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09/29/89 Yolanda Cardiel, v. Marvin Warren

September 29, 1989

YOLANDA CARDIEL, PLAINTIFF-APPELLEE

v.

MARVIN WARREN, DEFENDANT (ANNE TESLUK, INDIV. AND D/B/A THE CYCLE INN, ET AL., DEFENDANTS-APPELLANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

548 N.E.2d 1081, 191 Ill. App. 3d 816, 139 Ill. Dec. 525 1989.IL.1562

Appeal from the Circuit Court of Cook County; the Hon. James Traina, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. FREEMAN, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Defendant Anne Tesluk, individually and d/b/a The Cycle Inn (Tesluk), appeals from a judgment which was entered in favor of plaintiff, Yolanda Cardiel (Cardiel). Co-defendant John Pacocha, as special administrator of the estate of Mary Jaskiewicz (Pacocha), joins Tesluk and appeals from the same judgment. Pacocha argues that the trial court erred in (1) admitting into evidence the answers of Mary Jaskiewicz (Jaskiewicz) that were given in response to written interrogatories and during an oral deposition; (2) denying his motion for a judgment notwithstanding the verdict and (3) denying his motion for a new trial. We reduce the judgment from $15,000 to $300 and affirm the judgment as reduced.

Cardiel, a pedestrian, was injured when struck by an automobile driven by defendant Marvin Warren (Warren). Cardiel brought suit against Warren, Tesluk and Jaskiewicz. The actions against Tesluk and Jaskiewicz were brought pursuant to the Illinois Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135) and alleged that defendants caused the intoxication of Warren. After the lawsuit was filed, Tesluk's insurance carrier, Kent Insurance Company, was declared insolvent. As a result, the Illinois Insurance Guaranty Fund (the Fund) assumed all responsibility for pending and future litigation and/or claims against persons insured with Kent Insurance Company and undertook the defense of Tesluk in the instant matter.

Warren was an uninsured motorist. Prior to judgment, Cardiel sought and was awarded damages under the uninsured motorist coverage provided by her insurer. Cardiel received $14,700 from her insurer and assigned to them her right of recovery as well as the proceeds of any settlement recovered for bodily injuries. Tesluk made a pretrial motion to dismiss Cardiel's lawsuit pursuant to the "covered claim" and "non-duplication of recovery" provisions of the Illinois guaranty fund act. The trial court denied the motion.

Prior to trial and pursuant to discovery, Jaskiewicz provided answers to written interrogatories. The pertinent questions and answers were as follows:

"QUESTION: State the full name and last known address of the manager of the dramshop, commonly known as Jasmar Lounge, on April 15th, 1981?

ANSWER: Mary Jaskiewicz.

QUESTION: State the full name and last known address of any and all bartenders on duty and operating the dramshop, commonly known as Jasmar Lounge on April 15th, 1981

ANSWER: Mary Jaskiewicz."

In addition, Jaskiewicz provided the following answers during a ...


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