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12/17/87 Transamerica Insurance v. Brenda Lee

December 17, 1987

COMPANY, PLAINTIFF-APPELLEE

v.

BRENDA LEE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

TRANSAMERICA INSURANCE GROUP, Subrogee of Tote Cart

518 N.E.2d 413, 164 Ill. App. 3d 945, 115 Ill. Dec. 888 1987.IL.1857

Appeal from the Circuit Court of Cook County; the Hon. Ellis E. Reid, Judge, presiding.

Rehearing Denied January 21, 1988.

APPELLATE Judges:

JUSTICE JIGANTI delivered the opinion of the court. LINN, J., concurs. PRESIDING JUSTICE McMORROW, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

For what it believed to be an egregious violation of the discovery rules by the defendant's attorneys, the law firm of Parrillo, Weiss & Moss, the trial court entered a $5,000 judgment against the defendant and awarded it to the plaintiff's attorney as attorney fees. The court based its ruling upon Supreme Court Rules 219(c) and (d), which allow the court to impose "such orders as are just" for violation of the discovery rules, including "attorney's fees incurred by any party as a result of the misconduct." (87 Ill. 2d Rules 219(c), (d).) As additional support for its ruling, the court cited section 2-611 of the Code of Civil Procedure, which allows the court to assess reasonable attorney fees against a party filing untrue pleadings. (Ill. Rev. Stat. 1985, ch. 110, par. 2-611.) On appeal, the defendant does not contest the finding that a discovery violation occurred, but contends solely that the plaintiff failed to meet its burden of proving that the attorney fees awarded were reasonable or actually incurred.

Although the defendant does not contest the propriety of the trial court's finding that a discovery violation occurred, it is necessary to set out the following facts for an understanding of the case. The plaintiff, Transamerica Insurance Company, insured a building owned by the Tote Cart Company. The building was damaged, allegedly as a result of the defendant's negligence, and the plaintiff paid the insured's claim of approximately $8,000. The plaintiff then, as subrogee of its insured, filed the instant lawsuit against the defendant. In its amended complaint, the plaintiff alleged that the defendant negligently failed to control a vehicle she was driving, causing it to run into and damage the insured's building. The answer filed by the defendant denied both that she drove the car and that the car ran into the building. The plaintiff also filed an interrogatory containing the question, "[Did] said VEHICLE collide with a building?" The defendant's answer was a straightforward "No."

The defendant testified at a deposition that she was sitting in the parked car and put the key in the ignition to turn on the radio. As she reached over to pick up a bag, she hit the gear shift and the car moved forward and hit the building. The defendant further stated that while answering the interrogatories at her insurance company's office, someone asked her whether the car hit the building and she replied, "Yes." However, the document completed by the defendant "by and through her attorneys, Parrillo, Weiss & Moss," answered the interrogatory "No." The plaintiff then filed a motion to prevent discovery abuse alleging that the defendant's answer to the interrogatory was untruthful. It also filed a motion for sanctions under section 2 -- 611 of the Code of Civil Procedure alleging that the answer filed by the defendant, in which she denied driving the vehicle, was made without reasonable cause and found to be untrue.

On motion of the plaintiff, the trial court granted summary judgment in favor of the plaintiff and against defendant in the amount of $7,917.20 plus costs and set a hearing on the plaintiff's motion for sanctions. At the hearing, the defendant's attorneys contended that the answer filed by the defendant was truthful because, although she may have caused the car to go forward, she was not "the driver." They also contended that the defendant's denial that the car collided with the building was appropriate because the dictionary definition of the word "collide" connotes "a violent contact with a degree of force and shock rather than a glancing impact." According to the defendant's attorneys, the simple fact that the car came into contact with the building, causing approximately $8,000 worth of damage, did not imply that a collision took place. The court rejected this argument and made a finding, which is contested on appeal, that a violation of the discovery rules had occurred.

The trial court then asked the plaintiff's attorney the number of hours expended by reason of the false answer to the interrogatory. The plaintiff's attorney responded that he had expended 20 hours and that a reasonable hourly rate was $125 per hour. The defendant's attorneys objected that section 2 -- 611 allows only reasonable expenses actually incurred and that the plaintiff did not present any testimony or affidavit to prove what, if any, fees and expenses were incurred as a result of the discovery violation. The court then assessed attorney fees against the defendant in the amount of $5,000, twice the amount claimed by the plaintiff's attorney.

On appeal, the defendant contends that the trial court erred in assessing $5,000 in attorney fees against her because the plaintiff failed to sustain its burden of proof that the fees were reasonable and actually incurred as a result of the false interrogatory answer. She asks that the ruling of the trial court be reversed and the cause remanded for further proceedings.

Although the trial court characterized its judgment as one for attorney fees, the amount assessed is twice the amount which the plaintiff's attorney claimed to have expended by reason of the false answer to the interrogatory. For this reason, we can only conclude that the judgment was assessed as a penalty for what the court perceived as a most serious and wilful violation of the discovery rules. The question before us, then, is whether the trial court could properly impose ...


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