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Pister v. Matrix Service Indus. Contractors, Inc.

Court of Appeal of Illinois, Fourth District

September 6, 2013

Tisha PISTER, as Independent Administrator of the Estate of Jeffrey Pister, Deceased, Plaintiff-Appellant,
MATRIX SERVICE INDUSTRIAL CONTRACTORS, INC., a Foreign Corporation, Defendant-Appellee.

Rehearing Denied Oct. 10, 2013.

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Michael T. Reagan, of Law Office of Michael T. Reagan, of Ottawa, David V. Dorris and Amelia Buragas (argued), both of Dorris Law Firm, P.C., of Bloomington, and Ray Moss (argued), of Moss & Moss, P.C., of Clinton, for appellant.

Melinda S. Kollross (argued), Paul V. Esposito, Kimberly A. Hartman, and Mark J. Sobczak, all of Clausen Miller P.C., and John W. Patton, Jr., and C. Zachary Vaughn (argued), both of Patton & Ryan LLC, both of Chicago, for appellee.



[375 Ill.Dec. 834] ¶ 1 In April 2009, a vehicle driven by Brian Stultz (Brian) struck the vehicle of Jeffrey Pister, resulting in the death of both men. At the time of the accident, Brian was nearing his destination in Champaign, Illinois, where he was scheduled to work later that morning for defendant Matrix Service Industrial Contractors, Inc., a foreign corporation (Matrix).

¶ 2 In May 2011, Jeffrey's widow, plaintiff Tisha Pister, as independent administrator for the estate of Jeffrey Pister (hereinafter Pister), filed a third amended [375 Ill.Dec. 835]

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complaint against Matrix and the estate of Brian Stultz (Estate). The Estate is not a party on appeal. As part of the complaint, Pister claimed Matrix was liable for Pister's death under the doctrine of respondeat superior. Pister set forth two theories of liability, asserting (1) Brian was a " traveling employee" of Matrix, on which the court, pretrial, granted summary judgment for Matrix and (2) Brian was on a " special errand" for Matrix at the time of the accident. The jury returned a verdict in favor of Matrix on Pister's " special errand" theory.

¶ 3 Pister appeals, arguing the trial court committed reversible error by (1) granting partial summary judgment in favor of Matrix, (2) admitting or excluding certain evidence, and (3) giving erroneous instructions to the jury. We affirm.


¶ 5 In the early morning hours of April 13, 2009, a vehicle driven by Brian crossed the centerline and struck an oncoming vehicle driven by Jeffrey Pister. The accident proved fatal for both men. An autopsy revealed Brian had oxycodone in his system. At the time of the accident, Brian was driving from Ohio toward a construction site in Champaign, Illinois, in order to start a job for which he was hired by Matrix.

¶ 6 A. The Complaint

¶ 7 In September 2009, Pister filed a complaint against defendants Matrix and the Estate. As the case unfolded, Pister filed a third amended complaint in May 2011. The complaint alleged several counts, asserting (1) negligence and wrongful death liability against the Estate, (2) negligence and survival action liability against the Estate, (3) respondeat superior and wrongful death liability against Matrix, (4) respondeat superior and survival action liability against Matrix, (5) negligence and wrongful death liability against Matrix, and (6) negligence and survival action liability against Matrix. Prior to trial, Pister voluntarily dismissed the Estate from the case.

¶ 8 B. Motion for Summary Judgment

¶ 9 In April 2011, Matrix filed a motion for summary judgment, asserting Brian was not an employee of Matrix at the time of the accident because he had not yet arrived at the jobsite. Pister filed a response, arguing Brian was within the scope of his employment, both as a " traveling employee" and because he was on a " special errand" for Matrix to deliver equipment to the jobsite. After a May 2011 hearing, the trial court determined it would not allow Pister to present the " traveling employee" theory of liability to the jury, finding the theory was restricted only to workers' compensation cases. Conversely, the court found a material issue of fact existed for the " special errand" theory of liability, which required presentation to the jury. The court then ordered a docket entry contradictory to its findings, denying in total Matrix's motion for summary judgment.

¶ 10 C. Pretrial Conference

¶ 11 At a February 2012 pretrial conference, the trial court (1) asserted it previously granted partial summary judgment to Matrix during the May 2011 hearing with regard to the " traveling employee" theory of liability, (2) granted Matrix's motion to prohibit Pister from arguing Matrix was liable for Brian driving under the influence of a drug but then extended the ruling to prohibit all mention of Brian's drug use, and (3) allowed evidence that the Estate was once a party to the case.

¶ 12 With respect to the trial court's statement regarding the motion for summary judgment, the court explained its prior ruling granted the motion as to the [375 Ill.Dec. 836]

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" traveling employee" theory of liability, which restricted the trial to the " special errand" theory of liability. Neither party attempted to clarify or correct the trial court's remarks; in fact, Pister's attorney said he was " acutely aware" of the court's ruling with regard to that issue.

¶ 13 In prohibiting the parties from mentioning Brian's legal prescription drug use, the court stated:

" I don't think oxycodone has anything to do with this. It is introducing elements to this trial that we need to avoid, especially in light of the fact and under my assumption that the liability is not contested here for this accident. * * * What matters is is [ sic ] that Mr. Pister was the victim of someone else's failure to observe his duty to drive with due regard for other motorists, so that's my ruling."

The court's finding required the parties to edit portions of recorded evidentiary depositions in order to remove all mention of Brian's legal drug use as well as the exclusion of letters sent by the Stultzes to Brian's insurance company demanding payment on the claim.

¶ 14 Additionally, the court ruled Matrix could tell the jury the Estate was previously a party in this matter, allowing Matrix to argue members of the Stultz family, as beneficiaries to the Estate, had a bias or motive to lie about Brian's scope of employment.

¶ 15 D. Jury Trial

¶ 16 The case proceeded to trial in February 2012. The central factual issue for the jury to determine was whether Brian was in the scope of his employment with Matrix at the time of the accident, as demonstrated by Brian transporting welding rods and other equipment in his vehicle.

¶ 17 During opening arguments, the court read to the jury Illinois Pattern Jury Instructions, Civil, No. 2.03 (2006) (hereinafter, IPI Civil (2006) No. 2.03), which explained to the jury the Estate had previously been a party to the case, but the jury was not to speculate why the Estate was no longer a party.

¶ 18 Pister presented several witnesses to prove a Matrix employee asked Brian to transport welding rods and other equipment to the Champaign, Illinois, jobsite for use at either the Champaign job or a subsequent job. Josie and Robert Stultz, the parents of Brian, testified via a redacted evidentiary deposition recording that Brian told them he was transporting equipment to Champaign at the request of Matrix. On April 12, 2009, which was Easter Sunday, the Stultz family gathered for Easter dinner at the home of a relative. Josie testified, during that visit, she observed Brian speaking with a Matrix employee, later identified as Larry Martin, the supervisor of equipment who oversaw the delivery of materials and equipment to jobsites, out near their parked vehicles. She saw Brian walk from Martin's vehicle back to his own, then return to Martin's vehicle, but she did not see what, if anything, he was carrying. Robert Stultz, who knew several Matrix employees, explained Matrix employees from the area, like Brian, commonly transported equipment to jobsites because they resided near Matrix's headquarters. Both Josie and Robert testified they would do anything for their granddaughter, Brian's daughter, but denied lying in order to gain additional financial recovery from Brian's insurance company, MetLife.

¶ 19 Pister also presented Carys Fitzgerald's testimony via recorded deposition. Fitzgerald was Brian's fiancé e and the mother of his child. She testified, following Easter dinner with Brian's relatives, [375 Ill.Dec. 837]

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she and Brian returned home to discover a brown box of welding rods on the back porch. Brian placed the box in his vehicle. In her experience, Brian commonly transported Matrix equipment to jobsites. In his free time, Brian frequently welded with his mother, a welding instructor.

¶ 20 Brian Hensley, Brian's friend, relative, and former coworker, testified he saw Brian speaking with Larry Martin at Brian's relative's home on Easter. Hensley saw Brian with a box of materials in his car but could not recall the specific items. As a former employee of Matrix, Hensley explained Matrix allowed its crew members to keep scrap metal to practice their respective crafts, such as welding. Brian indicated to Hensley he was not being paid to transport the welding rods on Matrix's behalf. Hensley also pointed out the welding rods collected from the accident scene would not have fit Brian's welding machine at home.

¶ 21 Anthony Matens, a personal investigator hired by Pister in the early stages of the case, testified he interviewed Josie Stultz, Robert Stultz, and Carys Fitzgerald. He said no one mentioned any conversations they had with Brian in which Brian said he was delivering welding rods on behalf of Matrix, nor did they mention the welding rods at all.

¶ 22 Matrix also presented evidence regarding whether Brian was on a " special errand" for Matrix at the time of the accident. The parties did not dispute the fact that the Champaign job required no welding and, thus, no welding rods. Upon arriving at the scene of the accident, Illinois State Trooper Ryan Fuoss, who specialized in accident reconstruction, noticed white boxes in Brian's vehicle; however, he could not testify as to the condition of those boxes before the accident or prior to his arrival at the scene, approximately one hour after the accident. Robert Stultz later recovered an angle iron and five unsealed, individual white boxes containing a variety of welding rods from Brian's car.

¶ 23 Larry Martin gave conflicting versions of events regarding Easter 2009. During one deposition, he could not recall meeting Brian on Easter. In another deposition, he remembered seeing Brian on Easter. Likewise, in one deposition, Martin explained he did not believe he gave welding rods to Brian on Easter for delivery. In another deposition, he agreed it was very possible he gave Brian welding rods on Easter for delivery. He did, however, consistently testify he never (1) visited the home of Brian's relative, (2) left a box of welding rods at Brian's house, or (3) delivered a box to Brian at the last minute ( i.e., the day before Brian was to leave for a job). He was also adamant he did not see Hensley on Easter. Martin agreed he had given Brian welding rods and other equipment in the past to transport to a jobsite, though he also agreed it was rare for employees to transport equipment, such as welding rods, to jobsites. Martin knew Brian to be a " scrapper," one who was often permitted to take leftover materials from the jobsite for personal use.

¶ 24 Martin then described the packaging of new boxes of welding rods that Matrix delivered to jobsites. First, he noted, the welding rods would have been in sealed boxes wrapped in cellophane to keep out moisture. Additionally, a box of welding rods scheduled for a jobsite would contain only one size of rods, whereas the boxes recovered from Brian's vehicle contained a variety of rod sizes.

¶ 25 Andrew Kissel, the foreman of Brian's crew, also testified about the required condition of welding rod boxes upon delivery to the jobsite. He explained welding rods were always delivered in a sealed crate, which was made up of four boxes of rods, all of the same size. Because Brian [375 Ill.Dec. 838]

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was carrying three types of rods in his vehicle at the time of the accident, in order to be consistent with Matrix's method of delivery, Brian would have needed to carry 12 boxes of welding rods. According to Kissel, Martin never had individual boxes of welding rods delivered to jobsites. Kissel described Brian as a " scrapper" with ongoing permission to take excess equipment, such as welding rods, for personal use. After examining the angle iron found in Brian's car, Kissel immediately classified it as scrap metal for Brian's personal use because (1) his crew did not use angle irons and (2) that type of material would have been shipped directly from a supplier in Oklahoma.

¶ 26 Moreover, as the foreman, Kissel testified he never asked Brian to deliver equipment to the jobsite, nor did he request Martin to have welding rods delivered because the equipment trailer did not need restocking. Whenever Kissel needed welding rods for other jobs, Martin always sent them through FedEx or another delivery service. Additionally, the Champaign job required no welding. Kissel thought a job had been scheduled following the Champaign job that would have required extensive welding, but Matrix's records did not reflect another job scheduled for that week.

¶ 27 Members of the construction crew, who regularly worked with Brian and who were scheduled to work with him in Champaign, agreed the boxes of welding rods contained within Brian's car were consistent with personal use based on the variety of welding rods and the open packaging. They each explained Matrix had a policy allowing employees to use excess material to practice their crafts, such as welding, and that Brian received permission to take scrap metal for personal use. They knew Brian would practice welding at home. The crew described Brian as a " hoarder" or " packrat" who kept his garage full of scraps, including scrapped welding rods. Brian's friend and crew member, William Merwin, testified Brian carried welding rods in his car for personal use.

¶ 28 Matrix project manager Eric Foster testified no welding rods or angle irons were needed at the Champaign job, nor was a job scheduled later in the week that would require those items. However, he could not ...

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