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State Farm Mutual Automobile Insurance Co. v. Plough

Court of Appeals of Illinois, Second District

June 29, 2017

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as Subrogee of Annie Rodriguez, Plaintiff-Appellee,
v.
WILLIAM PLOUGH, By and Through His Special Representative, Ryan Blues, Defendant-Appellant.

         Appeal from the Circuit Court of Du Page County. No. 14-SR-1464 Honorable Michael A. Wolfe, Judge, Presiding.

          HUTCHINSON JUSTICE delivered the judgment of the court, with opinion. Justices Burke and Spence concurred in the judgment and opinion.

          OPINION

          HUTCHINSON JUSTICE.

         ¶ 1 This appeal follows a small-claims subrogation trial and raises questions about the application of the Dead-Man's Act (Act) (735 ILCS 5/8-201 (West 2014)). We affirm the judgment of the trial court.

         ¶ 2 On November 25, 2013, Annie Rodriguez was involved in a traffic accident in Lombard, Illinois. Rodriguez was driving her SUV and was stopped at a red light at a major intersection. Her vehicle was then struck by an SUV driven by defendant, William Plough. According to Rodriguez, Plough's vehicle approached the intersection "pretty fast, " failed to stop at the light, swerved to avoid another vehicle in the intersection, crossed into the opposing lanes, and struck Rodriguez's SUV head on. Lombard police officer Scott Frieling responded to the scene and interviewed Plough. According to Frieling, Plough admitted that the light changed to red as he approached the intersection; he "tried to stop, lost control of [his] vehicle and hit [Rodriguez]." Rodriguez was taken to the hospital with minor injuries, and her SUV was towed to a body shop.

         ¶ 3 Rodriguez had a vehicle insurance policy from plaintiff, State Farm Mutual Automobile Insurance Company (State Farm). After the accident, Rodriguez paid the $250 deductible under her policy directly to the body shop, and State Farm paid the body shop the remaining cost of $3, 623 to repair Rodriguez's SUV. (For convenience, we have rounded to the nearest dollar.) State Farm also paid $4, 902 to Rodriguez's treatment providers for her various medical expenses. Afterward, State Farm sued Plough in subrogation for negligence in the amount of $8, 775-i.e., the $8, 525 it had paid out per Rodriguez's policy plus her $250 deductible. Ultimately, a jury found in State Farm's favor, awarding it the $8, 525 but not the $250 for Rodriguez's deductible.

         ¶ 4 Plough appeals (through his special representative as we explain below, but we need not distinguish between them for now). He does not dispute the facts supporting the jury's verdict. Instead, he challenges some of the pretrial steps that led to that verdict, as well as the admission of witness testimony at trial. Plough's challenges to the pretrial process, however, have been forfeited. Two of Plough's contentions-that the trial court should not have permitted State Farm to reject an arbitration award in Plough's favor and that the trial court should have granted Plough's motion to dismiss State Farm's complaint-were not included in Plough's posttrial motion. As noted, this case was tried before a jury and, with exceptions not relevant here (see Arient v. Shaik, 2015 IL App (1st) 133969, ¶ 29), "a party in a jury case may not argue to the appellate court 'any point, ground, or relief not specified' in his or her posttrial motion" (id. ¶ 32 (quoting Ill. S.Ct. R. 366(b)(2)(iii) (eff. Feb. 1, 1994); see also Landers v. School District No. 203, 66 Ill.App.3d 78, 80 (1978) (stating that a party is "precluded from raising the issue of the sufficiency of the complaint in this appeal since it failed to raise that matter in its post-trial motion" following a jury trial)). Since Plough failed to give the trial court an opportunity to reconsider its decisions concerning the arbitration award and State Farm's complaint, both of those issues have been forfeited.

         ¶ 5 We turn then to the only issue that was preserved in Plough's posttrial motion, the trial court's application of the Dead-Man's Act. The Act, rooted in English common law, has been an evidentiary rule in Illinois in one form or another since 1867. See Gunn v. Sobucki, 216 Ill.2d 602, 611-12 (2005) (plurality op.) (citing Alexander v. Hoffman, 70 Ill. 114, 117-18 (1873)). The Act provides in pertinent part as follows:

"In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability." 735 ILCS 5/8-201 (West 2014).

         The purpose of the Act is to bar only that evidence which the decedent or the disabled could have refuted, which thereby equalizes the position of the parties in regard to the giving of testimony. Gunn, 216 Ill.2d at 609; Rerack v. Lally, 241 Ill.App.3d 692, 695 (1992).

         ¶ 6 Plough was never deposed and 18 months after the accident he became ill and was confined to a mental-health institution. Following an in camera hearing, the trial court found that Plough was legally disabled and it granted Plough's special representative leave to proceed with the case in Plough's stead. See 5 ILCS 70/1.06 (West 2014); 735 ILCS 5/2-1008(c) (West 2014). Plough's representative then filed a motion in limine under the Dead-Man's Act to declare Rodriguez incompetent to testify about the accident and to declare Frieling incompetent to testify about Plough's statements after the accident. The motion contended that the only person who could refute Rodriguez's and Frieling's testimony was Plough himself, who was now "under legal disability" for purposes of the Dead-Man's Act. The trial court denied the representative's motion in limine. At trial, Rodriguez, Frieling, and State Farm's claims adjuster all testified. During Rodriguez's testimony, Plough's representative objected, citing the Dead-Man's Act. However, no objection was made during Frieling's testimony or during the testimony of State Farm's claims adjuster. On appeal, Plough's representative contends that the trial court erred when it admitted the testimony of Rodriguez, Frieling, and the adjuster, which violated the Dead-Man's Act. We review the trial court's admission of testimony for an abuse of discretion, and we review the construction of the Dead-Man's Act de novo. Gunn, 216 Ill.2d at 609.

         ¶ 7 Although Illinois is in the minority of jurisdictions that follow a "dead man's rule" of evidence (see Ed Wallis, a Outdated Form of Evidentiary Law: A Survey of Dead Man's Statutes and A Proposal for Change, 53 Clev. St. L. Rev. 75 (2005)), it has been argued that the Act serves important interests. See Hon. Robert S. Hunter, The Dead Man's Act Must Be Retained, 55 Ill. B.J. 512 (1967). In practice, however, the Act has a fairly narrow scope. Again, disqualification under the Act is limited to testimony by (1) an "adverse party or person directly interested in the action" testifying "on his or her own behalf" concerning (2) a "conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability." 735 ILCS 5/8-201 (West 2014). As this court and others have explained, a person is interested under the Act "if he or she will directly experience a monetary gain or loss as an immediate result of the judgment." People v. $5, 608 United States Currency, 359 Ill.App.3d 891, 895 (2005); see also Michalski v. Chicago Title & Trust Co., 50 Ill.App.3d 335, 339 (1977) (same).

         ¶ 8 Initially, by failing to object during Frieling's or the adjuster's testimony at trial on the basis of the Dead-Man's Act, Plough's representative has forfeited our review of the propriety of their testimony. See McMath v. Katholi, 191 Ill.2d 251, 256 (2000). In any event, it is undisputed that neither Frieling nor the adjuster was a party to the action. See People v. $5, 608 United States Currency, 359 Ill.App.3d at 896. Moreover, we note that neither Frieling nor the adjuster was qualified as a "directly interested" witness, so their testimony would not have been barred under the Act. See, e.g., Clifford v. Schaefer, 105 Ill.App.2d 233, 246 (1969) (police officer not incompetent to testify in action between drivers); Gieseke v. Hardware Dealers Mutual Fire Insurance Co., 61 Ill.App.2d 119, 124-25 (1965) (insurance agent not incompetent to testify in action against insurance company). That leaves only Plough's representative's challenge to Rodriguez.

         ¶ 9 Even though this was a subrogation case, all sides concede that Rodriguez was not, strictly speaking, a party to the action. However, Plough's representative argues that Rodriguez was directly interested in the outcome of this case and was ...


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