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03/04/88 Danny Forrester, v. K. D. Patrick Et Al.

March 4, 1988

DANNY FORRESTER, PLAINTIFF-APPELLEE

v.

K. D. PATRICK ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

520 N.E.2d 1188, 167 Ill. App. 3d 105, 117 Ill. Dec. 837 1988.IL.300

Appeal from the Circuit Court of Cook County; the Hon. Leonard R. Grazian, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LORENZ delivered the opinion of the court. SULLIVAN and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

This is an appeal of the denial of defendants' post-trial motion for judgment notwithstanding the verdict in an action for damages as a result of an accident in which a semitractor-trailer collided with plaintiff's automobile. Defendants also appeal the denial of two other post-trial motions brought pursuant to Supreme Court Rule 305 (107 Ill. 2d R. 305) which sought to stay enforcement of the judgment rendered at trial pending appeal.

We affirm. The following is pertinent to our Disposition.

Plaintiff, Danny Forrester, filed a two-count complaint against defendants, K. D. Patrick (Patrick) and Bid "D" Cartage Company, following an incident on the Calumet Expressway involving plaintiff's automobile and a semitractor-trailer driven by defendant Patrick, an employee of Big "D" Cartage Company. Count I of the complaint alleged a collision occurred between the two vehicles and sought damages against both defendants. Count II of the complaint realleged the allegations of count I, and sought damages against Patrick, individually, based on willful and wanton conduct.

At trial, testimony was presented that the truck, driven by defendant Patrick, initially struck plaintiff's automobile in an attempt to pass plaintiff while the truck was travelling north on the left shoulder of the I-94 juncture leading into the Calumet Expressway. Defendant Patrick, apparently in response to plaintiff's attempts to have the truck pull over to the side of the road, began to force plaintiff, now on the truck's left, across several lanes of highway, until the truck again struck plaintiff's car, causing the car to strike the left guard rail. Defendant Patrick continued to pursue plaintiff. At approximately 104th Street, a vehicle pulled into plaintiff's lane, forcing plaintiff to slow, whereupon plaintiff's car was struck from the rear by the truck.

Following completion of the trial on June 5, 1986, the court submitted six possible verdict forms to the jury. Pursuant to verdict form D, the jury awarded plaintiff a total of $155,250 for negligence against both defendants on count I, and $10,000 in punitive damages against defendant Patrick, individually based on count II for willful and wanton conduct.

On July 3, 1986, defendants filed a written post-trial motion, subsequently amended at the hearing thereon on August 21, 1986, asking the court to enter judgment notwithstanding the verdict as to count I pursuant to section 2-1202 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1202.) Defendants contended that verdict form D improperly permitted the jury to find defendant Patrick guilty of both negligence and willful conduct, legally mutually exclusive theories of recovery.

In response, plaintiff argued that at a conference in chambers on the morning of the final day of the trial, defendants' only objection to the instructions and verdict forms concerned the language of verdict form F, which provided, as to count II, for a reduction of plaintiff's damages based on plaintiff's comparative willful conduct. Plaintiff further argued that a verdict containing findings of negligence and willful and wanton conduct, as provided in the form used by the jury, is not necessarily legally inconsistent. The court denied defendants' motion. A timely notice of appeal was filed on September 19, 1986.

Subsequently, on November 5, 1986, defendants filed a motion asking the trial court to approve the posting and filing of an insurance policy, issued to defendant Big "D" Cartage by Protective Insurance Company, in lieu of an appeal bond. Defendants moved that such filing operate as a stay of enforcement of the judgment pending appeal pursuant to Supreme Court Rule 305. The insurance policy contained a per person liability limit of $100,000. The court determined that the policy limit was inadequate to stay enforcement of the judgment and denied defendants' motion on November 6, 1986.

On November 13, 1986, defendants brought a second motion to stay enforcement of the judgment pursuant to subsection (b) of Supreme Court Rule 305, allowing for the stay of enforcement of money judgments not otherwise stayed in compliance with subsection (a) of the rule. The motion recited that defendant Big "D" Cartage was dissolved and that defendant Patrick had insufficient assets to pay a premium on a supersedeas bond over and above the limit of the insurance policy. Defendants stated that the stay of enforcement of the judgment was necessary to allow defendant Patrick to appeal the jury verdict without ...


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