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Keiser-Long v. Owens

Court of Appeals of Illinois, Fourth District

July 30, 2015

CAROL KEISER-LONG, Plaintiff-Appellant,
KIRK OWENS, Defendant-Appellee

Appeal from Circuit Court of Champaign County. No. 10L19. Honorable Jeffrey B. Ford, Judge Presiding.

Knecht and Steigmann, Justices concurred in the judgment and opinion.


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[¶1] In November 2013, plaintiff, Carol Keiser-Long, filed her third amended complaint against defendant, Kirk Owens, alleging defendant, through his negligent and willful and wanton conduct, caused her to suffer damages. In her complaint, plaintiff sought, in part, damages for her " lost earning capacity and lost earning potential."

[¶2] In March 2014, the cause proceeded to trial. At the close of the evidence, defendant moved for a directed finding on the issue of damages for lost earning capacity and potential. The next day, the trial court granted defendant's motion for a directed finding. Thereafter, the matter was submitted to the jury, which returned a verdict in favor of plaintiff and awarded damages. Later that month, plaintiff filed a motion to reconsider the court's directed finding. In June 2014, the court entered a written order denying plaintiff's motion to reconsider.

[¶3] Plaintiff appeals, arguing the trial court erred by granting defendant's motion for a directed verdict where (1) Illinois law allows for the recovery of all damages which flow from a negligent act, and (2) the court misapplied the law regarding her claim for lost earning capacity. We reverse and remand for further proceedings.


[¶5] In August 2008, plaintiff and defendant were involved in an automobile accident in rural Tolono Township in Champaign County, Illinois. Defendant's vehicle collided with plaintiff's when he disobeyed a stop sign and entered an intersection without yielding to plaintiff's right of way. Plaintiff later discovered defendant was intoxicated when his vehicle collided with hers and had pleaded guilty to driving under the influence of alcohol.

[¶6] In November 2013, plaintiff filed her two-count third amended complaint. In count I, plaintiff alleged defendant's conduct was negligent. In count II, she alleged his conduct was willful and wanton. The complaint sought, in part, damages for plaintiff's " lost earning capacity and lost earning potential."

[¶7] In February 2014, prior to the commencement of the jury trial, defendant admitted liability on count I (negligence). Accordingly, in March 2014, the matter proceeded to trial on count II, as well as the issue of damages.

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[¶8] At trial, plaintiff testified she was self-employed and always had been. She is the sole shareholder of two corporations, C-Bar Cattle Company, Inc. (C-Bar), and C-Arc Enterprises, Inc. (C-Arc). C-Arc is a consulting business. C-Bar is a cattle-brokering business, which buys and sells cattle for profit. All of plaintiff's cattle business runs through C-Bar and any revenue received from the sale of cattle is deposited into C-Bar's bank accounts. Plaintiff never received a formal salary or bonus from C-Bar or C-Arc; however, she was able to freely transfer money from their accounts. Additionally, plaintiff routinely provided substantial shareholder loans to C-Bar. Since 2006, neither C-Bar nor C-Arc has had an employee other than plaintiff. Both C-Bar and C-Arc are C corporations as opposed to subchapter-S corporations.

[¶9] Plaintiff testified the accident negatively affected her cattle business. She was unable to make any decisions regarding the business because she was in severe pain. Further, her cattle business required her to drive all over the Midwest, visiting feedlots and auctions. The accident had caused her to experience anxiety when she was in a car to the point she could not drive to feedlots and auctions as she had before. In the years following the accident, plaintiff did not go to the feedlots as she had in the past because she had not purchased any cattle. Further, plaintiff was unable to maintain her relationships with the feedlots she had used despite their importance in running a profitable cattle operation. According to plaintiff, she missed the opportunity to earn money in the cattle business following the accident.

[¶10] Larry Joe O'Hern testified on behalf of plaintiff. O'Hern and plaintiff were business partners between 2000 and 2008. Plaintiff would buy a 50% interest in his " commercial cow-calf calves" and arrange to have them fed in Nebraska or Kansas. Contacts and relationships are instrumental in getting cattle into the right feedlots to maximize earnings. Additionally, it is important for those in the business to visit the feedlots to ensure the cattle are being taken care of properly.

[¶11] According to O'Hern, plaintiff owned between 3,000 and 5,000 head of cattle each year. O'Hern testified, in 2008, he and plaintiff stopped doing business together. Plaintiff did not purchase any cattle with him from 2008 to 2012. O'Hern testified the accident had a substantial impact on plaintiff's ability to participate in the cattle business but was unable to state what effect the accident had on her personal earnings.

[¶12] According to O'Hern, 2009 and 2010 were great years to be in the cattle business: " we had some [$200 per] head profits." Using plaintiff's typical inventory of 3,000 or 4,000 head and a conservative profit estimate of $50 per head, O'Hern opined plaintiff lost the opportunity to make approximately $200,000 per year in the years following the accident. However, at his deposition, O'Hern did not have an opinion as to any specific amount of income plaintiff lost as a result of the accident.

[¶13] Plaintiff's husband, Ewell " Woody" Long, testified about her participation in the cattle business following the accident. Before the accident occurred, plaintiff was on the phone for " two or three hours [per day], three or four times a week." Additionally, she would visit the feedlots seven or eight times per year. Since the accident, plaintiff stopped buying and selling cattle as frequently as she had before. She had only visited a feedlot once. Further, she seemed to have lost interest and motivation to participate in the business. According to Long, this resulted from

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plaintiff's fear of driving, which was caused by the accident.

[¶14] Roger Colmark testified he had been plaintiff's accountant for at least 10 years. During that time, he prepared plaintiff's personal tax return, as well as the return for C-Bar and C-Arc, which file jointly. Additionally, after plaintiff married ...

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