author: JUSTICE MURRAY

text:
    NATIONAL RAILROAD PASSENGER CORPORATION, a/k/a Amtrak, et al., Plaintiffs-Appellants, v. CONTINENTAL INSURANCE COMPANY, Defendant-Appellee (Illinois Insurance Guaranty Fund et al., Defendants).
    First District (5th Division)
    No. 1—92—0573
    Opinion filed November 13, 1992.
    Rehearing denied December 16,1992.
    Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, Richard F. Johnson, and Mary Pat DeChant, of counsel), for appellants.
    Michael Resis, of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiffs, National Railroad Passenger Corporation, a/k/a Amtrak (Amtrak), and Illinois Central Gulf Railroad Company (ICG), appeal from an order of the circuit court which granted defendant, Continental Insurance Company (Continental), summary judgment in its favor in a declaratory judgment action brought to determine insurance coverage. The underlying cause of action involving the other named defendants still pends in the lower court. Jurisdiction is vested in this court, however, because the trial court found that there was no just reason to delay enforcement or appeal. 134 Ill. 2d R. 304(a).

The facts of this case are as follows.

On July 23, 1983, Grane Leasing Corporation (Grane) leased an International Harvester delivery van, bearing 1983 Illinois registration No. 11342J and serial No. AA 185 JHA 20577, to Mickey L. Pursley (Pursley) and Marquette Motor Systems (Marquette). According to the leasing agreement, the “renter,” i.e., Pursley and Marquette, agreed to provide all insurance.

On July 28, 1983, Pursley, while driving the leased van in the course of his employment with Marquette, collided with Amtrak passenger train No. 301 at the New River Road crossing near Wilmington, Illinois. As a result of the collision, the train derailed and several Amtrak passengers were injured.

On December 31, 1987, Amtrak and ICG (plaintiffs) filed a complaint for declaratory judgment against Continental and Mission National Insurance Company (Mission) seeking a declaration that Grane was covered by a valid contract for liability insurance through a primary policy with Continental and an umbrella policy with Mission and that Pursley and Marquette, as permissive users of the leased vehicle, were additional insureds under these policies. Amtrak alleged in the complaint that it sustained property damage in excess of $1.6 million, that ICG sustained property damage in excess of $36,000, and that Amtrak had already paid in excess of $444,000 to settle the claims of passengers, with additional claims still pending.

Mission was in liquidation at the time and subject to the State Liquidation Court of California. Consequently, on March 1, 1989, Amtrak and ICG moved to dismiss Mission and amend the complaint to name the Illinois Insurance Guaranty Fund (IIGF) as a party defendant. The motion was granted, and on May 8, 1989, the amended complaint was filed.

On October 2, 1989, IIGF moved to dismiss the amended complaint contending that the declaratory action was improper because it failed to allege an actual controversy and because it was an impermissible direct cause of action against an insurer.

In response, Amtrak and ICG filed, on November 8, 1989, a second amended complaint in which they contended that they had made a demand upon Continental and Mission insurance companies to defend and indemnify Pursley and Marquette but that neither insurance company had done so and that this created an actual controversy over insurance coverage.

On April 12, 1990, IIGF again moved to dismiss the complaint, asserting, in addition to the reasons set forth in the previous motion, that plaintiffs had no standing to bring the declaratory action. Plaintiffs then moved to file a third amended complaint in response to the motion to dismiss. In the third amended complaint plaintiffs contended that their declaratory action was not improper. First they cited to Williams v. Madison County Mutual Automobile Insurance Co. (1968), 40 Ill. 2d 404, 240 N.E.2d 602, and Reagor v. Travelers Insurance Co. (1980), 92 Ill. App. 3d 99, 415 N.E.2d 512, for the proposition that they, as injured claimants, were proper parties to a declaratory action. Next, plaintiffs indicated that judgments had been entered against Pursley and Marquette in at least two negligence actions; thus, the declaratory action was neither premature nor speculative. Finally, plaintiffs cited to Reagor for the proposition that a declaratory judgment action which seeks a determination of insurance coverage is proper in cases such as this.

On August 15, 1990, IIGF moved to dismiss the third amended complaint, raising the same issues as in its previous motions to dismiss, but also asserting that the complaint should be dismissed for failure to join the insureds as party defendants. This motion to dismiss was later abandoned based upon plaintiffs’ representation that a fourth amended complaint would be filed.

On December 12, 1990, plaintiffs sought leave to file a fourth amended complaint. The motion was granted December 21, 1990, and on March 28, 1991, a fourth amended complaint was filed in which Marquette, Pursley and Grane were added as party defendants. In addition, plaintiffs indicated in this fourth amended complaint that a cause of action had been initiated by plaintiffs against Pursley and Marquette for damages arising out of the July 28, 1983, accident and that neither Continental nor IIGF had undertaken the defense.

On April 9, 1991, Continental brought a motion for summary judgment stating that no issues of material fact existed and that the court should find as a matter of law that the Continental insurance policy did not provide liability coverage for the benefit of Pursley or Marquette at the time of the railroad accident. In essence, Continental’s position was that, due to a reciprocal coverage clause in its policy, the Continental policy issued to Grane did not cover Pursley and Marquette because plaintiffs did not produce or allege that any policies of insurance existed which where issued to Marquette and Pursley and which insured Grane on a primary basis.

Plaintiffs opposed the motion for summary judgment in a response filed May 17, 1991. In the response plaintiffs argued that Pursley and Marquette were additional insureds under the Continental policy and that Pursley and Marquette were, in fact, covered by policies of insurance issued by Casualty Insurance Company (Casualty) and the General Insurance Company of Trieste and Venice (General), which also provided primary coverage for Grane.

Continental filed a reply in support of its motion for summary judgment in which it disputed plaintiffs’ claim that Grane was provided primary coverage under either the Casualty or General policies. Proceedings were held regarding Continental’s motion for summary judgment on June 19, 1991. After the proceedings the trial court granted Continental’s motion for summary judgment, finding that Continental owed no liability coverage for the July 28, 1983, railroad accident. The trial court agreed that, based upon the reciprocal clause in the Continental insurance policy, liability coverage was extended to Pursley and Marquette only if Grane was insured on a primary basis under one of their policies. Since the court held that Grane was not an insured under either policy issued to Marquette, the court held that the Continental policy was not implicated.

Continental later moved to have Rule 304(a) language placed in the order granting them summary judgment, and this motion was granted on January 17, 1992. Also in the January 17 order, IIGF’s motion to dismiss the fourth amended complaint was denied and the action apparently still pends against it in the lower court. On February 14, 1992, Amtrak and ICG filed their notice of appeal.

The only issue raised in the appeal is whether the trial court erred in granting Continental’s motion for summary judgment. Amtrak and ICG contend that the reciprocal coverage provision in Continental’s policy was satisfied by the policy of insurance issued to Marquette by either Casualty or General, or both. Plaintiffs contend that Grane was covered on a primary basis under one or both of these policies of insurance issued to Marquette and, therefore, Continental’s policy should reciprocate and provide liability coverage for Pursley and Marquette with regard to the July 28, 1983, accident.

The three policies of insurance at issue here are the Continental policy issued to Grane and the Casualty and General policies issued to Marquette.

The Continental policy provided:

“Part IV. Liability Insurance
* * *
D. Who is an Insured.
1. You are an insured for any covered auto.
2. Anyone else is an insured while using with your permission a covered auto you own, hire, or borrow ***.”
The policy’s reciprocal coverage provision states as follows:
“None of the following is an insured:
1. Any trucker, or his or her agents or employees other than you and your employees;
* * *
b. If the trucker is insured for hired autos under an auto liability insurance policy which does not insure on a primary basis the owners of the autos and their agents and employees while the autos are being used exclusively in the trucker business and over a route or territory the trucker is authorized to serve by public authority.”

It is the above-quoted reciprocal clause upon which Continental relies to show that Pursley and Marquette are not additional insureds under their policy with Grane. Continental argues that, pursuant to the reciprocal clause, because Pursley and Marquette are truckers who are not employees of Grane, they are not insured under the Continental policy unless they are insured by a policy which reciprocates, i.e., insures Grane (the owner of the auto) on a primary basis.

Both the trial court and plaintiffs agree that this reciprocal clause validly limits coverage based upon the existence of primary coverage afforded to Grane by Marquette. Consequently, the issue is not whether the reciprocal clause is effective or enforceable. Rather, the issue is whether the policies of insurance issued to Marquette covered Grane on a primary basis. A second question is what does it mean to insure the owner “on a primary basis.” Continental’s response at oral argument was that primary coverage was “the first line of coverage.” However, that does not really answer the question.

Marquette’s policies of insurance were provided by Casualty and General. The Casualty policy is an expansive one which takes up more than 50 pages of the record. It appears to provide comprehensive and collision protection for Marquette’s fleet, which consists of a large number of leased vehicles. The leased vehicles are listed separately, by lessor, and are identified by model, type and identification number. The International Harvester van that was involved in the railroad accident at issue here was not among the listed insured vehicles. Nevertheless, plaintiffs rely upon a schedule in the policy entitled “Truckmen — Gross Receipts and Mileage Basis” as support for their contention that Grane was an insured under the policy.

This schedule (which is an endorsement which modifies the general policy of insurance) states as follows:

“It is agreed that such insurance as is afforded by the policy applies with respect to any owned automobile, hired automobile and, while being used in the business of the named insured, any non-owned automobile, subject to the following provisions:
1. With respect to insurance for bodily liability and for property damage liability afforded by this endorsement the ‘Persons Insured’ provision of the policy is replaced by the following:
PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below:
* * *
(d) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a), (b), or (c) above.” (Emphasis added.)

Continental appears to concede that pursuant to this provision “Grane could qualify as an additional insured ‘but only with respect to’ its liability for the acts or omissions of Pursley and Marquette.” (Continental brief, at 12.) Nevertheless, Continental contends, and the trial court held, that because Grane was not legally liable for the acts or omissions of Pursley and Marquette (Grane had been granted summary judgment in an earlier proceeding) it was not an insured under the policy and the reciprocal clause of the Continental policy was not triggered.

With regard to the General policy, there is no dispute that the policy of insurance issued by General to Marquette was written as an umbrella policy providing excess coverage over that provided by Casualty. However, plaintiffs assert that the policy contained language which converted the policy into a policy providing primary coverage in those instances where the underlying coverage was unavailable. The provision relied upon is section III, entitled “LIMIT OF LIABILITY,” and states as follows:

“The Company shall only be liable for the ultimate net loss the excess of either
(a) the limits of the underlying insurances as set out in the attached schedule in respect of each occurrence covered by said underlying insurances.
or
(b) the amount as set out in Item 2(c) of the Declarations [the deductible] ultimate net loss in respect of each occurrence not covered by said underlying insurances.”

Neither Continental nor the trial court addressed this provision. They merely relied on the fact that the policy was an umbrella policy. Furthermore, Continental appears to concede that Grane would be an insured under paragraph (d) of the General policy. Nevertheless, Continental contends that the trial court properly held that because the policy is an umbrella policy it does not afford Grane primary coverage and, thus, does not trigger the reciprocal clause.

In light of the policies of insurance and the provisions of these policies which have been cited above, we must disagree with the trial court’s ruling and Continental’s position on appeal. As plaintiffs argue, we believe that the term “on a primary basis” in the reciprocal clause of Continental’s policy required only that Grane be afforded first-line coverage or liability protection by Marquette’s insurance in the event that it was held liable or accountable for any acts or omissions of a trucker who leased Grane’s equipment and used the equipment in the furtherance of the trucker’s business. The fact that Grane did not incur any liability in this case is not relevant. Because it seems clear to this court that the Casualty insurance policy did encompass Grane as an additional insured and that, even if the Casualty policy of insurance somehow failed, the General policy provided insurance for Grane, we find that the reciprocal clause of the Continental policy was satisfied. Thus, we find that Pursley and Marquette were additional insureds under the Continental policy of insurance.

The order granting Continental summary judgment is reversed and the case remanded for further proceeding consistent with this opinion.

Reversed and remanded.

McNULTY, EL, and LORENZ, J., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    YELLOW CAB COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jeanette Janvier, Indiv. and as Mother and Natural Guardian, et al., Appellees).
    First District (Industrial Commission Division)
    No. 1—91—2340WC
    Opinion filed November 20, 1992.
    Rehearing denied January 25,1993.
    Sonnenschein, Nath & Rosenthal, of Chicago (Richard L. Marcus and Deborah M. Neyens, of counsel), for appellant.

      Laks & Forman, of Chicago (Perry M. Laks and Norman Matthew, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The employer, Yellow Cab Company, appeals the circuit court’s confirmation of an Illinois Industrial Commission (Commission) decision which held that the decedent Jean K. Janvier (hereinafter referred to as claimant) was the employer’s employee, and accordingly, awarded benefits to claimant’s dependents. We affirm.

The pertinent facts are as follows. Claimant drove a taxicab for 2½ years prior to his death on September 10, 1987. Claimant’s widow, Jeanette Janvier, testified that claimant drove a cab seven days a week, from about 7 a.m. to 10 or 10:30 p.m. He drove the same cab every day, which he parked in front of their residence. At times, claimant used the cab for personal errands, such as driving her to work or driving to the babysitter’s.

Claimant had possession of the vehicle through a lease arrangement with the employer. The lease, which was entered into evidence, included an option to purchase the vehicle (although not the meter and medallion affixed thereto). Additionally, claimant and the employer entered into daily leases. The daily lease form, also entered into evidence, provided that the parties did not have an employer-employee relationship, and that the employer did not have the right to control or supervise claimant in the use of the vehicle. Further, the daily lease provided that claimant did not have to use the vehicle for a determined period of time or in a given geographical area, that claimant did not receive compensation directly from the employer, and that claimant was not required to report his earnings from the use of the vehicle. Gasoline and regular operating and maintenance expenses were claimant’s responsibility under the lease.

However, the lease did provide that during the term of the lease, claimant was required to keep the cab and meter in safe and satisfactory repair and running condition, to allow the employer to install and maintain advertising signs, and to allow the employer to inspect the vehicle. Claimant was not allowed to let anyone drive the vehicle other than a sublessee which the employer authorized. Nor was claimant allowed to make any changes in the body of the vehicle, except for replacements of original parts. The employer insured claimant for liability damages and reserved the right to terminate the lease if claimant violated any of the terms of the lease.

On September 10, 1987, claimant was fatally shot while in his taxicab. Police investigation revealed that claimant was the victim of a robbery.

The sole issue presented is whether the Commission’s determination that claimant was an employee of the employer for purposes of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) (the Act) was erroneous. This issue has been addressed, albeit under slightly differing factual scenarios, by the courts of this State on several occasions. See Globe Cab Co. v. Industrial Comm’n (1981), 86 Ill. 2d 354, 427 N.E.2d 48; Morgan Cab Co. v. Industrial Comm’n (1975), 60 Ill. 2d 92, 324 N.E.2d 425; Penny Cab Co. v. Industrial Comm’n (1975), 60 Ill. 2d 217, 326 N.E.2d 393; Yellow Cab Co. v. Industrial Comm’n (1984), 124 Ill. App. 3d 644, 464 N.E.2d 1079.

Initially, we note that the lease agreement expressly disclaims an employer-employee relationship between the parties. Such a disclaimer was also present in Globe and Yellow Cab, and those courts affirmed Commission decisions holding that the claimants were employees nonetheless. Such a disclaimer “is not dispositive of the claimant’s status under the Act” (Yellow Cab, 124 Ill. App. 3d at 647), and we must look to other factors and the actual relationship of the parties to resolve the issue.

In Morgan, the court observed the following with respect to the determination of whether a cab driver is an employee or an independent contractor:

“No one factor may determine what relationship is between parties in a given case. It may be necessary to consider a number of factors with evidentiary value, such as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required in the work to be done, and who provides tools, materials, or equipment. Of these factors the right to control the manner in which the work is done is the most important in determining the relationship.” Morgan, 60 Ill. 2d at 97-98.

In the present case, while the employer did not pay claimant on a regular basis from its own coffers, it had a right akin to discharge, in that the lease provides that the employer could terminate it with or without cause. The skill level of driving a cab is less than expert and unusual, which favors the finding of an employer/employee relationship. Further, the employer provided the tools necessary to the work — the vehicle, medallion and meter.

In resolving the control factor, courts in taxicab cases have been heavily influenced by: (1) whether the driver accepted radio calls from the company; (2) whether the driver had his radio and cab repaired by the company; (3) whether the vehicles were painted alike with the name of the company and its phone number on the vehicle; and (4) whether the company could refuse the driver a cab. (See Morgan, 60 Ill. 2d 92, 324 N.E.2d 425; Penny, 60 Ill. 2d 217, 326 N.E.2d 393.) The courts are also influenced by control over work shifts and assignments, requirements that gasoline be purchased from the company garage, repair and tow service that is supplied by the company for the vehicle, requirements that drivers be courteous to customers, and the right to discharge the driver or cancel the lease. (See Globe, 86 Ill. 2d 354, 427 N.E.2d 48; Yellow Cab, 124 Ill. App. 3d 644, 464 N.E.2d 1079.) Additionally, the Yellow Cab court was influenced by the fact that the claimant could not sublease the cab, and that company roadmen filled out reports about the cab’s condition. (Yellow Cab, 124 Ill. App. 3d at 647.) An important consideration of these courts was resolution of the question of whether the cab company was “in the business of operating a fleet of cabs for public use” or “in the business of simply leasing vehicles with no interest in their operation as taxis.” Morgan, 60 Ill. 2d at 101; Globe, 86 Ill. 2d at 362-63. See also Yellow Cab, 124 Ill. 2d at 647-48.

In the case sub judice, the employer, noting that some of the factors present in the above cases are not present here, argues that the Commission was in error to determine that claimant was an employee. The employer argues that no consideration flowed to the employee, as is necessary in an employment relationship. According to the employer, claimant was not even an independent contractor, but was a mere lessee, as one who rents a vehicle from such well known rental car companies as Hertz or Avis.

While the case is close, we conclude that the Commission’s determination of claimant’s employment status is not against the manifest weight of the evidence. There is no inflexible rule applicable to all situations to determine whether an individual is an employee or has some other status. In Morgan, the court, quoting Lawrence v. Industrial Comm’n (1945), 391 Ill. 80, 84, observed:

“ ‘The existence of the master and servant relationship is primarily, in any given case, a question of ultimate fact, involving in its determination a conclusion derived from a consideration of all the evidentiary facts disclosed by the evidence, in connection with the application of principles of law to the consideration of the evidence. [Citations.]
The rule is well settled that it is the province of the Industrial Commission to draw reasonable inferences and conclusions from evidentiary facts, and the courts are not privileged to set aside the findings of the [Commission unless they are manifestly against the weight of the evidence.’ ” (Morgan, 60 Ill. 2d at 97.)

The court further stated that “ ‘[i]f the undisputed facts permit an inference either way *** then the Commission alone is empowered to draw the inference and its decision as to the weight of the evidence will not be disturbed on review.’ ” Morgan, 60 Ill. 2d at 97, quoting Greenberg v. Industrial Comm’n (1961), 23 Ill. 2d 106, 108.

Unquestionably, several factors which other courts have relied upon in analyzing the control factor, such as the requirement that gasoline be purchased and repairs done at the employer’s garage, use of radio assignments or control of shifts and assignments, are not present in this case. However, several of the most important factors which courts have relied upon in determining that an employer/employee relationship existed between the parties do indeed exist in the present case. Here, claimant was required to keep the vehicle in running condition, and the employer had the right to inspect the vehicle, sign and meter at a time and place the employer designated. Claimant was required to keep the employer’s name upon the vehicle and could not paint it any color other than yellow. The employer was entitled to terminate the lease “with or without cause,” a provision that suggests an employer/employee relationship. Subletting of the vehicle to any other than an employer-authorized individual (with a valid public chauffeur’s license) was prohibited.

What the foregoing establish, contrary to the employer’s arguments, is that it was not simply in the business of leasing vehicles. If the employer was, it would not be necessary for it to insist that its name and trademark be prominently placed upon the vehicle, that it inspect the vehicle to determine if it was in running condition, and that the “taxi” sign, meter and medallion be attached. Indeed, the lease itself established that the employer was in the business of providing a fleet of cabs. It states: “Lessee thereby and hereby leases the Automobile as a taxicab.” Additionally, the employer secured liability insurance, a prerequisite for continued leasing. It cannot be doubted that the employer received goodwill from claimant’s operation of the vehicle, which advertised the employer’s business. While it may or may not be true that the employer, as it asserts in its brief, did not insist that an individual actually operate the vehicle as a taxicab, we need not address such a scenario. (We note that this assertion is in contradiction to both the express language of the lease agreement itself, which provides that the vehicle was leased as a taxicab, and the raison d’etre of some of the lease’s requirements.) Here, in accordance with the lease agreement, there was testimony that claimant operated the cab up to 15 hours a day, notwithstanding occasional personal errands in the vehicle, and there is no issue as to whether claimant’s death occurred while he was operating the vehicle as a taxicab.

Of further support for our holding is our recent case of Peesel v. Industrial Comm’n (1992), 224 Ill. App. 3d 711. In Peesel, we noted with respect to cases involving this issue: “Of growing importance is the nature of claimant’s work in relationship to the employer’s business.” (Peesel, 224 Ill. App. 3d at 716.) The driving of the taxicabs of the fleet is certainly an integral part of the employer’s business, and there is no other channel in this case through which the costs of claimant’s work-related death can flow. In Peesel, we held that an employment relationship existed between claimant and a hauling company (for whom claimant worked pursuant to equipment lease). The “essential element of business” rule in that case provides further authority for affirmance.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH, RJ., and WOODWARD, STOUDER, and LEWIS, JJ., concur.


author: PRESIDING JUSTICE McNULTY

text:
    SHIRLEY GREEN, Plaintiff-Appellant, v. HENRY BERNSTEIN, Defendant-Appellee.
    First District (5th Division)
    No. 1—91—2169
    Opinion filed November 20, 1992.
    Gary B. Friedman, Ltd., of Chicago (Jay R. Giusti, of counsel), for appellant.
    Rooks, Pitts & Poust, of Chicago (Patricia Cari Nowak, of counsel), for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Shirley Green appeals the trial court’s entry of judgment in favor of defendant Dr. Henry Bernstein in this medical malpractice action. Specifically, plaintiff appeals the trial court’s finding that the jury’s answer to the special interrogatory was inconsistent with and, therefore, controlled the general verdict on behalf of plaintiff.

According to the evidence adduced at trial, plaintiff injured her right knee at work on March 26, 1982. She visited Dr. Bernstein, an orthopedic surgeon, on March 29, 1982, and Dr. Bernstein recommended that plaintiff undergo arthroscopic surgery on her knee, both for treatment and diagnostic purposes.

Plaintiff was admitted to Gottlieb Memorial Hospital, and on April 2, 1982, Dr. Bernstein performed arthroscopic surgery on plaintiff’s knee. During this surgery, Dr. Bernstein inserted two drainage tubes in plaintiff’s knee. Plaintiff claimed that she was unaware that these tubes were placed in her knee until April 3, 1982, when Dr. Bernstein told plaintiff that he was removing the drainage tubes from her knee. Plaintiff continued to experience pain and swelling in her knee.

In June of 1982, plaintiff was involved in an automobile accident and was admitted to Northwest Hospital. Dr. Cheronis treated plaintiff for the neck and back injuries she received from the accident. While in the hospital, plaintiff requested that an X ray be taken of her right knee. There was conflicting testimony as to when plaintiff learned that a drainage tube remained in her knee. Plaintiff testified that nobody told her the results of the X ray and that she never asked about the X ray, assuming that if the X ray revealed anything unusual, she would have been notified. Dr. Cheronis, however, testified that although he made no notation in the hospital records or his own patient records regarding the results of the X ray, he did inform plaintiff within a day or two of the June 23, 1982, X ray that the X ray revealed the presence of one 3.5-centimeter piece of a drain in plaintiff’s right knee.

After plaintiff’s discharge from Northwest Hospital she continued to experience pain and swelling in her right knee and continued to see Dr. Bernstein regarding the problem. Plaintiff testified that in March 1983 she reviewed her Northwest Hospital records and discovered a reference to the presence of a drainage tube in her knee. She then showed the records to Dr. Bernstein and Dr. Bernstein recommended removal of the drain fragments. In November 1983 plaintiff had two procedures performed by Dr. Bracketto to have the tube fragments removed.

Plaintiff sued defendant for malpractice and the jury returned a verdict in favor of plaintiff and against defendant, assessing damages for the pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injury in the amount of $85,000. A special interrogatory was submitted to the jury which inquired: “Did Ms. Green know on or before June 25, 1982 that there was a drain in her right knee?” The jury answered “Yes” to the special interrogatory. Judgment was entered on behalf of defendant and against plaintiff.

We must determine whether the trial court properly found that the jury’s answer to the special interrogatory was inconsistent with the general verdict and that plaintiff’s suit was barred by the statute of limitations. For the reasons which follow, we affirm the decision of the trial court.

Plaintiff now raises two objections to the form of the special interrogatory. She first contends that the special interrogatory was ambiguous since it could have been interpreted to ask whether plaintiff knew before June 25, 1982, that drains were placed in her knee or to ask whether plaintiff knew before June 25, 1982, that the tubes were retained in her knee. Plaintiff next contends that the special interrogatory was improper since it only asked when plaintiff obtained knowledge of the injury and not when she obtained knowledge that the injury was wrongfully caused.

During the instruction conference, when the special interrogatory was initially tendered to the court by counsel for defendant, counsel for plaintiff informed the court that he had no objection to the interrogatory. The attorneys then discussed whether June 25, 1984, fell on a Saturday or Sunday and the fact that plaintiff could not be held to have filed her complaint on a weekend. Counsel for defendant then withdrew the special interrogatory in order to determine on what day June 25, 1982, fell. After investigation, the special interrogatory was resubmitted to the court at which time the only response offered by plaintiff’s counsel was “I just have an objection.”

Plaintiff’s general objection was simply insufficient for purposes of preserving his objections for appeal. It is well settled that a failure to specifically object to a special interrogatory will waive any objection in the giving of that special interrogatory. (LaPook v. City of Chicago (1991), 211 Ill. App. 3d 856, 570 N.E.2d 708; Falkenthal v. Public Building Comm’n (1982), 111 Ill. App. 3d 703, 444 N.E.2d 498.) It is thus abundantly clear that plaintiff waived any objection to the special interrogatory since none of the specific issues raised in this appeal were raised by plaintiff’s counsel at the instruction conference.

We also note that even if plaintiff had not waived her objections to the special interrogatory, these objections would not have been successful. Counsel’s arguments to the jury made it perfectly clear that the special interrogatory referred only to the date plaintiff discovered that the tubes had been retained, and not to the date plaintiff discovered the tubes had been inserted. Furthermore, plaintiff cites Aspegren v. Howmedica, Inc. (1984), 129 Ill. App. 3d 402, 472 N.E.2d 822, as supportive of her argument that the special interrogatory should have asked both when plaintiff discovered her injury and when plaintiff discovered that the injury may have been wrongfully caused. However, when an injury is caused by a sudden, traumatic event, the cause of action accrues and the limitations of the statute begin to run on the date the injury occurs. (Bates v. Little Co. of Mary Hospital (1982), 108 Ill. App. 3d 137, 438 N.E.2d 1250.) The classification of an injury as “traumatic” or “nontraumatic” only aids in the determination of when plaintiff discovered or should reasonably have discovered that the injury was caused by a defendant’s wrongful conduct. Kristina v. St. James Hospital (1978), 63 Ill. App. 3d 810, 380 N.E.2d 816.

Based on the facts here, we find that plaintiff’s knowledge that a drainage tube remained in her knee was sufficient to put plaintiff on notice that the injury was negligently caused. In fact, plaintiff’s counsel admitted in his closing argument:

“If Shirley Green really knew that those drain fragments were in her knee, I think we all know she would have complained to Dr. Bernstein. She would have brought it up in some manner ***. If Shirley Green would have known, she would have done something. It’s just illogical that she would have known and just sat around.”

Plaintiff's knowledge that the tubes remained in her body imparted to plaintiff the knowledge that her injury was the result of a traumatic event and such knowledge triggered the running of the period of limitation.

Accordingly, the only necessary inquiry for the jury was whether plaintiff knew she had a drain in her knee on or before June 25, 1982. Faced with the conflicting testimony of plaintiff and Dr. Cheronis, the jury obviously believed the testimony of Dr. Cheronis that he had advised plaintiff of the X-ray report on or before June 25, 1982. It is not our position to second guess the jury’s determination of the credibility of witnesses, nor the decisions they make from their credibility determinations. Perry v. Storzbach (1990), 206 Ill. App. 3d 1065, 565 N.E.2d 211.

Finally, plaintiff cites Daly v. Carmean (1991), 210 Ill. App. 3d 19, 568 N.E.2d 955, for the principle that a continuing course of treatment for the same condition tolls the triggering of the medical malpractice statute of limitations. Although plaintiff continued to be treated by Dr. Bernstein for the same condition through September 15, 1983, plaintiff has neglected to note that the continuous care doctrine tolls the statute of limitations until the last day of treatment unless plaintiff discovered earlier that her treatment had been negligent. (Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 544 N.E.2d 846.) Given the fact that the jury responded affirmatively that plaintiff knew of her cause of action on or before June 25, 1982, plaintiff had two years from June 25, 1982, within which to file suit. (Ill. Rev. Stat. 1989, ch. 110, par. 13—212(a).) Unfortunately, plaintiff did not file her complaint until June 26, 1984. Accordingly, the trial court properly found that based on the jury’s answer to the special interrogatory, plaintiff’s claim was time-barred and entered judgment in favor of the defendant.

Affirmed.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE LORENZ

text:
    STEINROE INCOME TRUST, on Behalf of its Series of Shares Designated Steinroe Cash Reserves, the successor in interest to Steinroe Cash Reserves, Inc., Plaintiff-Appellee, v. CONTINENTAL BANK N.A., f/k/a Continental Illinois National Bank and Trust Company of Chicago, a subsidiary of Continental Illinois Corporation, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—3375
    Opinion filed November 20, 1992.

      Franklin R Auwarter and James C. Schroeder, both of Mayer, Brown & Platt, of Chicago, for appellant.
    Paul T. Lively, of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court;

After an unidentified culprit absconded with the proceeds of a check, plaintiff, as drawer of the check, sued defendant, the collecting bank, seeking to enforce the presentment warranties under sections 3—417(1)(a) and 4—207(1)(a) of the Illinois Uniform Commercial Code (Ill. Rev. Stat. 1989, ch. 26, pars. 3—417(1)(a), 4—207(1)(a)). The trial court entered summary judgment in favor of plaintiff and defendant appealed. We consider whether plaintiff, as drawer of the check, had standing to enforce the presentment warranties under sections 3—417(1)(a) and 4—207(1)(a).

We reverse.

After the death of her husband, Mary B. Dybas filed a claim on her husband’s life insurance policy. In early 1987, the insurance company sent Dybas a check for approximately $100,000. This check was stolen by an unidentified culprit before it reached Dybas.

In February 1987 the culprit used the insurance check to open an account with the plaintiff investment company, Steinroe Income Trust (Steinroe). The culprit assumed the identity of Howard Brest, who had died in Quincy, Illinois. Although the only payee on the insurance check was Dybas, the Steinroe account was opened as a joint account in the names of Dybas and Brest. Of course, the indorsements on the back of the check in the names of Dybas and Brest were phony as were the signatures that appeared on the application forms for the Steinroe account.

Three days later, the culprit called Steinroe and received confirmation that the insurance check had cleared. The next day, the culprit went to Steinroe’s office and presented a letter, purportedly signed in the names of Dybas and Brest, requesting that nearly all of the proceeds in the account be redeemed. The culprit asked that Steinroe have a redemption check ready for him to pick up in another three days. Steinroe prepared the redemption check in the amount of $87,500 and made it payable to Dybas and Brest. The redemption check was drawn on the State Street Bank where Steinroe maintained its bank accounts.

The culprit picked up the redemption check and, having previously opened an account with defendant (Continental Bank) in the name of Howard Brest, promptly deposited the redemption check into this account. Again, the indorsements of Brest and Dybas on the back of the redemption check were phony. Continental Bank stamped the check “P.E.G.” (prior endorsements guaranteed) and presented the check to State Street Bank. State Street Bank paid the check and charged Steinroe’s account.

The culprit then absconded with the proceeds in the account with Continental Bank.

Meanwhile, Dybas contacted the insurance company explaining that she never received the insurance check. The insurance company issued her another check and then filed suit against Steinroe to recover for the loss on the insurance check. Steinroe agreed to settle the claim and paid the insurance company approximately $100,000. Steinroe, in turn, asked the State Street Bank to recredit its account for the amount that was paid on the redemption check. State Street Bank refused to do so. Steinroe then filed the instant suit against Continental Bank to recover for the loss on the redemption check. Steinroe sought to enforce the presentment warranties pursuant to sections 3—417(1)(a) and 4—207(1)(a) of the Illinois Uniform Commercial Code (Ill. Rev. Stat. 1989, ch. 26, pars. 3—417(1)(a), 4—207(1)(a)).

In the trial court, the parties stipulated to the facts and each side moved for summary judgment. Continental Bank argued in its motion, inter alia, that Steinroe did not have standing to enforce the presentment warranties under sections 3—417(1)(a) and 4—207(1)(a). The trial court disagreed and entered the summary judgment in favor of plaintiff on other grounds. Defendant filed this appeal.

Opinion

Steinroe filed suit to enforce the presentment warranties under sections 3—417(1)(a) and 4—207(1)(a) of the Illinois Uniform Commercial Code, which provided:

“3—417. Warranties on Presentment and Transfer. (1) Any person who obtains payment or acceptance and any prior transferor warrants to a person who in good faith pays or accepts that
(a) he had good title to the instrument or is authorized to obtain payment or acceptance on behalf of one who has a good title.” (Ill. Rev. Stat. 1989, ch. 26, par. 3—417(1)(a).)
“4—207. Warranties of Customer and Collecting Bank on Transfer or Presentment of Items; Time for Claims. (1) Each customer or collecting bank who obtains payment or acceptance of an item and each prior customer and collecting bank warrants to the payor bank or other payor who in good faith pays or accepts the item that
(a) he has a good title to the item or is authorized to obtain payment or acceptance on behalf of one who has a good title.” (Ill. Rev. Stat. 1989, ch. 26, par. 4—207(1)(a).)

According to the express language of the sections, a party had standing to enforce the presentment warranties only if it could be deemed the “payor bank” or “other payor” who pays or accepts. We now consider whether Steinroe, as the drawer of the redemption check, had standing to enforce the presentment warranties.

It is clear that Steinroe did not have standing as a “payor bank.” The State Street Bank, not Steinroe, was the “payor bank” on the redemption check.

However, at the time of the proceedings below, it was somewhat unclear whether Steinroe, as the drawer of the redemption check, could be deemed an “other payor” and thereby satisfy the standing requirements. In fact, the parties set forth case law from across the country which presented a majority and minority view on this question. The majority view provided that the language “other payor” required a narrow construction which excluded the drawer of a check. Continental Bank argued that the court should apply this majority view and cited in support thereof Oak Park Currency Exchange, Inc. v. Maropoulos (1977), 48 Ill. App. 3d 437, 363 N.E.2d 54. The minority view provided that the language “other payor” required a broad construction which included the drawer of a check. Steinroe argued that the court should apply this minority view and cited the leading case in support thereof, Sun ’N Sand, Inc. v. United California Bank (1978), 21 Cal. 3d 671, 582 P. 2d 920, 148 Cal. Rptr. 329.

We note that, after the parties filed their briefs, sections 3—417 and 4—207 were amended (Pub. Act 87—582, §1, eff. Jan. 1, 1992). The comments to the amended section 3—417 addressed the question concerning application of the majority and minority view:

“In Sun ’N Sand, Inc. v. United California Bank, 582 P. 2d 920 (Cal. 1978), the court held that under former section 3—417(1) a warranty was made to the drawer of a check when the check was presented to the drawee for payment. The result in that case is rejected.” (Ill. Ann. Stat., ch. 26, par. 3—417, Uniform Commercial Code Comment, at 121 (Smith-Hurd Supp. 1992).)

Therefore, we also reject Steinroe’s argument for application of the minority view as represented by Sun ’N Sand. We hold that Steinroe, as the drawer of the redemption check, did not have standing to enforce the presentment warranties under either the former or amended sections 3—417 and 4—207. The judgment in favor of Steinroe is reversed and judgment is entered in favor of Continental Bank.

Reversed.

MURRAY and HARTMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES BUONAVOLANTO, Defendant-Appellant.
    First District (6th Division)
    Nos. 1—91—1023, 1—91—1043 cons.
    Opinion filed November 20, 1992.
    Onesto, Giglio, Meltreger & Associates, of Chicago (Peter A. Regulski, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant-appellant James Buonavolanto, after prevailing in a civil forfeiture action pursuant to section 505 of the Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1505), was found guilty of delivery of a controlled substance and sentenced to a term of nine years’ imprisonment. Defendant appeals both the criminal conviction and the denial of his motion to preclude the State from proceeding against him criminally due to the effect of the prior action. Because of our disposition of the collateral estoppel issue, we need not address defendant’s other grounds for appealing the criminal conviction.

The pertinent facts are as follows. In 1989, the State filed a civil forfeiture suit against defendant’s ownership interest in a 1987 Ford Taurus automobile pursuant to. the Illinois Controlled Substances Act. The trial judge, Judge Bolán, ruled that the State had failed to establish that the. vehicle was used to facilitate a crime. The State then pursued criminal proceedings against defendant, charging defendant with delivery of a controlled substance in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)).

Defendant filed a motion to dismiss on the ground that the State was collaterally estopped from bringing the criminal action against defendant due to the State’s failure to prevail in the prior civil forfeiture proceeding. The trial judge in the criminal proceeding ruled that because there was an identity of neither issues nor parties in the two proceedings, collateral estoppel did not apply. Following a bench trial, defendant was found guilty as charged.

In most respects, the testimony at the two trials was the same. Agent John Majchur of the Northeastern Metropolitan Enforcement Group (NEMEG) testified that from January through September 1988 he participated in an investigation regarding the purchase of narcotics from codefendant Giovanni Dominguez. On September 20, 1988, he and other agents of NEMEG formulated plans to purchase narcotics from Dominguez. At about 6 p.m., he established surveillance at the residence of Dominguez’s mother at 1533 Lombard in Cicero, Illinois. He observed Agent Guerra arrive in front of the residence and speak with Dominguez. The two men entered Agent Guerra’s car and proceeded to Harvey Street.

Next, according to Majchur, he saw Dominguez enter a black Ford Taurus with the license plate “Buona 1,” driven by defendant. The vehicle proceeded southbound from 15th Street and turned into an alley. From a point perpendicular to the alley, Agent Majchur observed defendant exit the vehicle, which had stopped, walk to a garbage can and retrieve a blue and white bag. Defendant then reentered the vehicle and drove away. Agent Majchur, after alerting other agents, then observed Dominguez exit the Ford Taurus carrying a bag. Dominguez was subsequently apprehended by other agents, while Majchur apprehended defendant. At the station, Agent Guerra displayed a blue and white bag which appeared to be the same one Majchur saw in the alley.

Agent Guerra testified that on September 20, 1988, he was planning on purchasing narcotics from Dominguez as part of a NEMEG plan. He arrived at Dominguez’s home and had a brief conversation with him before they returned to the agent’s car. He displayed the purchase money to Dominguez, and Dominguez stated that he would have to “contact his [Dominguez’s] guy.” Dominguez then exited the agent’s vehicle and walked to a nearby pay telephone, but Guerra was not able to tell if, in fact, Dominguez used the telephone.

About 10 minutes later, Dominguez returned and said that he would meet “his guy,” about a block away. Agent Guerra testified that when Dominguez left his presence, he was not carrying a blue and white plastic bag. Upon Dominguez’s return 10 minutes later, however, he did have such a bag, and Dominguez stated “check it out, there is [sic] five in there and its real good stuff.” When Agent Guerra opened the bag, he found five clear plastic bags therein, each containing a white chunky substance subsequently determined to be cocaine.

The primary difference in testimony in the two proceedings concerned where Agent Majchur was when he saw defendant exit his vehicle in the alley. At the civil forfeiture proceeding, Majchur testified that when he observed the vehicle in the alley he was parked on 16th Street. From that angle, he acknowledged later at the criminal trial that whoever went to the garbage can would have had to exit the passenger, not the driver, door. At the criminal trial, however, Agent Majchur said that he was on 15th Street looking in another direction, and that the person exiting the vehicle did so from the driver side door.

The only issue we address is whether the State, having failed to prevail in its civil forfeiture action against defendant, was precluded from pursuing a criminal action against defendant based upon the same theory. We conclude that the State was barred from proceeding criminally in this case.

The State argues that it was not collaterally estopped from proceeding on the criminal action due to the lack of commonality of issues in the two proceedings. According to the State, in a forfeiture action such as the one involving defendant’s vehicle, guilt or innocence is not at issue, only whether the vehicle was used in the commission of the offense. (See In re $27,440 (1987), 164 Ill. App. 3d 44, 46, 517 N.E.2d 704.) The issue in the State’s forfeiture action was whether it proved by a preponderance of the evidence that defendant’s vehicle was used to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment of a controlled substance. (People ex rel. Daley v. 1986 Honda (1989), 182 Ill. App. 3d 322, 324, 537 N.E.2d 1077; see Ill. Rev. Stat. 1989, ch. 56½, par. 1505(a)(3).) Essentially, the State must prove a nexus between defendant’s vehicle and the cocaine. (People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.) The issue in the State’s criminal proceeding was whether it proved beyond a reasonable doubt that defendant knowingly delivered the cocaine. (See Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2).) Consequently, according to the State, the issues are not identical and the doctrine does not apply to estop the State from bringing criminal proceedings against defendant.

Additionally, the State argues that People v. Moore (1990), 138 Ill. 2d 162, 561 N.E.2d 648, and People v. Williams (1990), 206 Ill. App. 3d 1071, 565 N.E.2d 164, require that we affirm.

The parties have not cited any Federal or out-of-State authority upon the issue. However, there is abundant authority, which if not precisely on point, provides guidance in our determination. Preeminent is the United States Supreme Court case of United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099. There, the Court was faced with a collateral estoppel issue in a case which procedurally involved the opposite of what occurred sub judice, in that a criminal acquittal preceded a forfeiture proceeding. In One Assortment, the defendant was found not guilty on the criminal charge of knowingly engaging in the business of dealing in firearms without a license. The government then instituted an in rem proceeding for forfeiture of the subject firearms. The Court held that acquittal of the gun owner on criminal charges involving firearms did not preclude a subsequent in rem proceeding against the firearms. (465 U.S. at 362, 79 L. Ed. 2d at 368, 104 S. Ct. at 1104-05.) Critical to the Court’s holding was the difference in the standard of proof in the two proceedings. In the prior criminal case, the standard of proof was guilt beyond a reasonable doubt, and an acquittal on that charge reflected only a reasonable doubt as to the guilt of the defendant. In the forfeiture proceeding, on the other hand, the government’s standard of proof only was that of the preponderance of the evidence. Consequently, while the State may have failed to prove the crime, it could still prevail by the latter, lesser standard.

The type of thinking employed by the One Assortment of 89 Firearms Court was consistent with prior Supreme Court cases (see Helvering v. Mitchell (1938), 303 U.S. 391, 82 L. Ed. 917, 58 S. Ct. 630; One Lot Emerald Cut Stones & One Ring v. United States (1972), 409 U.S. 232, 34 L. Ed. 2d 438, 93 S. Ct. 489), and has been followed by numerous Federal and State tribunals, wherein its reasoning was helpful to the disposition of collateral estoppel issues. (See, inter alia, United States v. Fifty Thousand Dollars ($50,000) United States Currency (6th Cir. 1985), 757 F.2d 103; United States v. Furlett (N.D. Ill. 1991), 781 F. Supp. 536; United States v. Pryba (E.D. Va. 1987), 674 F. Supp. 1518; United States v. Approximately 2,475,840 Lbs. of Clear, Unroasted Coffee Beans (D.C. Puerto Rico 1985), 608 F. Supp. 288; United States v. Crispino (D.N.J. 1984), 586 F. Supp. 1525; In re Neil C. (1987), 308 Md. 591, 521 A.2d 329; State v. One 1977 Buick Automobile (1985), 196 Conn. 471, 487 n.8, 493 A.2d 874, 883 n.8; see also Annot., Acquittal or Conviction in Criminal Prosecution As Bar to Particular Actions for Forfeiture of Property or for Statutory Damages or Penalty, 79 L. Ed. 2d 960, 972, 977 (1984).) Our own appellate court has relied in part on the rationale of One Assortment of 89 Firearms in concluding that the doctrine of collateral estoppel did not preclude revocation of a juvenile’s probation after acquittal on aggravated battery charges. See In re N.R.L. (1990), 200 Ill. App. 3d 820, 558 N.E.2d 538.

We recognize that while One Assortment of 89 Firearms, involving as it does a different procedure, is not binding upon us, its reasoning is persuasive. Key to the Court in deciding One Assortment of 89 Firearms was the reasoning that in the forfeiture proceeding, the State had a lower standard of proof than it had in the first proceeding. As such, while the State may not have been able to establish beyond a reasonable doubt the defendant-firearms owner’s guilt, it may have been able to prevail in the forfeiture proceeding at the lower standard of proof. The logic of the One Assortment of 89 Firearms Court suggests that when, as here, the State initially fails to prevail at a lower standard of proof, it cannot prevail at a higher standard of proof, providing commonality of issues and parties.

Our analysis of the issue begins with the requirements which must be met in order for collateral estoppel to apply. The doctrine of collateral estoppel, which applies to both civil and criminal actions, provides that an issue which has been raised and decided by a court of competent jurisdiction cannot be relitigated in a subsequent action between the same parties in the same or a different cause of action. (Suttles v. Vogel (1988), 126 Ill. 2d 186, 195, 533 N.E.2d 901.) Regarding collateral estoppel, the State’s focus on appeal is that the two proceedings involve different issues. While its brief does not argue non-identity of parties, we shall address the issue because it was part of the trial court’s ruling.

“ ‘In connection with judicial proceedings the term “parties” is a technical word which has a precise meaning in legal parlance. It designates the opposing litigants in a judicial proceeding — the persons seeking to establish a right and those upon whom it is sought to impose a corresponding duty or liability ***.’ ” (Evans v. Stoval (1980), 83 Ill. App. 3d 257, 260, 403 N.E.2d 1321, quoting 59 Am. Jur. 2d Parties §7 (1971).)

It has been held that in an in rem proceeding there are no parties in the sense of opposing litigants, but the court may properly hear anyone who claims an interest and who seems in a position to throw light on the questions under consideration, and such a person is a party in the in rem proceeding. 59 Am. Jur. 2d Parties §1 (1987).

Additionally, in cases that involve collateral estoppel issues, the trend in the law is to discard the identical parties-mutuality rule entirely and to require that only one party or his privy, the one against whom estoppel is attempted to be used, be identical in the second action, especially when estoppel is urged defensively. (Raper v. Hazelett & Erdal (1983), 114 Ill. App. 3d 649, 653, 449 N.E.2d 268, citing Riley v. Unknown Owners of 304 North Oak Park Avenue Building (1975), 25 Ill. App. 3d 895, 899, 324 N.E.2d 78.) Defensive use of collateral estoppel occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff previously litigated and lost. In re Owens (1988), 125 Ill. 2d 390, 397, 532 N.E.2d 248.

In applying the foregoing law to the facts sub judice, we conclude that the identity of parties prong has been satisfied. While the civil forfeiture case was an in rem proceeding, the nominal party was the defendant. It was the defendant that had the interest in the property the plaintiff sought to take. Moreover, the collateral estoppel was asserted defensively. In such a case, only the party against whom estoppel is being asserted need be identical.

With respect to identity of issues, it is important to note which issues the court in the civil forfeiture proceeding actually decided. As indicated, a civil forfeiture proceeding necessarily decides whether the vehicle was used to facilitate the commission of the offense. In this case, the trial court more specifically held:

“I don’t know whether the bag that came out of the garbage can had any narcotics in it or not. Nobody else does either. Nobody can ever show that any narcotics was in the car. *** I am not at all convinced, certainly by a preponderance of the evidence, that the bag retrieved from the garbage can ever had any narcotics in it.”

Whether or not the trial court’s decision in the first proceeding was correct does not enter our analysis, nor does the State argue as much. Judge Bolan’s disposition in the forfeiture proceeding, which was not appealed by the State, was final.

We accept the State’s position that in a civil forfeiture action defendant’s guilt or innocence is not at issue, but rather whether the vehicle was used in the commission of the offense. However, in the case sub judice, defendant’s guilt or innocence was premised solely upon his use of the vehicle to transport the narcotics; this was acknowledged by the State at oral argument. Because this issue had been decided unfavorably to the State under a preponderance of the evidence standard of proof, the State is barred from proceeding against defendant under a beyond a reasonable doubt standard. We note that if the evidence in the case sub judice established that it was defendant who had arranged the transaction, and/or had been arrested with the narcotics on his person, a different issue would have been presented.

The cases which the State relies heavily upon, Moore (138 Ill. 2d 162, 561 N.E.2d 648) and Williams (206 Ill. App. 3d 1071, 565 N.E.2d 164), are distinguishable. In Moore, the court held that the results of a hearing on a petition to rescind a summary suspension of a driver’s license cannot act as a bar to litigating the same issues in a criminal DUI proceeding. However, in so holding, the court heavily relied upon the fact that to bar the subsequent action would defeat the legislature’s specific purpose to conduct the first proceeding in a swift fashion, and that the first proceeding was limited in scope. (Moore, 138 Ill. 2d at 169.) The court in Williams followed Moore in holding that the State was not collaterally estopped from litigating the DUI case after the issue of probable cause had been litigated in the summary suspension hearing. In the present case, no such specific pur-, pose of the legislature is defeated by application of the doctrine of collateral estoppel, and the State has not argued that the forfeiture proceeding was limited in scope or conducted in a swift fashion.

In People v. Fulton (1979), 68 Ill. App. 3d 915, 386 N.E.2d 605, not cited by either party, the defendant was found guilty of murder, attempted murder, aggravated battery and armed robbery which occurred in a Chicago office building. Previous to this conviction, the State failed in a civil forfeiture proceeding to present sufficient evidence to show that the defendant’s car was used in the commission of these offenses. In holding that collateral estoppel did not apply, the court noted that the two proceedings involved different issues and that the civil forfeiture finding (that defendant’s car was not used) did not negate the possibility of defendant’s guilt.

In the case sub judice, however, the State failed to show in the civil forfeiture proceeding that the defendant’s car was used to facilitate a crime. The defendant was convicted of delivery of a controlled substance. Because defendant’s guilt or innocence was premised solely upon his use of the vehicle to transport the narcotics, and the State had already failed to prove by a preponderance of the evidence that the car was used, charging defendant with delivery was relitigating the same issue.

Our research has revealed one other case where acquittal in á civil action with a lower standard of proof preceded a criminal action based upon the same conduct. In Bowling v. State (1984), 298 Md. 396, 470 A.2d 797, the court held that collateral estoppel barred a criminal prosecution alleging sexual abuse after a proceeding for the benefit of a child in need of assistance was adversely litigated against the government. Both proceedings were based upon allegations of sexual abuse. In a subsequent Maryland Appellate Court case, the court explained:

“Implicit in [our reasoning in Bowling] was our recognition that the State has a greater burden of proof in a criminal proceeding than in a CINA [the original action] case. If the State could not demonstrate by a preponderance of the evidence that Bowling had sexually abused his daughter, then it could not prove beyond a reasonable doubt that the abuse had occurred. Thus, the State’s failure to meet the lower standard of proof in the CINA case precluded the criminal prosecution.” In re Neil C. (1987), 308 Md. 591, 594-95, 521 A.2d 329, 331.

It is noted that the State benefits from the doctrine of collateral estoppel when it brings a successful criminal action, followed by a forfeiture action. (See 1986 Honda, 182 Ill. App. 3d at 326 (and cases cited therein).) For all of the foregoing reasons, we hold that the State is collaterally estopped from pursuing a criminal conviction where the State has first failed to prevail in a civil forfeiture proceeding based upon the same issue.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

EGAN, P.J., and McNAMARA, J., concur.


author: JUSTICE CAMPBELL

text:
    MARGARET CHRYSLER, Special Adm’x of the Estate of Herbert E. Chrysler, Deceased, Plaintiff-Appellant, v. WILLIAM R. DARNALL, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—0595
    Opinion filed November 23, 1992.

      Goldberg & Goldberg and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellant.
    Bullaro, Carton & Stone, of Chicago (James R. Branit and Madeleine Weldon-Linne, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Margaret Chrysler, as special administratrix of the estate of Herbert E. Chrysler, deceased, brought an action in the circuit court of Cook County against Dr. William Darnall under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2) and the Survival Act (Ill. Rev. Stat. 1981, ch. 110½, par. 27—6). A jury found the defendant liable and returned a verdict in favor of plaintiff, awarding $25,000 in pecuniary damages for loss of society, and $6,000 in medical expenses, a total of $31,000. On appeal, plaintiff contends that the jury’s verdict was against the manifest weight of the evidence presented at trial, and that the trial court improperly denied her motion for a new trial on the issue of damages only. For the following reasons, we affirm the judgment of the trial court.

The following facts were adduced at trial. The decedent, Herbert E. Chrysler, died on September 7, 1979, at the age of 58 years. Plaintiff produced a mortality table at trial which indicated that at that time, the life expectancy of a man decedent’s age was 19 years.

Dr. Darnall testified that he had been decedent’s treating physician since 1950. At that time, decedent weighed 178 pounds. In 1970, Dr. Darnall treated decedent for epilepsy by prescribing Dilantin, an anti-convulsive medication, and Phenobarbitol, a nerve sedative, and in 1978 and 1979 decedent continued to take the medication daily.

On September 29, 1978, the decedent was admitted to Victory Memorial Hospital in Waukegan for acute thrombophlebitis of the right leg. At the time of his hospitalization, decedent was not working. Dr. Darnall treated decedent with bed rest and local heat, and started him on anti-coagulant drug therapy. Dr. Darnall testified that he did not give decedent Heparin, a drug which controls blood clotting, because in his opinion it was not indicated.

Decedent was discharged from the hospital on October 8, 1978. In a subsequent visit on October 30, 1978, Dr. Darnall determined that the thrombophlebitis was cured, but did not give decedent leave to return to work. He noted that decedent had only minimal post-phlebetic residue (swelling) at that time, and did not prescribe oral anti-coagulants to decedent on an out-patient basis because he did not feel that decedent could comply with the strict rules of the prescription. Dr. Damall admitted that decedent had no problems taking the drugs prescribed for epilepsy during that time.

On July 29, 1979, decedent was admitted to Victory Memorial through the emergency room and again treated for thrombophlebitis. At that time, decedent weighed 120 pounds. Plaintiff told Dr. Darnall that decedent had been having confusion and memory loss for three to four weeks prior to admission and that he could not take care of himself. Dr. Darnall treated decedent in the same manner as before, with bed rest, local heat and oral anti-coagulants. Initially, decedent appeared to respond to the treatment, but subsequently Dr. Darnall had some difficulty getting satisfactory results and changed decedent’s medication from Dicumarol to Coumadin. Dr. Darnall did not give decedent Heparin, and testified that decedent’s epilepsy was a factor in his decision not to use that drag.

During decedent’s hospital stay, Dr. Darnall observed that decedent was mentally confused and disoriented. He asked plaintiff’s permission to consult with a psychiatrist and thereafter engaged Dr. Edward DeLong to evaluate decedent. Dr. DeLong saw decedent on August 5, 1979, and diagnosed his condition as premature chronic brain syndrome. A CAT-scan test performed on decedent subsequently revealed that decedent suffered from generalized brain atrophy, an irreversible shrinkage of the brain, characterized by memory loss and lack óf judgment, orientation and intellect. Dr. DeLong testified that his prognosis for decedent was poor and suggested to plaintiff and decedent that they consider institutionalizing decedent in the Veteran’s Administration Hospital mental health facility in nearby Downey, Illinois. Decedent was hostile to this suggestion.

Based on an electroencephalogram (EEG) test performed on decedent, Dr. Darnall continued treating decedent for epilepsy with Dilantin and Phenobarbitol during his hospital stay.

On September 5, 1979, Dr. Darnall notified plaintiff that her husband’s condition was critical. On that same day, he also told Carol Pellegrino, decedent’s daughter, that her father was in critical condition. On September 6, 1979, Dr. Damall discontinued treatment with anticoagulants because an X ray showed that decedent had a ruptured esophagus, which caused peritonitis, an infection of the lining of the intestine in the abdominal cavity. On September 7, 1979, decedent died. Based on the autopsy report, Dr. Darnall listed the causes of decedent’s death as bilateral pulmonary embolism and generalized peritonitis due to disruption of the lower portion of the esophagus. Dr. Darnall testified that decedent would have died of the generalized peritonitis had he not had the thrombophlebitis, and that in his opinion, decedent’s life expectancy was not 19 years at the time of his death.

Both parties presented expert witness testimony on the issue of Dr. Darnall’s liability, which is not the subject of this appeal. However, plaintiff cites the expert testimony for other reasons, so those pertinent portions will be discussed here. Dr. Larry Milner, plaintiff’s expert, relied upon decedent’s hospital and autopsy records in formulating his opinion that Dr. Darnall breached the standard of care in treating decedent. In describing the disease that afflicted decedent, Dr. Milner stated that pain may be a symptom of thrombophlebitis.

Dr. William Buckingham testified as an expert on behalf of the defendant. Dr. Buckingham examined decedent’s hospital and autopsy records and noted that the records disclosed that decedent experienced pain in his chest as a result of his ruptured esophagus. Dr. Buckingham also testified that decedent would have died on September 7, 1979, or shortly thereafter, as a result of the ruptured esophagus and generalized peritonitis even if he had not developed the pulmonary emboli. The medical records relied upon by both experts were not presented to the jury or admitted into evidence at trial.

Plaintiff testified that she was married to decedent on October 10, 1942, and had one child, Carol. She described her relationship with her husband as close and loving. She stated that decedent helped her with housework and drove her where she needed to go when she did not drive a car. They engaged in various activities together including watching television, and playing cribbage and cards.

Plaintiff testified that decedent had a ninth-grade education and was employed as a road maintenance worker for the Illinois Department of Transportation. Decedent’s salary was $15,287.60 per year. At the time of his death, decedent had been on a leave of absence from work since April 1978. Decedent had planned to retire at age 65.

On cross-examination, plaintiff admitted that it was possible that she and her husband had not had sexual relations since April 1978. Prior to his 1979 hospitalization, decedent could not take care of himself. Because of his mental condition during his second hospitalization, at times decedent did not know plaintiff was there when she visited him. At times plaintiff saw decedent fighting the tubes in his nose and noticed that his breathing “wasn’t like it was before.” Plaintiff admitted that she did not know that her husband had epilepsy and did not know that he was taking anti-seizure medication daily.

Carol Pellegrino, plaintiff and decedent’s daughter, testified that her relationship with her father was very caring and loving, and that she was very close to her father because she was an only child. Carol was married in 1963 and left her parents’ home. At that time, she lived 35 to 40 minutes away from her parents. Between 1963 and 1974 Carol saw her father at least once a week and spent holidays with her parents. She engaged in activities with her father including meals, shopping, watching television and playing cribbage. Carol sought her father’s advice regarding child rearing and marital problems. Carol testified that during these years her father helped her with her children, taking the boys for haircuts, shopping or on trips to their paternal grandparents in Ohio. Decedent often took the boys to the park or played with them in the house.

In 1974, Carol moved to Arizona with her husband and family. She called home once or twice a month and spoke to both parents. Between 1974 and the time of decedent’s death, Carol returned home to visit on two occasions. The visits lasted from a week to 10 days. Carol described her father as someone upon whom she could always depend throughout her lifetime.

Following trial, the jury found in favor of the plaintiff and against Dr. Damall and awarded $6,000 for medical expenses under the survival count, and $25,000 in pecuniary damages to plaintiff under the wrongful death count. The jury did not award any amount for pain and suffering or disability experienced prior to decedent’s death as a result of his injuries. The jury also declined to award any damages to Carol Pellegrino for pecuniary loss and loss of society. Judgment was entered on the verdict, and plaintiff filed a post-trial motion requesting a new trial on damages only. The trial court denied the motion on February 1,1990. This timely appeal followed.

Plaintiff now contends that the trial court erred in denying her post-trial motion for a new trial on the issue of damages only, arguing that the evidence demonstrates that the jury’s award of damages was palpably inadequate and against the manifest weight of the evidence.

The issue of damages is particularly within the discretion of the jury and courts are reluctant to interfere with the jury’s exercise of its discretion. (Gruidl v. Schell (1988), 166 Ill. App. 3d 276, 283, 519 N.E.2d 963, 968.) A reviewing court may order a new trial if the damages are manifestly inadequate, if it is clear that proved elements of damages have been ignored or if the amount awarded bears no reasonable relationship to the loss suffered by the plaintiff. (Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 407, 485 N.E.2d 4, 6.) To determine whether a jury verdict on the amount of damages is inadequate for any of the foregoing reasons, we must consider the record as a whole. Collins v. Straka (1987), 164 Ill. App. 3d 355, 517 N.E.2d 1147.

Plaintiff first complains that the jury’s assessment of $25,000 as pecuniary damages was palpably inadequate. Plaintiff suggests that $25,000 bears no reasonable relationship to the loss she suffered with decedent’s death. Plaintiff argues that because the jury found defendant liable and assessed some damages, it therefore should have assessed more damages. Plaintiff’s argument is unsupported by any persuasive authority.

The relevant portions of the Wrongful Death Act provide that the jury may give damages for pecuniary injuries from the wrongful death to the widow and next of kin of the decedent. Such damages are based on the presumption of reasonable expectation of benefits from the continuation of life. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.) The presumption, however, is rebuttable. Under the rules relating to presumptions, the presumption of pecuniary loss would, in the absence of any evidence of such loss, establish a prima facie case for plaintiff and merely shift the burden to defendant to establish contrary facts which the jury would be obliged to weigh. Implicit in the right to weigh the presumption is the right to give it no weight at all. Flynn, 41 Ill. 2d at 240.

Plaintiff seeks to establish that the presumption alone entitles her to a more substantial verdict. This argument was specifically rejected in Smith v. Jewell (1976), 41 Ill. App. 3d 754, 758, 354 N.E.2d 471, in which the court stated “substantial loss does not require the jury to award substantial damages.” An award of damages is not palpably inadequate just because it was less than generous. Gruidl, 166 Ill. App. 3d at 283.

The record shows that the evidence presented in the present case was sufficient to rebut the presumption of pecuniary loss. The record indicates that decedent had not been working since April 1978, three months prior to his initial hospitalization for thrombophlebitis. Plaintiff’s attorney stated at trial that the pecuniary damages claim was limited to the time frame of decedent’s second hospitalization until decedent’s expected retirement at the age of 65. The record further indicates that decedent suffered from an irreversible brain atrophy which would have required institutionalization and constant care. Finally, the evidence disclosed that decedent would have died from causes unrelated to Dr. Darnall’s treatment for thrombophlebitis around the same period of time. In light of the evidence presented at trial, the jury’s verdict of $25,000 for pecuniary damages, despite a finding of liability, was clearly within the province of the jury and in accordance with the law.

Regarding plaintiff’s argument that decedent’s daughter, Carol Pellegrino, was wrongly denied pecuniary damages, we similarly find no error. Even though both the plaintiff and her daughter may both suffer legally cognizable pecuniary injury which may include loss of society, it does not necessarily follow that both parties will be treated alike for purposes of the application of a presumption of loss of society. (See In re Estate of Finley (1992), 151 Ill. 2d 95.) Further, a jury verdict of no damages is not inconsistent with a finding of liability. Flynn, 41 Ill. 2d at 240.

Plaintiff further contends that the jury ignored instructions and disregarded proven elements of damages in failing to award any damages for decedent’s pain and suffering and disability under the survival count. Plaintiff first argues that the evidence proved that plaintiff suffered pain. Plaintiff further argues that because the jury found defendant liable, and awarded medical expenses, it follows that damages should have been awarded for pain and suffering. Plaintiff’s contentions are unsupported by the record or by authority.

Damages must be proved to be recovered. (Poeta v. Sheridan Point Shopping Plaza Partnership (1990), 195 Ill. App. 3d 852, 552 N.E.2d 1248.) The plaintiff has the burden of proving causation and the nature and extent of her alleged injuries, even though liability is established. (Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 649, 432 N.E.2d 1267, 1273.) The evidence presented concerning the time period involved must do more than provide speculation that decedent was conscious and suffered pain. Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 68, 540 N.E.2d 770, 773; Maras v. Bertholdt (1984), 126 Ill. App. 3d 876, 890-91, 467 N.E.2d 599, 609-10.

In the present case, the record shows that the evidence failed to conclusively establish that decedent experienced pain and suffering as a result of the conduct of Dr. Darnall. Plaintiff’s expert, Dr. Milner, gave his opinion regarding the standard of care given to decedent by Dr. Darnall during decedent’s two hospitalizations. With regard to his opinion, Dr. Milner described the disease and testified that pain is often a symptom of thrombophlebitis. The record shows that Dr. Milner relied upon decedent’s hospital records in formulating his opinion and that the records were not admitted as evidence at trial.

Medical records are inadmissible hearsay, and an expert’s testimony regarding them does not transform the records into substantively admissible evidence. (Henry v. Brenner (1985), 138 Ill. App. 3d 609, 486 N.E.2d 934.) Indeed, expert testimony regarding the contents of medical records is admissible solely to illustrate and explain the basis of the expert’s opinion. (Mayer v. Baisier (1986), 147 Ill. App. 3d 150, 157, 497 N.E.2d 827, citing Henry, 138 Ill. App. 3d at 614.) Thus, Dr. Milner’s testimony is insufficient to establish pain and suffering on the part of decedent.

Plaintiff’s only other evidence regarding decedent’s pain and suffering was her own testimony that decedent’s breathing while in the hospital the second time “wasn’t like it was before,” that he slept constantly and was “fighting something.” This evidence is speculative, and, therefore inconclusive. The only other evidence of pain came in the testimony of defendant’s expert, Dr. Buckingham, who testified that decedent experienced pain as a result of the ruptured esophagus. There was no testimony that the ruptured esophagus was in any way related to the pulmonary emboli and related treatment by Dr. Darnall.

Plaintiff cites a number of cases in which a jury’s verdict was held inadequate as a matter of law for failure to consider the pain and suffering caused by the underlying injury. These cases are distinguishable from the present case because the victims’ pain and suffering could be more easily inferred by the court. In Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 513 N.E.2d 1168, this court held that a jury’s verdict of slightly less than the amount of the uncontroverted special damages was inadequate as a matter of law. There, the court inferred pain and suffering from an injury resulting in a nine-day hospital stay, numerous treatments for back pain, partial hearing loss and vertigo.

Plaintiff also cites Schranz v. Halley (1984), 128 Ill. App. 3d 125, 469 N.E.2d 1389, and Stamat v. Merry (1979), 78 Ill. App. 3d 445, 397 N.E.2d 141, but these cases are also distinguishable from the present case. In Schranz, the jury awarded the plaintiff the exact amount of her medical expenses, but the appellate court reversed for failure of the verdict to account for the plaintiff’s obvious pain and suffering. The plaintiff in that case suffered a skull fracture, a concussion and cerebral contusions and was hospitalized for a week. (Schranz, 128 Ill. App. 3d at 127.) Similarly, in Stamat, the plaintiff had extensive facial fractures, which had to be repaired by permanently wiring his face, and suffered permanently from double vision and a partial loss of feeling in his face. (Stamat, 78 Ill. App. 3d at 448.) Clearly, the extent of the injuries in both these cases provided a sufficient basis for the reviewing court to infer the existence of compensable pain and suffering. Here, we cannot make that same inference based on the evidence presented at trial.

Plaintiff’s further argument that the jury was obligated to award damages for pain and suffering because it awarded medical expenses is without merit. It is well established that a verdict of liability with an award of damages for medical expenses but not for pain and suffering is entirely proper. (See, e.g., Perry v. Storzbach (1990), 206 Ill. App. 3d 1065, 565 N.E.2d 211; Elliott v. Koch (1990), 200 Ill. App. 3d 1, 558 N.E.2d 493.) Thus, there is no basis for the conclusion that the jury verdict was against the manifest weight of the evidence regarding decedent’s alleged pain and suffering.

Plaintiff further complains of the jury’s lack of assessment of damages for decedent’s alleged disability experienced prior to his death. Plaintiff argues that decedent was disabled for the 40-day period of his hospitalization, that he was confined to bed and was therefore unable to attend to his usual activities. Plaintiff cites no authority for her contention that this hospitalization constitutes damages for disability. The record indicates, however, that decedent was disabled prior to his hospitalization, being unable to care for himself and unable to engage in his usual activities.

An award will be held to be inadequate where in light of the plaintiff’s proved medical expenses, pain and suffering, and disabilities, the jury could not have considered all of these damage elements in arriving at its award. (Giardino, 160 Ill. App. 3d at 652.) As plaintiff failed to prove pain and suffering and disability, the jury’s verdict was not manifestly inadequate. It does not follow that because the jury failed to assess damages for each item on the itemized verdict form, the jury failed to follow instructions. We therefore find that the trial court properly denied plaintiff’s motion for a new trial on the issue of damages only.

For the above reasons, the judgment of the trial court is affirmed.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.