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Martin v. Clark

OPINION FILED DECEMBER 31, 1980.

EMILY KAY MARTIN, PLAINTIFF-APPELLANT,

v.

RANDALL CLARK, DEFENDANT-APPELLEE. — RANDALL CLARK, PLAINTIFF-APPELLEE,

v.

CHRISTOPHER MARTIN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Warren County; the Hon. STEPHEN G. EVANS, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

A common law negligence action was brought against the defendant-appellant, Christopher Martin, by Randall Clark, the plaintiff-appellee, for injuries resulting from an intersectional automobile accident. A separate action was filed against Randall Clark, defendant-appellee, by Emily Kay Martin, plaintiff-appellant and owner of the automobile which Christopher Martin was driving, for damage to the vehicle. The cases were consolidated for trial and, following a jury trial, judgment was entered in favor of Randall Clark in both causes of action. A motion for a new trial filed by Emily Kay Martin and Christopher Martin was denied, and this appeal followed.

The vehicle owned by Emily Kay Martin and driven by Christopher Martin was proceeding easterly on East Franklin Avenue in Monmouth, Illinois, immediately prior to the accident. Randall Clark was driving his automobile in a northerly direction on North Third Street just before the accident. The vehicles collided in the intersection of East Franklin Avenue and North Third Street. This intersection contains no traffic control devices of any type.

Prior to the commencement of the joint trial, Randall Clark moved the court for an order requiring that a certain transcribed statement given by Christopher Martin to his insurer be turned over to Clark. Over the objection of Martin, the motion was granted.

During the instruction conference, appellants Christopher Martin and Emily Kay Martin tendered to the court Illinois Pattern Jury Instructions Civil, No. 70.02 (2d ed. 1971) (IPI). This instruction relates to the right-of-way law at an unmarked intersection. The court refused IPI Civil No. 70.02 and gave those instructions concerning unmarked intersections requested by Randall Clark. One of those instructions was a quotation of section 11-901 of the Illinois Vehicle Code and the other was a quotation of the City of Monmouth ordinance, which is a municipal counterpart of section 11-901.

In this appeal the appellants contend that the trial court erred in ordering Christopher Martin to turn over to Randall Clark the statement made by Martin to his insurer and in refusing to give IPI Civil No. 70.02. We agree with the appellants as to both issues.

• 1 The statement given by Christopher Martin to his insurer was protected by the attorney-client privilege and, for this reason should not have been subject to discovery by Randall Clark. Ill. Rev. Stat. 1979, ch. 110A, par. 201(b)(2); see People v. Ryan (1964), 30 Ill.2d 456, 197 N.E.2d 15, and McKnight v. Dennis (1964), 51 Ill. App.2d 403, 201 N.E.2d 461.

The appellee cites Monier v. Chamberlain (1966), 35 Ill.2d 351, for the proposition that the statement given by an insured to his insurer in advance of trial is not a privileged statement or work product. Monier does not, however, state such a general proposition. In that case, the adverse parties had a common insurer and this fact was known to both parties shortly after the occurrence. Based on these facts, the Illinois Supreme Court concluded that the attorney-client privilege which normally attaches to statements made by an insured to his insurer was not applicable and held that the statements were subject to discovery. In so holding the court reiterated the general rule enunciated in People v. Ryan (1964), 30 Ill.2d 456, 197 N.E.2d 15, that such statements are clothed with the attorney-client privilege and are therefore privileged from discovery as confidential communications.

Because the parties in the instant case did not have the same insurer, the Monier exception to the general rule prohibiting discovery of statements made by an insured to his insurer does not apply, and the trial court erred in ordering that the statement made by Christopher Martin to his insurer be turned over to Randall Clark prior to trial.

• 2 The trial court also erred in refusing to give IPI Civil No. 70.02, tendered by the appellants, and in substituting therefore the wording of section 11-901 of the Illinois Vehicle Code and section 17-62 of the Municipal Code of Ordinances to the City of Monmouth.

IPI Civil No. 70.02 reads as follows:

"At the time of the occurrence in question, there was in force in the State of Illinois a statute governing the operation of motor vehicles approaching intersections.

If two vehicles are approaching an intersection from different highways at such relative distances from the intersection that if each is being driven at a reasonable speed, the vehicle on the right will enter the intersection first or both vehicles will enter the intersection at about the same time, then this statute requires the driver of the vehicle on the left to yield the right of way to the vehicle on the right.

On the other hand, if two vehicles are approaching the intersection from different highways at such relative distances from the intersection that if each is being driven at a reasonable speed, the vehicle on the left will enter the intersection and pass beyond the line of travel of the vehicle on the right before the vehicle on the right enters the intersection, then this statute ...


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