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Eric B. Rasmusen, As Executor of the Estate of Benjamin A. Rasmusen, Deceased v. Jeremy White

May 11, 2012

ERIC B. RASMUSEN, AS EXECUTOR OF THE ESTATE OF BENJAMIN A. RASMUSEN, DECEASED;
ERIC B. RASMUSEN, AS ADMINISTRATOR OF THE ESTATE OF ELIZABETH G. RASMUSEN, DECEASED;
ERIC B. RASMUSEN, AS FATHER AND NEXT FRIEND OF BENJAMIN W. RASMUSEN, A MINOR, AND AMELIA RASMUSEN, A MINOR, PLAINTIFFS,
v.
JEREMY WHITE, ANTHONY SCHMITT, NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), BNSF RAILWAY COMPANY, AND
THE FIRST NATIONAL BANK OF OTTAWA, ILLINOIS, AS ADMINISTRATOR OF THE ESTATE OF MARILYN S. RASMUSEN, DECEASED, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is the Motion of Defendant/Cross-Defendant First National Bank of Ottawa, as Administrator of the Estate of Marilyn S. Rasmusen (hereinafter, the "Estate of Marilyn R.") for an order of Good Faith Finding regarding its settlement with Plaintiffs and the dismissal of Plaintiffs' claims and claims against it. Defendants/Cross-Plaintiffs National Railroad Passenger Corporation ("Amtrak") and BNSF Railway Company ("BNSF") (collectively, the "Railroad Defendants") oppose the motion and seek an order compelling discovery regarding the assets of the Estate of Marilyn R.

For the reasons stated herein, the Motion for Good Faith Finding and Dismissal is granted and the Motion to Compel is denied.

I. BACKGROUND

On the fateful day of July 13, 2009, Marilyn Rasmusen was driving south on East 23rd Road near Route 34 in LaSalle County. Next to her in the passenger seat was her husband, Benjamin A. Rasmusen; in the back seat, their three grandchildren: Elizabeth G. Rasmusen, Benjamin W. Rasmusen and Amelia Rasmusen. For whatever reason, Marilyn Rasmusen apparently did not see or hear Amtrak's California Zephyr approaching from the east on the train tracks running parallel to Route 34 at approximately 80 miles per hour.

The train and car collided, killing Marilyn, her husband Benjamin A. and their grandchild Elizabeth. Benjamin W. and Amelia were injured.

There were no gates or lights at the crossing, just a "crossbuck" railroad sign and a yield sign to warn motorists of the tracks. Pictures of the scene taken by BNSF employee Kyle James ("James") show no obvious visual impediments between the road and the tracks that would have interfered with sightlines. At the time of the accident, a BNSF freight train was parked to the west of East 23rd Road -- the opposite direction from which the Zephyr approached.

A little more than a month after the accident, on August 27, 2009, Amtrak claims representative Darryl P. Butler ("Butler") telephoned Eric Rasmusen ("Rasmusen"), son of the deceased Marilyn and Benjamin A. Rasmusen and father of the three children involved in the crash, to inquire about whether he would be filing suit. Eric Rasmusen said the family had not made a decision.

On September 3, 2009, Eric Rasmusen filed a Petition for Probate of Will and for Letters Testamentary as executor of Marilyn Rasmusen's estate.

On October 1, 2009, Butler phoned Eric Rasmusen again; again Eric Rasmusen expressed no definitive intent to sue. The rest of the characterization of those two Butler/Rasmusen conversations is in dispute. Butler contends Rasmusen acknowledged that "any lawsuit would need to take into account his mother's own negligence . . . as well as the railroads' claim for property damage." Railroad Def.s' Opp'n., Ex. K, 1. Rasmusen contends Butler did not indicate the Railroad Defendants would be pressing any claim against his mother's estate. Both sides agree Eric Rasmusen did not notify the Railroad Defendants of the Estate of Marilyn R.'s probate proceedings. Notice of probate was published in an Ottawa newspaper in September and October 2009.

Eric Rasmusen filed suit in this court on September 21, 2010 on behalf of all car occupants except his mother. As to her, Eric Rasmusen sued himself, as executor of her estate. When the Railroad Defendants pointed out this was a conflict of interest, a replacement executor, The First National Bank of Ottawa, Illinois was named as executor of Marilyn R.'s estate and an Amended Complaint filed. The Railroad Defendants cross-complained against her estate for damage to their train and equipment in the amount of $1.8 million.

The Estate of Marilyn R. has proposed a settlement of Plaintiffs' claims in the amount of $500,000 -- the personal injury limit on Marilyn's automobile policy. Of this amount, $10,000 was advanced to the Estate of Elizabeth G. Rasmusen and $8,473.75 was advanced for Benjamin A. Rasmusen's funeral expenses. Of the remainder, half would go to the Estate of Elizabeth Rasmusen, a quarter would go to the Estate of Benjamin A. Rasmusen, and the remaining quarter would be split evenly between Benjamin W. and Amelia Rasmusen.

II. LEGAL STANDARD

Both parties agree the Illinois Joint Tortfeasor Contribution Act (740 ILL. COMP. STAT. 100, et seq.) governs this case. Under the act, settling joint tortfeasors seeking discharge from contribution liability bear the initial burden of making a preliminary showing of good faith. Johnson v. United Airlines et al., 784 N.E.2d 812, 818 (Ill. 2003). That showing is a relatively low hurdle: showing the existence of a legally valid ...


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