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09/21/87 Peter Giardino, v. Frederick Fierke

September 21, 1987

PETER GIARDINO, PLAINTIFF

v.

FREDERICK FIERKE, DEFENDANT-APPELLEE (MAVIS GIARDINO, PLAINTIFF-APPELLANT; AUTOMOBILE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, GARNISHEE-APPELLEE)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

513 N.E.2d 1168, 160 Ill. App. 3d 648, 112 Ill. Dec. 559 1987.IL.1394

Appeal from the Circuit Court of Kane County; the Hon. James F. Quetsch, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, Mavis Giardino, appeals from the order of the circuit court of Kane County in appeal No. 2 -- 86 -- 1038 denying her motion for a new trial on the issue of damages on her claim for personal injuries against defendant, Frederick Fierke. She also appeals the subsequent decision of the circuit court denying her nonwage garnishment against defendant's insurer, Automobile Insurance Company of Hartford, Connecticut, in appeal No. 2 -- 86 -- 1175. The appeals were consolidated.

Plaintiff raises the following issues on appeal: (1) whether the trial court erred in denying plaintiff's motion for a new trial on the issue of damages for her personal injuries; and (2) whether the trial court erred in granting judgment in favor of the nonwage garnishee, the Automobile Insurance Company of Hartford, Connecticut.

The facts concerning the proceedings are generally not in dispute. Plaintiff and her husband, Peter Giardino, filed a two-count amended complaint seeking damages for injuries sustained after both were struck as pedestrians by an automobile driven by defendant, Frederick Fierke. Plaintiff also sought damages for loss of consortium. Following a jury trial, a verdict was returned in favor of plaintiff and her husband. Damages were assessed in the amounts of $535,500 for Peter Giardino and $4,200 for plaintiff's personal injuries, and $12,500 for her loss of consortium. Plaintiff filed a motion requesting a new trial on the issue of her damages for personal injuries which was denied. Defendant's insurer, Automobile Insurance Company of Hartford, Connecticut (Aetna), tendered $100,000 to plaintiff's husband for his injuries and $4,200 to plaintiff for her injuries under the limits of liability provision of its policy allowing for $100,000 per person and $300,000 per occurrence.

Plaintiff filed a nonwage garnishment against Aetna seeking to collect for the unpaid judgment of $12,500 awarded her for loss of consortium. Aetna appeared and answered that it had tendered the entire policy limit available and that pursuant to Gass v. Carducci (1964), 52 Ill. App. 2d 394, 202 N.E.2d 73, it was not liable for the additional $12,500 judgment for loss of consortium. The trial court later found that Aetna had tendered its policy limits and denied recovery for plaintiff.

Plaintiff first contends that the trial court erred in denying her motion for a new trial on the issue of damages for her personal injuries, as the jury improperly and erroneously assessed the damages at $4,200. She argues that the evidence established that she incurred medical expenses, loss of wages, experienced pain and suffering, and sustained permanent injuries, all of which were proximately caused by defendant's negligence in operating his motor vehicle. She asserts that her specific out-of-pocket medical expenses as shown by her exhibits admitted into evidence are as follows:

City of Elgin -- ambulance $50.00

St. Joseph Hospital 3,526.47

Dr. Winters 243.00

St. Joseph Hospital 36.70

Dr. Hemmer ...


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