Ford v. Herman

737 N.E.2d 332, 316 Ill. App. 3d 726, 249 Ill. Dec. 942, 2000 Ill. App. LEXIS 814, 2000 WL 1510011
CourtAppellate Court of Illinois
DecidedOctober 4, 2000
Docket5-99-0236
StatusPublished
Cited by26 cases

This text of 737 N.E.2d 332 (Ford v. Herman) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford v. Herman, 737 N.E.2d 332, 316 Ill. App. 3d 726, 249 Ill. Dec. 942, 2000 Ill. App. LEXIS 814, 2000 WL 1510011 (Ill. Ct. App. 2000).

Opinion

JUSTICE KUEHN

delivered the opinion of the court:

The defendant, Wilbert Herman, appeals from the trial court’s March 5, 1999, order denying his posttrial motion. We affirm.

Facts

On August 19, 1996, Wilbert Herman (Herman) was working with others doing home construction. At the end of this particular workday, the men planned on waiting at the jobsite until the property owner arrived. While waiting, Herman left the site temporarily, returning with a 12-pack of beer he had just purchased. Herman admits to having consumed eight or nine of those beers in the following 90 minutes. The property owner never arrived, and although Herman realized that he was intoxicated, he decided that he would drive his motor vehicle home. Unfortunately, Herman did not make it home without incident.

Herman rear-ended a vehicle driven and occupied by Jeffrey and Grace Ford (Jeffrey, Grace, or the Fords). As Herman drove down a busy street in Granite City, he noticed a vehicle in front of his, which later turned out to be that of the Fords, and further noticed that this vehicle was approaching a traffic signal that had just turned from green to yellow. At that moment, Herman dropped a cigarette, instinctively bent to retrieve it, and in so doing took his eyes from the roadway. When he next looked up, the Fords’ vehicle was stopped, and Herman realized that he had not enough time and space to safely bring his vehicle to a stop behind their vehicle. Herman slammed on his brakes, skidded 20 feet, and ultimately rear-ended the vehicle.

Jeffrey testified that he had the vehicle’s window down and that he heard no tires squeal or any other sound indicating that a collision was imminent.

As a result of the accident, both Jeffrey and Grace sustained bodily injuries and associated damages. Jeffrey sustained left shoulder, neck, and left wrist injuries. Grace sustained a right shoulder injury and aggravations of preexisting injuries to her neck and lower back.

Following the wreck, Herman was arrested and charged with driving under the influence of alcohol (DUI). The August 19, 1996, DUI to which Herman pled guilty was his third. His first DUI was in February 1974 and his second was in September 1975. Not dissuaded by this accident and its related arrest, Herman continued to drive while intoxicated, picking up his fourth DUI in December 1996 and his fifth on January 1, 1999.

The Fords filed their suit for damages against Herman arising out of the August 19, 1996, accident on December 20, 1996. Herman was insured by Gallant Insurance Company (Gallant) with applicable bodily injury limits of $20,000 per person. Pursuant to his contract with the carrier, Gallant provided Herman with legal counsel.

On October 29, 1997, the trial court entered its case management order setting forth a discovery schedule and setting the case for trial on September 8, 1998. The case management order did not specifically set forth a date on which discovery was to cease. The case did not get reached for trial during the week of September 8, and so on September 25, 1998, the trial court reset the trial date for January 11, 1999.

On October 27, 1998, the Fords filed a motion seeking to amend their complaint to add a punitive damages prayer pursuant to section 2 — 604.1 of the Code of Civil Procedure (735 ILCS 5/2 — 604.1 (West 1996)). On November 20, 1998, the trial court granted this motion.

On November 3, 1998, Herman filed a motion seeking to have the Fords examined by a physician chosen by Herman pursuant to Supreme Court Rule 215 (166 111. 2d R. 215). On November 20, 1998, the trial court denied this motion.

The case went to trial on January 11, 1999. At the pretrial conference, the trial court heard numerous motions in limine filed by both parties. Herman’s motion seeking to keep the jury from hearing evidence of his prior and subsequent DUIs was denied.

Following the trial, the jury returned a verdict for Jeffrey in the amount of $49,728 for his damages and a verdict for Grace in the amount of $28,965 for her damages. The jury also returned a verdict for the Fords awarding them $6 million in punitive damages.

Following the trial court’s March 5, 1999, denial of Herman’s post-trial motion, Herman appealed.

Motions

As a preliminary matter, we must address motions renewed at oral argument that we ordered taken with the case. The Fords seek the dismissal of this appeal on mootness grounds. Gallant seeks to conditionally intervene. Following oral argument, the Fords filed a supplemental memorandum in support of a motion to reconsider this court’s order denying their motion to dismiss the appeal. In response to the Fords’ oral motion, Gallant renewed its motion for leave to intervene and filed a request for time to respond to the Fords’ supplemental memorandum.

Additional facts, necessary for a complete understanding of the motions, are included below.

The Fords’ initial motion to dismiss Herman’s appeal was denied by this court on September 14, 1999, and the Fords’ motion to reconsider our decision was denied on December 14, 1999. During oral argument, counsel for the Fords asked that we consider the motion for the third time, and the matter was taken under advisement

The recovery in this case was premised upon Herman’s negligent operation of a motor vehicle insured by Gallant. On January 27, 1999, after a judgment was entered upon the jury’s verdicts, Gallant tendered three drafts to the Fords’ counsel in partial satisfaction of the compensatory damages portion of the judgment. The first draft in the amount of $20,111.87 was made payable to Jeffrey Ford. A second draft was made payable to Grace Ford in the amount of $20,065.17. The third draft was made payable to both Fords and was in the amount of $14,201.62. The amounts paid in the three drafts represented the $40,000 policy limits plus interest from the date of the judgment through their tender, plus the costs of the suit. Upon the receipt of these drafts, the Fords executed a partial satisfaction of judgment, which was filed in the circuit court on February 22, 1999.

Thereafter, in exchange for a release from further satisfaction of the judgment’s balance, Herman assigned to the Fords his chose in action against Gallant and his attorneys for their bad faith in refusing to settle the Fords’ claims within the $40,000 policy limits. Upon their receipt of the assignment, the Fords executed a covenant not to sue Herman on the judgment’s balance.

The Fords continue to contend that as Herman stands released from further personal liability under the judgment, only Gallant’s attorneys are pursuing the appeal. Therefore, the Fords argue that the appeal is moot since there is no real party in interest to pursue the matter. They attach correspondence to their supplemental memorandum which they contend support this argument. The first letter, dated July 26, 1999, was written by one of the attorneys hired by Gallant pursuant to the insurance agreement and was addressed to Herman’s personal attorney.

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Bluebook (online)
737 N.E.2d 332, 316 Ill. App. 3d 726, 249 Ill. Dec. 942, 2000 Ill. App. LEXIS 814, 2000 WL 1510011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-herman-illappct-2000.