source: Caselaw Access Project

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text:
    CONCERNED CITIZENS and Property Owners; Illinois Agricultural Association, a/k/a Illinois Farm Bureau; Mary Ellen Zotos; and Landowners Alliance of Central Illinois, NFP, Petitioners, v. The ILLINOIS COMMERCE COMMISSION; Grain Belt Express Clean Line LLC; Brown Branch LLC; JAR Branch LLC; Infinity Wind Power; Citizens Utility Board; Illinois Central Railroad Company; Rockies Express Pipeline LLC; Rex Encore Farms LLC; Rex Encore Properties LLC; Wind on the Wires ; Environmental Law and Policy Center; BNSF Railway Company; Local Unions 51 and 702 International Brotherhood of Electrical Workers, AFL-CIO; and Building Owners and Managers Association of Chicago, Respondents.
    NO. 5-15-0551
    Appellate Court of Illinois, Fifth District.
    Rule 23 Order Filed: March 13, 2018 Motion to Publish Granted: April 17, 2018 Opinion Filed: April 17, 2018
    Attorneys for Appellants: Edward D. McNamara, Jr., Joseph H. O'Brien, McNamara & Evans, 931 South 4th St., Springfield, IL 62705-5039 (attorneys for Concerned Citizens and Property Owners); Charles Y. Davis, Claire A. Manning, Brown, Hay & Stephens LLP, 205 S. 5th St., Suite 700, Springfield, IL 62705 (attorneys for Illinois Agricultural Ass'n); Elizabeth E. Nohren, Dustin L. Probst, Dove & Dove, 151 South Morgan St., Shelbyville, IL 62565-0647; Jonathan L. Phillips, William M. Shay, Shay Phillips, Ltd., 230 SW Adams St., Suite 310, Peoria, IL 61602 (attorneys for Landowners Alliance of Central Illinois, NFP); Paul G. Neilan, Law Offices of Paul G. Neilan, P.C., 1954 1st St., # 390 Highland Park, IL 60035 (attorney for Mary Ellen Zotos, by Nafsica Zotos)
    Attorneys for Appellees: James A. Hansen, Schmiedeskamp, Robertson, Neu & Mitchell LLP, 525 Jersey St., Quincy, IL 62301 (attorney for Brown Branch, LLC, and JAR Branch LLC); Michael A. Munson, Building Owners and Managers Ass'n of Chicago, 115 S. LaSalle, Suite 2300, Chicago, IL 60603 (attorney for Building Owners and Managers Ass'n of Chicago); Justin M. Vickers, Environmental Law and Policy Center, 35 East Wacker Drive, Suite 1600, Chicago, IL 60601 (attorney for Environmental Law and Policy Center); Diana Z. Bowman, Owen E. MacBride, Schiff Hardin LLP, 233 South Wacker Dr., Suite 6600, Chicago, IL 60606 (attorneys for Grain Belt Express Clean Line LLC); Thomas R. Stanton, James E. Weging, Douglas P. Harvath, Office of General Counsel, Illinois Commerce Comm'n, 160 N. LaSalle St., Suite C-800, Chicago, IL 60601 (attorneys for Illinois Commerce Comm'n); David D. Streicker, Paula S. Kim, Polsinelli PC, 161 N. Clark St., Suite 4200, Chicago, IL 60601 (attorneys for Infinity Wind Power); Patrick K. Shinners, Rochelle G. Skolnick, Schuchat, Cook & Werner, 1221 Locust St., 2nd Floor, St. Louis, MO 63103-2364 (attorneys for International Brotherhood of Electrical Workers); E. Glenn Rippie, Rooney, Rippie & Ratnaswamy LLP, 350 West Hubbard St., Suite 600, Chicago, IL 60654 (attorney for Rex Encore Farms LLC, Rex Encore Properties LLC, and Rockies Express Pipeline LLC); Sean R. Brady, Wind on the Wires, 204 Secretariat Court, Wheaton, IL 60189-2026 (attorney for Wind on the Wires)
   PRESIDING JUSTICE BARBERIS delivered the judgment of the court, with opinion.

¶ 1 Concerned citizens, landowners, and intervening parties (appellants) sought judicial review of a decision by the Illinois Commerce Commission (Commission) granting a certificate of public convenience and necessity to Grain Belt Express Clean Line LLC (GBX), an Indiana company formed to construct and manage a high voltage electric service transmission line to connect wind generation facilities. For reasons that follow, we reverse.

¶ 2 BACKGROUND

¶ 3 On April 10, 2015, GBX filed an application with the Commission seeking a certificate of public convenience and necessity for the construction of a new high voltage transmission line under the expedited procedure set forth in section 8-406.1 of the Public Utilities Act (Act) ( 220 ILCS 5/8-406.1 (West 2012) ). GBX sought a certificate of public convenience and necessity to conduct a transmission public utility business to construct, operate, and maintain a 202.7-milelong electric transmission line to traverse central Illinois from Pike County to a converter station in Clark County.

¶ 4 According to the application filed with the Commission, GBX planned to construct and manage a high voltage direct current (DC) electric transmission line that would run from an alternating current (AC)-to-DC current converter station in Ford County, Kansas, across Kansas and Missouri. The transmission line would then continue as a double AC line for approximately 5.2 miles from the converter station to an interconnection with the PJM Interconnection LLC (PJM) transmission network at the Sullivan/Breed substation of American Electric Power Company in Indiana and a DC-to-AC converter station and delivery point into the Midcontinent Independent Systems Operator (MISO) transmission network in northeast Missouri. From western Kansas and through Missouri, the transmission line would enter Illinois west of New Canton in Pike County, Illinois. The Illinois portion of the transmission line would travel 202.7 miles in a general southeasterly direction through Pike, Scott, Greene, Macoupin, Montgomery, Christian, Shelby, Cumberland, and Clark Counties to a DC-to-AC converter station to be located near West Union, Clark County, Illinois.

¶ 5 GBX included in its April 10, 2015, application that it "will own, control, operate, and manage within the State of Illinois, for public use, facilities for the transmission of electricity and therefore will be a 'public utility,' " but it did not state that it was a public utility. GBX had an option to purchase property that would serve as the site to place equipment for the proposed project. The purpose of the project was to transport clean, low-cost electricity from wind generation plants in western Kansas to electricity markets in Illinois and other PJM and MISO states. The proposed project was to "deliver approximately 2.6 million megawatt-hours ('MWh') of clean energy per year into the MISO market, and up to 18 million MWh of clean energy per year into the PJM market." The project was expected to produce additional wind generation accessible to the Illinois market to meet demands for clean energy and electricity.

¶ 6 On May 18, 2015, the appellants, a group of various landowners and residents owning property in the geographical area subject to this proceeding, filed a motion to dismiss (motion), which questioned the Commission's authority to grant a certificate of public convenience and necessity to a nonpublic utility. The appellant's motion was based on the premise that only a public utility may file an application for a certificate of public convenience and necessity under section 8-406.1 of the Act. Subsequently, several additional motions to dismiss were filed by the following intervening parties: Illinois Agricultural Association, Landowners Alliance of Central Illinois, NFP, Rex Encore, and Rockies Express Pipeline, LLC. Shortly thereafter, the staff of the Commission filed a response to the appellant's motion agreeing that the motion should be granted.

¶ 7 On June 12, 2015, the assigned administrative law judge submitted a memorandum to the Commission recommending that the motions be granted in favor of the appellants. On June 16, 2015, however, the Commission voted 3-2 to deny the motions. The Commission entered its final order in favor of GBX on November 12, 2015. The majority opinion stated:

"The question of whether an entity which is not yet a public utility may file for a CPCN for a new high voltage electric transmission line under Section 8-406.1 has been extensively addressed, in the motions to dismiss and in this Order. The Commission notes that the process is available only for CPCNs for the purpose of constructing a new high voltage electric service line and related facilities. It notes the numerous additional requirements for applicants under Section 8-406.1. These requirements include significant pre-filing activities, public notice provisions, substantial, specifically identified engineering data, and fees, which are not required under Section 8-406. The Commission finds that these considerable prerequisites are consistent with the expedited schedule under Section 8-406.1." Grain Belt Express Clean Line LLC , Ill. Comm. Comm'n No. 15-0277, at 39, 2015 WL 7348552 (Order-Final Nov. 12, 2015).

As such, the Commission determined that the legislature did not intend to preclude nonpublic utility applicants from utilizing section 8-406.1 of the Act to request a certificate of public convenience and necessity to construct and operate a new high voltage transmission line in Illinois. GBX was granted a certificate of public convenience and necessity for the construction of two transmission lines pursuant to sections 8-503 and 8-406.1 of the Act. See 220 ILCS 5/8503, 8-406.1 (West 2012).

¶ 8 In response, the two Commission members who voted to grant the appellant's motion filed a dissent in opposition to the majority opinion, stating the following:

"Alternative paths exist for the development of transmission lines, including high voltage lines transporting electricity produced by renewable sources, through Section 8406 or through a properly filed application under Section 8-406.1. Section 8-406.1 requires applicants to be public utilities. The Commission must enforce the rules set by the General Assembly and cannot change those rules where it possesses no authority to do so.
The majority opinion erroneously concludes that Section 8-406.1 does not require an applicant to be a public utility. The majority opinion arrives at this conclusion without the required analysis to support it. This conclusion leads the majority opinion to then omit a required finding. The majority opinion fails to appropriately apply Illinois statute, ignores Supreme Court and other precedent, and is inconsistent with Commission practice without explanation. GBX's Application should have been dismissed without prejudice. We respectfully dissent." Grain Belt Express Clean Line LLC , Ill. Comm. Comm'n No. 15-0277, at 8, 2015 WL 7348552 (Dissenting Opinion Nov. 13, 2015) (Comm'r McCabe, joined by Comm'r Del Valle).

Shortly thereafter, the appellants filed multiple applications for rehearing. Following the Commission's denial of all applications, the appellants filed a timely petition for review.

¶ 9 ANALYSIS

¶ 10 On appeal, the appellants argue that the Commission's decision to grant GBX's application for a certificate of public convenience and necessity was erroneous and should be set aside because GBX was not a public utility at the time of the application, a necessary prerequisite under the Act. Without status as a public utility, the appellants assert that GBX was ineligible to receive, and the Commission had no authority to grant, a certificate of public convenience and necessity under the expedited process set forth in section 8-406.1 of the Act.

¶ 11 In response, GBX and the Commission argue that "the definition of 'public utility' clearly applies to new entrants." To read otherwise, the Commission argues, would have the effect that "no new entity c[ould] ever become a public utility of any type" where no such entity would be able to satisfy the statutory definition under section 3-105 of the Act (220 ILCS 5/3105 (West 2012) ). In particular, GBX also asserts that no basis exists to conclude that the legislature intended to preclude new entrants from requesting and obtaining a certificate under section 8-406.1, given that new entrants can obtain status as a public utility during the application process under section 8-406 of the Act (id. § 8-406). Moreover, GBX asserts that the determinative question for the Commission, and now this court, is not whether GBX was a public utility at the time of the application but whether the applicant is able to demonstrate that its proposed electric transmission line satisfies the substantive criteria for issuance of a certificate. We disagree.

¶ 12 Appellate review of final decisions of the Commission, an administrative agency, involves the exercise of special statutory jurisdiction and is constrained by the provisions of the Act. People ex rel. Madigan v. Illinois Commerce Comm'n , 231 Ill. 2d 370, 387, 326 Ill.Dec. 10, 899 N.E.2d 227 (2008). The Act provides that a "court shall reverse a Commission * * * order or decision, in whole or in part, if it finds," inter alia , that the "findings of the Commission are not supported by substantial evidence based on the entire record of evidence," the "order or decision is without the jurisdiction of the Commission," or the "order or decision is in violation of the State or federal constitution or laws." 220 ILCS 5/10-201(e)(iv) (West 2012). We review such questions de novo. See Illinois Landowners Alliance, NFP v. Illinois Commerce Comm'n , 2017 IL 121302, ¶ 29, 418 Ill.Dec. 290, 90 N.E.3d 448.

¶ 13 Pursuant to section 8-406.1, the section utilized by GBX in the instant case, "[a] public utility may apply for a certificate of public convenience and necessity pursuant to this Section for the construction of any new high voltage electric service line and related facilities (Project)." 220 ILCS 5/8-406.1(a) (West 2012). Section 8-406.1 sets forth an "expedited review process of an application," which requires that the application include additional information and the public utility meet additional requirements. Id. After a notice and hearing, the Commission shall "grant a certificate of public convenience and necessity filed in accordance with the requirements of this Section if, based upon the application filed with the Commission and the evidentiary record," the Commission "finds the Project will promote the public convenience and necessity and that all of the following criteria are satisfied:

(1) That the Project is necessary to provide adequate, reliable, and efficient service to the public utility's customers and is the least-cost means of satisfying the service needs of the public utility's customers or that the Project will promote the development of an effectively competitive electricity market that operates efficiently, is equitable to all customers, and is the least cost means of satisfying those objectives.
(2) That the public utility is capable of efficiently managing and supervising the construction process and has taken sufficient action to ensure adequate and efficient construction and supervision of the construction.
(3) That the public utility is capable of financing the proposed construction without significant adverse financial consequences for the utility or its customers." Id. § 8-406.1(f)(1)-(3).

¶ 14 We first address the parties' arguments regarding the definition of "public utility" as set forth in the Act. Section 3-105 of the Act defines a "public utility" as follows:

"[E]very corporation, company, limited liability company, association, joint stock company or association, firm, partnership or individual, their lessees, trustees, or receivers appointed by any court whatsoever that owns, controls, operates or manages, within this State, directly or indirectly, for public use, any plant, equipment or property used or to be used for or in connection with, or owns or controls any franchise, license, permit or right to engage in * * *." Id. § 3-105(a).

The Commission argues that "the definition of a public utility clearly includes the owner of plant, equipment and property which is intended for future public use but has not yet been built ('to be used'). There is no restriction in either statutory provision to preexisting public utilities, i.e. , utilities that already own other utility assets." Thus, the Commission argues that "to be used," as written by the legislature, is a term that looks to future usage.

¶ 15 We note, however, that the definition of "public utility" was recently clarified by the Illinois Supreme Court in Illinois Landowners Alliance, NFP v. Illinois Commerce Comm'n , 2017 IL 121302, 418 Ill.Dec. 290, 90 N.E.3d 448. In Illinois Landowners Alliance, NFP , our supreme court determined that when the Commission grants a company a certificate of public convenience and necessity under section 8-406 of the Act, the "central question remains: Does it even qualify as a public utility under Illinois law so as to be eligible for such a certificate under section 8-406 of the Public Utilities Act (220 ILCS 5/8-406 (West 2012) )?" 2017 IL 121302, ¶ 36, 418 Ill.Dec. 290, 90 N.E.3d 448. In particular, Rock Island submitted an application to the Commission for the issuance of a certificate of public convenience and necessity under sections 8-406(a) and (b) of the Act ( 220 ILCS 5/8-406(a), (b) (West 2012) ) to permit it to operate as a transmission public utility in Illinois to construct, operate, and maintain an electric transmission line. Illinois Landowners Alliance, NFP , 2017 IL 121302, ¶ 18, 418 Ill.Dec. 290, 90 N.E.3d 448. Rock Island also requested that the Commission enter an order authorizing and directing construction of the proposed transmission line under section 8-503 of the Act ( 220 ILCS 5/8-503 (West 2012) ). Illinois Landowners Alliance, NFP , 2017 IL 121302, ¶ 18, 418 Ill.Dec. 290, 90 N.E.3d 448. Similar to the case at issue, the parties in opposition to Rock Island's application filed motions to dismiss asserting that Rock Island "did not meet the threshold criteria necessary to qualify as a public utility within the meaning of section 3-105 of the Act," and, as a result, Rock Island was ineligible for relief by the Commission. Id. ¶ 20.

¶ 16 Our supreme court determined that Rock Island, a new entrant, was required to present ownership of utility infrastructure assets to qualify as a public utility, as defined in section 3-105, in order to obtain a certificate of public convenience and necessity under section 8-406 of the Act. Id. ¶ 48. In order to qualify as a public utility, our supreme court concluded that "the company must also own , control , operate , or manage , within this State, directly or indirectly, a plant, equipment, or property used or to be used for or in connection with (or must own or control any franchise, license, permit, or right to engage in) the production, transmission, sale, etc. of one of the specified commodities or services." (Emphasis in original.) Id. ¶ 39. The supreme court noted that the statute is phrased in the present tense because it requires that a company must own, control, operate, or manage, within the state, a plant, equipment, property, franchise, etc. at the time it seeks certification by the Commission. Id. ¶¶ 40, 45.

¶ 17 The supreme court reasoned that when the General Assembly repealed the prior language in section 3-105 of the Act, which defined a public utility as "every corporation * * * that now or hereafter * * * may own, control, operate or manage" specific plants, equipment, or property (Ill. Rev. Stat. 1965, ch. 1112/3, ¶ 10.3), it intended, as the court must presume, to speak only to ownership in the present tense when it eliminated the words "that now or hereafter * * * may." Illinois Landowners Alliance, NFP , 2017 IL 121302, ¶ 42, 418 Ill.Dec. 290, 90 N.E.3d 448. As a result, the court determined that courts must read the statute as "evincing an intention by the legislature to limit the definition of 'public utility' to situations where the subject entity meets the ownership test at the present time." Id.

¶ 18 The supreme court noted, however, that the Act does not prohibit new entrants from commencing development as a purely private project before applying to become a public utility in Illinois:

"Once their projects are further underway and they have obtained the ownership, management, or control of utility-related property or equipment required to qualify as public utilities, they may then seek certification to operate as public utilities if they wish to conduct their business in a way that would make them subject to the Public Utilities Act's regulatory framework." Id. ¶ 48.

As a result, applicants may seek recognition as a public utility while, at the same time, applying for a certificate of public convenience and necessity under section 8-406(a) as long as they have obtained the ownership, management, or control of utility-related property or equipment at the time of the application. Id. ¶¶ 48, 51.

¶ 19 Here, GBX similarly fails to establish that it was a public utility at the time it filed its application with the Commission. It is undisputed that GBX does not presently, or at the time it filed its disputed application with the Commission, own, control, manage, or operate any plant, equipment, or property in Illinois used or to be used for or in connection with the production, transmission, sale, etc. of one of the specified commodities or services. Accordingly, GBX did not meet the definition of a "public utility" under section 3-105 of the Act at the time it filed its application with the Commission.

¶ 20 Nevertheless, GBX argues that when a company applies for a certificate of public convenience and necessity under section 8-406.1 of the Act ( 220 ILCS 5/8-406.1 (West 2012) ), as opposed to section 8-406 of the Act (id. § 8-406), the determinative question is, instead, whether the applicant is able to demonstrate that its proposed electric transmission line satisfies the substantive criteria for issuance of a certificate under the expedited process. This substantive criterion includes "the applicant's capability to manage and supervise construction and to finance the construction without significant adverse financial consequences." See id. § 8-406.1(f)(2), (3). For further support, GBX argues that the legislature's only intent underlying section 8-406.1 was to provide an "alternative, more expeditious process for obtaining a Certificate," as compared to the no-deadline process under section 8-406. As such, GBX contends that there is no preexisting need to own other utility assets to be approved for a certificate under section 8-406.1 of the Act. We disagree.

¶ 21 In 2010 the legislature enacted the expedited procedure set forth in section 8-406.1 to provide a process by which "[a] public utility may apply for a certificate of public convenience and necessity pursuant to this Section for the construction of any new high voltage electric service line and related facilities (Project)." (Emphasis added.) Id. § 8-406.1(a). The Act aims to "ensure efficient public utility service at reasonable rates by compelling established public utilities occupying a given field to provide adequate service while at the same time protecting them from ruinous competition." Illinois Landowners Alliance, NFP , 2017 IL 121302, ¶ 31, 418 Ill.Dec. 290, 90 N.E.3d 448 (citing Gulf Transport Co. v. Illinois Commerce Comm'n , 402 Ill. 11, 19, 83 N.E.2d 336 (1948) ; Bartonville Bus Line v. Eagle Motor Coach Line , 326 Ill. 200, 202, 157 N.E. 175 (1927) ; see also Fountain Water District v. Illinois Commerce Comm'n , 291 Ill. App. 3d 696, 701, 225 Ill.Dec. 670, 684 N.E.2d 145 (1997) ).

¶ 22 Our primary goal in statutory construction is to ascertain and effectuate the intent of the legislature. Midkiff v. Gingrich , 355 Ill. App. 3d 857, 861, 291 Ill.Dec. 894, 824 N.E.2d 1144 (2005). The best evidence of legislative intent is the words and statute itself, which should be given their plain and ordinary meaning. Id. We need only go beyond the words of the statute itself if we cannot discern the intent of the legislature from the statutory language. Id. at 862, 291 Ill.Dec. 894, 824 N.E.2d 1144. In construing a statute, we must consider the problem it was enacted to remedy. See Hyatt Corp. v. Sweet , 230 Ill. App. 3d 423, 430, 171 Ill.Dec. 723, 594 N.E.2d 1243 (1992). We must evaluate the statute as a whole, interpreting each provision in connection with every other provision. Paris v. Feder , 179 Ill. 2d 173, 177, 227 Ill.Dec. 800, 688 N.E.2d 137 (1997). "Of all the principles of statutory construction, few are more basic than that a court may not rewrite a statute to make it consistent with the court's own idea of orderliness and public policy." Illinois Landowners Alliance, NFP , 2017 IL 121302, ¶ 50, 418 Ill.Dec. 290, 90 N.E.3d 448.

¶ 23 In applying these principles to section 8-406.1, we are not persuaded that the legislature intended for the expedited review process to be an available avenue for nonpublic utility entities. The Commission's conclusion that any nonpublic utility may apply to be a public utility under section 8-406.1 ignores the express language set out in section 8-406.1(a). Significantly, section 8-406.1 of the Act clearly and unambiguously reads that "[a] public utility may apply for a certificate of public convenience and necessity pursuant to this Section." (Emphasis added.) 220 ILCS 5/8-406.1(a) (West 2012). As such, our interpretation of section 8-406.1 requires that the applicant must meet the definition of a public utility. In order to obtain status as a public utility, the applicant must meet the ownership test at the time of application, the same prerequisite in section 8-406, and the Commission must make this finding before issuance of a certificate. Here, GBX holds an option to purchase property that would serve as the site to place equipment for the proposed project. "[H]aving an option to buy something is not the same as owning or even controlling it," and an option agreement "does not involve the transfer or [sic ] property or an interest therein." Illinois Landowners Alliance, NFP , 2017 IL 121302, ¶ 40, 418 Ill.Dec. 290, 90 N.E.3d 448.

¶ 24 Moreover, we cannot reason that the legislature intended to give unlimited discretion through an expedited review process to nonpublic entities, which would ultimately provide the Commission with no jurisdiction to enforce their projects. As a result, the Commission must find that an entity is a public utility at the time of application in order to utilize the expedited review process in section 8-406.1 of the Act. Unable to meet the requisite ownership test, GBX is not a public utility under section 3-105 of the Act, but rather an entity with a purely private project that does not require the Commission's authority to proceed. Without finding that GBX was a public utility, we hold that the Commission was without authority to grant GBX a certificate of public convenience and necessity under section 8-406.1 of the Act.

¶ 25 CONCLUSION

¶ 26 The order of the Commission is hereby reversed and remanded where it granted a nonpublic utility company the authority to construct and manage an electrical transmission line project under the Act's expedited review process without the requisite finding that the applicant was a public utility.

¶ 27 Reversed and remanded.

Justices Goldenhersh and Chapman concurred in the judgment and opinion.


text:
    Roger Dale STANFORD, Plaintiff-Appellant, v. The CITY OF FLORA and Flora Chamber of Commerce, Defendants
    (Flora Chamber of Commerce, Defendant-Appellee).
    NO. 5-16-0115
    Appellate Court of Illinois, Fifth District.
    April 18, 2018
    Linda J. Cantrell, Winters, Brewster, Crosby and Schafer, LLC, 111 West Main Street, P.O. Box 700, Marion, IL 62959, Attorney for Appellant
    Douglas A. Enloe, Eric A. St Ledger, Gosnell, Borden, Enloe, Sloss & McCullough, Ltd., 815 12th Street, P.O. Box 737, Lawrenceville, IL 62439, Attorneys for Appellee
   JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Roger Dale Stanford, appeals from the Clay County circuit court's order granting a motion for setoff in favor of defendant, the Flora Chamber of Commerce (Chamber). Pursuant to the collateral source rule recognized by Illinois courts, we find the trial court erred in granting the motion for setoff. We further find that the jury verdict concerning plaintiff's medical expenses, disability, and lost earnings was against the manifest weight of the evidence. This cause is reversed and remanded for further proceedings consistent with this opinion.

¶ 2 BACKGROUND

¶ 3 Plaintiff, Roger Stanford, was injured on October 30, 2010, after a vehicle operated by Curt Jordan collided with the rear of plaintiff's antique tractor, which plaintiff was standing beside. At the time, plaintiff was a participant in the annual Halloween parade organized in Flora, Illinois, and plaintiff's tractor was the last vehicle in the parade. On November 10, 2010, Jordan's insurance company, Geico Indemnity Company (Geico), tendered $20,000 to plaintiff pursuant to a release and settlement agreement signed by plaintiff. On July 18, 2011, plaintiff's insurance company, State Farm Mutual Automobile Insurance Company (State Farm), tendered $280,000 to plaintiff pursuant to plaintiff's underinsured motorist policy.

¶ 4 Plaintiff and his wife, Joan Stanford, subsequently filed an amended complaint against defendants, the City of Flora (City) and the Chamber, on January 5, 2012, alleging negligence, willful and wanton conduct, and loss of consortium. Regarding the alleged negligence, plaintiff asserted that as a direct and proximate result, in whole or in part, of one or more of defendants' careless and negligent acts or omissions to act:

"Plaintiff was greatly injured in and about his body and extremities, both internally and externally, and has and will in the future endure great pain and suffering, has and will in the future expend large sums of money in endeavoring to become cured of said injuries, has been temporarily and permanently injured as a result of said injuries and has lost wages."

¶ 5 Regarding the alleged willful and wanton conduct, plaintiff asserted defendants' failures to act and/or omissions to act were an utter indifference and/or conscious disregard for the safety of others, which caused plaintiff to sustain severe personal injuries and damages. Joan Stanford alleged loss of consortium against defendants.

¶ 6 The City and the Chamber subsequently denied the allegations and filed affirmative defenses. Relevant to this appeal, the Chamber's third and fourth affirmative defenses asserted that in the event plaintiff recovers a judgment against the Chamber, the Chamber is entitled to a setoff in the amount of $311,000 against any such judgment since plaintiff had already received $20,000 from Geico, $280,000 from State Farm under plaintiff's underinsured motorist policy, $10,000 from State Farm for medical payments, and upon information and belief that plaintiff had received $1000 from a victim's advocacy fund. Specifically, the Chamber asserted the sum of $311,000 that plaintiff received "is in full satisfaction of any and all claim that [plaintiff has] against [the Chamber], and would act as a setoff and bar of any judgment claimed that plaintiff has against this defendant."

¶ 7 On August 31, 2015, plaintiff filed a motion to strike the Chamber's affirmative defenses. Regarding the Chamber's third and fourth affirmative defenses, plaintiff argued the Chamber's allegation of a setoff entitlement is an inaccurate statement of the law. Citing our supreme court's decision in Arthur v. Catour , 216 Ill. 2d 72, 295 Ill.Dec. 641, 833 N.E.2d 847 (2005), plaintiff noted that, pursuant to the collateral source rule, benefits received by the injured party from a source wholly independent of and collateral to the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor. Plaintiff also filed a motion in limine on August 31, 2015, requesting that the court prohibit defendants and their attorneys or witnesses from testifying or making any statements regarding any payments received by plaintiff from State Farm.

¶ 8 Oral arguments on plaintiff's motions were held on September 2, 2015. On October 20, 2015, the trial court denied plaintiff's motion to strike the Chamber's third and fourth affirmative defenses regarding a setoff entitlement but granted plaintiff's motion in limine prohibiting defendants from testifying or making statements regarding any payments received by plaintiff from State Farm. On October 23, 2015, plaintiff filed a motion for reconsideration that asserted that "[t]o allow a setoff for underinsured or uninsured motorist insurance would directly circumvent the collateral source rule."

¶ 9 A jury trial commenced on November 2, 2015. On November 5, 2015, the trial court granted the City's motion for a directed verdict and dismissed it from this case. After the jury trial concluded on November 6, 2015, the jury tendered a verdict in favor of plaintiff and against the Chamber, finding plaintiff suffered $50,000 in damages ($25,000 for pain and suffering and $25,000 for earnings lost). The jury further found plaintiff was 10% contributorily negligent, thereby reducing the verdict to a total of $45,000. The jury awarded zero damages for medical expenses, disability, and remodeling expenses.

¶ 10 After the jury verdict, the Chamber made an oral motion based on its previously filed affirmative defense regarding a setoff entitlement. On November 16, 2015, the Chamber filed a motion for setoff to be applied to the jury verdict, requesting that the court allow a setoff in its favor for the sum of $20,000 paid by Jordan's insurer, Geico, to plaintiff and also the sum of $280,000 paid by State Farm to plaintiff under plaintiff's underinsured motorist coverage. The Chamber's motion for setoff asserted "plaintiff has previously received satisfaction in full for his claimed damages in bar of action."

¶ 11 The court granted the Chamber's motion for setoff to be applied to the jury verdict on December 7, 2015, for both the sum of $20,000 paid by Geico and the sum of $280,000 paid by State Farm. Specifically, the court stated:

"[T]he Judgment entered on the verdict of the jury is satisfied in full and [the Chamber] shall not be required to pay any sum of money to Plaintiff as a result of the November 6, 2015 jury verdict in favor of the Plaintiff due to the fact that the jury verdict was less than the amount of setoff to which [the Chamber] is entitled."

¶ 12 On January 8, 2016, plaintiff filed a posttrial motion requesting that the verdict concerning damages be vacated and a new trial be granted. Plaintiff further requested that the order allowing a setoff against the jury verdict for underinsured benefits received by plaintiff be reversed because it directly circumvented the collateral source rule. The Chamber filed a response to plaintiff's posttrial motion requesting that it be denied. The Chamber argued the collateral source rule was not applicable to the facts of this case and that refusing to allow the Chamber a setoff against the jury verdict would guarantee a double recovery for plaintiff. After hearing oral arguments on the aforementioned motions, the trial court denied plaintiff's posttrial motion. This appeal followed.

¶ 13 ANALYSIS

¶ 14 Plaintiff first alleges the trial court erred when it granted defendant's motion for setoff against the jury verdict, thereby allowing a setoff for underinsured motorist insurance proceeds tendered pursuant to plaintiff's automobile insurance policy. Specifically, plaintiff contends the court's decision to allow a setoff directly circumvents the collateral source rule. Since we are asked to determine the correctness of the trial court's application of law to the undisputed facts, our standard of review is de novo . Wills v. Foster , 229 Ill. 2d 393, 399, 323 Ill.Dec. 26, 892 N.E.2d 1018 (2008).

¶ 15 Under the collateral source rule, benefits received by the injured party from a source completely independent of, and collateral to, the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor. Arthur , 216 Ill. 2d at 78, 295 Ill.Dec. 641, 833 N.E.2d 847. The rule provides that " '[p]ayments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor's liability, although they cover all or a part of the harm for which the tortfeasor is liable.' " Wills , 229 Ill. 2d at 399, 323 Ill.Dec. 26, 892 N.E.2d 1018 (quoting Restatement (Second) of Torts § 920A(2), at 513 (1979) ).

¶ 16 The collateral source rule has been characterized as an " 'established exception to the general rule that damages in negligence actions must be compensatory.' " Wills , 229 Ill. 2d at 399, 323 Ill.Dec. 26, 892 N.E.2d 1018 (quoting 25 C.J.S. Damages § 172 (2002) ). The rule protects collateral payments made to or benefits conferred on the plaintiff by denying the defendant any corresponding credit or offset. Arthur , 216 Ill. 2d at 78, 295 Ill.Dec. 641, 833 N.E.2d 847. Although collateral benefits reduce the plaintiff's loss, they do not reduce the defendant's tort liability. Arthur , 216 Ill. 2d at 78, 295 Ill.Dec. 641, 833 N.E.2d 847.

¶ 17 Illinois courts have held that the collateral source rule encompasses both evidentiary and substantive components. Wills , 229 Ill. 2d at 400, 323 Ill.Dec. 26, 892 N.E.2d 1018. As a rule of evidence, the rule prevents the jury from learning anything concerning collateral income. Wills , 229 Ill. 2d at 400, 323 Ill.Dec. 26, 892 N.E.2d 1018. As a substantive rule of damages, the rule prohibits a defendant from reducing the plaintiff's compensatory award by the amount the plaintiff received from the collateral source. Wills , 229 Ill. 2d at 400, 323 Ill.Dec. 26, 892 N.E.2d 1018.

¶ 18 A situation in which the collateral source rule is frequently applied is where the injured plaintiff has been partly or wholly indemnified for the loss by proceeds from his or her accident insurance. Wilson v. Hoffman Group, Inc. , 131 Ill. 2d 308, 320, 137 Ill.Dec. 579, 546 N.E.2d 524 (1989). In such a case, the damages recovered by the plaintiff from the tortfeasor are not decreased by the amounts received from insurance proceeds. Wilson , 131 Ill. 2d at 320, 137 Ill.Dec. 579, 546 N.E.2d 524. It is well settled that damages recovered by the plaintiff from the defendant are not decreased by the amount the plaintiff received from insurance proceeds where the defendant did not contribute to the payment of the insurance premiums. Arthur , 216 Ill. 2d at 79, 295 Ill.Dec. 641, 833 N.E.2d 847. "The justification for this rule is that the wrongdoer should not benefit from the expenditures made by the injured party or take advantage of contracts or other relations that may exist between the injured party and third persons." Wilson , 131 Ill. 2d at 320, 137 Ill.Dec. 579, 546 N.E.2d 524. Our supreme court has observed the collateral source rule is premised upon the public policy that a benefit that is directed to the injured party should not be shifted so as to become a windfall to the tortfeasor. Arthur , 216 Ill. 2d at 90, 295 Ill.Dec. 641, 833 N.E.2d 847.

¶ 19 In this case, it is undisputed that plaintiff received the benefit of his underinsured motorist policy with State Farm when State Farm tendered $280,000 to plaintiff as a result of the October 2010 accident. This was a benefit bargained for and provided by plaintiff for plaintiff's benefit. This payment was not made on behalf of a tortfeasor. Further, State Farm is not a party to plaintiff's action against the Chamber. Rather, State Farm is a third party and a source wholly independent of, and collateral to, the tortfeasor. Therefore, the collateral source rule applies to the benefits State Farm tendered to plaintiff. Wills , 229 Ill. 2d at 399, 323 Ill.Dec. 26, 892 N.E.2d 1018. As we discuss above, the rule protects these collateral payments tendered to plaintiff by State Farm by denying the Chamber any corresponding setoff or credit. Arthur , 216 Ill. 2d at 78, 295 Ill.Dec. 641, 833 N.E.2d 847 ; Wills , 229 Ill. 2d at 402, 323 Ill.Dec. 26, 892 N.E.2d 1018. Such collateral benefits do not reduce the Chamber's tort liability even though they reduced plaintiff's loss. Arthur , 216 Ill. 2d at 90, 295 Ill.Dec. 641, 833 N.E.2d 847 ; Wills , 229 Ill. 2d at 419, 323 Ill.Dec. 26, 892 N.E.2d 1018.

¶ 20 In consideration of the foregoing principles, plaintiff's insurance proceeds, being proceeds from a collateral source, should not have been set off against the jury's verdict of $45,000 in favor of plaintiff and against the Chamber. We note that the parties do not dispute the setoff granted for the $20,000 paid by Jordan's insurer, Geico, to plaintiff under Jordan's separate policy. This is not at issue in this case. Accordingly, we reverse the trial court's judgment granting the Chamber's motion for setoff of plaintiff's insurance proceeds ($280,000 from State Farm) against the jury verdict and remand this cause for further proceedings consistent with this opinion.

¶ 21 The Chamber raises several arguments on appeal. Most of the Chamber's arguments attempt to distinguish the facts of the instant case from the facts of the cases cited by plaintiff in his brief, which include the following: Arthur , 216 Ill. 2d 72, 295 Ill.Dec. 641, 833 N.E.2d 847 ; Wills , 229 Ill. 2d 393, 323 Ill.Dec. 26, 892 N.E.2d 1018 ; Halverson v. Stamm , 329 Ill. App. 3d 1206, 264 Ill.Dec. 239, 769 N.E.2d 1076 (2002) ; and Wilson , 131 Ill. 2d 308, 137 Ill.Dec. 579, 546 N.E.2d 524. After careful consideration, we find the Chamber's arguments are misplaced.

¶ 22 Although the cases referenced above do not specifically address the collateral source rule as it pertains to underinsured motorist proceeds, Arthur , Wills , and Wilson all discuss the justification for the collateral source rule: "the wrongdoer should not benefit from the expenditures made by the injured party or take advantage of contracts or other relations that may exist between the injured party and third persons." Wilson , 131 Ill. 2d at 320, 137 Ill.Dec. 579, 546 N.E.2d 524. Further, Halverson indicates double recovery is appropriate in situations where the plaintiff bargained for such a double recovery. In this case, the $280,000 plaintiff received from State Farm was a benefit bargained for and provided by plaintiff for plaintiff's benefit. The source of this payment was not made by a tortfeasor. Thus, the collateral source rule protects this payment, and it is inappropriate for the Chamber, the wrongdoer in this case, to benefit from the relationship plaintiff bargained for with State Farm. For these reasons, we reject the Chamber's argument.

¶ 23 The Chamber next indicates that the legislature's intent in enacting a provision for underinsured motorist coverage was to place the insured in the same position he or she would have occupied if injured by a motorist who carried liability insurance in the same amount as the policyholder. Sulser v. Country Mutual Insurance Co. , 147 Ill. 2d 548, 558, 169 Ill.Dec. 254, 591 N.E.2d 427 (1992). Since it is undisputed plaintiff has already received the sum of $300,000 ($20,000 from Geico and $280,000 from State Farm), the Chamber argues it would violate public policy to allow plaintiff to accept the underinsured motorist coverage and receive double recovery from the Chamber for the same injuries and damages. The Chamber further asserts that, because State Farm has not claimed any subrogation lien against plaintiff, plaintiff will not have to "pay back" any of the $280,000 paid by State Farm to plaintiff regardless of the jury verdict. The Chamber asserts that this fact by itself guarantees plaintiff will receive a double recovery if the Chamber is denied the right to setoff against the jury verdict. We disagree.

¶ 24 The Chamber's argument ignores the well-established principle that the collateral source rule is an exception to the policy against double recovery. Muranyi v. Turn Verein Frisch-Auf , 308 Ill. App. 3d 213, 220, 241 Ill.Dec. 505, 719 N.E.2d 366 (1999). As we discuss more extensively above, in a case where an injured plaintiff has been compensated for the loss by his or her accident insurance, the damages recovered by the plaintiff from the tortfeasor are not decreased by the amounts received from insurance proceeds. Wilson , 131 Ill. 2d at 320, 137 Ill.Dec. 579, 546 N.E.2d 524. Further, although Illinois courts generally disfavor a double recovery, this is a situation where a double recovery is appropriate because plaintiff bargained for such a double recovery when he purchased his underinsured motorist policy. The fact that State Farm has claimed no subrogation lien against plaintiff is irrelevant. Accordingly, we reject the Chamber's argument.

¶ 25 Plaintiff's next argument contends the trial court erred in denying his posttrial motion for a new trial. Specifically, plaintiff asserts a new trial on damages should be ordered because the damages awarded by the jury were irreconcilably inconsistent with the objective evidence presented at trial.

¶ 26 Generally, the decision of whether to grant a new trial is a matter reserved to the sound discretion of the trial court, and the court's determination will not be overturned on review absent an abuse of discretion. Wade v. Rich , 249 Ill. App. 3d 581, 587, 188 Ill.Dec. 744, 618 N.E.2d 1314 (1993). However, a jury's verdict may be set aside and a new trial ordered where the amount of damages awarded is against the manifest weight of the evidence or where the jury has clearly disregarded a proven element of damages. Wade , 249 Ill. App. 3d at 587, 188 Ill.Dec. 744, 618 N.E.2d 1314. A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary, and not based upon any of the evidence. Maple v. Gustafson , 151 Ill. 2d 445, 454, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992).

¶ 27 The amount of money a jury awards is an issue of fact for the jury to determine and is entitled to substantial deference. Anderson v. Zamir , 402 Ill. App. 3d 362, 364, 341 Ill.Dec. 800, 931 N.E.2d 697 (2010). If the jury received proper instruction and otherwise had a reasonable basis for its award, a reviewing court will not disturb the verdict. Anderson , 402 Ill. App. 3d at 364, 341 Ill.Dec. 800, 931 N.E.2d 697. Although we recognize there is no precise formula for determining whether a monetary award is fair and reasonable, the following factors should be considered: (1) the extent of the injuries suffered and the degree of the permanency of the injuries, (2) the plaintiff's age, (3) the possibility of difficulties in the future, (4) the amount of medical expenses incurred, and (5) the restrictions upon the plaintiff's life as a result of the injuries suffered. Anderson , 402 Ill. App. 3d at 364-65, 341 Ill.Dec. 800, 931 N.E.2d 697. Generally, a reviewing court will not order a new trial on damages unless (1) the damages awarded are manifestly inadequate, (2) it is clear that proven elements of damages were not awarded, or (3) the amount bears no relationship to the loss suffered by plaintiff. Walters v. Yellow Cab Co. , 273 Ill. App. 3d 729, 740-41, 210 Ill.Dec. 590, 653 N.E.2d 785 (1995). When reviewing a question regarding the adequacy of damages, the court must consider the record in its entirety. Hastings v. Gulledge , 272 Ill. App. 3d 861, 864, 209 Ill.Dec. 600, 651 N.E.2d 778 (1995).

¶ 28 Here, the jury awarded plaintiff $25,000 for pain and suffering and $25,000 for lost earnings after determining the Chamber was at fault. The jury further found that plaintiff was 10% contributorily negligent, thereby reducing the verdict to $45,000. As previously stated, the jury awarded zero damages for the following: the reasonable expense of necessary medical care, treatment, and services received; the disability experienced; and the reasonable expense of necessary handicap remodeling expenses. Since the jury awarded zero damages for medical expenses, disability, and remodeling expenses, plaintiff contends the jury's award is arbitrary and bears no relationship to the losses he sustained. Plaintiff further contends that the jury award for lost earnings is grounds for a new trial because it is inconsistent with the evidence presented at trial. We address these contentions in turn.

¶ 29 Based upon our review of the record in its entirety, we conclude the jury's verdict regarding medical expenses was against the manifest weight of the evidence. To recover for medical expenses, the plaintiff must prove that (1) he or she has paid or become liable to pay a medical bill, (2) he or she has necessarily incurred the medical expenses because of injuries resulting from the defendant's negligence, and (3) the charges were reasonable for the services of that nature. Arthur , 216 Ill. 2d at 81-82, 295 Ill.Dec. 641, 833 N.E.2d 847. "When evidence is admitted, through testimony or otherwise, that a medical bill was for treatment rendered and that the bill has been paid, the bill is prima facie reasonable." Arthur , 216 Ill. 2d at 82, 295 Ill.Dec. 641, 833 N.E.2d 847.

¶ 30 The defendant may rebut the prima facie reasonableness of a medical expense by presenting proper evidence casting doubt on the transaction. Baker v. Hutson , 333 Ill. App. 3d 486, 494, 266 Ill.Dec. 791, 775 N.E.2d 631 (2002). The proponent's offering of a paid bill or the testimony of a witness that a bill is fair and reasonable simply satisfies the requirement to prove reasonableness. Baker , 333 Ill. App. 3d at 494, 266 Ill.Dec. 791, 775 N.E.2d 631. The proponent must also present evidence that the costs were incurred as a result of the defendant's negligence. Baker , 333 Ill. App. 3d at 494, 266 Ill.Dec. 791, 775 N.E.2d 631. Furthermore, satisfying the minimum requirements for the admission of a bill into evidence does not conclusively establish that the entire amount of the bill must be awarded to the plaintiff. Baker , 333 Ill. App. 3d at 494, 266 Ill.Dec. 791, 775 N.E.2d 631. The admission of a bill into evidence merely allows the jury to consider whether to award none, part, or all of the bill as damages. Baker , 333 Ill. App. 3d at 494, 266 Ill.Dec. 791, 775 N.E.2d 631.

¶ 31 Here, it is indisputable that plaintiff sustained serious and significant injuries in the accident, from which he incurred medical expenses. At trial, plaintiff introduced uncontroverted evidence of medical bills totaling $116,195.94. Plaintiff testified all of these bills were incurred from treatment he received as a result of the injuries he sustained in the accident. Said treatment included hospitalization, surgery, and home health care. When asked whether these bills had been paid, plaintiff testified: "As far as I know." The Chamber presented no evidence that these medical bills were unreasonable or unnecessary. Nonetheless, the jury awarded zero damages for plaintiff's medical bills despite finding the Chamber was 90% at fault for plaintiff's injuries.

¶ 32 When a reviewing court is faced with a zero-dollar award where damages are clearly evident, this court has held there is no choice but to declare that the verdict is inconsistent. Kumorek v. Moyers , 203 Ill. App. 3d 908, 913, 148 Ill.Dec. 906, 561 N.E.2d 212 (1990). In light of the foregoing, we conclude the jury's verdict is contrary to the manifest weight of the evidence, as it bears no reasonable relationship to the medical bills established by plaintiff at trial. Accordingly, we vacate the jury verdict concerning medical expenses.

¶ 33 Similarly, we find the jury's award of zero damages for disability was against the manifest weight of the evidence. Initially, we note that disability is a separate element of damages, and the jury's decision regarding whether to make any award for disability and, if so, how much is not dependent upon whether or what amount of other damages are awarded. Hastings , 272 Ill. App. 3d at 865, 209 Ill.Dec. 600, 651 N.E.2d 778.

¶ 34 Here, the uncontroverted evidence shows plaintiff was disabled for a period of time following the accident. Plaintiff was not released from medical care until October 2012, approximately two years after the accident, at which time he was unable to return to his previous employment due to permanent physical restrictions. Specifically, plaintiff testified he is unable to climb, load, and secure his trailer. Plaintiff further testified his physical disabilities affect his ability to perform daily activities, and he cannot perform many activities that he could prior to the accident. Plaintiff testified the longest time he can stand before feeling pain in his leg is 10 to 15 minutes. Plaintiff testified that in April or May of 2013 he experienced severe pain in his knee, for which he ultimately underwent surgery in November 2013.

¶ 35 Based on the foregoing, we find the jury award of zero damages for disability was against the manifest weight of the evidence. The record shows plaintiff sustained serious injuries in the accident that, as a result, caused plaintiff to miss substantial time from work and prevented him from returning to his previous employment. The jury's zero award bears no reasonable relationship to the disability established by plaintiff at trial. Therefore, the jury verdict awarding nothing for disability must be vacated.

¶ 36 As to the jury's award of zero damages for remodeling expenses, we cannot say this determination was against the manifest weight of the evidence. The record shows the jury heard conflicting testimony regarding plaintiff's claim for remodeling expenses. The record further indicates plaintiff presented brief testimony concerning home remodeling expenses incurred to fit his physical capabilities, and defense counsel competently cross-examined plaintiff on these claims.

¶ 37 We find nothing in the record that suggests the jury ignored any proven element of damages in its award of zero damages for plaintiff's claim for remodeling expenses. Moreover, we cannot say this verdict resulted from passion or prejudice or that this award bears no reasonable relationship to the alleged loss suffered. In sum, we find no adequate grounds to disturb the award of damages concerning remodeling expenses.

¶ 38 Finally, we find the jury's award of $25,000 to plaintiff for lost earnings was against the manifest weight of the evidence. It is well settled that lost income is a proper element of damages to be considered by the trier of fact. Turner v. Chicago Transit Authority , 122 Ill. App. 3d 419, 428, 77 Ill.Dec. 928, 461 N.E.2d 551 (1984). However, recovery must be limited to such loss as will be reasonably certain to occur and cannot be based on testimony that is merely speculative, remote, or uncertain. Turner , 122 Ill. App. 3d at 428-29, 77 Ill.Dec. 928, 461 N.E.2d 551. Generally, the measure of damages for impairment of earning capacity is the difference between the amount that the plaintiff was capable of earning before his or her injury and what he or she is capable of earning after the injury. Smith v. Marvin , 377 Ill. App. 3d 562, 571, 317 Ill.Dec. 31, 880 N.E.2d 1023 (2007). Again, a jury's award can be overturned only if the jury ignored an element of damages, acted out of passion or prejudice, or made an award not reasonably related to the loss. Dixon v. Union Pacific R.R. Co. , 383 Ill. App. 3d 453, 470, 322 Ill.Dec. 405, 891 N.E.2d 420 (2008).

¶ 39 Here, plaintiff testified he was employed by Balyes Farm Trucking (Balyes) as a truck driver at the time of the accident. Plaintiff's duties included hauling grain bins, grain dryers, steel pipe, and fans. Plaintiff testified he had been a truck driver for 35½ years and that he started working for Balyes in September 2009. Plaintiff was 62 years old at the time of the accident. On cross-examination, plaintiff testified he planned on driving a truck until he was 67 years old. On redirect, when questioned about what age he intended to retire, plaintiff testified as follows:

"A. Before the-when they initially had, was going to make, pass a law to require all drivers to retire at 65, I was going to retire at 65. But when they repealed that, I was going to go to 67, because of the social security.
Q. Okay. And 65 was an age that you threw out because the law was going to change?
A. Yes.
Q. And it was going to bar truck drivers from driving over-the-road past age 65?
A. Yes.
Q. Do you know if that law was passed?
A. No, it was not."

We note that when asked at a deposition prior to trial how long he planned to drive a truck, plaintiff testified until he was 66 or 67 years old. Plaintiff testified he took an unpaid leave of absence from Balyes after the accident and has not been able to return to work since the accident. Plaintiff testified his injuries restricted him from climbing, which prevented him from returning to his previous employment. Plaintiff's limitations regarding climbing prevented him from loading, unloading, and securing his trailer.

¶ 40 Plaintiff further testified that from January 1, 2010, through the date of the accident on October 30, 2010, his tax return indicated he earned $29,906, which is $2990.60 per month. At closing argument, plaintiff's counsel recommended an award of lost earnings for the time period following the accident through August 2015, which is when plaintiff turned 67 years old. As previously noted, plaintiff testified at trial that he intended to work until he was 67 years old. The recommended lost earnings totaled $170,464.20, which represented 57 months at $2990.60 per month. As we indicate above, plaintiff earned $2990.60 per month from January 1, 2010, through the date of the accident in October 2010.

¶ 41 After careful consideration, we find the jury award of $25,000 to plaintiff for lost earnings bears no reasonable relationship to plaintiff's loss. The record indicates plaintiff was not released from medical care for the injuries he sustained in the accident until October 2012, approximately two years after the accident took place. The record further shows that plaintiff has been unable to return to his employment with Balyes due to physical limitations resulting from the accident. The jury's award of $25,000, which represents less than plaintiff's earnings in the 10-month period of 2010 prior to the accident, cannot be viewed as a reasonable relationship to plaintiff's lost earning capacity. For these reasons, we vacate the jury's award of $25,000 for lost earnings.

¶ 42 The Chamber argues plaintiff expressly waived his arguments concerning dollar amounts awarded by the jury. Specifically, since the parties agreed during the jury's deliberations that the jury could award zero damages on some categories and change the amount of damages on other categories, the Chamber contends plaintiff waived any future argument that the jury should not have awarded zero damages in some categories.

¶ 43 After careful review, we find the Chamber's argument is without merit. In this case, plaintiff timely filed a posttrial motion requesting that the verdict concerning damages be vacated and a new trial be granted. The trial court denied this motion, and plaintiff subsequently filed a timely appeal. Nothing in the record suggests plaintiff explicitly waived his right to appeal the trial court's denial of his posttrial motion requesting that the verdict concerning damages be vacated and a new trial be granted. Accordingly, we reject the Chamber's argument.

¶ 44 The Chamber further asserts the jury award of zero damages for medical expenses and disability and the jury award of $25,000 for lost earnings was not against the manifest weight of the evidence because it is the function of the jury to evaluate the evidence and weigh the testimony presented at trial in determining whether to award none, part, or all of the claimed damages. The Chamber contends the jury could have reasonably concluded plaintiff failed to meet his burden. We disagree.

¶ 45 Although we recognize it is generally for the trier of fact, in this case the jury, to resolve conflicting testimony and give weight to the credibility of said testimony, a zero-dollar award is inconsistent where damages are clearly evident. Martin v. Cain , 219 Ill. App. 3d 110, 115, 161 Ill.Dec. 515, 578 N.E.2d 1161 (1991). Accordingly, we reject the Chamber's argument concerning medical expenses and disability. We further find the jury award of $25,000 for lost earnings is unreasonable considering plaintiff's limitations as a result of the injuries he sustained in the accident, the fact that plaintiff has not been able to return to his previous employment, and the fact that the award represents less than plaintiff's total earnings in the 10-month period of 2010 prior to the accident. For these reasons, we reject the Chamber's argument.

¶ 46 CONCLUSION

¶ 47 For the foregoing reasons, we reverse the trial court's judgment granting the Chamber's motion for setoff against the jury verdict. Under the collateral source rule, the proceeds plaintiff received under his underinsured motorist policy should not be offset against the jury verdict. Further, we vacate the jury's verdict regarding medical expenses, disability, and lost earnings because it bears no reasonable relationship to the injuries established by plaintiff at trial. As to the remodeling expenses, we find no adequate grounds to disturb the award of zero damages. This cause is hereby remanded for a new trial on the issue of damages only. We note our supreme court has concluded a new trial on the question of damages only is appropriately granted where (1) the jury's verdict on the question of liability is sufficiently supported by the evidence, (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant, and (3) the record suggests neither that the jury reached a compromise verdict nor that the error which resulted in the jury's awarding inadequate damages also affected its verdict on the question of liability. Robbins v. Professional Construction Co. , 72 Ill. 2d 215, 224, 20 Ill.Dec. 577, 380 N.E.2d 786 (1978) ; Balestri v. Terminal Freight Cooperative Ass'n , 76 Ill. 2d 451, 456, 31 Ill.Dec. 189, 394 N.E.2d 391 (1979). Here, these elements have been satisfied.

¶ 48 Reversed and remanded.

Justice Cates concurred in the judgment and opinion.

Justice Overstreet concurred in part and dissented in part, with opinion.

¶ 50 I concur with the majority's decision to reverse the circuit court's judgment granting the Chamber's motion for setoff against the jury verdict. I agree that the proceeds the plaintiff received under his underinsured motorist policy should not have been offset against the jury's verdict. I also concur with the majority's decision to vacate the jury's verdict regarding medical expenses and lost earnings. I agree with the majority's conclusion that the jury's award of zero-dollar damages for the plaintiff's medical expenses, despite awarding him $25,000 for pain and suffering, was inconsistent and contrary to the manifest weight of the evidence. I further agree with the majority's conclusion that the jury's award of $25,000 to plaintiff for lost earnings bears no reasonable relationship to the plaintiff's loss.

¶ 51 However, I dissent from that portion of the majority's opinion that vacates the jury's verdict regarding disability. Nothing in the record suggests that the jury ignored any proven element of damages, that the verdict resulted from passion or prejudice, or that the award bore no reasonable relationship to the alleged loss suffered.

Snover v. McGraw , 172 Ill. 2d 438, 447, 217 Ill.Dec. 734, 667 N.E.2d 1310 (1996).

¶ 52 "Disability is clearly a separate element of damages." Hastings v. Gulledge , 272 Ill. App. 3d 861, 865, 209 Ill.Dec. 600, 651 N.E.2d 778 (1995). "The jury's decision as to whether to make any award for disability and, if so, how much, is not dependent upon whether or what amount of damages are awarded for pain and suffering." Id. Here, the plaintiff presented no medical testimony regarding his disability claim, and the jury heard conflicting testimony on this issue. For example, Donald Delaney, the plaintiff's fellow member of the local antique tractor clubs, testified that he continued to see the plaintiff from time to time after the plaintiff recovered from his broken leg. Delaney testified that since the plaintiff's medical release about 18 months after the accident, Delaney "can't tell any difference" in the plaintiff since before the accident and that the plaintiff "does what he wants." Delaney testified that the plaintiff continued to show three or four tractors at the tractor shows and that he climbed, drove, loaded, and unloaded the tractors. Accordingly, the evidence in the record permitted the jury to conclude that the plaintiff was not disabled and would not be in the future. See Poliszczuk v. Winkler , 387 Ill. App. 3d 474, 491, 326 Ill.Dec. 464, 899 N.E.2d 1115 (2008) ("fact that the jury chose to award no money for disability and for loss of normal life, while awarding money for medical expenses and pain and suffering, is not proof, by itself, that the jury 'ignored' that element"); see also Rodriguez v. Northeast Illinois Regional Commuter R.R. Corp. , 2012 IL App (1st) 102953, ¶ 52, 358 Ill.Dec. 62, 964 N.E.2d 731 ("there is a reasonable hypothesis to support the jury's verdict awarding * * * damages for pain and suffering and lost wages, but nothing for disability: namely, that compensating her for both lost wages and disability would be a double recovery")."Where evidence is contradicted, or where it is merely based on the subjective testimony of the plaintiff, a jury is free to disbelieve it." Stift v. Lizzadro , 362 Ill. App. 3d 1019, 1029, 298 Ill.Dec. 983, 841 N.E.2d 126 (2005). The jury was entitled to discount the plaintiff's testimony regarding the permanency of his injuries.

¶ 53 In sum, I see no adequate grounds to disturb or revisit the jury's determination of damages concerning the plaintiff's claim of disability. For all of the foregoing reasons, I respectfully concur in part and dissent in part.