179 Ill. App. 3d 1077, 1088 (1989) (holding that the trial court did not abuse its discretion by refusing to declare a mistrial “based on one reference to insurance and in a context which [did] not establish prejudice.”); see also Flynn v. Edmonds, 236 Ill. App. 3d 770, 778 (1992).
¶ 27 Here, the plaintiff’s reference to Collins' insurance was isolated and unresponsive to his attorney’s question, and Breen has offered no support for her contention that the reference prejudiced the defense. Accordingly, the trial court did not abuse its discretion by refusing to grant a mistrial and by denying Breen's motion for a new trial on that basis.
¶ 28 C. Rebuttal Testimony ¶ 29 Finally, Breen argues that the trial court erred in denying her motion to bar the improper rebuttal testimony of one of Browning's experts. It is within the trial court's discretion whether to allow rebuttal testimony, and the court's determination will not be disturbed absent a clear abuse of that discretion. Pyramid Development, LLC v. Dukane Precast, Inc., 2014 IL App (2d) 131131, ¶ 41.
¶ 30 Michael O'Hearn, an accident reconstructionist, testified on behalf of the defense. O'Hearn stated that he would testify solely to the change in velocity and the damage to Browning's vehicle caused by the collision, and he conceded that he was not qualified to testify as to the effect
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of the collision on Browning's body. O'Hearn nonetheless testified that the speed of the impact and the damage to Browning's vehicle indicated that the impact caused only minor force, and that the energy from an impact dissipates as it moves through the vehicle. In rebuttal, Browning offered Dr. Ferris Pfeiffer, who testified as to biomechanical issues—specifically, the effect of the collision on Browning's back in light of his preexisting back condition, a two-level fusion. The defense argues that Pfeiffer's rebuttal testimony should have been excluded because it raised new issues that were not addressed by O'Hearn's testimony.
¶ 31 Although the issue is a close one, we conclude that Browning has the better argument. A party has the right to present rebuttal evidence that “explains, repels, contradicts or disproves” the evidence presented by the opposing party. Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, ¶ 50. O'Hearn's testimony implied that the impact was insufficient to cause Browning's injuries. Indeed, O'Hearn's testimony would have been irrelevant if it did not bear on the issue of causation. Browning was therefore entitled to rebut O'Hearn's testimony with evidence that the force at issue was sufficient to cause his injuries. The defense could have presented its own expert testimony on that issue, but it chose not to do so. It cannot now claim that it was unfairly prejudiced by Pfeiffer's testimony. The trial court did not abuse its discretion by denying Breen's motion to bar the rebuttal testimony.
¶ 32 III. CONCLUSION ¶ 33 For the foregoing reasons, we affirm the circuit court’s denial of Breen's motion for a new trial and reverse its denial of Breen's motion for remittitur. We remand the cause to the circuit court with directions to reduce Browning's recovery to the proceeds of the liability insurance protecting the estate.
¶ 34 Affirmed in part and reversed in part; cause remanded with directions.