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OPIO v. WURR

October 6, 1995

LAZARA OPIO, etc., Plaintiff,
v.
MICHAEL D. WURR, et al., Defendants.



The opinion of the court was delivered by: SHADUR

 With the parties' submissions and this Court's August 28, 1995 approval of the final pretrial order ("FPTO") having established the ground rules for the trial of this action, brought by Lazara Opio ("Opio") as Administratrix of the Estate of her deceased husband Edilberto Opio Diaz ("Diaz") against truck driver Michael Wurr ("Wurr") and truck owner Newell Trucking, Inc. ("Newell"), this action has become ready for trial. At the August 28 conference that was held to discuss the FPTO and to deal with other related matters, this Court also (1) rendered its oral ruling (the "August 28 Opinion") denying defendants' simultaneously-submitted motion for partial summary judgment *fn1" and (2) established a schedule for briefing the parties' other motions in limine, both those submitted with the FPTO and those to be filed thereafter. This memorandum opinion and order now deals with all of the motions in limine and the scheduling of the case for trial.

 Opio's Motion

 Opio seeks an order barring defendants and their attorneys from stating, eliciting testimony or presenting evidence as to a series of subjects. Defendants have interposed no objection regarding the following matters on that list, as to which this Court therefore grants Opio's motion:

 
1. as to the wealth, poverty or pecuniary circumstances of either Wurr or Newell;
 
2. as to Opio's receipt of any insurance payments, death benefits or collateral source payments;
 
3. as to any discussions between the parties about the possibility of settling Opio's claims;
 
4. as to any contentions (a) that defendants were not at fault, (b) that defendants are not completely responsible for all damages proved to be recoverable under law, (c) that Diaz was in any way contributorily negligent, (d) that Diaz' claimed negligence contributed in any way to the cause of the collision or to his injuries or death or (e) that any third person contributed in any way to cause Diaz' injuries or death; and
 
5. as to Diaz' divorce from his former wife Margareta Opio, who is not a prospective beneficiary in this action.

 With respect to that last item, however, defense counsel identifies two suggested qualifications. Diaz' three children of that earlier marriage are named as proposed beneficiaries in the wrongful death claims. To the extent that the children's claimed pecuniary loss includes loss of support (contrast the situation in Estate of Davis v. Johnson, 745 F.2d 1066, 1073 (7th Cir. 1984)), defendants suggest that Diaz' payment or nonpayment of court-ordered child support is relevant. That may or may not be the case, depending on how the evidence develops at trial. Defendants' other contention, that the same information is relevant to the children's claim for loss of society, would seem far less likely to implicate evidence about Diaz' performance of his child support obligations (see, e.g., Drews v. Gobel Freight Lines, Inc., 197 Ill. App. 3d 1049, 1053-58, 557 N.E.2d 303, 305-08, 145 Ill. Dec. 533 (1st Dist. 1990), aff'd, 144 Ill. 2d 84, 578 N.E.2d 970, 161 Ill. Dec. 324 (1991))--but once again the trial evidence may indicate otherwise. In any event, no blanket exclusion-of-evidence order is appropriate in the respects discussed in this paragraph--instead the resolution of those issues will await the proffer of evidence at trial.

 Opio's motion has two other facets, each of which defendants challenge outright. In those two items Opio asks this Court:

 
1. to withhold from the jury any information that Opio's recovery in this action is not subject to either state or federal taxes; and
 
2. to bar any evidence that Diaz did not survive the occurrence at issue, in which Wurr's tractor-trailer struck Diaz' vehicle from behind, driving it into another vehicle and resulting in the fire in which Diaz--trapped in his own vehicle--perished.

 Each of those items requires discussion, at some length as to the first item and only in brief regarding the second.

 As to the first, if Opio were advancing any federal claim or claims, Norfolk & W. Ry. v. Liepelt, 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755 (1980) and its universalization in Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 486-87, 69 L. Ed. 2d 784, 101 S. Ct. 2870 (1981) would expressly require the denial of Opio's motion and the inclusion of a jury instruction on the taxability of any damages award. But this is an Illinois-based diversity action, which under Erie v. Tompkins calls for the application of Illinois' substantive (though not its procedural) law. On that score In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 701 F.2d 1189 (7th Cir. 1983) rejected the then-existing Illinois case law in favor of the result reached in Liepelt and Gulf Offshore, summarizing its conclusion in this language ( id. at 1200):

 
We also conclude that, although Illinois courts very likely would not instruct the jury that any damages it awarded would be nontaxable, the Illinois practice does not bind the federal courts under Erie because, so far as we can determine from the cases Illinois's concerns are either procedural or based on a mistaken view of federal law.

 Our Court of Appeals proved to have a clouded crystal ball in its reading of the underpinning for the prior Illinois decisions, for just two years later the Illinois Supreme Court considered and expressly rejected the Liepelt reasoning and specifically adopted the dissent in Liepelt ( Klawonn v. Mitchell, 105 Ill. 2d 450, 455-58, 475 N.E.2d 857, 859-61, 86 Ill. Dec. 478 (1985)). At that point the situation was less than clear: Did Klawonn announce a substantive rule of law, in which event it ...


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