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02/10/94 JAMES MASTANDREA v. CHICAGO PARK DISTRICT

February 10, 1994

JAMES MASTANDREA, PLAINTIFF-APPELLEE,
v.
CHICAGO PARK DISTRICT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Michael J. Gallagher, Judge Presiding.

As Modified on Denial of Rehearing April 15, 1994. Petition for Appeal as a Matter of Right or Leave to Appeal Denied October 6, 1994.

McNULTY, Gordon, Cousins

The opinion of the court was delivered by: Mcnulty

MODIFIED ON DENIAL OF REHEARING

Justice McNULTY delivered the opinion of the court:

Plaintiff James Mastandrea brought suit against defendant Chicago Park District for damages he received when his bicycle collided with a traffic island. Plaintiff alleged that defendant was guilty of negligence and wilful and wanton misconduct in its design and maintenance of the bicycle path and traffic island. The trial court found that defendant had waived its immunities under the Tort Immunity Act by procuring insurance and allowed plaintiff to present only his negligence claim, and not his wilful and wanton claim, to the jury. The jury returned a verdict in favor of plaintiff and against defendant in the amount of $270,000, reduced by 50% for plaintiff's comparative negligence, resulting in a verdict of $135,000. Defendant appeals.

Defendant raises the following issues on appeal: (1) whether defendant was entitled to application of the Tort Immunity Act to the extent of its self-insured retention; (2) whether the trial court erred in allowing the testimony of plaintiff's economic expert; (3) whether and the trial court made improper comments when withdrawing an erroneous instruction from the jury's consideration. Plaintiff cross-appeals, claiming that the trial court erred when it denied plaintiff's motion for sanctions.

Defendant first claims that the trial court erred when it found that defendant had waived its defenses under the Tort Immunity Act by procuring insurance. The Tort Immunity Act, as it existed at the time of plaintiff's accident in 1984, clearly provided that by obtaining insurance, a local public entity waived immunities otherwise available to it. (Ill. Rev. Stat. 1983, ch. 85, par. 9-103(c); see Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 281 N.E.2d 659; Jastram v. Lake Villa School Dist. 41 (1989), 192 Ill. App. 3d 599, 549 N.E.2d 9, 139 Ill. Dec. 686.) Defendant admits that it was insured, but claims immunity would still exist to the extent of defendant's $125,000 uninsured retention.

In its brief, defendant claims that the trial court, in determining that defendant had waived its immunities, relied "solely on plaintiff's allegations that the case was worth over $1 million." Plaintiff, on the other hand, claims in his brief that the trial court based its decision on defendant's failure to conclusively demonstrate that it was uninsured for any portion of plaintiff's damages. Although defendant hasfurnished us with excerpts of a trial court decision not related to this case, for some reason defendant has not seen fit to provide us with a transcript of the trial court's ruling on this issue in the instant case. While the failure to include such information in the record could be considered fatal to defendant's request for reversal, statements made by the parties at oral argument reveal no actual dispute as to the facts necessary to resolve this issue. The parties admitted at oral argument that the trial court's finding that defendant had waived its immunities was based simply on the fact that defendant had procured insurance. Furthermore, it is clear that defendant's insurance policy provided that defendant had a self-insured retention of $125,000 for each occurrence, and a one million dollar aggregate. Once defendant paid the aggregate amount of deductible payments, it was no longer required to pay the deductible amount for additional occurrences within the policy period. It does not appear that the parties submitted any information to the trial court regarding whether the aggregate had been met. However, defendant included with its post-trial motion, an affidavit from John Flemming, assistant corporation counsel for the Chicago Park District, stating that the one million dollar aggregate had not been met and defendant would be required to pay the $125,000 deductible from its self-insured retention. We will accept as true the statements made in this affidavit since plaintiff has not challenged the veracity of this affidavit.

We therefore consider the issue of whether defendant is entitled to its defenses under the Tort Immunity Act to the extent of its $125,000 self-insured retention. Plaintiff claims that it is an either/or situation, wherein either a municipality has insurance and waives its immunities or it does not have insurance and does not waive its immunities. Plaintiff's theory, however, is not supported by Illinois case law. Courts have held that where a municipality has insurance, but plaintiff's claim is below the amount of the municipality's self-insured retention, the municipality could rely on its defenses under the Tort Immunity Act. In Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 397 N.E.2d 175, 33 Ill. Dec. 842, the plaintiff sued defendant for injuries she sustained at defendant's playground and sought damages in the amount of $50,000. Defendant had a self-insured retention of one million dollars per occurrence. The court concluded that because there was no insurance coverage for plaintiff's injury, there was no waiver of the Tort Immunity Act.

Similarly, in Ramos v. Countryside (1985), 137 Ill. App. 3d 1028, 485 N.E.2d 418, 92 Ill. Dec. 607, the plaintiff sued the city for damages she sustained while playing in the city's recreational program. Plaintiff sought damages in the amount of $15,000. The city was self-insured for claims up to $250,000. The court found significant the fact that defendant did not have insurance to cover plaintiff's injury, and if plaintiff were to recover, the judgment would be paid from a reserve of public funds. ( Ramos, 137 Ill. App. 3d at 1035.) The court found that defendant had not waived its immunities under the Tort Immunity Act because immunities are waived only where the judgment is paid from non-public funds.

We see no meaningful distinction where a plaintiff seeks damages in an amount over, rather than under, that of the self-insured retention. The intent of the Tort Immunity Act is to protect public funds, and we must carry out that intent regardless of whether a plaintiff seeks damages in an amount below or above the municipality's self-insured retention. Because defendant in the instant case had no insurance for the first $125,000 of the judgment against defendant, that amount would be paid from public funds. We therefore conclude that the Tort Immunity Act should have been applied to the extent of the $125,000 deductible.

In light of our decision that the Tort Immunity Act applies to defendant's $125,000 self-insured retention, on remand, the defendant must be given an opportunity to prove the applicability of the tort immunities it seeks to invoke. Based on the trial court's decision that defendant's immunities had been waived, defendant was unable to present any evidence at trial regarding whether the tort immunities applied and plaintiff was not required to present any evidence that the facts of the case precluded defendant from asserting the immunities claimed or, in the alternative, that defendant's conduct was wilful and wanton. The immunities under the Act must be pled and proved by a defendant municipality. ( McCall v. Chicago Board of Education (1992), 228 Ill. App. 3d 803, 593 N.E.2d 621, 170 Ill. Dec. 732.) Whether a tort immunity applies is a question of fact for the trier of fact. ( John v. City of Macomb (1992), 232 Ill. App. 3d 877, 596 N.E.2d 1254, 173 Ill. Dec. 375.) If the defendant proves and the jury determines that certain immunities are applicable, then the only way in which plaintiff can recover for the $125,000 not covered by insurance is if he proves wilful and wanton conduct on the part of defendant. (Ill. Rev. Stat. 1983, ch. 85, par. 3-106.) Here, an issue of fact certainly remains regarding whether the immunities applied and if so, whether defendant acted wilfully or wantonly. We therefore reverse and remand this cause for a new trial in order to give defendant an opportunity to show that the immunities apply and to give plaintiff an opportunity to present evidence that defendant's conduct was wilful and wanton.

Defendant next argues that plaintiff's economic expert, Stan V. Smith, gave speculative testimony which should have been barred bythe court. Through Smith's testimony, plaintiff sought to establish the profits plaintiff lost from real estate ...


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