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First Midwest Trust Co. v. Rogers

April 06, 1998


Appeal from Circuit Court of Douglas County No. 93L17

The opinion of the court was delivered by: Justice Steigmann

Honorable Stephen H. Peters, Judge Presiding.

In July 1993, plaintiffs Jerry Mallady and his wife Gaythel sued defendants, Paul Ty Rogers and the Town of Arcola (Arcola), for damages resulting from a collision between Jerry's automobile and a snowplow driven by Rogers during the course of his employment with Arcola. In July 1996, the jury awarded damages based on Rogers' negli- gence and found Jerry 50% comparatively negligent.

Plaintiffs appeal, arguing that (1) an enforceable settlement agreement existed; (2) defendants' reconstruction expert should not have been allowed to testify; (3) the trial court erred by allowing defendants to present section 11-205 of the Illinois Vehicle Code (Code) (625 ILCS 5/11-205 (West 1992)) to the jury; (4) the court should have set aside the comparative negligence finding and entered a judgment notwithstanding the verdict (judgment n.o.v.) on liability; and (5) the damages award is inadequate. Defendants cross-appeal, arguing that the court erred by (1) denying defendants' motion to reduce the damages award by the amount of funeral expenses and medical expenses for which plaintiffs had no liability; and (2) failing to apply section 2-1115.1 of the Code of Civil Procedure, as amended (735 ILCS 5/2-1115.1 (West Supp. 1995)), to limit the damages award for count III. We affirm in part, vacate in part, reverse in part and remand with directions.


A. The Accident

On February 26, 1993, Rogers was working for Arcola plowing county roads in that township. Rogers stopped at the intersection of County Road 500N and Route 45, looked in both directions, and began to drive across Route 45. Jerry was driving north on Route 45 and collided with the snowplow. Rogers testified that he did not see Jerry's car. He later pleaded guilty to the offense of failure to yield the right-of-way (625 ILCS 5/11-904 (West 1992)).

Jerry suffered severe injuries, including a closed head injury resulting in bleeding into the brain, facial lacerations, multiple rib fractures, a lacerated and ruptured lung, broken left leg and hip, dislocated hip, and right ankle, spinal, skull, and jaw fractures for which he underwent several surgical procedures. He remained hospital- ized for 3½ months during which he was given an artificial airway and feeding tube and placed on a respirator. He remained in a coma for many months, gradually regaining consciousness during the summer of 1993. In June 1993, he was moved to a nursing home. He had continuous difficulty with infections and was occasionally readmitted to the hospital for treatment. In September 1993, he returned to the hospital for reha- bilitation.

In December 1993, he was discharged to the Oddfellows Nursing Home, where Dr. Mark Dettro took charge of his medical care. Dr. Dettro testified that Jerry's head injury had caused a central nervous system dysfunction, leaving him unable to walk, speak, swallow, feed himself, or reposition himself in bed. He never regained those functions, receiving all food, liquid, and medication through a feeding tube and spending 95% of his time in bed. On October 14, 1995, Jerry died of pneumonia. Jerry's medical treatment and nursing home care costs totaled $761,531.70.

B. Procedural History

In July 1993, Jerry and Gaythel sued defendants for negligence and loss of consortium. In April 1995, the circuit court appointed (1) First Midwest Trust Company (First Midwest) as guardian of Jerry's estate and (2) Gaythel as guardian of Jerry's person. In June 1995, they were substituted as party plaintiffs for Jerry.

Jerry died at 4:45 p.m. on October 14, 1995, and on October 16, 1995, the circuit court appointed Gaythel as special administrator for Jerry's estate. The parties had negotiated throughout the pretrial period and plaintiffs claim that they had agreed to settle on October 14, 1995, two days prior to trial. On October 19, 1995, plaintiffs filed a motion to compel settlement. The trial court denied the motion in February 1996.

In March 1996, Gaythel, individually and as administrator for Jerry's estate, filed an amended complaint adding a cause of action for wrongful death. In April 1996, the trial court granted Gaythel's motion to substitute First Midwest as administrator for Jerry's estate. The final complaint alleged 16 counts, including causes of action based on negligence against both Rogers and Arcola for (1) survival, (2) family expenses, (3) loss of consortium, and (4) wrongful death.

Following a trial in July 1996, the jury returned a verdict finding defendants negligent and awarding damages for each of three counts, as follows: count I, survival action: verdict--$1,504,708.50; count II, loss of consortium: verdict--$755,000; and count III, wrongful death: verdict-- $1 million. The jury also found Jerry 50% comparatively negligent and reduced his damages awards to $774,354.25, $377,500, and $500,000, re- spectively, for a total of $1,651,854.25.


Plaintiffs first argue that a valid settlement agreement existed for the trial court to enforce and the court erred by denying their motion to compel settlement. We disagree.

The parties began negotiating prior to trial and continued to do so before the trial was scheduled to begin on October 16, 1995. On October 14, 1995, the parties' attorneys talked again and discussed a settlement figure of $4.5 million. Plaintiffs claim that the parties had agreed to settle at this amount, based on a 2:30 p.m. recorded telephone message between the parties' attorneys.

On October 13, 1995, Jerry went to the hospital to have his feeding tube replaced. He returned to the nursing home after the proce- dure, but his condition worsened and he was readmitted to the hospital at about 2:30 a.m. on October 14, 1995. Gaythel arrived at the hospital at about 3 a.m. She telephoned her son Shawn at about 6 a.m. and told him that Jerry was in serious condition.

Around 8 a.m., Shawn telephoned Carroll Dukes (the attorney representing Gaythel and the guardians of Jerry's person and estate). Shawn told Dukes that Jerry was hospitalized and asked him what effect this would have on the trial that was set to begin two days later. Dukes informed him that this was another reason why settlement should be pursued. Dukes told Shawn that he would recommend settlement if defendants would "come up with [about] $4,500,000." Shawn agreed with the suggestion. Later that day, Gaythel agreed with Shawn, but she did not speak to Dukes about it.

After talking with Shawn, Dukes telephoned Jim Kearns, an attorney for defendants, around 9 a.m. on October 14, 1995, concerning the settlement negotiations. Dukes indicated that he was preparing for trial, but that defendants' October 12, 1995, settlement letter suggested that there might be a chance for settlement. Kearns indicated that defendants would probably settle for $4.5 million and that he would recommend that amount. Dukes stated that he wanted to settle the matter that day. Dukes did not tell Kearns that Jerry had been hospitalized that morning. At the end of the telephone conversation, Dukes informed Kearns that he would be unavailable during the day and that Kearns could leave his response on Dukes' telephone answering machine.

Around 3 p.m. on October 14, 1995, Kearns called Dukes and left the following message on his answering machine:

"Carroll, this is Jim Kearns. I'm calling. I think we got a deal. A couple of loose ends to be tied up, but I don't think it's anything critical. The money number is the County's or the Township's willing to accept that number so long as you understand we don't have the money until we get a bond issue floated and we'll do that as fast as we can, but we don't really have a feel for how long that takes. Also, we have to have a release from the children of any potential wrongful death claim, but I don't see any one of those as a problem. I'm sure you understood both of those to be the case, but I was supposed to specifically mention those things. So, I'll be here this evening if you want to talk about it or we can just talk sometime before Monday ***."

Before Dukes called Kearns back, Dukes received a message from Shawn informing him that Jerry had died around 4:45 p.m. that afternoon (October 14, 1995). At 6:43 p.m. that same day, Dukes left a message on Kearns' answering machine, indicating that the $4.5 million and the two conditions were acceptable.

At some point after Dukes left the 6:43 p.m. message on Kearns' machine, Kearns learned from a third party that Jerry had died earlier in the day. Kearns telephoned Dukes and they discussed Jerry's death and the effect it might have on the settlement Discussions. Kearns indicated to Dukes that they may have a valid settlement, but that he wished to research the matter further before arriving at a final decision.

The trial court provided a detailed and cogent analysis in its nine-page memorandum of decision denying plaintiffs' motion to compel settlement. The court found that (1) Dukes' 9 a.m. phone conversation constituted continuing negotiations, not an offer; (2) even if Dukes' statements during that call constituted a valid offer, Kearns' 3 p.m. telephone message was a counteroffer, not a valid acceptance; (3) Kearns' 3 p.m. message can best be characterized as an offer; and (4) Dukes' telephone call to Kearns at 6:43 p.m. was a valid acceptance of Kearns' 3 p.m. offer. Nevertheless, the trial court concluded that the purported settlement agreement was not enforceable because Jerry died at 4:36 p.m., raising doubt about Dukes' authority to settle. We agree with the court's Conclusion; more particularly, for the reasons discussed below, we conclude that the matter is resolved by the limits placed on Dukes' authority by sections 24-19(a) and 10-4 of the Probate Act of 1975 (Act) (755 ILCS 5/24-19(a), 10-4 (West 1994)).

The trial court questioned Dukes' authority to settle by considering whom he represented at the time he accepted Kearns' offer. Before Jerry died, Dukes represented First Midwest, as guardian of Jerry's estate, and Gaythel, both individually and as guardian of Jerry's person. A guardian's status is governed by section 24-12 of the Act, which provides that "[t]he office of a representative of a ward terminates[,] *** subject to [s]ection 24-19, when the ward dies." (Emphasis added.) 755 ILCS 5/24-12 (West 1994). (Section 1-2.15 of the Act includes guardian in its definition of "representative." 755 ILCS 5/1-2.15 (West 1994).) Thus, once Jerry died, the offices of guard- ianship held by First Midwest and Gaythel terminated, except as outlined in section 24-19 of the Act.

Section 24-19(a) of the Act provides, in pertinent part, that "[w]ithout order of appointment and until the issuance of letters testamentary or of administration or until sooner discharged by the court, a representative of the estate of a deceased ward has the powers and duties of an administrator to collect." 755 ILCS 5/24-19(a) (West 1994). After Jerry died, First Midwest could only represent Jerry's estate as an "administrator to collect." Section 10-4 of the Act defines the duties and powers of an administrator to collect, in pertinent part, as follows: "An administrator to collect has power to sue for and collect the personal estate and debts due the decedent *** and by leave of court to exercise the powers vested by law in an ad- ministrator." 755 ILCS 5/10-4 (West 1994). Thus, the authority of an administrator to collect is limited to preserving an estate. In re Estate of Breault, 29 Ill. 2d 165, 179, 193 N.E.2d 824, 832 (1963).

After Jerry died, Dukes still represented First Midwest, as guardian of Jerry's estate, and Gaythel, as guardian of Jerry's person, but section 10-4 of the Act limited First Midwest's authority as guardian to preserving Jerry's estate. As an administrator to collect, it had no authority to accept a settlement offer. Moreover, because section 24-19(a) of the Act does not address a representative of the person, Gaythel's office of guardianship terminated upon Jerry's death. In fact, it appears that, during the interim between Jerry's death and the appointment (on October 16, 1995) of Gaythel as administrator for Jerry's estate, no one had the authority to agree to a settlement. Because Dukes' authority as agent for the guardians could not exceed his principals' authority, Dukes exceeded his authority when he accepted the settlement offer. Accordingly, no valid settlement agreement existed for the trial court to enforce, and the trial court correctly denied plaintiffs' motion to compel settlement.


Plaintiffs next argue that the trial court erred by allowing defendants' accident reconstruction expert, Professor Louis Metz, to testify. Specifically, they contend that Metz's experiment and the opinions based thereon fail to meet admissibility standards. We agree.

Prior to trial, plaintiffs filed motions in limine objecting to Metz's testimony on several grounds, including the following: (1) accident reconstruction testimony should not be admitted when eyewitness testimony is available; (2) Metz's proposed testimony did not meet the standards for admissibility of expert reconstruction testimony because it lies within the ken of the average juror; (3) Metz's testimony was based on unreliable data because experimental conditions did not substantially replicate the conditions at the time of the accident; and (4) Metz's testimony was highly speculative. In ruling upon plaintiffs' motions, the trial court considered Metz's deposition testimony, which showed that (1) weather and road conditions during the experiment differed substantially from conditions at the time of the accident; (2) Metz's methodology was subjective; (3) he made several assumptions regarding the conduct of Rogers and Jerry; and (4) he was unable to use ...

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