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Imparato v. Rooney

OPINION FILED APRIL 3, 1981.

FRANK IMPARATO, PLAINTIFF-APPELLEE,

v.

MICHAEL WILLIAM ROONEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS A. WEXLER, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial in which the trial court directed a verdict as to liability, plaintiff was awarded damages of $105,000. Defendant appeals, contending that: (1) he was denied a fair trial when plaintiff's counsel was allowed to interject defendant's insurer throughout the voir dire examination; and (2) the trial court erred in directing a verdict for plaintiff. The relevant facts follow.

Prior to jury selection, plaintiff's counsel informed the court of his intention to question the prospective jurors as to whether they or any of their close friends or family were ever insured by or had any business dealings with Merit Insurance Company (Merit). Defendant was insured with Merit at the time of the incident in question for a policy with limits of liability of $100,000 per person and $300,000 per occurrence. Plaintiff's counsel filed an affidavit with the trial court stating that Merit had "thousands of policy holders in the Chicago area, and many employees, both office and outside investigators, and has extensive business dealings in and about the City of Chicago, County of Cook." This affidavit was furnished for the purpose of questioning the jurors concerning their connection with Merit, "* * * to insure that plaintiff's case can be tried by jurors who have no possible interest or bias." The affiant further stated that he would not inform or otherwise indicate to the jury that defendant was insured.

In response, defendant filed with the court an affidavit from the treasurer of Merit which stated that all of the issued and outstanding stock of Merit was held by Merit Financial Corporation, and owned equally by five individuals. Additionally, an affidavit by the vice-president of Merit was filed which stated at the time of trial 5,000 of Merit's 10,000 policyholders resided in Cook County and that Merit employed a total of 57 people — 50 individuals in its offices and 7 "outside people." Defense counsel represented to the trial court that none of the individuals who owned stock in Merit Financial Corporation was on the venire called into the courtroom. After argument by counsel for both sides, the trial court allowed plaintiff's counsel to inquire of the prospective jurors in the manner requested. Questions were posed to nine of the veniremen in the presence of the entire array, seven of whom actually sat on the jury. None had any connection with the company. Defendant's repeated objections to these questions were overruled and his motions for a mistrial were denied. The following relevant evidence was subsequently adduced at trial.

PLAINTIFF'S VERSION

On the evening of June 29, 1974, plaintiff and his friends Charles Picardi and Ralph Contacessi went out to dinner at about 11:30 p.m. After dining, they left the restaurant located at North Avenue and Austin in Chicago at about 1:15 a.m. Following a short stop at Picardi's house, the three proceeded south on Westchester Boulevard in Picardi's car at about 1:45 a.m. The occupants first noticed defendant's car at the intersection of Harrison and Westchester Boulevard when it pulled up behind them, flashed its bright lights and followed their car. Defendant stayed close to the rear of Picardi's car and repeatedly maneuvered alongside of them, and "played tag" as the car continued southbound. Due to the narrowness of the road, defendant's car did not or was unable to pass them. Picardi turned right on Roosevelt Road, heading west toward Mannheim Road, about one quarter of a mile away. Roosevelt Road consists of four lanes of traffic, two of which flow in each direction. The lanes are separated by a corrugated median strip. After going about 1 1/2 blocks on Roosevelt, Picardi pulled into the driveway of a GMAC building on the north side of the street slightly past the Westchester police station.

Plaintiff, who was riding in the front seat of Picardi's car, got out and ran toward the street in order to take down defendant's license plate number. Picardi and Contacessi also exited the car. Defendant's car had stopped in the middle of Roosevelt Road, but began to pull away. In an effort to get a better angle for viewing defendant's car, which was then moving toward the far right hand lane, plaintiff walked to the north end of the median strip. Defendant's car "cracked a wide U-turn" when it reached Mannheim and headed east on Roosevelt Road crossing the inner lane and angling toward plaintiff. Plaintiff momentarily took his eyes off defendant's car until he heard the sound of tires on the median strip and Contacessi yell "Look out." Defendant's car, which was approaching at 40-50 m.p.h., crossed the median strip and struck plaintiff. According to plaintiff, no one was in the eastbound lanes of Roosevelt Road at the time of the collision. Contacessi was somewhere north of plaintiff at this time and he had no idea where Picardi was.

DEFENDANT'S VERSION

Defendant and his friend Mike Fahey were driving on 25th Avenue, about five miles from the scene of the accident on the night in question, when they encountered Picardi's car. At this time, Picardi's car was in front of defendant. Picardi attempted to prevent defendant from passing him, but defendant eventually succeeded in doing so. After passing Picardi's car, defendant's car was never again overtaken, yet Picardi chased his car, tailgated him and did not allow his car back into the proper lane of traffic. At one point in the chase, defendant heard a noise emanating from the left rear fender of his car. He thought he saw someone who was hanging out of the window of Picardi's car strike his car with an object.

When defendant reached the intersection of Westchester Boulevard and Roosevelt Road, he turned right, heading westbound. Fearing for his life, he pulled into the driveway of the Westchester police station. Shortly thereafter, defendant pulled out of the driveway going west on Roosevelt Road. Picardi's car was nowhere in sight. After travelling only a few feet from the police station, someone threw an object at his car which cracked its windshield. Defendant proceeded to Mannheim Road, made a U-turn, and drove toward the police station at a speed of about 35 m.p.h. At this time, he was attempting to brush glass from his face. Suddenly, a pedestrian appeared in this lane of travel. To avoid striking this person, defendant swerved to the left, crossed the median strip and hit plaintiff, causing him to fly up on the hood, fall off, and land near the north curb. Defendant had seen plaintiff for the first time at the point of collision at which time he immediately applied the brakes. After the accident, defendant immediately pulled his car into the Westchester police station driveway.

Pictures taken by the Westchester Police Department after the accident showed that the windshield was, indeed, cracked on the passenger's side. One of the investigating officers stated that he inspected defendant's car at that time and found fresh breakage on the windshield. He also stated that there were landscaping rocks around the driveway of the nearby GMAC building which were "probably about the size of a hard-league baseball." The officer did not look for any stones or rocks in the area after the accident. Plaintiff denied that there were any stones or rocks in the area or that anyone in Picardi's car had thrown any objects at defendant's car. Plaintiff also denied that anyone in Picardi's car struck defendant's car, but defendant's father testified that he inspected the car shortly after the accident and found dents in the rear fender.

OPINION

We first examine defendant's contention that the trial court erred in permitting plaintiff's counsel to improperly inject references to defendant's insurer during voir dire and thereby prejudice the jury.

• 1 Generally, evidence which informs the jury that the defendant in a personal injury action is insured against liability is inadmissible on grounds of relevancy. (E. Cleary, Illinois Evidence § 10.28 (2d ed. 1963); Annot., 4 A.L.R.2d 761 (1949).) The rationale underlying this rule is twofold: (1) the fact that a party is insured can have no possible bearing on the question of his negligence; and (2) knowledge of such insurance on the part of the jury will probably result in a larger verdict than that awarded in the absence of such knowledge. (See R. Notman, Insurance ...


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