NO. 5-04-0294 N O T IC E
Decision filed 06/04/07. The text of IN THE this dec ision m ay b e changed or
corrected prior to the filing of a APPELLATE COURT OF ILLINOIS P e t i ti o n for Re hea ring or the
disposition of the same. FIFTH DISTRICT ________________________________________________________________________
DEBORAH L. JONES, Individually and as Special ) Appeal from the Administrator of the Estate of Thomas R. Jones, Deceased, ) Circuit Court of ) Madison County. Plaintiff, ) ) v. ) No. 96-L-560 ) O'BRIEN TIRE AND BATTERY SERVICE CENTER, ) INC., and OHIO CASUALTY INSURANCE COMPANY, ) ) Defendants and Third-Party Plaintiffs-Appellees and ) Cross-Appellants, ) ) v. ) ) DAVE MACIOS, d/b/a Sugarloaf Landscape ) Nursery, ) ) Third-Party Defendant, ) ) and ) ) COUNTRY MUTUAL INSURANCE COMPANY, ) Honorable ) Nicholas G. Byron, Third-Party Defendant-Appellant and Cross-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
The parties to this appeal were all defendants in litigation arising from a fatal vehicle
accident. O'Brien Tire and Battery Service Center, Inc. (O'Brien Tire), and Ohio Casualty
Insurance Company (Ohio Casualty) filed a third-party complaint against Dave Macios and
Country Mutual Insurance Company (Country Mutual) for negligent spoliation of evidence.
Country Mutual appeals a judgment against it, arguing that the trial court erred in denying
its motions for a judgment notwithstanding the verdict and a new trial. Country Mutual
1 contends it was entitled to that relief because (1) it owed no duty to the third-party plaintiffs
to preserve the evidence at issue, (2) it did not breach any duty it owed, (3) the third-party
plaintiffs did not demonstrate that they had sustained any damages, (4) the actions of a
nonparty were the sole proximate cause of the loss of the evidence, and (5) the jury's verdict
was against the manifest weight of the evidence. Third-party plaintiffs O'Brien Tire and
Ohio Casualty cross-appeal, arguing that (1) the trial court erred by instructing the jury that,
if it found Country Mutual to be liable, it was to determine the amount of damages that
would fairly and reasonably compensate the third-party plaintiffs (see Illinois Pattern Jury
Instructions, Civil, No. 30.01 (2000) (hereinafter IPI Civil (2000)), (2) the court erred in
denying their motion for leave to amend their complaint to add a count alleging willful and
wanton spoliation of evidence, and (3) the court erred in denying their motion for leave to
amend their complaint to request prejudgment interest. We affirm.
I. BACKGROUND
Country Mutual insured a truck owned by Dave Macios for use in his business,
Sugarloaf Landscape Nursery (Sugarloaf). Mechanic Wesley Lowery, a Sugarloaf employee,
was responsible for maintaining the business's vehicles. He performed minor repairs on the
vehicles himself but took them to auto repair shops for major work. On September 7, 1994,
Lowery took the truck to O'Brien Tire to have the tires inspected. The truck was a dual-
wheel truck, meaning that each rear axle held two wheels, side by side. Lowery asked Mark
Buenger, the general operations manager at O'Brien Tire, to inspect the truck's tires and do
whatever was necessary for the truck to pass a safety inspection. Buenger and his brother,
Scott, replaced all four rear tires. They also replaced the two left rear wheels because they
noticed that the wheels were a type of wheel that was obsolete and unsafe. On September
27, 1994, the left rear wheel assembly came off the truck, and the outer wheel struck a car
driven by Thomas Jones. This caused Jones to collide with a tractor-trailer. He died as a
2 result of his injuries.
When Sugarloaf secretary Cathy Rothmeier reported the accident to Country Mutual,
the case was assigned to claims adjustor Jerry Krone. Krone hired Tim Finley, an accident
reconstruction specialist, to determine the likely cause of the accident. Finley visited
Sugarloaf and inspected the truck and the wheels the day of the accident. He told Sugarloaf
employees to keep the wheels. W ithin one week of the accident, Krone told Macios to
preserve the wheels by keeping them "out of the weather". Macios stored both wheels, along
with the truck, in an open barn. We note that, although both left rear wheels came off of the
truck, it was the outer wheel that was critical to the case. On October 12, 1994, Krone sent
Macios a letter, which read, in relevant part:
"This will confirm my telephone conversation with your secretary, [C]athy[,]
on October 10, 1994. In our conversation[,] I indicated to her it would be crucial for
our case for you to retain the two wheels and tires which came off of your vehicle
during this collision.
I would ask that you label them clearly 'evidence, do not touch' and store them
in a secure place so that they may not be tampered with in the event we need these as
evidence in a trial situation.
I would also ask that when you have your [truck] repaired that [sic] you save
the wheel studs and attach them to the wheels and also mark them clearly as evidence
for trial purposes."
Macios testified that he did not receive this letter.
Throughout the three months following the accident, Country Mutual was engaged
in settlement negotiations with the Jones estate on behalf of M acios. M acios testified that,
at least twice during this time, Macios asked Krone for permission to fix the truck, which he
needed for use in his business. Repairing it entailed mounting a new wheel on the truck. It
3 is not entirely clear whether both wheels were damaged and in need of replacement or only
the outer wheel. Because the tire mounted to the outer wheel was not damaged in the
accident, Macios intended to have it removed from the damaged wheel and mounted to a new
wheel and then have the entire wheel assembly mounted again on the truck. It is not clear
from the record why the truck had to remain out of service in order to preserve the evidence,
apart from the expense of purchasing a new tire. According to Macios, each time he
requested permission to get these repairs, Krone told him to wait. According to Krone,
however, he never told Macios to wait to repair the truck.
On November 3, 1994, Finley issued his report. He concluded that the accident was
caused by (1) the failure of the wheel installer to tighten the lug nuts and (2) the failure of
the driver to conduct a pretrip inspection.
In mid-December 1994, according to Macios, he again asked Krone if he could have
the truck repaired. This time, Krone told him yes. Although Macios did not specifically ask
whether he could throw away the wheels and Krone did not explicitly state that he could, the
truck remained out of service until this point precisely because Krone and Country Mutual
had told Macios several times not to fix it. On December 29, 1994, Lowery took the truck
to Patterson Brake and Front End Service (Patterson Tire) for repair. He did not take the
truck to O'Brien Tire, the repair shop Sugarloaf ordinarily used for such repairs, because
Krone had instructed Macios to take the truck elsewhere. The crucial outer wheel was
apparently discarded by an employee of Patterson Tire. Krone denied telling Macios that he
could repair the truck, that he could not repair the truck, or that he should not take the truck
to O'Brien Tire for the repair.
On February 28, 1995, Jones's widow, Deborah, brought suit on behalf of his estate
against Macios and his insurer, Country Mutual. The parties reached a $475,000 settlement
in that case on October 27, 1995. In a letter dated December 12, 1995, Country Mutual
4 informed Macios that the suit against him had been settled and dismissed. The letter stated,
"This litigation is now at an end and you need no longer concern yourself with it."
On August 30, 1996, the Jones estate filed a suit against O'Brien Tire and its insurer,
Ohio Casualty. The parties reached a $1.45 million settlement on October 29, 1998. On
September 11, 1998, shortly before the settlement was reached, O'Brien Tire and Ohio
Casualty filed a third-party complaint against Country Mutual and Macios and alleged
negligent spoliation of evidence due to the loss of the wheels. The trial court granted
Country Mutual's motion for a judgment on the pleadings and Macios's motion to dismiss.
Ohio Casualty and O'Brien Tire appealed. We reversed on June 7, 2001, finding that the
third-party complaint sufficiently stated a claim for negligent spoliation of evidence. Jones
v. O'Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418, 425, 752 N.E.2d 8, 14-
15 (2001).
On remand, in December 2003 and January 2004, Country Mutual filed motions for
a summary judgment on the issues of causation and duty. In its motions, Country Mutual
argued that it did not owe the third-party plaintiffs a duty to preserve evidence and that they
failed to demonstrate that the loss of the wheels left them completely unable to present a
defense in the underlying suit. On January 9, 2004, the third-party plaintiffs filed a motion
for leave to amend their complaint to add a count alleging willful and wanton spoliation of
evidence. The court denied all three motions on January 23, 2004. On February 5, the third-
party plaintiffs filed a motion for leave to amend their complaint to add a request for
prejudgment interest, which was also denied.
On February 7, 2004, the case proceeded to a trial. At the opening of the trial, the
court granted O'Brien Tire's oral motion to voluntarily dismiss Macios as a third-party
defendant. On February 18, 2004, the jury returned a verdict of $475,000 in favor of O'Brien
Tire and Ohio Casualty. The court entered a judgment on the verdict the following day.
5 Country Mutual filed motions for judgment notwithstanding the verdict and a new trial,
which the court denied. This appeal followed.
II. COUNTRY MUTUAL'S APPEAL
In order to prevail on a claim of negligent spoliation of evidence, a party must show
that (1) the party alleged to have been negligent had a duty to preserve the evidence, (2) the
party breached that duty, (3) the breach proximately caused an injury, and (4) the party
seeking compensation for negligent spoliation suffered actual damages as a result. Boyd v.
Travelers Insurance Co., 166 Ill. 2d 188, 194-95, 652 N.E.2d 267, 270 (1995). In other
words, regular negligence principles apply. Boyd, 166 Ill. 2d at 194, 652 N .E.2d at 270.
Country Mutual contends that the third-party plaintiffs failed to demonstrate each of these
elements. It also argues that it was entitled to a jury instruction on sole proximate cause and
that the jury's verdict was against the manifest weight of the evidence. We address these
contentions in turn.
A. Duty to Preserve the Evidence
Country Mutual first argues that it did not owe the third-party plaintiffs a duty to
preserve the evidence. The general rule is that a party has no duty to preserve evidence. That
duty may arise, however, if there is an agreement or contract between the parties imposing
the duty, if the duty is imposed by statute, or if some other special circumstance warrants it.
Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 270-71. A duty to preserve evidence may also arise
where a party voluntarily assumes the duty by its conduct. Boyd, 166 Ill. 2d at 195, 652
N.E.2d at 271. If any of these circumstances exist, a party owes the duty to preserve
evidence if a reasonable person in that party's position should have foreseen that the evidence
would be material to a potential lawsuit. Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 271.
The supreme court recently clarified the law regarding the duty to preserve evidence
in Dardeen v. Kuehling, 213 Ill. 2d 329, 821 N.E.2d 227 (2004). There, the court explained
6 that Boyd set out a two-prong test. Under the first prong, a spoliation plaintiff must
demonstrate that at least one of the circumstances outlined in Boyd exists. Dardeen, 213 Ill.
2d at 336, 821 N.E.2d at 231. Under the second prong, the plaintiff must show that the duty
extends to the specific evidence at issue by demonstrating that a reasonable person in the
defendant's position should have known the evidence would be material to potential civil
litigation. If the spoliation plaintiff does not satisfy both prongs of the test, there is no duty
to preserve the evidence at issue. Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 231.
At issue in Dardeen was the first prong of Boyd. There, the plaintiff was injured
when he tripped on a hole in a brick sidewalk in front of the home of the defendant in the
underlying action. After the plaintiff informed the defendant of his injuries but before he
filed his premises liability suit, the defendant asked her insurance company if she could
repair the sidewalk so that no one else would be injured. A claims adjustor told her to go
ahead. Dardeen, 213 Ill. 2d at 331, 821 N.E.2d at 228.
In his later spoliation claim against the insurance company, the plaintiff argued that
the contractual relationship between the defendant in the underlying action and her insurance
carrier satisfied the first prong of Boyd. Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 231. The
supreme court first noted that the defendant's insurance contract could not be read to impose
a contractual duty to preserve evidence for the plaintiff's benefit because he was not a party
to that contract. Dardeen, 213 Ill. 2d at 336-37, 821 N.E.2d at 231-32. The court then
rejected the plaintiff's argument that the relationship between the insured and the insurance
carrier constituted a "special circumstance" under Boyd sufficient to impose a duty to
preserve evidence. The plaintiff's argument was based on the nature of that relationship.
Specifically, he argued that the carrier had the opportunity to control the defendant's actions
with respect to the evidence at issue, thus giving rise to a duty to preserve it. That ability to
control the evidence stemmed from the carrier's "authority to guide or manage the actions of
7 its insured." Dardeen, 213 Ill. 2d at 337, 821 N.E.2d at 232.
For our purposes, it is important to note what the Dardeen plaintiff did not argue–he
did not argue that the insurance company did anything to voluntarily assume a duty to
preserve evidence. Thus, the court did not address this issue. As will become apparent, this
distinction is significant. What the plaintiff in Dardeen argued was that the insurance
company's ability to instruct its insured regarding how to handle evidence in her possession
gave the insurance company a degree of control over that evidence that was itself sufficient
to impose on the insurance company a duty to preserve evidence under the "special
circumstance" language in Boyd. See Dardeen, 213 Ill. 2d at 337, 821 N.E.2d at 232.
In rejecting this argument, the supreme court explained that it had previously "hinted
at what special circumstance might give rise to a duty to preserve evidence in Miller v.
Gupta, 174 Ill. 2d 120[, 672 N.E.2d 1229] (1996)." Dardeen, 213 Ill. 2d at 338, 821 N.E.2d
at 232. In Miller, a physician defendant in a medical malpractice case left X rays requested
by the plaintiff where they were discarded by the hospital's cleaning staff. Miller, 174 Ill. 2d
at 123-24, 672 N.E.2d at 1231. The supreme court ruled that the plaintiff should be allowed
on remand to amend her complaint to conform with the supreme court's decision in Boyd,
which was decided while her appeal was pending. Miller, 174 Ill. 2d at 129, 672 N.E.2d at
1233. In Dardeen, the court distinguished the circumstances before it from those present in
Miller on the grounds that (1) the Dardeen plaintiff never asked either the defendant or her
insurer to preserve or provide him with evidence, (2) the insurance company in Dardeen did
not have possession of the evidence, and (3) the insurance company never "segregated [the
evidence] for the plaintiff's benefit." Dardeen, 213 Ill. 2d at 338, 821 N.E.2d at 232.
We note that, in Country Mutual's first appeal in the instant matter, we found that
Macios's possession of the wheel was sufficient to constitute a special circumstance that
satisfied the first prong of Boyd, and we therefore imposed upon Macios a duty to preserve
8 the wheel. Jones, 322 Ill. App. 3d at 422, 752 N.E.2d at 12. We then found that the same
reasoning was applicable to Country Mutual. Jones, 322 Ill. App. 3d at 425, 752 N.E.2d at
14-15. The supreme court announced its decision in Dardeen after the proceedings on
remand took place and the present appeal was filed. In the wake of Dardeen, the rationale
underlying our holding on the first appeal in this case may no longer be valid, at least with
respect to Country Mutual. We also note, however, that the Dardeen court emphasized that
the first prong of Boyd is satisfied if any one of the bases to impose a duty to preserve
evidence is present. Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 231 (relying on Boyd, 166
Ill. 2d at 195, 652 N.E.2d at 270-71). Because we will conclude that the first prong is
satisfied by a voluntary undertaking on the part of Country Mutual, we find that the result we
reached is still valid.
Country Mutual argues that, like the insurance company involved in Dardeen, it did
not control the wheels because they belonged to Macios and Macios could therefore do with
them as he pleased. O'Brien Tire and Ohio Casualty, by contrast, argue that Country Mutual
did control the wheels through its ability to guide the actions of its insured. Unlike the
insurance company in Dardeen, they contend, Country Mutual exercised this control by
instructing Macios not to dispose of the wheels. In resolving these arguments, we must first
determine what degree of control is necessary to establish a duty to preserve evidence under
the circumstances before us.
The Dardeen court expressly declined to decide whether actual possession of the
evidence is necessary to impose a duty to preserve evidence. The court held only that the
opportunity to control evidence, standing alone, does not impose that duty. See Dardeen,
213 Ill. 2d at 339, 821 N.E.2d at 233. Because the court found that the insurance company
had not exercised any control over the evidence, it did not need to consider what level of
control over the evidence a spoliation defendant must exercise in order to fit within the
9 "special circumstance" language of Boyd. We need not determine this issue either. We
emphasize the distinction between Dardeen and the case before us: there, the only basis upon
which to find a duty to preserve evidence was the plaintiff's contention that the insurance
company had enough control over the evidence that it should be deemed a special
circumstance justifying the imposition of a duty to preserve; the issue here is whether
Country Mutual assumed a duty to preserve evidence through its actions. Thus, the third-
party plaintiffs need not allege or demonstrate that Country Mutual exercised enough control
over the wheel to constitute a special circumstance as contemplated by the Boyd court.
Nevertheless, the law cannot impose upon a party an obligation to do something that is
impossible for it to do. We must, therefore, consider whether Country Mutual had at least
enough control over the wheels to be able to fulfill an obligation to preserve them as
evidence. We find that it did.
"Control" is defined as follows: "Power or authority to manage, direct, superintend,
restrict, regulate, govern, administer, or oversee. The ability to exercise a restraining or
directing influence over something." Black's Law Dictionary 329 (6th ed. 1990). In the
instant case, while it is certainly true that Country Mutual did not have the kind of complete
control over the wheels that it would have had if it had taken possession of them, it had–and
exercised–the authority to direct Macios, as its insured, to preserve the wheels. We thus find
that Country Mutual exercised enough control over the evidence to allow it to take
appropriate steps to preserve it.
We further find that Country Mutual, through its actions, voluntarily assumed a duty
to exercise reasonable care and due diligence to preserve the evidence. Country Mutual
voluntarily undertook to preserve the wheels when it instructed its insured, Macios, to keep
them. Once Country Mutual undertook to preserve the evidence for its own benefit, this
voluntary undertaking imposed a duty to continue to exercise due care to preserve the
10 evidence for the benefit of any other potential litigants. See Boyd, 166 Ill. 2d at 195, 652
N.E.2d at 271 (citing Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 74, 199 N.E.2d 769,
773 (1964) (explaining that "liability can arise from the negligent performance of a voluntary
undertaking")).
Under the second prong of Boyd, we must determine whether Country Mutual's duty
to preserve evidence encompasses the evidence at issue, the damaged wheel assembly from
Macios's truck. In this regard, we note that Country Mutual acted through one of its claims
adjustors, Krone. Krone's job as a claims adjustor was to anticipate litigation and evaluate
evidence, as he did when he sent his expert, Finley, to Sugarloaf to examine the wheels. We
believe that a reasonable claims adjustor in Krone's position would have anticipated the
possibility of future litigation in this matter. Although Country Mutual and the Jones estate
had been engaged in settlement negotiations, no formal agreement had been reached at the
time the wheels were discussed. Moreover, Finley's report indicated that loose lug nuts
caused the wheel assembly to come off the truck, thereby making a claim against O'Brien
Tire by the Jones estate or a third-party claim against O'Brien Tire by Macios easy to foresee.
A reasonable claims adjustor in Krone's position would also anticipate that the cause of the
wheels coming off the truck would be a central issue in any such claim. It was reasonably
foreseeable that the wheels and tires would be critical evidence in future litigation, just as
Krone had foreseen their importance in Country Mutual's defense–he characterized their
preservation as "crucial for our case" in his letter to Macios. We conclude that Country
Mutual, once having undertaken the duty to preserve the wheels, had a duty to exercise
reasonable care to preserve the wheels as evidence for any party that might need to use them
in future litigation.
Country Mutual also argues that it had no duty to inform O'Brien Tire or Ohio
Casualty of the existence and whereabouts of the evidence. In their brief, O'Brien Tire and
11 Ohio Casualty point out that the rulings below were fully supported by evidence that Country
Mutual breached a duty to preserve the evidence and that allegations related to its failure to
inform Ohio Casualty of the location of the wheels were relevant to whether Country
Mutual's conduct was willful and wanton. At oral argument, however, they argued that, had
Ohio Casualty been informed of the existence and location of the wheels, it could have
retained an expert to photograph and/or examine the outer wheel, thereby allowing the third-
party plaintiffs to develop evidence that would serve the same purpose as the wheel itself.
In either case, they present no arguments that Country Mutual had a duty to inform them of
the location of the evidence as an independent duty. Moreover, we believe that the rulings
and verdict below are supported by our conclusions regarding Country Mutual's duty to
preserve the evidence. Thus, we need not consider Country Mutual's arguments concerning
the lack of a duty to inform another party concerning the existence or whereabouts of
evidence.
B. Breach
Country Mutual next argues that the court erred in denying its motion for a judgment
notwithstanding the verdict because the evidence did not demonstrate that it had breached
its duty to preserve evidence, assuming it owed that duty. We disagree.
Country Mutual's argument is twofold. It first argues that it did preserve the evidence
by preserving the photographs Finley had taken of the outer wheel on the day of the accident.
It also argues that it acted with reasonable caution in instructing Macios to keep the wheels.
Wade Bartlett, a mechanical engineer and automobile technician who testified as an expert
witness on behalf of Ohio Casualty, explained why these photographs were not sufficient.
He explained that the photographs taken by Finley allowed him to conclude, just as Finley
had, that improperly tightened lug nuts had caused the wheel assembly to come loose. He
testified, however, that Finley's photographs were not sufficiently detailed to permit him to
12 conclude to a reasonable degree of engineering certainty when the lug nuts were last
tightened. He explained that some types of repairs require that the wheels be removed and
then replaced. For example, in order to work on the brakes, a mechanic must remove the
wheels in order to have access to the brakes. There was conflicting evidence in this case
concerning whether any subsequent repairs took place. According to Buenger, when Lowery
brought the truck to O'Brien Tire, he told Buenger that he was going to work on the brakes
so that the truck would pass inspection. Records from Sugarloaf, however, indicate that no
such repairs took place after the truck left O'Brien Tire. This uncertainty regarding whether
the wheels were removed and replaced after the truck left O'Brien Tire could have been
resolved by determining when the lug nuts were last tightened.
Bartlett opined that the lug nuts likely all came off at the same time, something that
most likely occurred when the truck had been driven only a few miles after the wheel
assembly had been last remounted on the truck. He explained that Finley's photographs
showed marks made from the lug nuts scratching against the metal surface of the outer
wheel. Some of the markings looked crisp and silvery in the photographs. Bartlett explained
that these features indicate that the lug nuts had been recently tightened, due to the fact that
the wheels are made of steel, a metal which corrodes quickly. Had the scratches been made
several days or even weeks before the accident, there would be rust or dirt on them. The
problem with the photographs, he further explained, is that they do not provide enough close-
up detail of the scratches for Bartlett to be able to reach such a conclusion definitively.
Bartlett testified that having access to the outer wheel itself would be the best way to
make the determination. This would have allowed him to look at the scratches through a
microscope and eliminate the possibility that the lighting in the photographs made the
scratches look silvery when in fact they had corroded. He further testified that photographs
would be an acceptable substitute for the wheel itself if they were taken by a camera able to
13 take close-up photographs of an area the size of a human thumbnail clearly enough to
document the "fine detail" of the markings. Thus, we find that the jury properly concluded
that the evidence was not preserved by the photographs when the wheels themselves were
lost.
As previously noted, claims of spoliation of evidence are governed by traditional
negligence principles. Thus, the third-party plaintiffs needed to demonstrate that Country
Mutual did not exercise reasonable care in acting to preserve the evidence. Country Mutual
argues that it did exercise reasonable care by requesting several times that Macios not dispose
of the wheels and never telling him explicitly that he could dispose of them. This argument
fails for two reasons. First, the evidence supports a conclusion that Krone acted negligently
by permitting Macios to have the truck repaired in December 1994 without reiterating to him
at that time the importance of preserving the wheels. Macios knew nothing about the
preservation of evidence and relied upon Krone to tell him what to do to properly preserve
the wheels. Krone, on the other hand, knew or should have known that the wheels were
critical evidence that needed to be protected from possible corrosion. He also knew or
should have known that Macios–who ran a landscape business and, unlike Krone, was not
regularly involved in automobile accident litigation–was unlikely to know how to preserve
the evidence without guidance from Krone. According to Macios, prior to December 1994,
Krone had instructed him not to repair the truck. It does not take much foresight to predict
that, once told he could repair the truck, Macios might assume that the change in Krone's
instructions meant the wheels were no longer needed. It was negligent for Krone to fail to
consider this possibility and not to remind Macios to make sure to get the wheels back from
the repair shop. If we consider Krone's version of events, his negligence is even more
glaring. According to Krone, he never discussed the repair of the truck with Macios.
Although the request in Krone's October 1994 letter that Macios retain the wheel studs and
14 attach them to the wheels might be interpreted to contain an implicit instruction to be sure
to retain the wheels after having the truck repaired, Krone admitted that he never followed
up on the letter to be sure M acios received and understood it.
Country Mutual's argument also fails because it acted negligently in failing to take
adequate steps to instruct Macios on how to preserve the wheels in the condition they were
in on the day of the accident. Macios stored the wheels, along with the truck, in an open barn
on Sugarloaf's property. Bartlett testified that the wheels needed to be stored in an airtight
plastic bag. There was evidence that Country Mutual sent Macios a letter on October 12,
1994, which gave somewhat more detailed instructions on preserving evidence than the
verbal instructions to store it out of the weather. While the letter did not instruct him to store
the wheel assembly in an airtight bag, it did highlight the importance of keeping it intact,
requesting that the wheels be labeled "do not touch" and stored "in a secure place so that they
may not be tampered with." There was also evidence that Macios never received the letter
and that Country Mutual never checked to see that Macios was taking proper steps to
preserve the wheels in their condition at the time of the accident. We conclude that the jury
properly found that Country Mutual breached its duty to exercise reasonable care in
preserving the wheels.
C. Causation
Next, Country Mutual contends that it was entitled to a judgment notwithstanding the
verdict because the evidence did not support a finding that any negligence on its part
proximately caused the wheels to be lost. This argument has two components. First, Country
Mutual contends that the actions of Macios and Lowery, rather than those of Krone or any
other Country Mutual employee, caused the wheels to be lost. This argument will be
discussed in more detail when we address the parties' arguments concerning the court's
refusal to give Country Mutual's requested sole-proximate-cause instruction. However, we
15 believe that the evidence supported a conclusion that Krone's negligence, as previously
described, contributed to the actions Macios and Lowery took which eventually led to the
loss of the wheel. We thus reject this argument.
The second part of Country Mutual's argument regarding causation revolves around
precisely what harm must be proved by a party alleging spoliation of evidence. Country
Mutual contends that it is insufficient to demonstrate that the loss of the evidence made the
underlying case more difficult to prove but, rather, that the party must prove that it was
unable to mount any defense in the underlying action. In support of this position, Country
Mutual points to language in Boyd, where the supreme court stated, "[I]n a negligence action
involving the loss or destruction of evidence, a plaintiff must allege sufficient facts to support
a claim that the loss or destruction of the evidence caused the plaintiff to be unable to prove
an underlying lawsuit." (Emphasis in original.) Boyd, 166 Ill. 2d at 196, 652 N.E.2d at 271.
Country Mutual argues that the third-party plaintiffs have not met this standard
because other evidence existed that allowed them to mount a defense. For instance, Bartlett
was able to opine that the lug nuts had been tightened within a few miles before the accident,
on the basis of the photographs that existed, albeit less conclusively than he would have been
able to do had the outer wheel been preserved. We believe that this argument misreads Boyd.
We find nothing in Boyd or subsequent cases to suggest that a spoliation plaintiff can only
prevail by demonstrating that the loss of critical evidence leaves it with no evidence at all to
support a claim or defense in the underlying litigation. Indeed, the quoted language was
meant to emphasize the fact that, if a spoliation plaintiff did not have a valid claim or defense
supporting a reasonable chance of success in the underlying action, it should not be able to
prevail on a spoliation claim because the evidence is lost. Boyd, 166 Ill. 2d at 196 n.2, 652
N.E.2d at 271 n.2.
The only case cited by Country Mutual which found that a spoliation claim could not
16 succeed without an allegation that the plaintiff was prevented from raising any claims or
defense at all is Veazey v. LaSalle Telecommunications, Inc., 334 Ill. App. 3d 926, 935, 779
N.E.2d 364, 372 (2002). There, however, the court found that both counts of the underlying
action could not succeed for reasons other than the loss of evidence. Veazey, 334 Ill. App.
3d at 935, 779 N.E.2d at 372. Under those circumstances, the plaintiff could only meet his
burden of proving that he had a reasonable chance of succeeding had the evidence not been
lost, as required in Boyd, if he could show that he was prevented from raising some other
claim. As Ohio Casualty and O'Brien Tire correctly note, Boyd requires a spoliation plaintiff
to demonstrate that lost evidence made the plaintiff unable to prove the underlying case,
which could happen when a critical piece of evidence is lost even if it is not the sole piece
of evidence available to the party. We conclude that the jury could properly conclude from
the evidence before it that the third-party plaintiffs met this burden.
D. Damages
Country Mutual next argues that it was entitled to a judgment notwithstanding the
verdict because the settlement was paid by West American Insurance Company (West
American) rather than by Ohio Casualty or O'Brien Tire. Thus, it contends, the third-party
plaintiffs failed to demonstrate that they suffered any damages as a result of the loss of the
wheels. We disagree. Jim Schiller, the casualty manager for Ohio Casualty, testified that
West American and Ohio Casualty are both a part of the Ohio Casualty Group. He further
testified that West American wrote the policy covering O'Brien Tire and that he could not
recall whether it was Ohio Casualty or West American that wrote the umbrella policy. In his
capacity as Ohio Casualty's manager, Schiller had the ultimate authority to settle the Jones
estate's claim against O'Brien Tire. From this it is clear that, as the third-party plaintiffs
contend, West American and Ohio Casualty are parts of the same entity. Thus, Country
Mutual's argument that damages were not proven fails.
17 E. Manifest Weight of the Evidence
Country Mutual next argues that the court erred in denying its motion for a new trial
because the jury's verdict was against the manifest weight of the evidence. In support of this
contention, it refers to the arguments it made regarding each element of a cause of action for
negligent spoliation previously outlined. We have already found that the court correctly
determined that Country Mutual had a duty to preserve the wheels as evidence and that the
evidence supported the jury's findings of breach, causation, and damages. We thus conclude
that Country Mutual was not entitled to a new trial on the basis that the jury's verdict was
against the manifest weight of the evidence.
F. Jury Instruction on Duty
Country Mutual contends that it was entitled to a new trial because the court
improperly instructed the jury that it owed the third-party plaintiffs a duty to preserve the
evidence. It argues that whether there was a duty to preserve the wheels was a question of
fact for the jury to determine. W e disagree. Ordinarily, the existence of a duty is a question
of law to be determined by the court. Washington v. City of Chicago, 188 Ill. 2d 235, 239,
720 N.E.2d 1030, 1032 (1999). However, where the duty depends on the existence of facts
that are in dispute, the existence of the relevant facts presents a question for the jury to
resolve. King v. NLSB, 313 Ill. App. 3d 963, 966, 730 N.E.2d 1222, 1225 (2000). Here, the
existence of a duty to preserve the wheels as evidence was dependant on a factual finding on
whether Krone or Country Mutual had undertaken the duty voluntarily. Although Macios's
testimony regarding his discussions with Krone relating to the preservation of the wheels
conflicted with Krone's testimony, the parties stipulated that Krone had sent the October
1994 letter instructing Macios to retain the wheels for possible use as evidence. It is
unrefuted that Krone did at least this much to preserve the evidence. Consequently, the trial
court directed a verdict on the issue of duty, a ruling we find was proper. Thus, the jury was
18 properly instructed.
G. Sole Proximate Cause
Finally, Country Mutual argues that it was entitled to a new trial because the court
erred in directing a verdict for the third-party plaintiffs on the issue of sole proximate cause,
refusing to instruct the jury on sole proximate cause, and giving the third-party plaintiffs'
requested instruction. We disagree.
The instruction at issue is IPI Civil (2000) No. 12.04. The first paragraph reads:
"More than one person may be to blame for causing an injury. If you decide
that the defendant was negligent and that its negligence was a proximate cause of
injury to the plaintiff, it is not a defense that some third person who is not a party to
the suit may also have been to blame." IPI Civil No. (2000) 12.04.
The second paragraph provides:
"However, if you decide that the sole proximate cause of injury to the plaintiff
was the conduct of some person other than the defendant, then your verdict should be
for the defendant." IPI Civil No. (2000) 12.04.
Ohio Casualty and O'Brien Tire requested that only the first paragraph be given. Country
Mutual requested that the second paragraph be given as well.
A party is entitled to have the second paragraph given to the jury if there is some
competent evidence in the record to support it. McDonnell v. McPartlin, 192 Ill. 2d 505,
522, 736 N.E.2d 1074, 1085 (2000). Country Mutual argues that, because Wesley Lowery,
an employee of Sugarloaf, brought the wheel to Patterson Tire, where it was discarded, ample
evidence supported an instruction apprising the jury that it could find that Lowery's actions
were the sole proximate cause of the loss of the wheel. We disagree. The fact that Lowery
took the wheel to Patterson Tire was never disputed. What was at issue was whether Krone
and Country Mutual acted negligently in the guidance they gave Macios and his employees
19 regarding the preservation of the wheel and whether this led to the loss of the wheel. We are
not faced with a situation in which an employee of the insured discarded evidence in spite
of explicit instructions to the contrary. In that case, our conclusion might be different. Under
the facts presented, Country Mutual was not entitled to an instruction on sole proximate
cause, and the court did not err in refusing to give the instruction, giving the instruction
requested by the third-party plaintiffs, or directing a verdict in favor of the third-party
plaintiffs on the issue of sole proximate cause.
III. O'BRIEN TIRE AND OHIO CASUALTY'S CROSS-APPEAL
The third-party plaintiffs argue that (1) the court erred in its jury instruction on
damages, (2) the court abused its discretion in denying their motion for leave to amend their
complaint to add a count alleging willful and wanton spoliation of evidence, and (3) the court
erred in denying their motion for leave to amend their complaint to add a request for
prejudgment interest.
A. Measure of Damages
Ohio Casualty and O'Brien Tire contend that the court erred in instructing the jury that
it was to determine an amount of damages that would fairly compensate them. Instead, they
argue, the court should have fixed the damages at $1.45 million, the amount for which they
settled the underlying case with the Jones estate. As a result of this claimed error, they argue
that they are entitled to a new trial due to the prejudicial nature of the instruction, an addittur
of $975,000 ($475,000 plus $975,000 equals $1.45 million), or a conditional new trial limited
to the issue of damages. We conclude that the trial court properly allowed the jury to
determine the appropriate amount of damages to award.
In most spoliation-of-evidence cases cited by both parties, the party asserting the
spoliation claim was also the plaintiff in the underlying litigation. The only case of which
we are aware to consider spoliation claims by defendants to the underlying action is our
20 decision in Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707, 722 N.E.2d 1167
(1999). That case, like this one, involved a defendant who had settled the underlying action.
We held that the settlement did not preclude a recovery for negligent spoliation of evidence;
however, we did not have to consider what the proper measure of damages would be. Stinnes
Corp., 309 Ill. App. 3d at 718, 722 N.E.2d at 1175.
Courts that have considered the issue in the context of plaintiffs' claims for spoliation
of evidence have struggled to find the appropriate measure of damages in those cases. Some
have concluded that the appropriate measure of damages is the amount that the plaintiff
would have recovered had they prevailed at a trial, multiplied by the probability of trial
success. See Petrik v. Monarch Printing Corp., 150 Ill. App. 3d 248, 260-61, 501 N.E.2d
1312, 1320 (1986) (citing Smith v. Superior Court, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829
(1984)). Others have found it more appropriate to compensate plaintiffs for the full amount
they would have recovered if the evidence had been available to them and they had prevailed
at a trial. See Petrik, 150 Ill. App. 3d at 261, 501 N.E.2d at 1320. Although two panels of
the First District Appellate Court have indicated in dicta that they would follow the latter
method (Schusse v. Pace Suburban Bus Division of the Regional Transportation Authority,
334 Ill. App. 3d 960, 966, 779 N.E.2d 259, 264 (2002); Fremont Casualty Insurance Co. v.
Ace-Chicago Great Dane Corp., 317 Ill. App. 3d 67, 75, 739 N.E.2d 85, 91 (2000)), no
Illinois case has squarely addressed the issue. The supreme court expressly declined to do
so in Boyd. Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272.
The third-party plaintiffs argue that here the measure of damages is certain because
we know exactly what they were required to pay in the underlying action: $1.45 million. To
conclude that this is the proper measure of damages requires us to assume that, had the
evidence not been lost, the third-party plaintiffs would not have settled with the Jones estate
and likely would have won at a trial. This assumes too much. As Country Mutual points out,
21 Bernie Esser, the Ohio Casualty claims adjustor responsible for investigating the claim
against O'Brien Tire in the underlying action, testified that he would not have recommended
taking the case to a trial unless there was an expert witness who was "100 percent certain"
that no one at O'Brien Tire was responsible for the accident. Esser further testified that, if
there was an expert who could testify to a reasonable degree of engineering certainty that the
wheel assembly was replaced after the truck left O'Brien Tire, he likely would have tried to
settle for a lower amount. As a practical matter, the most accurate measure of damages
would be the difference between the amount for which the case settled without the evidence
and the amount upon which the jury finds it likely that the parties would have settled had the
evidence existed allowing the defendant to present a stronger case. We thus conclude that
the court properly instructed the jury regarding damages and that the third-party plaintiffs
were not entitled to any of the requested relief.
B. Willful and Wanton Spoliation
The third-party plaintiffs next argue that the court abused its discretion in denying
them leave to amend their petition to add a claim for willful and wanton spoliation of
evidence. We disagree.
Section 2-616 of the Code of Civil Procedure permits parties to amend their pleadings
at any time before a final judgment is rendered "on just and reasonable terms". 735 ILCS
5/2-616(a) (West 2002). This statute is to be interpreted liberally so that cases may be
decided on their merits rather than on the basis of flaws in the pleadings. The decision to
permit or deny leave to amend pleadings is within the discretion of the trial court, and we will
not reverse its decision absent an abuse of that discretion. Trinity Bible Baptist Church v.
Federal Kemper Insurance Co., 219 Ill. App. 3d 156, 163, 578 N.E.2d 1375, 1379 (1991).
Courts are to consider the following factors when deciding whether to grant leave to amend
pleadings: (1) whether the proposed amendment would cure a defect in the pleadings, (2)
22 whether other parties would sustain prejudice if the amendment is allowed, (3) whether the
amendment is timely, and (4) whether the party had previous opportunities to amend the
pleadings. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273, 586 N.E.2d
1211, 1215-16 (1992).
In the instant case, the proposed amendment added a cause of action rather than cured
a defect in the pleadings. The first factor is thus inapplicable. Considering the timing and
nature of the proposed amendment, we believe that the court acted within its discretion in
denying the third-party plaintiffs' motion to amend. Whether Illinois courts will recognize
a cause of action for willful and wanton or intentional spoliation of evidence remains an open
question. See Boyd, 166 Ill. 2d at 201, 652 N.E.2d at 273. Thus, the third-party plaintiffs'
motion for leave to amend its complaint sought to add a claim under a novel theory of law
in this state merely one month before the trial. Allowing the amendment would have
prejudiced Country Mutual by requiring it to defend against this novel claim with only a few
weeks to prepare. Moreover, the proposed amendment was based on information obtained
during a November 18, 2003, deposition of Country Mutual claims adjustor Jerry Krone. The
third-party plaintiffs could have filed a motion for leave to amend sooner than January 9,
2004. Given the complexity and novelty of the issue involved and the proximity of the trial
date, we do not believe a two-month delay in filing the request for leave to amend can be
considered timely. We find no abuse of discretion.
C. Prejudgment Interest
Finally, O'Brien Tire and Ohio Casualty contend that the trial court abused its
discretion by denying their last-minute motion to amend their complaint to add a request for
prejudgment interest. Prejudgment interest may be awarded if equitable considerations
warrant it. Whether to award prejudgment interest is a matter within the sound discretion of
the trial court. In re Estate of Wernick, 127 Ill. 2d 61, 87, 535 N.E.2d 876, 888 (1989). An
23 award of interest may be justified where a party breaches its fiduciary duty to another and,
in so doing, retains a substantial amount of funds belonging to the other party (see Neumann
v. Neumann, 334 Ill. App. 3d 305, 310, 777 N.E.2d 981, 985 (2002)) or retains funds
belonging to the other party for a long period of time (see In re Estate of Wernick, 127 Ill.
2d at 88, 535 N.E.2d at 888). We do not believe that the trial court would have abused its
discretion had it denied even a timely request for prejudgment interest. Thus, we conclude
that it did not abuse its discretion by denying the third-party plaintiffs leave to amend their
complaint two days before the trial to add a request the court had the discretion to deny.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment.
Affirmed.
GOLDENHERSH, J., concurs.
JUSTICE SPOMER, dissenting:
I respectfully dissent. Based on the Illinois Supreme Court's decision in Dardeen v.
Kuehling, 213 Ill. 2d 329 (2004), I would find that, as a matter of law, Country Mutual owed
no duty to preserve the wheel assembly at issue. The majority recognizes that, in light of
Dardeen, the rationale underlying this court's holding in its disposition of the first appeal in
this case "may no longer be valid, at least with respect to Country Mutual." Slip op. at 9; see
Jones v. O'Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418, 425 (2001). The
majority then goes on to distinguish Dardeen from this case on the basis that the insurance
adjuster in Dardeen, by instructing its insured not to preserve the evidence, did not
voluntarily assume a duty to preserve the evidence, while the Country Mutual adjuster in this
24 case, by instructing the insured to preserve the evidence, did voluntarily assume a duty to
preserve the evidence. I find this to be a distinction that, in addition to misinterpreting the
supreme court's holding in Dardeen, is without merit and goes against logic.
While the Illinois Supreme Court has heretofore declined to specifically decide
whether possession is required in every negligent spoliation case, I can conceive of no
situation where an insurance company would have control over property owned by its insured
absent possession or a possessory interest in the property. This is especially true where, as
here, the truck at issue did not have collision coverage with Country Mutual such that the
adjuster could potentially control the disposition of salvage parts upon the repair of the
vehicle. Country Mutual only issued liability coverage to Sugarloaf and Macios.
Consequently, I disagree with the majority's holding that, in instructing Macios to preserve
the wheel assembly, Country Mutual exercised enough control to constitute a voluntary
undertaking sufficient to impose a duty to preserve the wheel assembly. Dardeen specifically
held that State Farm Fire and Casualty Company, who did nothing but answer a question
posed by its insured, had neither possession nor control of the evidence and, therefore, owed
the injured party no duty to preserve it. Dardeen, 213 Ill. 2d at 339. In the absence of a clear
possessory interest on the part of the defendant insurance company (such as was the case of
the defendant workers' compensation carrier in Boyd v. Travelers Insurance Co., 166 Ill. 2d
188 (1995), the defendant doctor in Miller v. Gupta, 174 Ill. 2d 120 (1996), the defendant
employer in Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707 (1999), and the
defendant employer in Anderson v. Mack Trucks, Inc., 341 Ill. App. 3d 212 (2003)), the
decision by an adjuster to instruct the owner of the evidence on whether to maintain or
discard the evidence does not alter the amount of control the adjuster has over the potential
evidence. The person receiving the instruction is still free to disregard that instruction and
retain or discard the evidence. Accordingly, although the Dardeen court did not decide
25 whether possession is required, it is clear under Dardeen that Country Mutual did not have
the requisite control over the evidence to impose a duty.
In addition, the majority's distinction goes against logic and would in effect turn
public policy on its head. It defies common sense to say that by advising an insured not to
preserve evidence, an insurance company can avoid liability (Dardeen, 213 Ill. 2d at 339),
but by advising an insured to preserve evidence, an insurance company is assuming liability.
The public policy implication of the majority's holding would be to encourage insurance
companies to advise their insureds not to preserve evidence. This cannot be the intention of
the Illinois Supreme Court's pronouncement in Dardeen.
Also troublesome is the majority's holding that "[o]nce Country Mutual undertook to
preserve the evidence for its own benefit, this voluntary undertaking imposed a duty to
continue to exercise due care to preserve the evidence for the benefit of any other potential
litigants." (Emphasis added.) Slip op. at 11. Even if Country Mutual's instruction to its
insured constituted a voluntary undertaking sufficient to impose a duty to preserve the wheel
assembly, which, as explained above, is contrary to Dardeen, to hold that its duty would
continue "for the benefit of any other potential litigants" is unlimited in time and scope and,
consequently, unworkable. I do not find any Illinois law or law of any other jurisdiction that
imposes such a continuing, limitless duty. This is, in part, because such a rule could
conceivably prevent the repair of a vehicle involved in an accident until all the relevant
statutes of limitations had run and would require an insurance company to foresee the actions
of the injured party or his/her attorney, who may decide to sue some parties, even after the
settlement of litigation against other parties, as was done in this case.
Finally, I disagree with the majority's conclusion that O'Brien Tire met its burden of
proof of causation in this case. The supreme court made clear in Boyd that in order to prove
causation, "[a] [spoliation] plaintiff must demonstrate *** that but for the defendant's loss
26 or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in the
underlying suit." Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 196 n.2 (1995). Here,
even assuming that Country Mutual had a duty to avoid the loss of the wheel assembly, Ohio
Casualty's expert, Wade Bartlett, testified that it was his opinion, to a reasonable degree of
engineering certainty, that the lug nuts had been improperly tightened within a few miles
before the accident. This means that in his opinion, O'Brien Tire was not responsible for the
accident because it had replaced the tires approximately 360 miles before the accident.
Although upon further questioning Mr. Bartlett testified that his opinion was only
based on 51% certainty, he testified that he could only come to a more definitive opinion if
he was able to inspect the wheel assembly itself on the day of the accident or within several
days after the accident. In order to come to a more definitive opinion several months after
the accident, which is when O'Brien Tire first received notice of the accident, according to
the evidence in the record, Mr. Bartlett testified that the wheel assembly would have to be
preserved in a way that would prevent corrosion, which meant that it would have had to have
been protected from oxygen and moisture by placement in an airtight bag in a humidity-
controlled environment or sprayed with a clear laquer. Mr. Bartlett testified that he knew
about this preservation requirement due to his work for 4½ years in a materials testing lab.
The clear implication of Mr. Bartlett's testimony is that the loss of the wheel assembly
did not prejudice O'Brien Tire in its defense. In order for O'Brien Tire to have had any better
proof that someone had improperly tightened the lug nuts closer to the time of the accident,
O'Brien Tire would have had to have inspected the wheel assembly within days after the
accident, and the record shows that O'Brien Tire did not have notice of the accident until
several months later. Illinois law certainly does not impose a duty on an insurance company
to notify a potential codefendant of its insured of an accident. Alternatively, in order for Mr.
Bartlett to formulate a more certain opinion, the wheel assembly would have had to have
27 been preserved in the manner described by Mr. Bartlett, who is a mechanical engineer with
expertise in materials testing. If Country Mutual did have a duty to preserve the wheel
assembly, it would be a duty to exercise ordinary care. It would not be a duty to preserve the
wheel assembly as would a mechanical engineer with expertise in materials testing.
Accordingly, the facts in this case were insufficient to prove causation under the "but for"
standard enunciated in Boyd.
For the foregoing reasons, I would reverse the judgment of the circuit court.