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09/13/94 JILL FULTON AND JILL FULTON v. TERRA COTTA

September 13, 1994

JILL FULTON AND JILL FULTON, ADMINISTRATOR OF THE ESTATE OF BRADLEY FULTON, DECEASED, PLAINTIFFS-APPELLANTS, AND AIMEE CRAWFORD KIRKLEY, DONIELLE BOLEYN POTTS, AND MARK INGERMAN, PLAINTIFFS,
v.
TERRA COTTA TRUCK SERVICE, INC., A CORPORATION, DEFENDANT-APPELLEE, AND GORDON WEIDNER, DEFENDANT.



Appeal from the Circuit Court of Cook County. Honorable Paddy McNamara, Judge Presiding.

Released for Publication October 14, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Hartman, Scariano, McCORMICK

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

This appeal from a circuit court order granting a motion for summary judgment, raises as issues whether (1) a trucking company is vicariously liable for a driver's negligence where that driver was hauling loads for himself at the time of the accident, but the company's name and state commerce commission number were painted on the driver's truck and had not been concealed; and (2) res judicata and collateral estoppel apply to impose judgment without trial against the trucking company.

On December 2, 1987, Gordon Weidner was driving his semi-tractor trailer and collided with an automobile driven by Mark Ingerman near Belvidere, Illinois. Mark Ingerman and two of his four passengers received minor injuries. Another passenger, Jill Fulton, age 22, suffered permanent paraplegic injuries, and her five-year-old son, Bradley Fulton, was killed in the collision.

Plaintiffs, Jill Fulton, the estate of Bradley Fulton, Aimee Crawford Kirkley, Donielle Boleyn Potts, and Mark Ingerman, brought a negligence action against defendants Weidner and Terra Cotta Truck Service, Inc. (Terra Cotta). The complaint alleged that the truck Weidner was operating had Terra Cotta's legend and commerce commission numbers painted on its doors, as well as a statement that it was leased to Terra Cotta. The complaint was later amended to charge that Weidner was operating his truck under the authority, license, and registration number issued by the Illinois Commerce Commission (Ill. CC) to Terra Cotta.

Terra Cotta successfully moved for summary judgment, the circuit court holding that it could not be held liable merely because its legend and Ill. CC number were painted on the truck.

The facts are largely undisputed. At the time of the accident, the following legend was painted on the doors of Weidner's truck: " Leased to Terra Cotta ICC 129987 Ill. CC 16687 MC CPR 1C1550." The numbers were assigned to Terra Cotta by the Interstate CommerceCommission (ICC), the Ill. CC, and the Transportation Commission of Wisconsin, respectively. Weidner owned the semi-tractor trailer and operated his own trucking business. He also hauled loads for other trucking companies under lease agreements. Weidner, as lessor, executed a three-year Ill. CC form lease of his vehicle to Terra Cotta for a term beginning July 13, 1987, which was in effect at the time of the accident. The lease was not a trip lease.

Weidner had executed his first lease with Terra Cotta in the early 1980s. In 1982, Weidner had his newly purchased truck with Terra Cotta's numbers and legend painted on it. No one at Terra Cotta ever told him to cover that information when he was not driving for Terra Cotta. A Terra Cotta official, however, claimed it was company practice to tell all drivers to cover that information when driving for others. At the time of the collision, Weidner was also in a lease agreement with another company, Kasper Trucking (Kasper). When Weidner hauled loads for Kasper, however, he bolted a metal placard displaying Kasper's logo and identifying numbers over the Terra Cotta information. He also had his own customers for whom he hauled loads.

Weidner believed that he did not need placards when he was driving for himself. Sometimes he left the Kasper placards on when he hauled loads for his own customers. Otherwise, Terra Cotta's legend and numbers appeared as painted on the doors. In doing so, Weidner was unlawfully operating his truck for hire upon the public roadways of Illinois without the required license or certificate from the Ill. CC. Ill. Rev. Stat. 1989, ch. 95 1/2, par. 18c-4104 (now 625 ILCS 5/18c-4104 (West 1992)).

Weidner testified, without contradiction, that on the day of the occurrence he was not on Terra Cotta business, but was hauling loads for his own customers. That morning he delivered a load of aglime to a quarry in Rockford, Illinois. That afternoon, when he crashed into Mark Ingerman's car, he was delivering another load of lime to a second customer.

The circuit court granted summary judgment in favor of Terra Cotta in an order dated November 23, 1992. The court refused to issue a Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a) (amended)) finding, ruling that the case should continue to trial as to Weidner and any appeal could ensue after trial.

Trial proceeded and the jury returned substantial verdicts against Weidner. Jill Fulton and the estate of Bradley Fulton (the Fultons) appeal only from the order ...


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