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03/31/94 GAIL WATKINS v. AMERICAN SERVICE INSURANCE

March 31, 1994

GAIL WATKINS, PLAINTIFF-APPELLANT,
v.
AMERICAN SERVICE INSURANCE COMPANY, DEFENDANT APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN N. HOURIHANE, JUDGE PRESIDING.

Murray, McNULTY, Cousins, Jr.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Plaintiff, Gail Watkins (Watkins), appeals from a judgment of the trial court denying with prejudice her complaint seeking declaratory judgment and damages. The complaint alleged that Watkins suffered personal injuries as a result of an occurrence with a hit-and-run automobile, as defined in an insurance policy issued by defendant, American Service Insurance Company. (American Service) to Watkins. The complaint sought a declaratory judgment requiring American Service to arbitrate plaintiff's claim for injuries as well as punitive damages and attorney fees for vexatious delay in handlingplaintiff's claim. Following a bench trial, judgment was entered in favor of the defendant.

The testimony at trial disclosed the following.

Watkins testified that on September 9, 1988, at approximately 10:30 - 11 p.m., she was involved in an auto accident in the northbound lanes on the Dan Ryan Expressway near 47th Street. Watkins was driving a 1986 Ford Escort. She did not recall what the weather conditions were at the time. Two passengers were in the car; Sherdette Williams was sitting in the back seat and Roxy Winters was sitting in the passenger side in the front. Watkins was driving in the middle lane of the local side of six northbound lanes.

Watkins looked in her rear view mirror and at the same time saw a black car strike her rear left quarter panel. Watkins lost control of her car and started going to the right. She then started spinning around and hit a Buick. The Buick was to her left in front of her. After the impact, Watkins lost consciousness and consequently does not recall the location where her car came to rest. Watkins did not regain consciousness until a later time in the hospital.

On cross-examination, Watkins testified that she did not remember whether the black car was a 4-door or a 2-door or if the car was foreign or domestic. The front portion, or right front quarter panel of the black car, came in contact with her car. Watkins admitted that during her deposition she had stated that she was driving in the express lanes and that she did not recall what part of the black car had come in contact with her car. Watkins testified that the black car hit the back quarter panel of her car, but she did not recall if her car was hit in front of or behind the rear wheel.

Due to the impact from the black car, Watkin's car went to the right. Watkins made an attempt to change the direction of travel as the car was going to the right. Trying to control her car, Watkins attempted to go back to the left, at which point she lost control and the car started to spin to the left into the Buick. Watkins did not recall what portion of her car hit the Buick except that it was the left side. She had no idea what part of the Buick her car hit.

Watkins did not recall if she lost consciousness before she hit the Buick. Only seconds elapsed from the time that the black car hit her until the time that she hit the Buick. After her car headed back towards the Buick, she no longer saw the black car. Watkins was not aware where the black car went after it touched her car.

Sherdette Williams (Sherdette) testified that on September 9, 1988, at approximately 11 p.m. she was a passenger in a car involved in an accident on the Dan Ryan Expressway near 47th Street. Sherdette heard a real loud bump or bang and there was a heavy impact, like something hit the car. A car had hit them on the driver's side in the back. Watkins car then spun around in a circle and hit another car. Then, all of a sudden Watkins' car stopped. Watkins' car came to rest right by the median. Watkins was unconscious and Ms. Winters was sort of hysterical. After the car stopped, Sherdette got out. She saw the black car zooming down the expressway passing all the other cars.

The police came to the scene of the accident, but she did not recall the police asking what had happened at that time. Sherdette had been in Watkins' car prior to the accident and the car was not damaged prior to this occurrence.

On cross-examination, Sherdette testified that she and Watkins had been friends for 17 years. She stated that after the accident she was throwing beer cans out of the car. When asked if there was still beer in the car when the police arrived, Sherdette responded, "No, not that she knew of." Sherdette testified she was sober at the time of the accident. Plaintiff objected to the above questions, however, the trial court overruled the objections.

Sherdette stated that after the accident she was "a little" hysterical, but not like Ms. Winters. Prior to the accident, Sherdette was looking straight ahead. She then heard a sound and turned around. Sherdette did not actually see the impact. At the time of impact, she believed Watkins' car was in the middle or left lane. She did not recall where the Buick was at when Watkins hit it. The two collisions occurred less than a block a part.

When Sherdette got out of the car she thought it was facing south, however, she was not sure. When Sherdette got out of Watkins car, the black car was maybe one half block north. The black car was still moving and there was other traffic around it. Less than a minute, elapsed between the initial impact and the time that Sherdette got out of the car.

On re-direct, Sherdette testified that she and Ms. Winters brought the beer cans into the car, that she did not believe Watkins was aware they had brought beer cans into the car, and that at no time on the evening of September 9, 1988, did Sherdette see Watkins drinking.

The plaintiff rested.

The defense called Illinois State Trooper Anthony Ripacz. Trooper Ripacz testified that on September 9, 1988, he was assigned to normal patrol on the Dan Ryan Expressway within the city limits. According to his report from that evening, he arrived at the scene of a vehicle accident at 11:13 p.m. He reported seeing two cars that appeared to have been involved in a collision. The operators of the two vehicleswere Renee Ward and Watkins. He conducted an investigation at the scene and believed that he later spoke to the drivers at the hospital. There were no passengers in the Ward car, however, there were two passengers, Sherdette Williams and Roxy Winters, in the Watkins car. Ward was driving an orange, 2-door, 1985 Buick Skyhawk. Watkins was driving a blue and gray, 4-door hatchback, 1983 Ford Escort.

Trooper Ripacz recorded the names of two witnesses to the incident, Matthew Rodgers and Danny T. Thomas. According to his report he found the Ward car "facing southbound in a northbound lane or far left hand lane as I would be looking northbound." The Watkins car was "in center lane facing north just stopped in the center lane." The Ward car was approximately a car length behind (south) of the Watkins car. Trooper Ripacz inquired of the occupants of the autos as to how the collision had occurred. According to his report, no one advised him that a third vehicle was involved in the incident.

On cross-examination, Trooper Ripacz testified that he did not witness the accident and that he had no independent recollection of either the occupants of the car or whether he had spoken to any of these individuals regarding the accident.

On recross examination, Trooper Ripacz testified that his basis for stating only two vehicles were involved in the incident was a review of his accident report at the present time.

On examination by the court, Trooper Ripacz testified that he secured the names and addresses of the passengers and drivers but he does not recall if he received that information directly or if he got the information off their respective drivers licenses.

Matthew Rodgers (Rodgers) testified that around 11 p.m. on September 9, 1988, he observed an accident on the Dan Ryan. At the time he was driving northbound in the local lanes. He was in the middle lane. His friend Danny Thomas was in the car with him. Rodgers saw the Escort and Buick collide. When he first saw the Escort he was looking through his rear view mirror. The Escort was about 15 car lengths behind him, but it was coming up fast. As he watched the Escort come closer, he saw the Escort swerve. At the time, Rodgers was traveling 60-65 miles per hour. When the Escort was about 5-6 car lengths away from him, the Escort moved into the right lane and came past him. Rodgers watched the Escort until it came up past him. The Escort was not directly in front of him, but was to his right. He saw the Escort both in his rear view mirror and by turning his head.

Subsequently, the driver of the Escort lost control. The Escortswerved to the right almost embanking off the overpass wall then swerved straight across to the left. The Escort passed in front of his car about 2-3 car lengths. Before the Escort passed in front of him, Rodgers did not observe any other vehicle besides his own near the Escort.

The Escort then hit a Buick. The Buick was in the left lane to Rodgers. Rodgers thinks the Escort hit the Buick twice. First, the front end of the Escort hit the front end of the Buick. The second impact occurred on the back of the vehicle and spun it to the wall. Rodgers observed the Buick and the Escort come to a stop.

Before the state troopers arrived, Rodgers witnessed two people (neither the driver) get out of the Escort. Rodgers identified himself to the trooper as a witness. From the time Rodgers first observed the Escort up until the collision he did not observe any vehicle make contact with the Escort.

When the cars stopped, the Buick was on fire. Rodgers and another individual put out the fire. Rodgers left the scene to contact the fire department and subsequently returned.

On cross-examination, Rodgers testified that the first time he saw the Escort, it was behind him and it was swerving. The following is his testimony with regard to a white car.

"Q. [Plaintiff's counsel]: Now, there was also a third car involved in this accident, is that correct?

A. Yes.

Q. And you saw that third car make impact with the Ford Escort, is that correct?

A. No, I don't remember exactly.

Q. Okay. Well, you say there was a third car involved in the accident. What ...


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