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BACHENSKI v. MALNATI

January 5, 1993

JOHN BACHENSKI, Plaintiff,
v.
MARK MALNATI, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 On November 27, 1992 the jury in this personal injury action stemming from a taxicab-automobile collision returned a verdict against plaintiff John Bachenski ("Bachenski") and in favor of the then sole remaining defendant, Mark Malnati ("Malnati"). Bachenski's counsel has filed a timely post-trial motion for judgment n.o.v. (see Fed.R.Civ.P. ("Rule") 50(b)) or alternatively for a new trial (see id. and Rule 59(a) and (b)). Responses have been filed by counsel for Malnati and by counsel for the other two original defendants, Flash Cab Co. ("Flash Cab") and John Hawkotte ("Hawkotte"). *fn1" For the reasons stated in the memorandum opinion and order, Bachenski's motion is denied in its entirety.

 Malnati

 Although consideration of Malnati's situation may not be the appropriate opener in purely sequential terms, this opinion will first speak to the portion of Bachenski's motion that attacks what the jury did at trial. To be sure, on the facts that were before it the jury might well have found that Malnati as well as Hawkotte had been negligent *fn2" --indeed, as this Court sat listening to the lawyers' closing arguments along with the jury, it conceptualized a presentation that it believed would have been powerfully persuasive toward a finding of Malnati's negligence (coupled with that of Hawkotte). But Monday morning quarterbacking is always easier than actually being on the field of play, *fn3" and what controls here is that the issue of Malnati's negligence vel non posed the classic totally-fact-intensive jury question. There is no room for a holding by this Court that the jury's verdict in Malnati's favor was contrary to the manifest weight of the evidence (which the lawyers for Bachenski and Malnati agree is the legal standard to be employed here).

 As for the only other issue that bears on the trial itself, Bachenski asserts one other question that was necessarily raised immediately before trial and that this Court ruled on with equal speed. At the voir dire conference held on Friday, November 20, Flash Cab and Hawkotte were still in the case and were represented by separate counsel (they were then third-party defendants responding to Malnati's Third Party Complaint). But on the morning of trial (Monday, November 23) counsel for Malnati and counsel for Flash Cab and Hawkotte advised this Court and Bachenski's counsel that over the weekend they had settled Malnati's third-party claim on the basis that Flash Cab would pay 90% of any judgment that might be entered against Malnati. Importantly the lawyer representing Malnati (or more accurately in real world terms, the lawyer for his insurer) expressly represented to this Court and to opposing counsel that Malnati himself was and would remain uninformed of the settlement agreement or any of its terms, in order to avoid any possibility of affecting his testimony at trial.

 Taken by surprise by that development--a development that converted the litigation into a two-party lawsuit based entirely on the question whether Malnati was at all negligent--Bachenski's lawyer immediately raised the question whether he should be permitted to put the fact and terms of the settlement before the jury. As Bachenski's post-trial Motion [2-3] *fn4" says:

 The issue then arose regarding the jury's knowledge of the agreement between the parties and Plaintiff's counsels ability to cross-examine witness as to the agreement to show potential bias.

 For that purpose Bachenski's counsel submitted for this Court's consideration the decision in Tu Hou Lam v. Lynch Mach. Div. of Lynch Corp., 178 Ill. App. 3d 229, 235, 533 N.E.2d 37, 41, 127 Ill. Dec. 419 (1st Dist. 1989).

 But this Court ruled that Bachenski's own accurate characterization of the reason that any inquiry into such settlements is permitted to take place before a factfinding jury also carried the death warrant for Bachenski's motion. Here is how Tu Hou Lam stated that reason (id., emphasis added):

 In Pierce [v. Commonwealth Edison Co., 101 Ill. App. 3d 272, 276, 428 N.E.2d 174, 177-78, 56 Ill. Dec. 855 (3d Dist. 1981)] and all of the cases discussed above, the courts emphasized that if an extrajudicial agreement has the potential to bias a witness' testimony as to a relevant issue. disclosure is necessary in order to maintain the fairness and integrity of our judicial system.

 That has been expressly reconfirmed as the reason for such disclosure in Batteast v. Wyeth Lab., Inc., 137 Ill. 2d 175, 184, 560 N.E.2d 315, 319, 148 Ill. Dec. 13 (1990) (which case precedes a repetition of that identical substantive statement with the statement that "The Illinois position on this point is well established"). *fn5" But where as here Malnati had no knowledge of the settlement, by definition no potential existed for any warping of his testimony by bias stemming from the fact of settlement. *fn6" Thus Bachenski's second ground for resisting the loss that he sustained at the hands of the jury is also rejected.

 Flash Cab and Hawkotte

 Bachenski was the victim of the interaction of two rules of law--one federal and one state--that between them eliminated Flash Cab and Hawkotte as targets of his lawsuit. Although this Court has written an unpublished opinion on the subject earlier (1992 U.S. Dist. LEXIS 5451 (N.D. Ill. Mar. 31, 1992), denying reconsideration of its oral ruling of February 19, 1992), the circumstances will be repeated briefly here.

 This action was initially filed against all three potentially liable parties--Malnati, Flash Cab and its alleged agent Hawkotte--by the predecessor counsel for Bachenski a bit less than a month before the two year statute of limitations (Ill.Rev.Stat. ch.110, P 13-202) would run out on March 2, 1991. Although Flash Cab was served immediately by Bachenski's then lawyers, Hawkotte was never served. Instead he was first brought into the lawsuit much later, when on December 26, 1991 (nearly 2 years and ...


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