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04/18/88 Patsy Hashey Lorenz, v. Air Illinois

April 18, 1988

R. LORENZ, DECEASED, PLAINTIFF-APPELLEE

v.

AIR ILLINOIS, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

PATSY HASHEY LORENZ, Special Adm'r of the Estate of Jerome

522 N.E.2d 1352, 168 Ill. App. 3d 1060, 119 Ill. Dec. 493 1988.IL.554

Appeal from the Circuit Court of Cook County; the Hon. Jacques F. Heilingoetter, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

This is the third in a series of actions arising out of the crash of Air Illinois, Inc. (defendant), flight 710, en route from Springfield to Carbondale, Illinois, on October 11, 1983. *fn1 Patsy Hashey Lorenz, special administrator of the estate of her husband Jerome E. Lorenz (decedent), a passenger on flight 710, was awarded $925,000 following a jury trial on the issue of damages. The trial court subsequently reduced the verdict by $232,346 to account for a settlement reached by plaintiff and other named defendants (settling defendants). Defendant now appeals this judgment, alleging numerous errors regarding certain evidence and jury instructions. Defendant also urges error with respect to the trial court's dismissal of its third-party claims against settling defendants, its refusal to grant defendant's requests for continuances, and its alleged failure to discount the settlement in the same manner as the jury's award. For the reasons discussed below, we affirm.

The evidence at trial revealed that decedent was born on August 21, 1944, and received a bachelor's degree, a master's degree, and a Ph.D. from the University of Wisconsin. At the time of his death, decedent, who was in excellent health, was a full professor and director of the rehabilitation institute at Southern Illinois University in Carbondale earning an annual income of approximately $43,716. In this position, decedent taught as well as administered programs involving academics, rehabilitation of the handicapped, and child abuse.

The evidence further disclosed that decedent was survived by his widow and two daughters, ages 13 and 16 at the time of decedent's death, all three of whom were dependent upon decedent for financial support. Decedent had a close and loving family relationship, performed various household chores, and participated in his children's moral and intellectual development.

On appeal, defendant initially contends that the trial court erred in dismissing its third-party claims against those who settled with plaintiff and granting "good faith" findings in their favor. Specifically, defendant argues that the trial court's actions were taken without a hearing, thereby depriving defendant of its constitutional right to due process, and that the Illinois Contribution Act (Ill. Rev. Stat. 1985, ch. 70, pars. 301 through 305) (Act), upon which these actions were taken, is vague and ambiguous and denies defendant equal protection under the law. The Act provides, in substance, that a tortfeasor who settles with a claimant in good faith is discharged from all liability for any contribution to any other tortfeasor. Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 484 N.E.2d 1232.

We note that nowhere in defendant's post-trial motion and supporting memorandum, or in its brief in opposition to the good-faith finding, does defendant raise any of the above constitutional challenges. Accordingly, they are deemed waived. (Danielson v. Elgin Salvage & Supply Co. (1972), 4 Ill. App. 3d 445, 280 N.E.2d 778.) Despite defendant's contention to the contrary, we believe that raising these issues in a prior appeal or in a motion for Rule 308 (107 Ill. 2d R. 308) certification is an insufficient basis upon which to preserve them for our review.

In any event, based on counsel's representations at a hearing held on March 31, 1986, to set an immediate trial date, it appears that a hearing was in fact conducted on the issue of good faith on March 19, 1986, although the transcript of this proceeding was not furnished by defendant in the record on appeal. In addition, defendant argued at length the parties' "bad faith" in reaching the settlement at the March 31 hearing and was permitted to file a brief in opposition to the court's good-faith finding.

Notwithstanding these facts, defendant was not entitled to the hearing it seeks as a matter of law. In Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792, Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 478 N.E.2d 581, and Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 484 N.E.2d 1232, the appellate court, after noting that the Act makes no provision for such a hearing, declined to require separate evidentiary hearings for the determination of good faith. Rather, it chose to leave the type of hearing necessary to fully adjudicate the issue to the discretion of the trial court. Here, the trial court heard arguments of counsel, an appropriate basis upon which to make a determination of good faith. (Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 478 N.E.2d 792.) Consequently, the trial court did not err in reaching its decision without conducting a trial.

Defendant next maintains that the trial court improperly admitted the testimony of Dr. Sam Goldman, the former dean of the college of human resources at Southern, that had decedent lived, he would have become dean of the university. Defendant argues that this event was not likely to happen, and therefore such testimony permitted the jury to ...


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