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Denton v. Universal Am-Can, Ltd.

Court of Appeals of Illinois, First District, Second Division

September 24, 2019

James DENTON and Theresa Denton, Plaintiffs-Appellees,
UNIVERSAL AM-CAN, LTD., a Corporation; David Lee Johnson; and Louis Broadwell, LLC, Defendants-Appellants.

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          Appeal from the Circuit Court of Cook County, No. 2015-L-1727; the Hon. Lorna E. Propes, Judge, presiding.

          Carlton D. Fisher and Stephen R. Swofford, of Hinshaw & Culbertson, LLP, of Chicago, and Morley Witus and Kevin M. Aoun, of Barris, Sott, Denn & Driker, PLLC, of Detroit, Michigan, for appellants.

          Robert J. Napleton, of Motherway & Napleton, L.L.P., of Chicago, Christopher T. Theisen and James M. Roche, of Theisen & Roche, of Wheaton, and Lynn D. Dowd, of Naperville, for appellees.


         LAVIN, JUSTICE.

         ¶ 1 Following a lengthy jury trial, plaintiffs, James and Theresa Denton, prevailed in their personal injury action against defendants, Universal Am-Can, Ltd. (UACL), Louis Broadwell, LLC (Broadwell), and David Lee Johnson (an employee of UACL and Broadwell),[1] for a vehicular accident that occurred in Jasper County, Indiana. Previously, we held that the substantive law of Indiana would govern this case in Denton v. Universal Am-Can, Ltd., 2015 IL App. (1st) 132905, ¶ 32, 389 Ill.Dec. 358, 26 N.E.3d 448 ( Denton I ). The jury awarded plaintiffs compensatory damages of $19,155,900, after it found that all defendants were negligent and that UACL was also negligent in hiring and retaining its employee, Johnson. In addition, the jury awarded punitive damages of $35 million, having determined that UACL's conduct was willful and wanton. Defendants subsequently moved for a judgment notwithstanding the jury's punitive damages verdict and a new trial. The trial court denied their motion and entered judgment in favor of plaintiffs.

         ¶ 2 Defendants now appeal, contending that the trial court failed to follow this court's mandate in Denton I when the trial

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court applied Illinois law to the issues of damages and admissibility of evidence related to the collateral source rule. Defendants also contend that the jury's punitive damages award is excessive, unsupported by the evidence, and fomented by inflammatory statements made by plaintiffs' counsel during closing argument. Last, they contend that Indiana law precludes recovery of the damages against UACL attributable to negligent hiring and retention because UACL admitted vicarious liability for Johnson's actions. For the reasons that follow, we affirm.

         ¶ 3 BACKGROUND

         ¶ 4 UACL Hires Johnson

         ¶ 5 Even though this is the second time we will consider this matter, we will examine the facts fully because it is readily apparent that the facts as stated in the first appeal were inaccurately presented to this court based on incorrect facts and conclusions in a police report. Here, we will report the accurate evidence that was adduced at trial.

         ¶ 6 UACL is an international trucking company that leased semitrailers from Broadwell, an independent contracting company, to carry and transport freight. Johnson applied to be a commercial truck driver for UACL on January 19, 2010. At that time, Nicole Perttunen, a safety coordinator for UACL,[2] reviewed Johnson's application. Her duties included determining whether Johnson was qualified to work for UACL based on the company's well-established safety standards. She would then either accept or reject his application. As part of that process, Perttunen obtained Johnson's driver qualification file from one of UACL's recruiters, which consisted of his certified application, motor vehicle record and background check, among other things. Johnson's file revealed the following disturbing negative information.

         ¶ 7 Johnson held a commercial driver's license from South Carolina even though he had never completed a truck driving course. Within three years of applying to UACL, Johnson was involved in four accidents, had three moving violations, and had his license suspended twice. Johnson's application only listed two accidents, no moving violations, and one license suspension. Within 10 years, he was employed by seven different companies, but his application listed six. And even though his application listed one termination, Johnson testified that he was never fired. Conversely, Johnson was actually terminated from four of those seven companies for reasons that included tailgating a motorist, a felony conviction, too many points on his license, and crashing into a vehicle after refusing to let it merge onto an interstate ramp. Regarding the last incident, Johnson testified, "I don't have to let nobody off a ramp."

         ¶ 8 In the seven years prior to applying at UACL, Johnson was convicted of nine traffic-related offenses, notably, three for speeding and one for speeding more than 10 miles per hour over the speed limit. Additionally, he was convicted of disobeying an official traffic device, failing to pay a speeding ticket or otherwise appear, turning unlawfully, improperly parking, and not wearing a seatbelt. Johnson was also convicted of four counts of "felony reckless aggravated assault" on November 29, 2004, for attempting to break, with a tire thumper, the headlights on a vehicle occupied by four women. Johnson testified that while he was driving a truck, a car was

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tailgating him on the highway with its high beams on so he pulled off "to bust its headlights * * * for blinding [him]." Johnson testified that as a result of the conviction, he learned to ignore those "ignorant people, out [there] on the interstate, that don't know nothing about driving a truck." Three weeks later, Johnson was convicted of "misdemeanor assault and battery of high and aggravated nature."

         ¶ 9 Perttunen testified that Johnson's felony conviction, having occurred within the last 10 years, automatically disqualified him under UACL's safety standards.[3] Consequently, she rejected his application. After Perttunen rejected any potential employee application, the process called for a recruiter to put that driver's qualification file into the company's "no-hire" file and inform the applicant of UACL's decision. Instead, the file went to Doug Moat, UACL's safety director. Moat acknowledged Perttunen's "unequivocal" rejection but nonetheless considered Johnson's application. Moat admitted that Johnson was but a "marginal candidate," conceding that UACL was forced to accept "marginal drivers" in order to make a profit. Regarding Johnson's felony conviction, Moat testified that it was "directly related" to Johnson's occupation as a professional truck driver. Furthermore, Moat agreed that Johnson "never should have been allowed to drive a UACL rig" under the company's standards. Yet, he still hired Johnson on February 3, 2010.

         ¶ 10 UACL Retains Johnson

         ¶ 11 Pursuant to UACL's policy, drivers were required to attend a safety orientation within a week of being hired. Johnson took a slower approach, waiting nearly a month to attend. Johnson received five warning violations a few weeks later and consequently was put on probation for six months. During that time, Johnson was required to attend a safety meeting before he could be dispatched. Furthermore, Moat advised Johnson: "If you have any additional moving violations, accidents or safety incidents, we will be forced to revoke your driving privileges under [UACL] authority." Johnson failed to attend the mandatory safety meeting and, within weeks, received a speeding ticket, three moving violations, a logbook violation, and had his license suspended over the next nine months. UACL not only continued to employ Johnson, but it also dispatched Johnson while his license was suspended. Moat testified that after Johnson was hired, UACL "never ran" his motor vehicle report or monitored his license, which meant that UACL never made itself aware of the various deficiencies detailed there.

         ¶ 12 UACL also had a policy that assessed a different number of points for every violation, accident, or safety incident. For each instance, the corresponding number of points would be added to the driver's record where it would remain for 30 months. According to Moat, a driver who had more than 30 points on his record would be terminated. As for Johnson, he was not terminated despite having at least 36 points on his record that year.

         ¶ 13 Accident

         ¶ 14 On February 8, 2011, George Kallis, now deceased, was driving the wrong way on an interstate highway in Indiana. As a result, two vehicles swerved off the road but effectively avoided Kallis and any other vehicles. Meanwhile, Johnson was in the left ...

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