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Gann v. Oltesvig

June 12, 2007


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


On March 26 through 28, 2007, the Court conducted a jury trial in this wrongful death case. On March 28, 2007, the jury returned a verdict for Plaintiff Geraldine Gann ("Plaintiff"), personal representative of the estate of Jesse Lee Gann ("Gann") in the amount of $9,362,820.56, against Defendants Dennis Oltesvig ("Oltesvig") and TTI, Inc. ("TTI") (collectively "Defendants"). Before the Court are Plaintiff's Rule 59(e) motion to reconsider the Court's order granting judgment as a matter of law in favor of William Timblin Transit, Inc. ("WTT") and Defendants' motion for a new trial or for remittitur. After oral argument on May 23, 2007, the Court denied both motions by minute order, with this written opinion to follow.


On March 27, 2007, after all evidence relevant to Plaintiff's claim that Oltesvig was an agent of WTT had been presented, the Court concluded that there was no legally sufficient evidentiary basis for a jury to find for Plaintiff on her claim against WTT, granted judgment as a matter of law in favor of WTT, and dismissed WTT from the case. Plaintiff asks the Court to reconsider.

A. Legal Standards

In diversity cases, state law governs motions for judgment as a matter of law. See Jackson v. Bunge Corp., 40 F.3d 239, 242 (7th Cir. 1994) (addressing motions for directed verdict, which are now called motions for judgment as a matter of law). Under Illinois law, a directed verdict--the Illinois state law equivalent of judgment as a matter of law--should be granted if "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [the] movant that no contrary verdict based on that evidence could ever stand." Id. (quoting Pedrick v. Peoria & Eastern R.R., 229 N.E.2d 504, 513-14 (Ill. 1967)).

"An agency is a fiduciary relationship in which the principal has the right to control the agent's conduct and the agent has the power to act on the principal's behalf." Amigo's Inn, Inc. v. License Appeal Comm'n of Chicago, 822 N.E.2d 107, 113 (Ill. App. 2004). Had the issue gone to the jury, the instructions would have read:

An agent is a person who, by agreement with another called the principal, represents the principal in dealings with third persons or transacts business, manages some affair or does some service for the principal, with or without compensation. The agreement may be oral or written, express or implied. If you find that one person has the right to control the actions of another at a given time, you may find that the relation of principal and agent exists, even though the right to control may not have been exercised.

Illinois Pattern Jury Instructions--Civil 50.05 (2006).

B. Relevant Evidence

Plaintiff contends that a jury could reasonably conclude that Oltesvig was an agent of WTT based on the following evidence: (1) WTT owned the truck Oltesvig was driving, which, under Illinois law, creates a presumption that Oltesvig was an agent of WTT; (2) a bill of lading for the trip during which the accident occurred showing that the pick-up was being made by Oltesvig for "TTI, Inc.-Flatbed Division" ("TTI-Flatbed"), combined with Oltesvig's trial testimony that he was performing the trip for TTI-Flatbed and William Timblin Sr.'s ("Timblin") deposition testimony that TTI-Flatbed is WTT; (3) Defendants' answer to the original complaint admitting that Oltesvig was driving for WTT at the time of the accident; and (4) assorted evidence showing that WTT and TTI are related entities.

1. WTT's Ownership of the Truck Oltesvig was Driving

Plaintiff argues that she was entitled to the benefit of a presumption that WTT, as owner of the truck Oltesvig was driving, was Oltesvig's principal. Under Illinois law, proof of ownership of a vehicle is prima facie evidence of an agency relationship between the driver and the owner. Bell v. Reid, 454 N.E.2d 1117, 1119 (Ill. App. 1983). If a plaintiff shows proof of ownership, the defendant must come forward with evidence that the driver was not acting as its agent. Id. The burden of proof remains with the party alleging the existence of an agency relationship. Id.

The Court finds that the presumption does not apply on these facts. Illinois courts have applied the presumption where the only relevant entities are the owner and driver. The facts here differ, however, because while WTT is the owner of the truck Oltesvig was driving, it is undisputed that WTT leased the truck to TTI, who entrusted it to its employee Oltesvig at the time of the accident. Illinois courts have not addressed these factual circumstances.*fn1

The logic underpinning the presumption indicates that the presumption should not apply to these facts. The Illinois Supreme Court has stated, in a case addressing the presumption of agency from vehicle ownership: "A presumption is an inference which common sense draws from the known course of events or from circumstances usually occurring in such cases." McElroy v. Force, 232 N.E.2d 708, 710 (Ill. 1968). The presumption of agency arising from ownership of a vehicle where the only relevant entities are an owner and a driver is dictated by common sense: one would expect that the owner of a vehicle could exert control over the driver. The same logic does not apply here. When the owner of a vehicle leases it to another, one would not ordinarily expect that the owner would be able to control the use of the vehicle by an agent of the lessee.

Illinois courts have also supported the presumption because it should be an easy matter for [the vehicle owner] to bring forth evidence showing that the driver was not his servant or that [the owner] had no business occasioning such use as the driver was making of the car, at the time and place of the accident, while it would ordinarily be a difficult thing for the plaintiff to establish the contrary.

Bell, 454 N.E.2d at 1119-20 (internal quotes and citation omitted). This reasoning is strained where the owner has leased the vehicle away and is not necessarily familiar with the lessee's operation of the vehicle. While the lessor would be expected to have evidence showing that the vehicle had been leased and to whom, the lessor would ordinarily have no knowledge of what the lessee has done with the vehicle or the circumstances of the driver's use of it at some particular time. Only the lessee and the driver would be expected to have such information, and the lessor would not necessarily be in any better position to obtain it than the plaintiff.

A typical automobile lease is an apt example. If General Motors leases a pick-up truck to a landscaping company, one would not expect that General Motors controls the way in which the landscaping company's employees use the truck, and it would defy common sense to imagine that the landscaping company's employees are agents of General Motors. Nor would General Motors be expected to have any knowledge about the day-to-day use of the vehicle by the landscaping company or its drivers.

In essence, by leasing the vehicle to another entity, the owner has contracted away the very elements of ownership that justify the presumption of agency under Illinois law. Therefore, the Court concludes that the presumption under Illinois law that the driver of a vehicle is the agent of the vehicle's owner does not apply where the owner has leased the vehicle to a third party who in turn has entrusted it to a driver.*fn2

Further, even if the presumption applied, Defendants offered clear evidence to rebut the presumption. Plaintiff relies heavily on Horst v. Morand Bros. Beverage Co., which holds that while a court may direct a verdict for the defendant if the defendant rebuts the presumption with an uncontradicted and unimpeached witness, "[t]he weight to be given the presumption, whether it has been overcome, and whether agency has been proved are, ordinarily, questions for the trier of fact." 237 N.E.2d 732, 736 (Ill. App. 1968). In Horst, a directed verdict was inappropriate because the testimony rebutting the presumption was contradicted and impeached. Id.

Defendants offered substantial evidence to rebut the presumption that Oltesvig was acting as an agent of WTT at the time of the accident. On direct examination by Plaintiff's counsel, Timblin testified that the sole purpose of WTT was to lease trucks to TTI. T. 3/27/07 P.M. at 39.*fn3 On cross-examination, Timblin testified that WTT does not employ truck drivers, does not have authority from the government to make pick-ups or deliveries, and did not employ Oltesvig. T. 3/27/07 P.M. at 54-55. While Timblin was impeached with respect to other issues, his testimony on these points was not contradicted.

Oltesvig testified that he was working for TTI at the time of the accident, was driving a truck labeled "TTI" on the side, applied for a job with TTI, was given a TTI employee handbook, charged gas on a TTI credit card, invoiced repairs to TTI, kept a TTI logbook, was paid by TTI, had never heard of WTT, and was not working for WTT. T. 3/27/07 A.M. at 60-65. Like Timblin, Oltesvig was impeached several times, but not with respect to these specific statements.

Even reading Horst to hold that a defendant is not entitled to a directed verdict where the witnesses on which the defendant relied were impeached on other points, Defendants have supported their assertion that Oltesvig was not WTT's agent with sufficient documentary evidence to require Plaintiff to have produced additional evidence to survive Defendants' motion for judgment as a matter of law. Oltesvig's TTI application, employee handbook, fuel receipts, repair order, logbook, and payroll records all indicate that Oltesvig was an agent of TTI. DX 1-5, 7.

Finally, Plaintiff argues that one can be an agent of more than one entity, so that evidence that Oltesvig was TTI's employee is not sufficient to foreclose the possibility that he was also WTT's agent. See Kern v. Uregas Serv. of West Frankfort, Inc., 412 N.E.2d 1037, 1054-55 (Ill. App. 1980). Even applying the presumption of agency from ownership of the vehicle, the Court finds that no reasonable jury could have found that Oltesvig was WTT's agent where all of the testimony indicated that Oltesvig was TTI's agent alone. Plaintiff was not entitled to have the issue decided by the jury on the basis of the presumption alone.

2. TTI-Flatbed Evidence

Plaintiff attempts to connect several pieces of evidence to show that Oltesvig was working for WTT on the trip at issue. First, Plaintiff points to the bill of lading for the trip, which showed that the trip was made for "TTI, Inc.-Flatbed Division." DX 6. Plaintiff then ...

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