author: JUSTICE CERDA

text:
    KAREN GLASSMAN, Plaintiff-Appellant, v. WYETH LABORATORIES, INC., Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—3176
    Opinion filed November 12, 1992.

      Randall F. Peters & Associates, of Chicago (Randall F. Peters, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Karen Glassman, appeals from the granting of summary-judgment in favor of defendant, Wyeth Laboratories, Inc., in her products liability action that alleged she suffered a stroke because of ingesting Ovral, an oral contraceptive drug manufactured by defendant. Plaintiff argues that: (1) the existence of numerous other drugs and devices to avoid or terminate pregnancy prevents a manufacturer of an oral contraceptive from claiming the unavoidably unsafe product exception to strict liability; (2) there was a question of fact whether Ovral was unreasonably dangerous because of its inherent capacity to cause strokes and hemiplegia; and (3) there was a question of fact whether Ovral was the proximate cause of plaintiff’s injuries.

Plaintiff alleged the following in count I of the complaint. From 1970 through April 17, 1980, plaintiff took the prescription drug Ovral for the purpose of avoiding pregnancy. Ovral was in a defective condition that made it unreasonably dangerous because, inter alia: (1) Ovral had an inherent capacity to produce stroke and hemiplegia; (2) . defendant knew or should have known that Ovral had that dangerous propensity; and (3) defendant failed to adequately warn plaintiff of that dangerous propensity. As a proximate result, plaintiff suffered a stroke and hemiplegia on or about April 17,1980.

Count II alleged that defendant was negligent in, inter alia, failing to adequately design Ovral and to adequately warn of its dangerous condition. Count III alleged that defendant breached the implied warranty of merchantability that Ovral was fit for the ordinary purposes for which such goods were used. Count IV alleged that defendant breached the implied warranty that Ovral was fit for the particular purpose for which it was sold to plaintiff.

Defendant argued in a motion for summary judgment, inter alia, that: (1) Ovral was properly designed, manufactured, and labeled; (2) Ovral was not unreasonably dangerous or defective; (3) Ovral was fit for the ordinary purposes for which such goods were used and was fit for the particular purpose for which it was allegedly sold to plaintiff; and (4) the injuries suffered by plaintiff were not caused by any defect in the manufacture, packaging, or labeling of the product, and therefore defendant was not liable to plaintiff for any damages.

Theodore King, M.D., swore in a supporting affidavit that: (1) he was familiar with the chemical composition, labeling, and packaging of Ovral; and (2) his opinion, based upon a reasonable degree of medical and scientific certainty, was that: (a) Ovral was properly designed, manufactured, labeled, and fit for the ordinary purposes for which such goods were used and for the particular purpose for which it was allegedly sold to plaintiff; (b) Ovral did not have an inherent capacity to produce stroke and hemiplegia; (c) Ovral did not have a faulty design; (d) defendant did not fail to use reasonable diligence to see that Ovral was reasonably fit for its intended use; and (e) Ovral was not unreasonably dangerous or defective.

Plaintiff filed a “partial response to motion for summary judgment,” in which she argued that oral contraceptives greatly increased the risk of stroke.

Summary judgment was entered in favor of defendant, and plaintiff moved for reconsideration. Plaintiff argued that an attached affidavit of Dr. James Bryant, a forensic pathologist, directly conflicted with Dr. King’s affidavit because Dr. Bryant’s opinion was that Ovral had an inherent capacity to produce stroke and hemiplegia and that it had such an effect in numerous instances. The trial court found a question of fact and vacated its prior order of summary judgment to the extent that there was an issue of fact concerning the unreasonable dangerousness of Ovral.

Defendant filed another motion for summary judgment. It argued that: (1) under comment k to section 402A of the Restatement of Torts, Second (Restatement (Second) of Torts §402A, Comment k (1965)), the giving of adequate warnings about the risks of an unavoidably unsafe drug was a defense; and (2) plaintiff failed to produce any evidence that Ovral was the proximate cause of her injuries. Plaintiff filed a memorandum in opposition in which she argued that there was a genuine issue of material fact whether Ovral was unreasonably dangerous regardless of any warnings.

Dr. Bryant’s affidavit in support of plaintiff’s memorandum in opposition swore that: (1) he reviewed medical literature describing clinical and experimental studies detailing the pathophysiological consequences from the use of Ovral and was knowledgeable about statistics that revealed a high number of cerebral vascular accidents occurring to young women in childbearing years as a result of Ovral; (2) he also reviewed deposition testimony, correspondence, and medical records; (3) Ovral created a significant risk of cerebral vascular accidents; (4) the only use for Ovral was to prevent pregnancy, and such objective could be accomplished in other ways without physical risk; (5) Ovral’s ratio of medical risk to medical benefit was infinitely great and unlimited; (6) Ovral was unreasonably dangerous and should not be sold; and (7) the unreasonably dangerous condition of Ovral was not cured or eliminated by warnings. Dr. Bryant swore in a second affidavit that, within a reasonable degree of medical certainty, the stroke suffered by plaintiff was a proximate result of regular use of Ovral.

Defendant’s second motion for summary judgment was granted, and the cause was dismissed. Plaintiff filed a motion for reconsideration.

Dr. Bryant swore in an affidavit supporting plaintiff’s motion for reconsideration that: (1) he reviewed medical literature on Ovral, including reports to the Food and Drug Administration (FDA) of adverse reactions to Ovral from 1965 to 1975; (2) the FDA had reports of 549 incidents of adverse reactions associated with the use of Ovral during 1965 to 1975; (3) of the 549, 250 incidents (or 45%) related to the cerebral vascular system, which was an inordinate number of adverse reactions; (4) out of the 250 events related to the cerebral vascular system an inordinate number of events (or about 35%) included brain involvement such as stroke and resulting hemiplegia or quadriplegia: (5) Ovral had the inherent capacity to produce stroke and hemiplegia; (6) use of Ovral created a significant risk of cerebral vascular occurrence, including stroke; (7) the cerebral vascular accident suffered by plaintiff was a proximate result of her regular use of Ovral; (8) pregnancy could be prevented in other ways without the physical risks presented by Ovral; (9) Ovral’s medical risk greatly outweighed the medical benefit; (10) Ovral was unreasonably dangerous and should not be available to the public; and (11) Ovral’s unreasonably dangerous condition was not cured by warnings.

Plaintiff’s motion for reconsideration was denied, and plaintiff appeals from the denial of her motion.

At oral argument, plaintiff waived the argument raised in her brief that it was a question of fact whether defendant’s warnings regarding Ovral’s dangers were sufficient. Therefore, we do not address that issue or the related issue of the applicability to oral contraceptives of the learned intermediary doctrine.

Plaintiff argues that summary judgment should not have been entered in favor of defendant because the unavoidably unsafe exception to strict products liability provided by comment k to section 402A of the Restatement of Torts (Restatement (Second) of Torts §402A, Comment k (1965)) did not apply to Ovral because: (1) there were numerous alternatives to Ovral for birth control; (2) a pregnant woman neither is threatened with death nor suffers from a disease, in contrast to comment k’s example of a person who contracts rabies; and (3) Ovral was not a new or experimental product.

Section 402A has been adopted in Illinois. (See, e.g., Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 516-17, 513 N.E.2d 387, 391.) It states:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.” Restatement (Second) of Torts §402A (1965).

Comment k to section 402A is captioned “unavoidably unsafe products” and states:

“There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.” (Emphasis in original.) (Restatement (Second) of Torts §402A, Comment k, at 353-54 (1965).)

Comment k also has been adopted in Illinois. E.g., Kirk, 117 Ill. 2d at 517, 513 N.E.2d at 392.

Plaintiff interprets “unavoidably unsafe” as applying only to products that provide benefits that cannot be achieved in any other manner. Plaintiff finds support in the dissenting opinion of Ortho Pharmaceutical Corp. v. Heath (Colo. 1986), 722 P.2d 410, 421, which argued against applying comment k to an oral contraceptive because: (1) the basic benefit of prevention of pregnancy was achievable through other birth control methods that did not require ingestion of estrogen; and (2) the existence of other birth control methods made the product’s risks avoidable. The dissent questioned whether the prevention of pregnancy was a unique or profound benefit in comparison to the importance of the prevention of rabies by a vaccine, which comment k was intended to cover. Heath, 722 P.2d at 421.

Plaintiff also cites the following cases, which involved vaccines. Toner v. Lederle Laboratories (1987), 112 Idaho 328, 337, 732 P.2d 297, 306, stated that an element of unavoidable risk was the lack of a feasible alternative design that on balance accomplished the product’s purpose with a lesser risk. In White v. Wyeth Laboratories, Inc. (1988), 40 Ohio St. 3d 390, 395, 533 N.E.2d 748, 753, the Ohio Supreme Court held that a product was unavoidably unsafe if “at the time of distribution, there existed no alternative design which would have as effectively accomplished the same purpose or result with less risk.” Patten v. Lederle Laboratories (D. Utah 1987), 676 F. Supp. 233, 237, held that one factor typically considered in determining whether a product’s risk was unavoidable was the availability of any alternative product that would have as effectively accomplished the full intended purpose of the product.

Some foreign jurisdictions have applied comment k to birth control pills and devices. See, e.g., Ortho Pharmaceutical Corp. v. Chapman (1979), 180 Ind. App. 33, 38, 388 N.E.2d 541, 545 (oral contraceptives were protected by comment k because the potential danger was not outweighed by the benefits of a convenient and highly effective contraceptive); Chambers v. G.D. Searle & Co. (D. Md. 1975), 441 F. Supp. 377, 381 (oral contraceptives are products covered by comment k because they are useful and desirable), aff’d (4th Cir. 1977), 567 F.2d 269; Terhune v. A.H. Robins Co. (1978), 90 Wash. 2d 9, 12, 577 P.2d 975, 977 (comment k was applied to an intrauterine birth control device).

Comment k was intended to apply to products that are apparently useful and desirable, and it is not limited to new or experimental products. But not all prescription drugs per se fall under comment k, and comment k’s applicability must be decided on a case-by-case basis. (Toner, 112 Idaho at 337, 732 P.2d at 308-09.) Although an oral contraceptive used for birth control purposes does not serve the function of a drug or vaccine in treating or preventing disease, which were examples given in comment k, and although there exist other birth control products, an oral contraceptive is a convenient and effective form of birth control. An oral contraceptive is an apparently useful and desirable product, and comment k should apply to a particular oral contraceptive if the conditions of comment k are met, i.e., the product is unavoidably unsafe and is properly prepared, and there are adequate directions and warnings. Comment k should protect manufacturers of desirable and useful products from strict liability for those products, even if the benefits could be obtained with another product, because otherwise manufacturers would be discouraged from manufacturing new products that might confer new advantages over existing products that have the same purpose.

The court in Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 551, 356 N.E.2d 779, 783, impliedly applied comment k to a particular contraceptive drug by holding that the jury could have found that adequate warnings prevented the drug from being considered unreasonably dangerous. But the case did not address the issue whether comment k applies to contraceptive drugs as a class.

Whether a product is unavoidably unsafe within the meaning of comment k is an issue of material fact (Graham v. Wyeth Laboratories (D. Kan. 1987), 666 F. Supp. 1483, 1497), and a defendant has the burden to demonstrate that a product comes under comment k’s protection (Patten v. Lederle Laboratories (D. Utah 1987), 676 F. Supp. 233, 237). Dr. King’s affidavit, filed in support of defendant’s motion for summary judgment, did not provide factual support for his conclusion that Ovral was properly designed and manufactured. (See Supreme Court Rule 191 (134 Ill. 2d R. 191) (affidavits made in support of a motion for summary judgment are to be made on the personal knowledge of the affiants, shall set forth with particularity the facts upon which the defense is based, and shall not consist of conclusions but of facts admissible in evidence).) Therefore, defendant was not entitled to summary judgment on the basis that Ovral was unavoidably unsafe under comment k.

Defendant argues that summary judgment was proper on the alternative basis that there were no facts supporting plaintiff’s allegation that Ovral was unreasonably dangerous. Plaintiff argues that Dr. Bryant’s first affidavit created an issue of fact of Ovral’s unreasonable dangerousness.

Section 402A provides for strict liability in the case of a product “in a defective condition unreasonably dangerous.” (Restatement (Second) of Torts §402A (1965).) According to comment g, a product is in a “defective condition” if it is “in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” Restatement (Second) of Torts §402A, Comment g, at 351 (1965).

Dr. King swore in his affidavit that Ovral did not have a propensity to cause stroke and hemiplegia and was not unreasonably dangerous. But these conclusions were not based on facts set forth in his affidavit. In contrast, Dr. Bryant’s affidavit supplied some data on Ovral’s dangerousness, i.e., 250 out of 549 adverse reactions to Ovral reported to the FDA related to the cerebral vascular system, and 87 out of 549 adverse reactions related to the brain, including strokes with resulting hemiplegia or quadriplegia. The significance of the number of the adverse reactions cannot be determined without knowing how many women ingested Ovral without adverse reaction, e.g., if 100 million women ingested Ovral and there were only 250 adverse reactions involving the cerebral vascular system, then the risk might be acceptably low. Nevertheless, the existence of serious adverse reactions raised a genuine issue of fact concerning Ovral’s unreasonable dangerousness. Therefore, summary judgment should not have been granted in favor of defendant; on this record, it could not be found as a matter of law that Ovral was not unreasonably dangerous. Ill. Rev. Stat. 1991, ch. 110, par. 2—1005 (summary judgment is to be rendered if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law).

Defendant argues as another alternative basis for upholding the entry of summary judgment in its favor that plaintiff had to show that the alleged failure to warn caused plaintiff’s injuries. But plaintiff has waived on appeal the issue of the sufficiency of warnings, and defendant does not argue that there was no genuine issue of fact whether Ovral proximately caused plaintiff’s injuries.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

GREIMAN, RJ., and RIZZI, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    SAFECO INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellee, v. OTTO TREINIS III et al., Defendants (Gerald M. Sluzewicz, Defendant-Appellant).
    First District (4th Division)
    No. 1—91—3359
    Opinion filed November 12, 1992.

      Karen M. Lavin, of McHenry, for appellant.
    Gary M. Feiereisel, of Fraterrigo, Best & Beranek, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The issue on appeal is whether Otto Treinis III and Thomas P. Mangan are necessary parties in this declaratory judgment action.

Otto Treinis owned an automobile which was insured by the plaintiff, Safeco Insurance Company. Treinis permitted Thomas Mangan to use the car. Mangan was involved in an automobile accident with Gerald Sluzewicz. In another lawsuit, Sluzewicz obtained a default judgment in the amount of $75,000 against Treinis and Mangan. Jurisdiction was obtained by service upon the Secretary of State. (Ill. Rev. Stat. 1989, ch. 95½, par. 10—301.) This present appeal emanates from a declaratory judgment action filed by Safeco against its insured, Treinis. The action also named Mangan and Sluzewicz as defendants. Safeco contends that Treinis had breached provisions in the insurance contract concerning notice to Safeco of the accident and notice of the lawsuit, and that Treinis also breached his duty to cooperate with Safeco. Safeco sought a declaration that there was no coverage and accordingly no duty to defend or indemnify.

Sluzewicz was served with process and defended the declaratory judgment action brought by Safeco. However, neither Treinis nor Mangan was served. The trial court entered a summary judgment in favor of Safeco and against Sluzewicz only. Sluzewicz contends on appeal that the trial court was in error and that the judgment is void because there was an absence of service on Treinis and Mangan, who were necessary and indispensable parties. Sluzewicz asks that we dismiss the complaint for want of personal jurisdiction. Alternatively, Sluzewicz contends that summary judgment is inappropriate because there is a genuine issue of material fact and asks that the summary judgment be reversed and the cause remanded for a trial on the merits.

The automobile accident occurred on September 11, 1986, and the lawsuit by Sluzewicz was filed on January 13, 1987. The agent who sold Treinis the insurance policy testified that a couple of days after September 11, 1986, Treinis called and said that his roommate had taken the keys while he was sleeping and had an accident and that he would call the agent again to let him know the details. That was the last direct contact anyone involved in the lawsuit had with Treinis. Six and a half months later, on March 31, 1987, the insurance agent received a copy of the police report and transmitted it to Safeco the same day. On April 3, 1987, Safeco sent a letter to Treinis requesting that he contact Safeco. Another letter was sent on April 27 informing Treinis that Safeco had received a letter from an attorney representing Sluzewicz stating that “they are in the process of serving a lawsuit upon you.” The letter further stated that if and when Treinis was served with a summons and complaint, he should immediately contact the writer of the letter and forward the documents. The letter requested that he contact Safeco’s office immediately so that statements could be obtained from both Treinis and Mangan concerning the details of the accident. The letter reminded Treinis that his cooperation in the matter was a condition of the insurance contract and that any delay would jeopardize his continuing relationship with Safeco. Commencing July 16, 1987, Safeco made extensive efforts to contact Treinis. A house investigator was appointed and when no contact was made, a skip trace was performed. That being unsuccessful, an investigative service was retained. A private investigator made extensive efforts to locate both Treinis and Mangan at their home, various other addresses that were furnished, Mangan’s place of work and a restaurant that they allegedly frequented. The attempts were unsuccessful.

The first contention made by Sluzewicz is that Treinis and Mangan were necessary parties and that any judgment obtained in the absence of service on necessary parties is void.

At common law, either the parties were indispensable or they were not allowed to be part of the lawsuit. (4 R. Michael, Illinois Practice §29.1, at 22 (1989).) The equity courts entertained a more liberal procedure wherein parties were permitted as long as they had an interest in the litigation. The Illinois Civil Practice Act (now the Code of Civil Procedure) attempted to make the joinder of parties more procedural rather than substantive in nature. 4 R. Michael, Illinois Practice §29.1, at 22 (1989).

Illinois law does not have any one express provision regulating who must be joined as a party. Instead, several provisions of the Code of Civil Procedure affect the common-law rule relating to the joinder of parties. Section 2—404 provides that if a necessary plaintiff declines to join in the lawsuit, that party may be made a defendant. (Ill. Rev. Stat. 1989, ch. 110, par. 2—404.) Section 2—405 states that any party who is alleged to have a claim or an interest in the controversy may be made a defendant. (Ill. Rev. Stat. 1989, ch. 110, par. 2—405(a).) More apropos to the situation in the case at bar, section 2—406 provides that “[i]f a complete determination of a controversy cannot be had without the presence of other parties, the court may direct them to be brought in.” Ill. Rev. Stat. 1989, ch. 110, par. 2—406(a).

A comment should be made about terminology. The terms “necessary party” and “indispensable party” are frequently used interchangeably. (See, e.g., City of Evanston v. Regional Transportation Authority (1991), 209 Ill. App. 3d 447, 454, 568 N.E.2d 244.) The United States Supreme Court in Shields v. Barrow (1855), 58 U.S. (17 How.) 130, 15 L. Ed. 158, distinguished between necessary and indispensable parties. Necessary parties were those required in order for the court to determine the entire controversy and to do complete justice, but whose interests were separable from those joined as parties so that the court could resolve the controversy between the parties without affecting their interests. Consequently, while necessary parties should be joined, their joinder may be excused where it is not feasible to join them. Indispensable parties were defined as those persons who have such an interest in the controversy that a final decree could not be made without either affecting that interest or leaving the controversy in a condition that any determination would be inconsistent with equity and good conscience. If an indispensable party could not be joined, the court was required to dismiss the case.

Rule 19 of the Federal Rules of Civil Procedure provides that if a party who should, under the rules of joinder, be joined in the lawsuit cannot be made a party, “the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.” (Fed. R. Civ. P. 19(b).) The notes of the Advisory Committee state that when comprehensive joinder is not possible, the court should examine the case pragmatically and make a choice between the alternatives of proceeding with the action in the party’s absence or dismissing the case. (Fed. R. Civ. P. 19, Notes of Advisory Committee on 1966 amendments to rules.) In making this sort of pragmatic determination, one factor to be considered is that an absent party who has not been served is not bound by any decision of the court unless the absent party was in privity or unless there is in rem jurisdiction. Feen v. Ray (1985), 109 Ill. 2d 339, 487 N.E.2d 619.

Illinois has never adopted the term “indispensable party,” using only the term “necessary” in referring to the joinder of a party. The Code of Civil Procedure uses the term “necessary plaintiff” in section 2—404; section 2—405(a) speaks in terms of a defendant who has “an interest in the controversy”; section 2—406(a) does not use a particular term but merely states that “[i]f a complete determination of a controversy cannot be had without the presence of other parties, the court may direct them to be brought in.” (Ill. Rev. Stat. 1989, ch. 110, pars. 2—404, 2—405(a), 2—406(a).) Thus, the term “necessary party” has a different meaning in Illinois than in Shields v. Barrow, where the Court distinguished between necessary and indispensable parties.

In Sullivan v. Merchants Property Insurance Co. (1979), 68 Ill. App. 3d 260, 385 N.E.2d 897, the court stated that there were two essential considerations in determining whether a party is necessary to the litigation: possible prejudice to the absent party and prejudice to the parties before the court. The court stated that “ ‘to be a necessary party, the individual or entity involved must have a present substantial interest, as opposed to a mere expectancy or future contingency [citation], in the controverted matter such that this legal entanglement cannot be resolved without either (1) affecting that interest or (2) leaving the interest of those who are before the court in an embarrassing or inequitable position.’ ” (Sullivan, 68 Ill. App. 3d at 262, 385 N.E.2d at 898, quoting Stavros v. Karkomi (1976), 39 Ill. App. 3d 113, 123, 349 N.E.2d 599, 607.) This definition of a necessary party closely resembles the Shields v. Barrow definition of an indispensable party. Subsequent appellate court cases mention a third essential consideration in determining whether an unjoined party is a necessary party. That consideration is whether the party’s presence is required for a complete determination of the controversy. (Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 268-69, 398 N.E.2d 278; Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 623, 387 N.E.2d 946.) Thus, as stated by the court in Lain:

“A necessary or indispensable party is one whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence (Ill. Rev. Stat. 1975, ch. 110, par. 25(1); National Bank v. S.N.H., Inc. (1975), 32 Ill. App. 3d 110, 121, 336 N.E.2d 115); (2) to reach a decision which will protect the interests of those who are before the court (Ragsdale v. Superior Oil Co. (1968), 40 Ill. 2d 68, 71, 237 N.E.2d 492; see Comment, Indispensable Parties: Holding Absentees Indispensable For The Sake of Present Defendants, 21 U. Chi. L. Rev. 286 (1954)); or (3) to enab’e the court to make a complete determination of the controversy (Ill. Rev. Stat. 1975, ch. 110, par. 25(1).)” Lain, 79 Ill. App. 3d at 268-69, 398 N.E.2d at 283.

A typical example of a necessary party in the first category can be found in cases involving a limited fund where an unjoined party, while not bound by the decision, may suffer prejudice if the fund is depleted by a.judgment in favor of the plaintiff. (Oglesby v. Spring field Marine Bank (1944), 385 Ill. 414, 52 N.E.2d 1000.) An example of the second type of necessary party occurs where the existing parties may later be subjected to multiple liability because of the absence of the party. (See, e.g., Lain v. John Hancock, 79 Ill. App. 3d 264, 398 N.E.2d 278.) However, both Lain and Lerner, which added the third category of necessary party, cite only section 25(1) of the Civil Practice Act (now section 2—406(a) of the Code of Civil Procedure) as support for the third category of necessary party, those necessary to enable the court to make a complete determination of the controversy. Section 2—406(a) states that if a complete determination of a controversy cannot be had without the presence of other parties, the court may direct them to be brought in. According to this wording, joinder of parties in this category appears to be discretionary.

Applying these principles to the facts before us, it does not appear that Treinis and Mangan fall into either of the first two categories of necessary parties. They are not bound by the judgment of the court because they have not been served with process in this case and do not appear to be in privity with Sluzewicz. We are also unable to determine any prejudice to the existing defendant in this case, Sluzewicz. There is no suggestion that he is unable to obtain discovery. Nor is there any other suggestion as to how the absence of Treinis or Mangan will impair Sluzewicz’s ability to proceed in Safeco’s lawsuit.

Instead, Treinis and Mangan appear to fall into the third category of necessary parties. Because they are not bound by the court’s decision, they will be free to relitigate the matter if and when they choose to resurface. They are, therefore, necessary parties in the sense that the court will not be able to completely dispose of the matter in their absence.

Pragmatically, as stated earlier in this opinion, great efforts have been made to serve summons upon both Treinis and Mangan, to no avail. Considering the alternative of proceeding with this action now where Sluzewicz will be able to defend this case as opposed to condemning this matter to eternal judicial wandering, we believe that the weight of the matter bears more heavily on excusing the presence of Treinis and Mangan and deciding the case. As submitted by Professor Michael, “the desirability of requiring full joinder to maximize the value of the judicial resources expended by resolving the entire controversy in one action should not operate to foreclose the plaintiff’s right to a forum, at least where a better one is not clearly available.” 4 R. Michael, Illinois Practice §29.2, at 34-35 (1989).

Sluzewicz cites Safeway Insurance Co. v. Harvey (1976), 36 Ill. App. 3d 388, 343 N.E.2d 679, as a case which is strikingly similar to the case at bar. There, as in the instant cause, the named insured was not served. The court in Safeway concluded that the insured was an “indispensable party” to the action because the effect of a court order rescinding the contract would injuriously affect the insured’s interest. The court does not explain how the insured would be prejudiced where the court did not have jurisdiction to enter a judgment against him. Nor is there any discussion of what efforts were made to locate the insured. We are not persuaded that the decision in Safeway requires dismissal of the instant action.

Sluzewicz alternatively contends that summary judgment was inappropriate because there is a genuine issue of material fact. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(a).) The motion for summary judgment alleged that Treinis and Mangan failed to give written notice, that they failed to forward process served upon them to Safeco and that they failed to cooperate with the insurer in investigating and defending Sluzewicz’s lawsuit. We will consider each of these three contract provisions.

The policy provides that in the event of accident “written notice containing particulars *** shall be given by or for the insured to SAFECO or any of its authorized agents as soon as practicable.” Sluzewicz contends that the notice received from the insurance agent was notice received “as soon as practicable.” Sluzewicz notes that what is practicable is dependent on the circumstances. The circumstances here, however, are that Treinis contacted his insurance agent within a few days after the occurrence but never again contacted anyone and it was only his insurance agent who 6V2 months later contacted Safeco. Six and a half months on its face is not practicable in light of the fact that there were no extenuating circumstances after the accident which would prevent notice. We believe that there is no material question of fact and that there was a violation of the policy provision requiring notice of the accident.

The second contention is that neither Treinis nor Mangan forwarded the summons of complaint to Safeco. The policy provides “[i]f claim is made or suit is brought against the insured, he shall immediately forward to SAFECO every demand, notice, summons or other process received by him or his representative.” The only evidence in the record is that Treinis and Mangan were served through the Secretary of State. No details of the service are made. We are unable to determine whether in fact Treinis and Mangan ever received anything. This is insufficient to sustain Safeco’s burden to prove that Mangan violated the insurance contract provision.

The last provision of the policy that was allegedly violated was the cooperation provision of the policy. A violation of this provision is patent. The only response that Sluzewicz has to this is that there is no proof that Treinis and Mangan ever received the letters and messages sent by Safeco. Mangan was in the accident and Treinis knew about it and in fact notified his agent of the accident. No further comment was ever received from either Treinis or Mangan. In Gallaway v. Schied (1966), 73 Ill. App. 2d 116, 219 N.E.2d 718, the injured plaintiff obtained a default judgment against the defendant. The injured plaintiff then attempted a garnishment action against the insurer. The insurer hired an investigator but no contact was ever made with the insured. The court held that the insurer had established the affirmative defense of noncooperation. Sluzewicz’s only attempt to distinguish the case is procedural. There it was the burden of the injured party to show that the insured had cooperated with its insurance carrier which it failed to do and the situation is the reverse here because it was the duty of the insurance company to show that the insured had not cooperated. The distinction is unavailing because it is beyond cavil here that the total lack of contact between Treinis and Mangan and the insurer shows noncooperation. In a motion for summary judgment, mathematical precision is not needed. A more or less intuitive evaluation or commonsense judgment must be made about cooperation. (Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422.) Clearly, no contact with Safeco without any extenuating circumstances leads only to the conclusion that there was a breach of the cooperation clause.

The trial court was correct in its conclusion that no genuine issue of material fact existed as to whether the policy provisions were breached.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: PRESIDING JUSTICE EGAN

text:
    JOSEPH T. RYERSON AND SON, INC., Plaintiff-Appellant, v. MANULIFE REAL ESTATE COMPANY et al., Defendants-Appellees (Crescent Corporation et al., Defendants).
    First District (6th Division)
    No. 1—91—2538
    Opinion filed November 13, 1992.

      Burke, Wilson & Mcllvaine, of Chicago (Leonard S. Shifflett and Christopher C. Dickinson, of counsel), for appellant.
    Rosenthal & Schanfield, EC., of Chicago (James M. Dash and Stephen P. Kikoler, of counsel), for appellees.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

This court reversed a judgment in favor of the plaintiff, Joseph T. Ryerson and Son, Inc. (Ryerson), on the ground that the plaintiff had failed to name a necessary party as a defendant. (Joseph T. Ryerson & Son, Inc. v. Manulife Real Estate Co. (1990), 207 Ill. App. 3d 622, 566 N.E.2d 297.) The plaintiff then filed a complaint in the circuit court naming the same defendants that were named in the original complaint and the person we had said was a necessary party. The trial judge granted the defendant’s motion to dismiss the complaint on the ground that our reversal was res judicata of the plaintiff’s new complaint. The plaintiff contends that our reversal was not a final order which decided the case on the merits.

The defendant Manulife Real Estate Company (Manulife) contracted with defendant E.W. Corrigan Construction Company (Corrigan) to act as a general contractor on the construction of a new office building on land owned by Manulife. Corrigan subcontracted out the fabrication and installation of a curtain wall to Crescent Corporation (Crescent). Crescent entered into a contract with Ryerson to obtain the necessary materials for carrying out the terms of Crescent’s subcontract with Corrigan.

After a period of time, Crescent discontinued work under its subcontract with Corrigan and consequently stopped obtaining materials from Ryerson. Ryerson was never paid in full and claimed that Corrigan and/or Crescent owed over $55,000 for the materials which were used in the project.

On November 3, 1986, Ryerson filed an action to foreclose a mechanic’s lien against Manulife and Corrigan, but did not join Crescent as a party. Both Manulife and Corrigan moved to strike the plaintiff’s complaint alleging that Ryerson failed to join Crescent, a necessary party to such an action. Ryerson opposed the motion, and the trial judge denied it. The judge later granted Ryerson’s motion for summary judgment against the defendants jointly and awarded Ryerson over $47,000. Manulife and Corrigan appealed.

This court reversed the order of summary judgment; the basis of the reversal was that Ryerson had failed to name Crescent as a party defendant.

Ryerson filed a petition for rehearing in this court alleging that count II of the complaint was an action for a money judgment against the defendants and, therefore, did not require that Crescent be named a necessary party. The petition further asked that the case be remanded to the circuit court for a hearing on the question of whether Crescent had become bankrupt. Ryerson did not ask for a clarification of the meaning of our order reversing the judgment.

We denied the petition for rehearing pointing out that count II specifically alleged that the plaintiff “claims a lien” and was not a claim for money damages pursuant to section 28 of the Mechanics Lien Act. (Ill. Rev. Stat. 1989, ch. 82, par. 28.) We also pointed out that section 28 provides that the plaintiff may either file a claim for a lien or file a complaint and enforce the lien or he may sue the owner and contractor jointly and acquire a personal judgment. Ryerson did not seek leave to appeal to the supreme court.

While the petition for rehearing was pending in this court, Ryerson filed a new complaint in the circuit court and named Crescent as a party along with Manulife and Corrigan. The new complaint was almost identical to the complaint in the original action, but included an additional count that sought recovery from Crescent and a count seeking money damages from Manulife and Corrigan.

Manulife and Corrigan moved for summary judgment, arguing that the new complaint was barred by res judicata. The trial judge granted the summary judgment motion, holding that this court’s prior decision barred Ryerson’s new claim.

It is necessary that we address the issues as they have been presented to us. But before we do, we wish to point out what has not been made an issue by Ryerson. Our reversal without remand of the order granting summary judgment was based on our holding that Ryerson could never recover on the complaint before the court as pleaded. (Cf. North Pier Terminal Co. v. Hoskins Coal & Dock Corp. (1949), 402 Ill. 192, 83 N.E.2d 748.) Ryerson never sought clarification of our order of reversal. Ryerson did not argue in the trial court and does not argue in this court that our mandate ordering reversal was vague (Cf. Muhlke v. Muhlke (1918), 285 Ill. 325, 120 N.E. 770), and it does not argue that it should have been permitted to file an amended complaint. Indeed, Ryerson says that “no further proceedings are possible on the initial complaint.”

After our reversal, Ryerson filed the complaint that is before us. The defendants filed a motion to dismiss pursuant to section 2—619 under the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—619(a)) on the ground that the first complaint was still pending. We repeat that Ryerson never sought leave to amend the first complaint to name Crescent as an additional party.

We turn now to the issues that have been presented to us. Ryerson argues that this court’s reversal of the summary judgment in its favor was not a final judgment and was not on the merits.

To establish res judicata a party must show: (1) that the former adjudication resulted in a final judgment on the merits; (2) that the former and current adjudications were between the same parties; (3) that the former adjudication involved the same cause of action and the same subject matter as the current case; and (4) that a court of competent jurisdiction rendered the first judgment. People ex rel. Scott v. Chicago Park District (1976), 66 Ill. 2d 65, 360 N.E.2d 773; Best Coin-Op, Inc. v. Paul F. Ilg Supply Co. (1989), 189 Ill. App. 3d 638, 545 N.E.2d 481.

Ryerson’s entire claim of lack of finality is based on its interpretation of section 13—217 of the Code of Civil Procedure, which provides as follows:

“In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, *** the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed ***.” Ill. Rev. Stat. 1989, ch. 110, par. 13—217.

Ryerson’s argument is that our order was not final because section 13—217 grants it the absolute right to refile. Relief under section 13—217, however, is not available if the underlying case is decided on the merits. Suslick v. Rothschild Securities Corp. (1989), 128 Ill. 2d 314, 538 N.E.2d 553; Murphy v. Giardina (1979), 78 Ill. App. 3d 896, 397 N.E.2d 845, aff’d (1980), 82 Ill. 2d 529, 413 N.E.2d 399 (predecessor of section 13—217, section 24a of the Limitations Act, did not authorize the refiling of an action where the complaint in question was dismissed on the merits).

Ryerson’s argument, in essence, is that dismissal of a complaint for failure to name a necessary party is not an adjudication on the merits. Ryerson’s argument begs the question, which is whether dismissal for failure to name a necessary party is, in fact, an adjudication on the merits. In support of its argument Ryerson refers to Supreme Court Rule 273 (134 Ill. 2d R. 273):

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.”

Ryerson is correct in stating that as a general rule the failure to join an indispensable party is not considered an adjudication on the merits under Rule 273. (In re Application of Busse (1989), 183 Ill. App. 3d 682, 539 N.E.2d 323.) The issue now becomes whether a statute of this State has specified that failure to join an indispensable party operates as an adjudication upon the merits.

Section 11 of the Mechanics Lien Act (Ill. Rev. Stat. 1989, ch. 82, par. 11) provides:

“The plaintiff shall make all parties interested, of whose interest he is notified or has knowledge, parties defendant, and summons shall issue and service thereof be had as in other civil actions; *** and his failure to so act with regard to summons or notice shall be ground for judgment against him as upon the merits.” (Emphasis added.)

We judge that the legislature has provided that a dismissal for failure to name a necessary party in a mechanic’s lien foreclosure action is an adjudication on the merits.

Ryerson relies principally on Kutnick v. Grant (1976), 65 Ill. 2d 177, 357 N.E.2d 480, and O’Reilly v. Gerber (1981), 95 Ill. App. 3d 947, 420 N.E.2d 425. In Kutnick a trial judge dismissed a case for want of prosecution; the plaintiff refiled; and another judge dismissed the refiled complaint holding that the first dismissal was an adjudication on the merits, relying on Rule 273. The predecessor act to section 13—217 provided that when an action is dismissed for want of prosecution the plaintiff may commence an action within one year. The defendant argued that the predecessor act was not a statute that “otherwise specifies” within the meaning of Rule 273. In other words, as the supreme court noted, acceptance of the defendant’s argument would mean that every case dismissed for want of prosecution and refiled would be subject to dismissal. The court concluded that Rule 273 had no application. The difference between Kutnick and the case before us is glaringly obvious: the defendant in Kutnick claimed there was no statute specifying that a dismissal for want of prosecution was not an adjudication on the merits. In this case there is a statute which specifies that a dismissal for failure to name a necessary party is an adjudication on the merits.

In O’Reilly v. Gerber, the judge denied the plaintiff’s motion for a voluntary dismissal and dismissed the complaint with prejudice for want of prosecution. The appellate court held that the judge properly denied the motion for voluntary dismissal because the plaintiff failed to tender costs to the defendant but that the judge erred in dismissing the case for want of prosecution. The appellate court concluded, as did the supreme court in Kutnick, that acceptance of the defendant’s position would defeat the right given a plaintiff to refile within one year. O’Reilly v. Gerber does not support the plaintiff’s position. We judge, therefore, that the legislature has made a dismissal for failure to name a necessary party in a mechanic’s lien foreclosure case an adjudication on the merits and that, therefore, section 13—217 has no application.

Ryerson has also advanced other arguments against our interpretation of section 11 of the Mechanics Lien Act (Ill. Rev. Stat. 1989, ch. 82, par. 11) and has submitted an affidavit of a professor of English, who expressed an opinion of the meaning of the phrase “in his failure to so act with regard to summons or notice” in section 11. In the professor’s opinion, “his failure” means the failure of the defendant, not the plaintiff. In substance, Ryerson now attempts to reargue the interpretation of section 11 which we made in our previous opinion. We will not consider Ryerson’s reargument beyond saying that we do not agree with the professor’s interpretation of the language of section 11, even if the professor’s opinion could be properly considered.

For these reasons, we hold that the trial judge properly concluded that count I of the complaint was barred by the doctrine of res judicata.

Count II of the new complaint includes what the plaintiff maintains is an action for a personal judgment against Manulife and Corrigan pursuant to section 28 of the Mechanics Lien Act. (Ill. Rev. Stat. 1989, ch. 82, par. 28.) Ryerson contends that this is a separate claim, and as such, res judicata does not apply.

In denying Ryerson’s petition for rehearing in the first action, this court determined that count II of the complaint did not allege an action for personal judgment against the owner and general contractor under section 28 of the Mechanics Lien Act. We noted that count II specifically provided that “the plaintiff claims a lien upon the above described premises.” (Emphasis in original.) We determined that Crescent was a necessary party to both counts of the complaint.

Ryerson’s new complaint is virtually identical to the complaint filed in its original action. The new complaint contains the same language quoted by this court in the order denying Ryerson’s petition for rehearing.

Res judicata extends beyond questions actually litigated and bars claims which could have been raised. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 447 N.E.2d 834.) If the facts and relief sought in the two actions are substantially the same, the doctrine of res judicata will apply. Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959.

Ryerson, citing Garbe Iron Works, Inc. v. Priester (1983), 99 Ill. 2d 84, 457 N.E.2d 422, contends that count I and count II of its complaint are separate causes of action. Garbe does state that section 28 of the Mechanics Lien Act, which allows a subcontractor to “sue the owner and contractor jointly,” provides a cause of action apart from an action to foreclose a mechanic’s lien. Garbe, however, addresses whether the plaintiff’s complaint stated a cause of action, not whether these two causes of action were separate and distinct claims for the purposes of res judicata. That the two claims are based on different theories does not require a finding that they are two separate causes of action for purposes of res judicata. Best Coin-Op, Inc. v. Paul F. Ilg Supply Co. (1989), 189 Ill. App. 3d 638, 545 N.E.2d 481.

Courts have applied two different tests for determining whether the same cause of action is present for purposes of res judicata. The court in Best Coin-Op articulated both of these tests. The first test for determining whether two causes of action are the same for res judicata purposes is the “same evidence test.” (Best Coin-Op, 189 Ill. App. 3d at 652.) Under this test, the court must determine whether “the same facts are essential to the maintenance of both cases.” (Best Coin-Op, 189 Ill. App. 3d at 652.) The second test is the “transactional” test. (Best Coin-Op, 189 Ill. App. 3d at 654.) Under this approach, res judicata will bar a claim “if a single group of operative facts give rise to the assertion of relief.” Best Coin-Op, 189 Ill. App. 3d at 654.

Under either of these approaches the plaintiff’s cause of action fails. Several factors show the identical nature of these claims. Ryerson’s claims arise from the use of its materials in Manulife’s building. The sole basis for the first count is Ryerson’s contract with Crescent and then with Corrigan. Basically, the second count of Ryerson’s complaint incorporates the first count of the complaint and adds a different prayer for relief. We conclude that these claims are to be considered the same cause of action for res judicata purposes.

The drafters of the Mechanics Lien Act recognized the similarity of the two causes of action that the plaintiff attempts to plead. Section 28 states that the subcontractor may file a claim for a lien or sue for a personal judgment. (Ill. Rev. Stat. 1989, ch. 82, par. 28.) There is no reason why Ryerson could not have pleaded both claims in a single complaint. While these two claims may be separate for pleading purposes, they are not separate for res judicata purposes.

For these reasons, the order granting summary judgment on count II in the defendants’ favor is affirmed.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.

       Justice Rosemary La Porta participated in oral argument before her death. Justice Thomas Rakowski was substituted on the panel. He has listened to the oral argument tape and has read the briefs.


author: JUSTICE GORDON

text:
    CHUBB/HOME INSURANCE COMPANIES, Plaintiff-Appellant and Cross-Appellee, v. OUTBOARD MARINE CORPORATION, Defendant-Appellee and Cross-Appellant.
    First District (5th Division)
    No. 1—89—3474
    Opinion filed November 13, 1992.

      Bollinger & Ruberry, of Chicago, and Fell & Spalding, of Philadelphia, Pennsylvania (Stephen R. Bolden, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Joshua G. Vincent, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Kathleen Faul, who was injured by a boat propeller while in the water, filed suit against the boat operator, David Joss (Joss), and the boat owner, his father, John Joss, alleging negligence in the operation and the entrustment of the boat. A settlement was reached between Faul and the Josses. This settlement was paid on behalf of the Josses by their insurance carrier, Chubb/Home Insurance Companies (Chubb). Chubb subsequently brought a contribution action against Outboard Marine Corporation (OMC), manufacturer of the boat’s engine. Chubb sought recovery under products liability and negligence theories, alleging that the injuries suffered by Faul would have been much less severe if OMC’s motor had been equipped with a propeller guard. A jury returned a verdict finding that OMC was not liable. On appeal, Chubb argues that the trial court erred in denying its motion in limine which sought to exclude evidence of the boat operator’s consumption of alcohol on the morning of the accident and that remarks made by OMC’s counsel during closing arguments constitute reversible error.

Facts

Except where otherwise indicated, the following facts are undisputed. David Joss, Kathleen Faul and Peggy McElroy, three college friends, made plans to take the Joss family boat out to Cedar Island in Fox Lake and spend the afternoon of July 11, 1981, at the Joss family cottage. They were going to a concert at Alpine Valley that night.

After arriving at the marina, they bought some Bloody Mary mix and loaded the boat, which was powered by a 1973 Evinrude outboard motor made by OMC. Upon arriving at the cottage, Faul went inside and made a round of Bloody Marys. They sat outside for about an hour talking during which time McElroy had two drinks. Joss drank about half of his Bloody Mary from an eight-ounce glass when he put the glass down on an incline and the glass tipped over, spilling the rest of his drink. Joss testified that earlier that morning he ate a breakfast of bacon and eggs prepared by McElroy. McElroy denied preparing any breakfast for Joss. Joss further testified that he did not recall consuming any more alcohol prior to the occurrence in question.

There is further undisputed testimony that between 11 a.m. and 11:30 a.m. Joss, Faul and McElroy got back into the boat. They rode around for about 20 minutes with Joss driving the boat and McElroy and Faul sitting behind the driver. They decided to go water-skiing and went back to the cottage, where Joss readied the water-skiing equipment and everyone changed into their swimsuits.

Joss testified that be began water-skiing at age 11 and first learned to operate a boat at summer camp about the same time. Joss first operated the family boat when he was 18 or 19 years old. He estimated that he operated the boat between 50 and 100 times and that the boat was used for water-skiing between 10% and 20% of that time. Joss had been told by his father to stop the motor completely when talking to a skier.

Faul, who told Joss she knew how to water-ski, was the first to do so that day. She put on a red life vest which clipped together covering her shoulders and extended slightly down past her waist. They were going to ski in a channel which is a couple of hundred yards wide in Meyers Bay, part of Fox Lake. They all discussed the hand signals which would be used to communicate between the skier and the operator of the boat. McElroy sat in the back of the boat and was to relay Faul’s signals to Joss.

McElroy testified that she brought a six-pack of beer with her onto the boat, but did not recall whether Joss consumed any beer while on the boat. She did recall that she consumed one beer on the boat. Joss testified that he did not remember Paul or McElroy bringing beer with them on the boat or consuming any. On cross-examination, Joss was not positive, but stated that he did not remember drinking or being offered a beer while on the boat. Joss said if he did consume any beer, he probably had only one. There was no other testimony to establish that Joss consumed any alcohol other than a portion of a Bloody Mary. McElroy stated that Joss’ eyes were not bloodshot, his speech was not slurred, and that he did not appear to be intoxicated or impaired in anyway while operating the boat.

Paul had been skiing for about 20 minutes during which time she fell two or three times. When she last fell, McElroy so advised Joss, who then slowed down the boat and started to make a turn to the left. Joss testified that at the time the boat was going about 10 to 15 miles an hour. McElroy said she was unable to estimate the speed of the boat. Joss was attempting to pick up Paul by heading straight for her. Joss swung the boat to the right with Paul now on the starboard side of the boat. McElroy stated that the boat was slowing gradually while approaching Paul. Joss testified that he started to circle around Paul with the throttle of the boat just short of neutral and the boat going about five miles an hour.

According to Joss, as he started to make the turn he pulled back on the throttle and the front end of the boat moved up in the air because he was turning and slowing down. Joss testified he lost sight of Paul when he caught a wave or a wake. McElroy, however, testified that she did not remember any such wave or wake. The boat drifted over towards Paul and Joss lost sight of her. Joss stated that as soon as he lost sight of her, he pulled completely back on the throttle, putting the boat into neutral. It was then they noticed that Paul was injured, at which time McElroy yelled ashore for people to call paramedics. Joss jumped into the water and helped Paul into the boat.

Kathleen Paul sustained seriously disfiguring and disabling injuries and lacerations, the full extent of which need not be specified for purposes of this appeal. On January 20, 1982, Paul filed suit against David Joss and his father, John Joss. On October 3, 1984, Chubb filed a motion for leave to file a third-party complaint, which was denied by the trial court. On October 10, 1984, a settlement agreement was reached under which Chubb agreed to pay Paul $2,297,590.86 on behalf of the Josses. Chubb asked for a “release as is the custom within the Circuit Court of Cook County.”

On that date, Chubb advised the court that a settlement was reached and renewed its motion for leave to file a third-party complaint against OMC. The court granted Chubb leave to file its contribution claim instanter. Thereafter, on October 10, 1984, the third-party complaint was filed, and, on October 12, 1984, an order dismissing Faul’s complaint against the Josses was entered.

In its complaint, Chubb sought recovery under products liability and negligence theories. Chubb alleged that Faul would have suffered only minor injuries if OMC had equipped the outboard motor of the boat with a people-protective propeller guard. Chubb further alleged that the severity of Faul’s injuries was attributable to the absence of this guard and not to any negligence by Joss in the operation of the boat.

On October 18, 1984, Faul executed a release which purported to discharge the Josses from any liability connected with the July 11, 1981, accident. This release, however, did not provide for the discharge of OMC. OMC moved to dismiss the third-party complaint as untimely and because it failed to state a claim under the Contribution Act since OMC’s liability was not extinguished by the release as required by section 2(e) of the Contribution Act. (Ill. Rev. Stat. 1989, ch. 70, par. 302(d).) Chubb filed a motion to reform the release to provide for the discharge of OMC.

In addition, OMC filed a motion for summary judgment with respect to Chubb’s motion to reform the release. In support of its motion for summary judgment, OMC filed the depositions of William Ca-hill, the attorney who represented Faul in the action against the Josses, and Jeremiah Connelly, the attorney who prepared the original release. Cahill’s deposition testimony was that Chubb’s attorneys never requested that the release include OMC. Cahill stated that he was aware that Chubb attempted to file a third-party complaint against OMC a week before the settlement was reached. Connelly’s deposition testimony was that there were no specific discussions of whether the release was to discharge OMC, but that he did make it clear that Chubb wanted to sue OMC. Connelly stated that he intended to add OMC to the release but because he lacked “form” language which would conform with the Contribution Act, he forwarded the release which purported to discharge only the Josses by name.

On April 8, 1986, the trial judge denied OMC’s motion for summary judgment and granted Chubb’s motion to reform the release to specifically discharge OMC from liability with respect to Faul. OMC’s motion to dismiss the third-party complaint was denied on August 22, 1986.

On July 6, 1989, after this matter was reached for trial, Chubb made an oral motion in limine attempting to exclude evidence that Joss, McElroy or Faul had been drinking alcohol on the morning of the accident. This motion was premised on the contention that OMC would be unable to demonstrate that Joss was impaired as a result of any alcohol consumption. The motion was denied. In denying Chubb’s motion in limine, the trial court stated, “if they don’t make out their affirmative defense, [referring to the fact that Joss’ intoxication was raised as an affirmative defense in the pleading] I assume there’s going to be a motion for a directed verdict on one or more of their affirmative defenses, and the Court will tell the jury, while they’ve got their notebooks present, ‘This one is out,’ if they don’t establish their defense. But I don’t think we can stop them at this time.”

OMC also filed a motion in limine, attempting to exclude the fact that the attorney who had represented Faul in its action against the Josses had represented OMC on prior occasions. In explaining the reasoning behind his objection to the motion in limine, Chubb’s counsel stated that he did not want OMC to argue that Kathleen Faul did not join OMC as a defendant in her suit because she did not believe OMC to be culpable.

The trial court granted OMC’s motion in limine, stating that these motions were to be interpreted narrowly. The court admonished counsel to bring to its attention any additional problems which may come up with respect to the court’s ruling on the motion in limine.

Chubb was the first to introduce Joss’ consumption of alcohol at trial in the presence of the jury. In his opening statement, counsel for Chubb brought that subject up twice. Chubb’s counsel first told the jury that “David had a drink, a Bloody Mary, half of which was spilled.” Later in opening statement, Chubb’s counsel stated that boats are operated by people who are “probably not being as careful as they might be on certain other circumstances, and very often, yes, involving operators or others who may have brought a can of beer or something else onto the boat for purposes of the fun that they were going to have that day.” Chubb’s attorney also admitted that David Joss was negligent in his operation of the boat. OMC did not mention Joss’ alcohol consumption in its opening statement.

In the direct examination of Joss, Chubb’s counsel again raised that subject.

“[PLAINTIFFS’ COUNSEL]: Did you have any of the Bloody Mary?
[DAVID JOSS]: Yes, I did.
Q. Tell the jury what you had, how much you consumed.
* * *
Q. You indicated that at approximately 10:00 or 10:30 you had about a half of an 8-ounce glass of a Bloody Mary, is that correct?
A. That is correct.
Q. Between that time and the time of the accident did you have another single drop of anything else to drink?
A. Not alcohol.”

On cross-examination, counsel for OMC asked Joss whether he had seen his father consume alcohol on previous occasions as a passenger. He also asked him whether he had seen his father use alcohol when operating the boat. Chubb’s counsel objected to each of these questions, which the judge sustained, each time instructing the jury to disregard them. Counsel for OMC was then permitted to ask Joss, over Chubb’s objection, “[D]id you use alcohol in the presence of your father while you were operating the boat?” Joss answered that it was not uncommon for alcohol to be on the boat, but that he could not recall a specific instance where he was drinking when he was driving and his father was a passenger.

Counsel for Chubb pursued the issue of alcohol consumption with McElroy.

“Q. What did you get at the store?
A. Bloody Mary mix. And that’s all I remember.
* * *
Q. Who actually mixed [the drinks]?
A. I don’t remember. After reading my deposition, I said that Kathy [Faul] did it.
* * *
Q. Do you remember *** how much David Joss had to drink?
A. No.
* * *
Q. Did [Joss] appear impaired to you in any way?
A. No, he did not.”

On cross-examination, OMC’s counsel also asked about Joss’ alcohol consumption.

“Q. [Y]ou had some Bloody Marys out on the lawn, is that correct?
A. Correct.
* * *
Q. Do you recall whether or not Joss had any beer on the boat?
A. No, I don’t.”

At trial, the only occurrence witness presented by OMC was Michael Gallagher. Gallagher, an experienced water-skier, testified that he skied every other weekend during the summer months and had operated a boat in excess of 100 hours. On the date of the accident, Gallagher stated that while sitting about five feet from the water he first noticed Faul, skiing from right to left at a distance of 100 to 150 feet from shore. He saw her fall and noticed that the boat which was pulling her started to come back for her, but he then looked away and did not see the boat turn. He stated that he could not tell how far away the boat was from the skier when he again noticed the boat coming towards the skier. Gallagher stated that the boat was approaching the skier at a fast rate of speed on a plane, gliding over the water. At this point, Gallagher stated he could not tell if the boat was going to one side of Faul or the other. Gallagher stood up as the boat reached the skier because he was “just anxious” and “getting nervous” about its speed. When the bow of the boat reached the skier, he lost sight of her. According to Gallagher, the last maneuver the boat executed was a hard turn to its right.

OMC also called several expert witnesses who testified to the speed of the boat. Don Kueny testified that the “planing speed,” the velocity at which a boat no longer displaces water but glides over it, of the Josses’ boat was between 16 and 20 miles per hour. OMC also called Dr. Albert Burstein, who testified that, based on the nature and extent of Faul’s injuries, the boat was going between 12 and 15 miles per hour at the time it collided with Faul. Earlier, during the plaintiff’s presentation of evidence, Chubb called its expert, who testified that, based on the injuries and lacerations suffered by Faul, the boat was travelling less than five miles per hour at the time of the accident.

In closing arguments, Chubb’s counsel raised the issue of Joss’ alcohol consumption again and argued that OMC knew that the boat “would be used in the area of people who may be having alcohol, may be taking a can of beer onto the boat for a good time, and oh, yes, used by people, people who are human and people who make mistakes, foreseeable mistakes.” The only mention of alcohol in OMC’s closing argument was that Joss had half a Bloody Mary.

In his closing argument, counsel for OMC made the following statement, which Chubb contends on appeal to have been erroneously permitted:

“What, now does the insurance company say? They look around. ‘Is there somebody that we can sue to get our money back?’ And that’s where OMC comes in. OMC made the motor. So OMC gets sued in this case by Chubb and Home, not by Kathleen Faul, by Chubb and Home, because Chubb and Home wish to get back from us the moneys that they were called upon under their contract of insurance with the Josses to pay out and for which they received a premium.”

Chubb’s counsel waited until IV2 to 2 minutes after this statement was made before he objected to this statement. During the interval between the statement and the objection, OMC’s counsel argued that Joss’ father had negligently entrusted the boat to his son as he did not properly instruct or insure the competency of his son as a boat operator before allowing him to use the boat. OMC’s counsel next stated that Chubb’s argument needed to be examined and he proceeded to speak in a third person as the boat operator, blaming the accident on the operation of the motor. At this point, counsel for Chubb first registered a general objection without identifying the portion of the argument to which its objection related. That objection was overruled and this ruling is now assigned as error.

On July, 26, 1989, the jury returned a verdict in favor of OMC. Chubb filed a post-trial motion for a judgment notwithstanding the verdict or in the alternative for a new trial, which was denied on November 28, 1989. On December 18, 1989, Chubb filed a notice of appeal, appealing the order entering the judgment on July 26, 1989, and the November 28, 1989, order denying its request for a judgment notwithstanding the verdict.

With leave of court, OMC filed a late notice of cross-appeal, appealing the pretrial orders of April 8, 1986, granting Chubb’s motion for' reform of the release, and August 22, 1986, denying OMC’s motion to dismiss Chubb’s third-party complaint. OMC argues in its cross-appeal that the respective orders allowing reformation of the release and denying its motion to dismiss should be reversed because the mistake in the original release was not the result of a mutual mistake between the parties, but rather was a unilateral mistake of law on the part of Chubb’s attorneys. Accordingly, OMC contends that Chubb’s complaint should have been dismissed because the release originally failed to discharge OMC as required by section 2(d) of the Contribution Act. Additionally, OMC claims that the third-party complaint was not timely filed for two reasons. First, OMC contends that the complaint was not filed within the two-year statute of limitations period contained in section 13—213(d) of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 13—213(d).) OMC then argues that the complaint was untimely because even though the third-party complaint was filed on October 10, 1984, two days before Faul’s action was formally dismissed, it was not filed during the pendency of the original action since, in effect, the action ended when the settlement was reached on October 10, 1984, prior to the filing of the complaint.

Opinion

On appeal, Chubb first contends that the trial court erred in denying its motion in limine to exclude the evidence of David Joss’ alcohol consumption on the grounds that the evidence was insufficient to establish impairment. OMC responds that Chubb has waived this issue by failing to specifically object when the evidence of David Joss’ alcohol consumption was presented by OMC. Further, OMC contends that Chubb invited this error by introducing the evidence during its direct examinations of David Joss and Peggy McElroy prior to OMC ever raising this issue. In the alternative, OMC contends that the evidence of what was consumed, together with Gallagher’s testimony as to the driver’s conduct, is sufficient to establish such impairment. In particular, OMC relies on Gallagher’s testimony that the boat was planing when approaching Faul and that it turned hard to the right as the type of bizarre or unusual driving patterns sufficient to establish intoxication.

The case law in Illinois is clear. When a motion in limine is denied, “the unsuccessful movant is left with the procedure of specifically objecting to the evidence when it is offered at trial.” (Cunningham v. Millers General Insurance Co. (1992), 227 Ill. App. 3d 201, 206, 591 N.E.2d 80; Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189, 359 N.E.2d 752.) This objection must be made when the evidence is offered at trial or the right to raise this issue on appeal is waived. Gonzalez v. Prestress Engineering Corp. (1990), 194 Ill. App. 3d 819, 551 N.E.2d 793; County of Cook v. Colonial Oil Corp. (1958), 15 Ill. 2d 67, 75, 153 N.E.2d 844 (“experienced counsel cannot take a chance of failing to make objections and then, upon receiving what they consider an adverse jury verdict, claim error”).

Courts have consistently held that orders in limine are interlocutory in nature and are subject to reconsideration by the trial court throughout the trial. (Cunningham, 227 Ill. App. 3d at 205; Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 522 N.E.2d 1341.) This flexibility allows the court to interpret and make any necessary corrections to its order in limine during trial. (Cunningham, 227 Ill. App. 3d at 205; Crawford County State Bank v. Grady (1987), 161 Ill. App. 3d 332, 514 N.E.2d 532.) Furthermore, proper and timely objections allow a reviewing court to benefit from a trial court’s interpretation of its order. (Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 5, 422 N.E.2d 241.) As Chubb failed to follow this established procedure by objecting at trial when the evidence was actually offered, it cannot raise this issue on appeal.

Here, not only did Chubb fail to object, it was the first to introduce the evidence in question, albeit defensively. A party cannot complain of evidence which he himself introduced or brought out. (Romanek, 168 Ill. App. 3d at 1040; Doria v. Costello (1974), 22 Ill. App. 3d 505, 512, 318 N.E.2d 40 (plaintiff cannot be heard to complain that evidence of his alcohol consumption was admitted as his counsel initiated the inquiry into such consumption).) The case of Reid v. Sledge (1992), 224 Ill. App. 3d 817, 822, 587 N.E.2d 1156, is on point. In that case, the court held that the plaintiff did not preserve the issue of whether the trial court erred in denying his motion in limine which attempted to bar evidence that the decedent’s son had undergone a sex-change operation. The court stated that the plaintiff was precluded from raising this issue on review because he failed to object to the evidence when offered at trial and had, in fact, introduced the evidence at trial himself. Reid, 224 Ill. App. 3d at 822.

Chubb relies on one Texas case, McCardell v. Hartford Accident & Indemnity Co. (Tex. Ct. App. 1962), 360 S.W.2d 831, for the proposition that once a motion in limine is denied, the party which had attempted to suppress the evidence may introduce it because “it is better from a party’s standpoint that the information came out on direct examination rather than cross-examination.” (360 S.W.2d at 835.) Chubb, however, overlooks the fact that in its review of the appellate court decision, the Texas Supreme Court stated in Hartford Accident & Indemnity Co. v. McCardell (Tex. 1963), 369 S.W.2d 331, that “[i]f a motion in limine is overruled, a judgment will not be reversed unless the questions or evidence were in fact asked or offered. If they were in fact asked or offered, an objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require a reversal.” (Emphasis added.) (369 S.W.2d at 335.) Consequently, the plaintiff’s reliance on the appellate court’s decision in McCardell is misplaced in light of the Texas Supreme Court’s statement, which is consistent with Illinois law, that an objection when the evidence is offered is necessary to preserve the issue on appeal.

Chubb’s position that it can use evidence it attempted to exclude solely because its motion in limine was denied completely disregards the interlocutory nature of a motion in limine. At trial, CMC never mentioned alcohol in its opening statement and never brought up the topic in its case in chief. CMC merely touched on a subject in cross-examination that Chubb raised on direct. Chubb’s own trial strategy set the trial court’s order in limine in stone, forcing the issue into the case and preventing, in a practical sense, any interpretation or modification of the order during trial.

If Chubb’s position were followed, Chubb, and other litigants similarly situated, would have a ready-made error on appeal without the trial court ever having the opportunity to reconsider its rulings on motions in limine, even if the opposing party never chose to introduce the objectionable evidence at trial. While Chubb may have exercised sound trial strategy in attempting to blunt the impact of the evidence, such actions simply do not properly preserve the issue for review on appeal. See Doria, 22 Ill. App. 3d at 510, 512 (in dicta, court stated that plaintiff’s counsel could not bring as error the admission of plaintiff’s alcohol consumption when plaintiff introduced the evidence, apparently as a matter of trial strategy).

Consequently, after examining both the Romanek line of cases and McCardell, we conclude that Chubb has waived this issue for purposes of appeal as any other result would significantly dilute the interlocutory nature of the motion in limine which decisional law has sought to protect. (Cunningham, 227 Ill. App. 3d at 205-06.) But see People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563, to which neither of the parties have referred. There, the court held that a criminal defendant could introduce his prior conviction on direct examination after his motion in limine to exclude such conviction was denied and still preserve the issue for appeal. However, the Illinois Supreme Court in Spates limited its holding to “the precise facts” of that case, namely the use of prior convictions for impeachment purposes to discredit a witness.

Moreover, even if we chose to extend the Spates rationale to include any use of challenged evidence by the party who loses a motion in limine where such use was motivated by a desire to blunt the impact of such evidence, we would find that the trial court did not abuse its discretion in allowing the jury to hear evidence of Joss’ alcohol consumption. This conclusion is not inconsistent with the principles governing the admissibility of such evidence.

The general rule governing the admissibility of evidence pertaining to the consumption of alcohol is that such evidence may not be introduced unless actual intoxication can be proven. (Marshall v. Osborn (1991), 213 Ill. App. 3d 134, 571 N.E.2d 492; Bohnen v. Wingereid (1979), 80 Ill. App. 3d 232, 398 N.E.2d 1204.) A party is required to show supporting evidence of actual impairment of physical or mental capabilities. Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 914, 410 N.E.2d 249.

The supporting evidence must reveal some “act, action, conduct, appearance, observation, or circumstance *** [which] either directly or by reasonable inference, [demonstrates] that the conduct of the individual at and before the accident was or may have been affected by the use of alcoholic beverages.” (Shore v. Turman (1965), 63 Ill. App. 2d 315, 323, 210 N.E.2d 232.) This evidence must show impairment “with the resultant diminution in the ability to think and act with ordinary care.” (Skelton v. Chicago Transit Authority (1991), 214 Ill. App. 3d 554, 575, 573 N.E.2d 1315.) The evidence of impairment can be shown directly through testimony of the person drinking (Matkins v. Fenorsky (1952), 348 Ill. App. 125, 108 N.E.2d 373), or circumstantially, through opinion testimony of a person who observed the subject's intoxication (Doria, 22 Ill. App. 3d at 510), expert testimony (Marshall, 213 Ill. App. 3d at 141), or through evidence of erratic behavior such as bizarre or unusual driving patterns (Bohnen, 80 Ill. App. 3d at 237).

Joss testified that he consumed one-half of a Bloody Mary and could not affirmatively state that he did not consume any beer while on board the boat. Courts have consistently held that there is “no arithmetic calculation from the drinks consumed [which] can establish whether a particular person was impaired.” (See, e.g., Bohnen, 80 Ill. App. 3d at 237.) As the court stated in Kitten v. Stodden (1966), 76 Ill. App. 2d 177, 221 N.E.2d 511, “Intoxicating beverages affect different persons in different ways and some persons would be intoxicated by the consumption of the same quantity of intoxicating beverages that the plaintiff consumed, but the consumption of a similar amount by other persons would have no effect.” (76 Ill. App. 2d at 181.) As such, even the consumption of one alcoholic beverage, coupled with sufficient erratic behavior, has been considered sufficient to create a genuine issue of material fact. Knief v. Sotos (1989), 181 Ill. App. 3d 959, 537 N.E.2d 832 (holding that a genuine issue of material fact existed as to whether driver was intoxicated when driver had one drink, caused an accident by failing to swerve to avoid a fallen bicyclist in the road and emitted the odor of alcohol immediately after the accident).

Here, the supporting evidence reveals actions on the part of Joss which allow a reasonable inference to be drawn that his conduct at and immediately before the accident may have been affected by the use of alcoholic beverages. (Shore, 63 Ill. App. 2d 315, 210 N.E.2d 232.) The testimony of Gallagher, a disinterested witness, established that Joss headed the boat right at Faul, who was in a very vulnerable position. As it headed towards Faul, the boat was planing, which according to one expert would indicate a travelling speed of between 16 and 20 miles per hour. The boat continued at this speed even when it was less than five seconds away from Faul. Moreover, the last maneuver executed by Joss, the sharp turn to the right, was made in the immediate vicinity of Faul.

We agree with Chubb that merely driving at excessive speeds or the mere fact of involvement in an accident are not necessarily indicative of impairment. (See Rose v. Brozman’s Tavern, Inc. (1981), 102 Ill. App. 3d 1087, 1091, 430 N.E.2d 282; Clay v. McCarthy (1979), 73 Ill. App. 3d 462, 467, 392 N.E.2d 693.) However, in this case, the fact that Joss drove the boat at an excessive rate of speed directly at Faul, while heading purposefully in her direction, ostensibly to help her, and that he turned sharply while in close proximity to her can evidence impairment insofar as it reflects an inexplicable disregard for Faul’s safety. Such actions, particularly for an experienced boat operator, if believed by the trier of fact to have occurred present proof beyond mere miscalculation or judgmental error and would allow the admission of evidence pertaining to Joss’ alcohol consumption. (See Knief, 181 Ill. App. 3d at 964.) There, the court held that notwithstanding that the driver was shown to have consumed only one drink, an issue of fact as to intoxication was present where evidence also showed that the driver’s automobile ran over a fallen cyclist after the car in front of hers swerved broadly to avoid such impact. The court stated that the evidence that the first car swerved broadly could support an inference that the driver of the second car was intoxicated as she did not follow the first driver’s lead. (Cf. Bohnen, 80 Ill. App. 3d at 238 (fact that car, “with no apparent explanation,” crossed over two lanes of traffic and an eight-foot tumble strip and collided with another car head on was sufficient evidence of unusual driving to admit evidence of driver’s drinking).) Consequently, we cannot say that in light of the evidence of Joss’ alcohol consumption and of the erratic fashion in which Joss operated the boat that the trial court abused its discretion in admitting this evidence.

We also note that the issue of intoxication pertains only to the question of damages since it affects only the percentage of OMC’s contribution to the injuries. Here, the jury found that there was no liability by OMC. Thus, the issue of intoxication was not reached in the jury’s determination. (Accord Kramer v. J.I. Case Manufacturing Co. (1991), 62 Wash. App. 544, 815 P.2d 798 (improper admission of evidence of plaintiff’s prior alcohol and drug use was not sufficient basis for reversal of jury verdict finding defendant manufacturer not liable when such evidence was relevant only to damages, an issue which the jury did not reach); cf. Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 294 N.E.2d 689 (unnecessary to reach alleged errors, raising issue of surviving spouse’s remarriage during voir dire and remarks in closing argument on the extent of damages, on appeal when the jury having found the defendant not liable, never reached the question of damages); Werthman v. General Motors Corp. (1990), 187 Mich. App. 238, 466 N.W.2d 305 (admission of hospital records which included blood alcohol level of decedent in action did not constitute reversible error where jury’s verdict indicated it found no design defect in defendant’s product).) Moreover, since this action was brought by Chubb in its own name as subrogee of Joss, we cannot conclude that the question of Joss’ intoxication was so prejudicial as to pervade the liability issue even though its relevance was only to damages. Cf. Walters v. Lincoln Electric Co. (1990), 197 Ill. App. 3d 920, 557 N.E.2d 208.

Chubb next contends with respect to the issue of alcohol consumption that the cross-examination of David Joss regarding his consumption of alcohol on prior occasions was improper because it went beyond the scope of direct examination. This contention refers to the question asked of Joss concerning his own prior alcohol consumption on the boat in the presence of his father. Joss testified on direct examination about his past training and experience in learning to operate the vessel. On cross-examination, it was established that, at least in part, this training was under his father’s tutelage. Consequently, at least superficially, the question concerning his prior consumption of alcohol while on the boat in the presence of his father was not totally beyond the scope of his direct examination. To the extent, however, that the specific fact that he was trained by his father was established only on cross-examination, the trial judge would have been within the limits of his discretion had he sustained the objection to the question of Joss’ prior consumption. Nevertheless, we cannot say that the denial of the objection constituted an abuse of discretion.

Moreover, even if this question was beyond the scope of direct examination, the elicited response did not rise to the level of prejudicial error. As previously noted Joss’ response to that question was that having alcohol on the boat was not uncommon, but that he could not recall a specific instance wherein he consumed alcohol in such circumstances. Thus, the response does not disclose any alcoholic consumption or impairment on Joss’ part on any such prior occasions. Moreover, the mere presence of alcoholic beverages on the boat would not by itself be prejudicial. Arguably, it would be a matter of common knowledge that alcohol could be kept on a boat for consumption by its passengers.

Chubb’s argument next concerns remarks made by OMC’s counsel in closing arguments. Specifically, Chubb complains of OMC’s reference to the fact that the suit against OMC was brought by Chubb, not by Kathleen Faul. Chubb contends that this remark implies that Faul chose not to sue OMC because she did not think OMC was at fault. According to Chubb, this improper reference “tended to undermine and negate the entire basis upon which any subrogation action is based.”

At the outset, we agree with OMC that Chubb has waived this argument by failing to timely object to the remark during closing arguments. (County of Cook v. Colonial Oil Corp. (1958), 15 Ill. 2d 67, 153 N.E.2d 844.) Chubb’s contention that it did object during closing argument is not persuasive. Chubb did not object until well after the remark was made. In the 1½ to 2 minutes between the remark and objection, OMC’s counsel argued that David Joss’ father had negligently entrusted the boat to his son, had not properly instructed his son, and that OMC’s motor was not liable for Faul’s injuries. For the court to sustain an objection which refers back to a much earlier portion of a summation, or for that matter an opening statement, could prove unduly disruptive and confuse the jury. Likewise, if the error could be cured, an attempt to backtrack in order to do so would be unduly cumbersome. (Cf. Village of Park Forest v. Walker (1976), 64 Ill. 2d 286, 356 N.E.2d 42; Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 481 N.E.2d 1037 (failure to object at the time of the argument waives question for purposes of review).) We also note that although not argued by the parties, the objection which was ultimately made was a general one and, as such, was not sufficient to preserve any error. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.2, at 6-7 (4th ed. 1984).

Even if Chubb had not waived this issue, the remark does not appear to warrant reversal. The determination of prejudicial impact made by arguments or remarks of counsel is within the sound discretion of the trial qourt. (Oak Brook Park District v. Oak Brook Development Co. (1988), 170 Ill. App. 3d 221, 524 N.E.2d 213.) The trial judge’s finding will not be disturbed on review absent a clear abuse of discretion. Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 479 N.E.2d 1091.

First, as previously stated, the remark does correctly state that OMC was being sued by Chubb, and not by Kathleen Faul, a fact that the jurors were aware of throughout the trial. Second, the trial in this case lasted for three weeks during which time the jury heard extensive, technical testimony from numerous expert witnesses on the feasibility or impracticality of various propeller guards. This statement was uttered during the course of a closing argument lasting 45 minutes to 1 hour which dealt almost exclusively with the issues of OMC’s liability and the impracticality of the propeller guard. This statement was not repeated or stressed in any way, thus limiting any possible prejudice. (Ferry v. Checker Taxi Co. (1987), 165 Ill. App. 3d 744, 751, 520 N.E.2d 733.) Considering these factors, this single remark could not have had a significant impact and does not require a new trial.

Chubb contends that the motion in limine barring mention that Paul’s attorney had represented OMC on previous occasions prevented it from adequately responding to the assertion made by OMC’s counsel that Faul did not bring suit against OMC. However, since the remark in question did not rise to level of prejudicial error, prejudicial error could not have arisen when Chubb was prevented from responding to the contention that Faul did not join OMC as a defendant by OMC’s motion in limine.

In sum, we hold that Chubb did not properly preserve the issue of David Joss’ alcohol consumption for review and that Chubb has waived the propriety of defense counsel’s remarks during closing arguments by failing to timely object to the remarks at trial. We note that even if plaintiff had properly preserved the issue of OMC’s remarks in closing arguments for appeal, the remarks do not constitute reversible error. In light of our holding, we need not reach the issues raised by the defendants’ cross-appeal concerning the allegedly improper reformation of the release and the timeliness of the filing of Chubb’s third-party complaint.

Judgment affirmed.

LORENZ and MURRAY, JJ., concur.