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Dennis E. Powers and Brenda J. Story-Phillips, Individually v. Eugene M. Rosine

August 23, 2011


Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois, Circuit No. 08--L--120 Honorable Scott A. Shore, Judge, Presiding.

JUSTICE McDADE delivered the judgment of the court, with opinion.

Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion.


¶ 1 The plaintiffs, Dennis E. Powers and Brenda J. Story-Phillips, brought suit against the defendant, Eugene M. Rosine, after sustaining injuries in an automobile accident caused by Rosine. The court granted the plaintiffs' motion for leave to propound supplemental discovery to obtain information of Rosine's financial status pursuant to their request for punitive damages. Rosine and his attorney, Scott E. Umland, objected to this request and refused to disclose Rosine's financial information. Umland subsequently filed a "Request for Contempt Order" seeking "to test the correctness of the trial court's discovery order." The trial court thus found Umland in contempt. On appeal, Rosine and Umland contend that: (1) in a case where the plaintiffs seek punitive damages, evidence of a defendant's financial status is not relevant, discoverable or admissible; and (2) the due process analysis in the cases of International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 225 Ill. 2d 456 (2006), BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), and State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), "unintentionally creates a violation of state and federal equal protection clauses by irrationally protecting wealthy defendants and prejudicing less wealthy defendants." We affirm.


¶ 3 The record indicates that on September 17, 2008, the plaintiffs filed a complaint against Rosine for injuries they sustained during an automobile accident where Rosine drove under the influence and collided with Powers' vehicle and the vehicle in which Story-Phillips was a passenger. Both Powers and Story-Phillips suffered injuries, and Rosine subsequently pled guilty to a charge of driving under the influence.

¶ 4 On January 28, 2009, the plaintiffs filed an amended complaint seeking to include a request for punitive damages. Pursuant to the filing of their amended complaint, the plaintiffs also filed a motion for leave to propound supplemental discovery of Rosine's financial status. The plaintiffs specifically contended that since they now sought punitive damages from Rosine, his financial status was relevant and discoverable. Rosine filed a motion objecting to the plaintiffs' request. After a July 31, 2009, hearing, the trial court granted the plaintiffs' motion to propound supplemental discovery of Rosine's financial status.

¶ 5 The plaintiffs subsequently served Rosine with a request for supplemental discovery regarding his financial status. In turn, Rosine filed a motion objecting to plaintiffs' discovery request, contending that if the jury or court considered his wealth in fashioning an award of punitive damages, it would violate the equal protection clauses of the United States and Illinois Constitutions. Rosine thus did not answer the plaintiffs' request for discovery of his financial status. The plaintiffs then filed a motion to compel discovery, and on November 24, 2009, the trial court entered an order directing Rosine to respond to the discovery requests regarding his financial status.

¶ 6 On December 22, 2009, Umland filed a motion requesting a finding of contempt for failing to respond to the plaintiffs' request for supplemental discovery on Rosine's financial status. The trial court granted Umland's motion and found him in contempt of court. Umland appealed.


¶ 8 On appeal, Umland first contends that "in cases where plaintiffs seek punitive damages, a defendant's financial worth is [not] relevant, discoverable and/or admissible in light of the due process analysis expressed in Lowe Excavating, 225 Ill. 2d 456, Gore, 517 U.S. 559, and Campbell, 538 U.S. 408, regarding the constitutionality of punitive damages awards." (Emphasis in original). Based on our review of the record, however, we believe the issue should be framed differently. Specifically, the question presented to this court is whether the trial court abused its discretion when it compelled Rosine to answer discovery regarding his financial status, and when it subsequently found Umland in contempt for failing to do so.

¶ 9 Our analysis begins with an examination of the law of punitive damages. There are two separate challenges available to a defendant who seeks to contest an award of punitive damages against him--one is a constitutional challenge, and the other arises pursuant to Illinois common law. See Franz v. Calaco Development Corp., 352 Ill. App. 3d 1129 (2004). Illinois courts have long recognized that "[t]he Illinois common law punitive damages inquiry is distinct from the constitutional challenge." Blount v. Stroud, 395 Ill. App. 3d 8, 22 (2009); see also Dubey v. Public Storage, Inc., 395 Ill. App. 3d 342 (2009); Lawlor v. North American Corp of Illinois, 409 Ill. App. 3d 149 (2011).

¶ 10 Punitive damages awards are intended to serve two purposes; first, to punish the wrongdoer, and second, to deter that party and others from committing similar wrongs in the future. Deal v. Byford, 127 Ill. 2d 192 (1989). Thus, the assessment of punitive damages is a " 'fact-sensitive' undertaking." Franz, 352 Ill. App. 3d at 1142 (citing Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 n.11 (2001)). In assessing whether an award of punitive damages is excessive in a particular case, Illinois courts consider a fact-specific set of relevant circumstances, including: (1) the nature and enormity of the wrong; (2) the financial status of the defendant; and (3) the potential liability of the defendant. Franz, 352 Ill. App. 3d 1129; see also Deal, 127 Ill. 2d 192.

ΒΆ 11 The financial status of the defendant is important because an amount sufficient to deter one individual may be trivial to another. Black v. Iovino, 219 Ill. App. 3d 378 (1991); see also Fopay v. Noveroske, 31 Ill. App. 3d 182, 200 (1975) (court noted that "the law in Illinois clearly allows evidence of the defendant's net worth and pecuniary position in cases in which punitive damages are proper"). Essentially, the amount of the punitive damages award should send a clear message loud ...

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