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01/30/97 KEVA RICHARDSON ET AL. v. JEFFREY CHAPMAN

January 30, 1997

KEVA RICHARDSON ET AL., APPELLEES,
v.
JEFFREY CHAPMAN ET AL., APPELLANTS.



The Honorable Justice Miller delivered the opinion of the court. Justice McMORROW, concurring in part and dissenting in part. Justice Freeman joins in this partial concurrence and partial dissent.

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

The plaintiffs, Keva Richardson and Ann E. McGregor, were injured when the car in which they were riding was hit from behind by a truck driven by defendant Jeffrey Chapman in Highland Park. The plaintiffs brought the present action in the circuit court of Cook County against Chapman; his employer, Tandem Transport, Inc., successor to Carrier Service Company of Wisconsin, Inc. (Tandem/Carrier); and Rollins Leasing Corp., which had leased the truck in Wisconsin to Chapman's employer. Following a jury trial, the court entered judgment on verdicts in favor of Richardson and McGregor and against Tandem/Carrier and Chapman. The court later entered judgments against Rollins under the Wisconsin financial responsibility statute for the unsatisfied portions of the two awards. The court also permitted Rollins to obtain reimbursement for those expenses from Tandem/Carrier on a theory of contractual indemnity. A divided appellate court affirmed all the judgments against the defendants. Nos. 1-91-1736, 1-91-1737, 1-91-3868, 1-92-1221, 1-92-1442 cons. (unpublished order under Supreme Court Rule 23). In addition, the appellate court allowed Rollins' claims for reimbursement from Tandem/Carrier on theories of both contractual and implied indemnity. We granted the petitions for leave to appeal filed by Rollins and by Chapman and Tandem/Carrier (155 Ill. 2d R. 315(a)) and consolidated the causes for purposes of oral argument and disposition.

The accident at issue here occurred in the early morning hours of November 26, 1987, at the intersection of Interstate 94 and Clavey Road in Highland Park. Plaintiff Keva Richardson was the driver of the car, and plaintiff Ann McGregor was a passenger in the vehicle. While stopped at a traffic light, their car was struck from behind by a semi-trailer being driven by defendant Chapman. Richardson suffered extensive injuries as a result of the accident and was rendered quadriplegic. McGregor sustained only slight injuries in the accident and has returned to her normal activities. At trial, Richardson introduced extensive testimony concerning her injuries and the expenses she will likely incur in the future as a consequence of the accident. That testimony will be summarized later in this opinion.

The plaintiffs brought the present action against Chapman, Tandem/Carrier, and Rollins. The plaintiffs' second-amended complaint comprised three counts. Count I was against Rollins and alleged that the lessor was vicariously liable for Chapman's negligence under an agency theory. Count II, also against Rollins, alleged that the lessor was liable under the terms of the Wisconsin financial responsibility law. Count III, against Tandem/Carrier and Chapman, was based on common law negligence. Prior to trial, the judge granted Rollins' motion for summary judgment on count I, and that count is no longer at issue. Count II was severed prior to trial and was not submitted to the jury. The case proceeded to trial on count III alone.

At the close of evidence, the trial judge directed a verdict in favor of the plaintiffs and against Tandem/Carrier and Chapman on the question of liability. Determining only the plaintiffs' damages, the jury returned verdicts against Tandem/Carrier and Chapman and in favor of Richardson and McGregor in the amounts of $22,358,814 and $102,215, respectively. Tandem/Carrier and Chapman, through their insurance carrier, Home Indemnity Company, subsequently tendered $1 million to the plaintiffs in partial satisfaction of the judgments; of that sum, $990,000 was credited to the judgment in favor of Richardson, and $10,000 to the judgment in favor of McGregor. At a later hearing the trial court considered the plaintiffs' claims against Rollins under the Wisconsin financial responsibility statute, and the judge determined that Rollins was liable to the plaintiffs for the portions of the judgments unpaid by Tandem/Carrier and Chapman. The court therefore entered judgment against Rollins and in favor of Richardson for $21,368,814, and judgment against Rollins and in favor of McGregor for $92,215, representing the unsatisfied portions of their awards from Tandem/Carrier and Chapman. Rollins had filed a counterclaim against Tandem/Carrier seeking contractual indemnity, and counterclaims against Tandem/Carrier and Chapman seeking both implied indemnity and contribution. Following a hearing, the trial judge entered judgment in Rollins' favor on the count seeking contractual indemnity but denied the counts seeking contribution and implied indemnity. The judge also entered a finding for contractual indemnity against Chapman, the driver of the vehicle, though Rollins had not sought recovery from him under that theory.

The appellate court affirmed the judgments entered against Tandem/Carrier and Chapman on the plaintiffs' negligence claims against them, as well as the judgments entered against Rollins on the plaintiffs' statutory claims under the Wisconsin financial responsibility statute. The appellate court rejected the defendants' challenges to the amounts of damages awarded by the jury, and the court also rejected the defendants' arguments that certain trial errors had inflated the verdict returned in favor of Richardson. In addition, the appellate court held that the Wisconsin financial responsibility statute made Rollins liable to the plaintiffs for whatever portions of the judgments were not recoverable from Tandem/Carrier and Chapman. Finally, the appellate court ruled that Rollins could obtain reimbursement from Tandem/Carrier on theories of contractual and implied indemnity; the court did not believe, however, that an action for contribution would lie. The court did not address Rollins' claim against Chapman for implied indemnity.

One member of the appellate panel concurred in part and dissented in part. Justice Cerda disagreed with the majority's interpretation of the Wisconsin financial responsibility statute and would have limited the plaintiffs' recovery under that theory to the amount of the insurance policy filed by Rollins pursuant to the Wisconsin statute. Accordingly, he would also have vacated the judgment in favor of Rollins and against Tandem/Carrier on Rollins' counterclaim for indemnity. In addition, Justice Cerda would have reduced McGregor's award for pain and suffering to $50,000, bringing her total compensation to $52,215.

We allowed petitions for leave to appeal filed by Rollins and by Tandem/Carrier and Chapman. 155 Ill. 2d R. 315(a). The Truck Renting and Leasing Association, Inc., and the Wisconsin Automobile & Truck Dealers Association were each granted leave to submit briefs as amici curiae in support of Rollins. 155 Ill. 2d R. 345.

After we heard oral argument in this case, but before our opinion could be filed, the plaintiffs settled their actions against defendant Rollins for undisclosed amounts. Plaintiff Keva Richardson executed a release and discharge in favor of Rollins on October 1, 1996, and plaintiff Anne McGregor executed a release and discharge in favor of Rollins on October 2, 1996. The plaintiffs and Rollins then submitted to this court a stipulated order for the dismissal of a portion of the claims involved in this appeal. We allowed the order on November 7, 1996, dismissing with prejudice Rollins' appeal from the judgments against it and in favor of the plaintiffs. The question of Rollins' liability to the plaintiffs under the Wisconsin financial responsibility law is therefore no longer before us. The settlements do not affect the plaintiffs' actions against Chapman and Tandem/Carrier, or Rollins' action against Tandem/Carrier for contractual indemnity or its actions Chapman and Tandem/Carrier for implied indemnity; Rollins may no longer seek contribution from the other defendants, however (see 740 ILCS 100/2(e) (West 1994)).

I

In that portion of the appeal still remaining, Chapman and Tandem/Carrier (defendants) first challenge the amounts of damages awarded to the plaintiffs. The defendants contend that certain errors in the testimony of the economist who appeared at trial in behalf of Keva Richardson inflated the verdict returned in her favor and, further, that the damages awarded by the jury to Richardson and McGregor are excessive.

In their initial challenge to the damages verdicts, the defendants complain of certain testimony introduced by plaintiff Richardson concerning the calculation of the present value of her future economic losses. The defendants maintain that Professor Charles Linke, who testified as Richardson's economist, improperly used non-neutral, actual figures in describing to the jury the calculation of present cash value. Richardson's life expectancy at the time of trial, in May 1990, was 54.5 years. Relying on information and figures supplied by Richardson's primary physician, Professor Linke testified that the present cash value of her future medical expenses had a lower bound of $7,371,914 and an upper bound of $9,570,034. The lower bound figure assumed a discount rate one percentage point higher than the growth rate; the upper bound figure assumed that the two rates would be equal. The difference between the two numbers was based on different assumptions concerning future growth rates and interest rates. Professor Linke also provided testimony regarding the present cash value of Richardson's lost future earnings. Assuming a work history of 27.5 years, Professor Linke found that the present cash value of Richardson's lost income was between $854,107 and $971,944; using a longer work history of 35.8 years, Professor Linke arrived at a range of $1,068,343 to $1,265,363. Again, the differences between the two ranges were based on the witness' different assumptions regarding future growth and interest rates.

Citing Allendorf v. Elgin, Joliet & Eastern Ry. Co., 8 Ill. 2d 164, 133 N.E.2d 288 (1956), the defendants first contend that Professor Linke was required to use "neutral" figures-amounts having no relation to the damages alleged by the parties-in explaining the concept of present cash value to the jury. In Allendorf, a wrongful death action, this court stated:

"We are of the opinion that the proper method of assisting a jury in making damage calculations is for the actuary to use neutral figures. In the usual situation where hypothetical inquiries are permissible, it is necessary that the expert assume a factual situation as reflected in the proof in order to insure that his testimony bears upon the issue to be determined. The actuary, however, is called upon only to describe to the jury a mathematical process that will simplify the jury's task of determining the present value of the contribution that plaintiffs would have received had decedent not been killed. To accomplish that purpose it is not necessary that he use figures that correspond with those appearing in evidence, and when he does so there is a danger that the jury may be misled. Once the formula is before the jury, its application to the facts of the case is a matter for argument of counsel." Allendorf, 8 Ill. 2d at 177-78.

In the present case, the defendants assert that Professor Linke was not qualified to testify to any specific amounts for Keva Richardson's future medical costs, including those figures provided by Dr. Yarkony, and that his use of the physician's estimates was therefore in error. The defendants would limit Professor Linke's testimony in this regard to the presentation of the appropriate formula for reducing future damages to their present cash value.

As Allendorf makes clear, the basis for the neutral-figure requirement expressed in that case was the prohibition against opinions on the ultimate issue. See Varilek v. Mitchell Engineering Co., 200 Ill. App. 3d 649, 672, 146 Ill. Dec. 402, 558 N.E.2d 365 (1990). Subsequent cases have removed that bar, however, and have determined that a witness, whether expert or lay, may provide an opinion on the ultimate issue in a case. Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 545-46, 212 Ill. Dec. 889, 658 N.E.2d 371 (1995); People v. Harris, 132 Ill. 2d 366, 385, 138 Ill. Dec. 620, 547 N.E.2d 1241 (1989); Freeding-Skokie Roll-Off Service, Inc. v. Hamilton, 108 Ill. 2d 217, 221, 91 Ill. Dec. 178, 483 N.E.2d 524 (1985); Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co., 49 Ill. 2d 118, 122, 273 N.E.2d 809 (1971). The trier of fact is not required to accept the expert's conclusion, and therefore such testimony cannot be said to usurp the province of the jury. Zavala, 167 Ill. 2d at 545; Merchants National Bank, 49 Ill. 2d at 122. Because the rule against opinions on the ultimate issue no longer has any vitality, we believe that its corollary, which would require the use of neutral figures in presenting the jury with testimony about present cash values, has similarly lost its foundation. See M. Graham, Cleary & Graham's Handbook of Illinois Evidence ยง 702.7, at 571-72 (6th ed. 1994). Deprived of its theoretical footing, the "neutral figure" requirement expressed in Allendorf should no longer be followed.

In a further objection to Professor Linke's testimony, the defendants also briefly argue that the economist erroneously included inflation and real growth in reducing Richardson's economic damages to their present cash value. As we have noted, Professor Linke testified to what he termed "lower bound" and "upper bound" figures in computing the future medical expenses and lost earnings. The "lower bound" figure assumed that the prevailing interest rate would be one percentage point higher than the growth rate of wages and prices, while the "upper bound" figure assumed that the two rates would be equal. In this way, Professor Linke attempted to avoid having to predict the exact rates that would prevail; as Professor Linke explained in his testimony, it is not the absolute levels of the interest rate and growth rate that determine present cash value, but the difference between them. Cf. Baird v. Chicago, Burlington & Quincy R.R. Co., 63 Ill. 2d 463, 467-70, 349 N.E.2d 413 (1976) (using differential).

We believe that Professor Linke's methodology was appropriate. In O'Shea v. Riverway Towing Co., 677 F.2d 1194, 1199-1200 (7th Cir. 1982), Judge Posner explained the necessity of treating inflation in a consistent manner in reducing an award of future economic damages to present cash value:

"There are (at least) two ways to deal with inflation in computing the present value of lost future wages. One is to take it out of both the wages and the discount rate-to say to [plaintiff], 'we are going to calculate your probable wage in [the future] on the assumption, unrealistic as it is, that there will be zero inflation between now and then; and, to be consistent, we are going to discount the amount ...


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