Jones v. O'Brien Tire and Battery Service Center, Inc.

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State: Illinois

Court: 5th District Appellate

Docket No: 5-04-0294 Rel

Case Date: 06/04/2007

Preview:NO. 5-04-0294
N O T IC E Decision filed 06/04/07. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ DEBORAH L. JONES, Individually and as Special Administrator of the Estate of Thomas R. Jones, Deceased, ) Appeal from the ) Circuit Court of ) Madison County. Plaintiff, ) ) v. ) No. 96-L-560 ) O'BRIEN TIRE AND BATTERY SERVICE CENTER, ) INC., and OHIO CASUALTY INSURANCE COMPANY, ) ) Defendants and Third-Party Plaintiffs-Appellees and ) Cross-Appellants, ) ) v. ) ) DAVE MACIOS, d/b/a Sugarloaf Landscape ) Nursery, ) ) Third-Party Defendant, ) ) and ) ) COUNTRY MUTUAL INSURANCE COMPANY, ) Honorable ) Nicholas G. Byron, Third-Party Defendant-Appellant and Cross-Appellee. ) Judge, presiding. ________________________________________________________________________ JUSTICE CHAPMAN delivered the opinion of the court: The parties to this appeal were all defendants in litigation arising from a fatal vehicle accident. O'Brien Tire and Battery Service Center, Inc. (O'Brien Tire), and Ohio Casualty Insurance Company (Ohio Casualty) filed a third-party complaint against Dave Macios and Country Mutual Insurance Company (Country Mutual) for negligent spoliation of evidence. Country Mutual appeals a judgment against it, arguing that the trial court erred in denying its motions for a judgment notwithstanding the verdict and a new trial. Country Mutual

disposition of the same.

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contends it was entitled to that relief because (1) it owed no duty to the third-party plaintiffs to preserve the evidence at issue, (2) it did not breach any duty it owed, (3) the third-party plaintiffs did not demonstrate that they had sustained any damages, (4) the actions of a nonparty were the sole proximate cause of the loss of the evidence, and (5) the jury's verdict was against the manifest weight of the evidence. Third-party plaintiffs O'Brien Tire and Ohio Casualty cross-appeal, arguing that (1) the trial court erred by instructing the jury that, if it found Country Mutual to be liable, it was to determine the amount of damages that would fairly and reasonably compensate the third-party plaintiffs (see Illinois Pattern Jury Instructions, Civil, No. 30.01 (2000) (hereinafter IPI Civil (2000)), (2) the court erred in denying their motion for leave to amend their complaint to add a count alleging willful and wanton spoliation of evidence, and (3) the court erred in denying their motion for leave to amend their complaint to request prejudgment interest. We affirm. I. BACKGROUND Country Mutual insured a truck owned by Dave Macios for use in his business, Sugarloaf Landscape Nursery (Sugarloaf). Mechanic Wesley Lowery, a Sugarloaf employee, was responsible for maintaining the business's vehicles. He performed minor repairs on the vehicles himself but took them to auto repair shops for major work. On September 7, 1994, Lowery took the truck to O'Brien Tire to have the tires inspected. The truck was a dualwheel truck, meaning that each rear axle held two wheels, side by side. Lowery asked Mark Buenger, the general operations manager at O'Brien Tire, to inspect the truck's tires and do whatever was necessary for the truck to pass a safety inspection. Buenger and his brother, Scott, replaced all four rear tires. They also replaced the two left rear wheels because they noticed that the wheels were a type of wheel that was obsolete and unsafe. On September 27, 1994, the left rear wheel assembly came off the truck, and the outer wheel struck a car driven by Thomas Jones. This caused Jones to collide with a tractor-trailer. He died as a

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result of his injuries. When Sugarloaf secretary Cathy Rothmeier reported the accident to Country Mutual, the case was assigned to claims adjustor Jerry Krone. Krone hired Tim Finley, an accident reconstruction specialist, to determine the likely cause of the accident. Finley visited Sugarloaf and inspected the truck and the wheels the day of the accident. He told Sugarloaf employees to keep the wheels. W ithin one week of the accident, Krone told Macios to preserve the wheels by keeping them "out of the weather". Macios stored both wheels, along with the truck, in an open barn. We note that, although both left rear wheels came off of the truck, it was the outer wheel that was critical to the case. On October 12, 1994, Krone sent Macios a letter, which read, in relevant part: "This will confirm my telephone conversation with your secretary, [C]athy[,] on October 10, 1994. In our conversation[,] I indicated to her it would be crucial for our case for you to retain the two wheels and tires which came off of your vehicle during this collision. I would ask that you label them clearly 'evidence, do not touch' and store them in a secure place so that they may not be tampered with in the event we need these as evidence in a trial situation. I would also ask that when you have your [truck] repaired that [ sic ] you save the wheel studs and attach them to the wheels and also mark them clearly as evidence for trial purposes." Macios testified that he did not receive this letter. Throughout the three months following the accident, Country Mutual was engaged in settlement negotiations with the Jones estate on behalf of M acios. M acios testified that, at least twice during this time, Macios asked Krone for permission to fix the truck, which he needed for use in his business. Repairing it entailed mounting a new wheel on the truck. It

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is not entirely clear whether both wheels were damaged and in need of replacement or only the outer wheel. Because the tire mounted to the outer wheel was not damaged in the accident, Macios intended to have it removed from the damaged wheel and mounted to a new wheel and then have the entire wheel assembly mounted again on the truck. It is not clear from the record why the truck had to remain out of service in order to preserve the evidence, apart from the expense of purchasing a new tire. According to Macios, each time he requested permission to get these repairs, Krone told him to wait. According to Krone, however, he never told Macios to wait to repair the truck. On November 3, 1994, Finley issued his report. He concluded that the accident was caused by (1) the failure of the wheel installer to tighten the lug nuts and (2) the failure of the driver to conduct a pretrip inspection. In mid-December 1994, according to Macios, he again asked Krone if he could have the truck repaired. This time, Krone told him yes. Although Macios did not specifically ask whether he could throw away the wheels and Krone did not explicitly state that he could, the truck remained out of service until this point precisely because Krone and Country Mutual had told Macios several times not to fix it. On December 29, 1994, Lowery took the truck to Patterson Brake and Front End Service (Patterson Tire) for repair. He did not take the truck to O'Brien Tire, the repair shop Sugarloaf ordinarily used for such repairs, because Krone had instructed Macios to take the truck elsewhere. The crucial outer wheel was apparently discarded by an employee of Patterson Tire. Krone denied telling Macios that he could repair the truck, that he could not repair the truck, or that he should not take the truck to O'Brien Tire for the repair. On February 28, 1995, Jones's widow, Deborah, brought suit on behalf of his estate against Macios and his insurer, Country Mutual. The parties reached a $475,000 settlement in that case on October 27, 1995. In a letter dated December 12, 1995, Country Mutual

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informed Macios that the suit against him had been settled and dismissed. The letter stated, "This litigation is now at an end and you need no longer concern yourself with it." On August 30, 1996, the Jones estate filed a suit against O'Brien Tire and its insurer, Ohio Casualty. The parties reached a $1.45 million settlement on October 29, 1998. On September 11, 1998, shortly before the settlement was reached, O'Brien Tire and Ohio Casualty filed a third-party complaint against Country Mutual and Macios and alleged negligent spoliation of evidence due to the loss of the wheels. The trial court granted Country Mutual's motion for a judgment on the pleadings and Macios's motion to dismiss. Ohio Casualty and O'Brien Tire appealed. We reversed on June 7, 2001, finding that the third-party complaint sufficiently stated a claim for negligent spoliation of evidence. Jones v. O'Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418, 425, 752 N.E.2d 8, 1415 (2001). On remand, in December 2003 and January 2004, Country Mutual filed motions for a summary judgment on the issues of causation and duty. In its motions, Country Mutual argued that it did not owe the third-party plaintiffs a duty to preserve evidence and that they failed to demonstrate that the loss of the wheels left them completely unable to present a defense in the underlying suit. On January 9, 2004, the third-party plaintiffs filed a motion for leave to amend their complaint to add a count alleging willful and wanton spoliation of evidence. The court denied all three motions on January 23, 2004. On February 5, the thirdparty plaintiffs filed a motion for leave to amend their complaint to add a request for prejudgment interest, which was also denied. On February 7, 2004, the case proceeded to a trial. At the opening of the trial, the court granted O'Brien Tire's oral motion to voluntarily dismiss Macios as a third-party defendant. On February 18, 2004, the jury returned a verdict of $475,000 in favor of O'Brien Tire and Ohio Casualty. The court entered a judgment on the verdict the following day.

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Country Mutual filed motions for judgment notwithstanding the verdict and a new trial, which the court denied. This appeal followed. II. COUNTRY MUTUAL'S APPEAL In order to prevail on a claim of negligent spoliation of evidence, a party must show that (1) the party alleged to have been negligent had a duty to preserve the evidence, (2) the party breached that duty, (3) the breach proximately caused an injury, and (4) the party seeking compensation for negligent spoliation suffered actual damages as a result. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 194-95, 652 N.E.2d 267, 270 (1995). In other words, regular negligence principles apply. Boyd , 166 Ill. 2d at 194, 652 N .E.2d at 270. Country Mutual contends that the third-party plaintiffs failed to demonstrate each of these elements. It also argues that it was entitled to a jury instruction on sole proximate cause and that the jury's verdict was against the manifest weight of the evidence. We address these contentions in turn. A. Duty to Preserve the Evidence Country Mutual first argues that it did not owe the third-party plaintiffs a duty to preserve the evidence. The general rule is that a party has no duty to preserve evidence. That duty may arise, however, if there is an agreement or contract between the parties imposing the duty, if the duty is imposed by statute, or if some other special circumstance warrants it. Boyd , 166 Ill. 2d at 195, 652 N.E.2d at 270-71. A duty to preserve evidence may also arise where a party voluntarily assumes the duty by its conduct. Boyd , 166 Ill. 2d at 195, 652 N.E.2d at 271. If any of these circumstances exist, a party owes the duty to preserve evidence if a reasonable person in that party's position should have foreseen that the evidence would be material to a potential lawsuit. Boyd , 166 Ill. 2d at 195, 652 N.E.2d at 271. The supreme court recently clarified the law regarding the duty to preserve evidence in Dardeen v. Kuehling , 213 Ill. 2d 329, 821 N.E.2d 227 (2004). There, the court explained

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that Boyd set out a two-prong test. Under the first prong, a spoliation plaintiff must demonstrate that at least one of the circumstances outlined in Boyd exists. Dardeen , 213 Ill. 2d at 336, 821 N.E.2d at 231. Under the second prong, the plaintiff must show that the duty extends to the specific evidence at issue by demonstrating that a reasonable person in the defendant's position should have known the evidence would be material to potential civil litigation. If the spoliation plaintiff does not satisfy both prongs of the test, there is no duty to preserve the evidence at issue. Dardeen , 213 Ill. 2d at 336, 821 N.E.2d at 231. At issue in Dardeen was the first prong of Boyd . There, the plaintiff was injured when he tripped on a hole in a brick sidewalk in front of the home of the defendant in the underlying action. After the plaintiff informed the defendant of his injuries but before he filed his premises liability suit, the defendant asked her insurance company if she could repair the sidewalk so that no one else would be injured. A claims adjustor told her to go ahead. Dardeen , 213 Ill. 2d at 331, 821 N.E.2d at 228. In his later spoliation claim against the insurance company, the plaintiff argued that the contractual relationship between the defendant in the underlying action and her insurance carrier satisfied the first prong of Boyd . Dardeen , 213 Ill. 2d at 336, 821 N.E.2d at 231. The supreme court first noted that the defendant's insurance contract could not be read to impose a contractual duty to preserve evidence for the plaintiff's benefit because he was not a party to that contract. Dardeen , 213 Ill. 2d at 336-37, 821 N.E.2d at 231-32. The court then rejected the plaintiff's argument that the relationship between the insured and the insurance carrier constituted a "special circumstance" under Boyd sufficient to impose a duty to preserve evidence. The plaintiff's argument was based on the nature of that relationship. Specifically, he argued that the carrier had the opportunity to control the defendant's actions with respect to the evidence at issue, thus giving rise to a duty to preserve it. That ability to control the evidence stemmed from the carrier's "authority to guide or manage the actions of

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its insured." Dardeen , 213 Ill. 2d at 337, 821 N.E.2d at 232. For our purposes, it is important to note what the Dardeen plaintiff did not argue

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