NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket Nos. 79254, 79302 cons.--Agenda 10--May 1996.
KEVA RICHARDSON et al., Appellees, v. JEFFREY CHAPMAN et al.,
Appellants.
Opinion filed January 30, 1997.
JUSTICE MILLER delivered the opinion of the court:
The plaintiffs, Keva Richardson and Ann E. McGregor, were
injured when the car in which they were riding was hit from behind
by a truck driven by defendant Jeffrey Chapman in Highland Park.
The plaintiffs brought the present action in the circuit court of
Cook County against Chapman; his employer, Tandem Transport, Inc.,
successor to Carrier Service Company of Wisconsin, Inc.
(Tandem/Carrier); and Rollins Leasing Corp., which had leased the
truck in Wisconsin to Chapman's employer. Following a jury trial,
the court entered judgment on verdicts in favor of Richardson and
McGregor and against Tandem/Carrier and Chapman. The court later
entered judgments against Rollins under the Wisconsin financial
responsibility statute for the unsatisfied portions of the two
awards. The court also permitted Rollins to obtain reimbursement
for those expenses from Tandem/Carrier on a theory of contractual
indemnity. A divided appellate court affirmed all the judgments
against the defendants. Nos. 1--91--1736, 1--91--1737, 1--91--3868,
1--92--1221, 1--92--1442 cons. (unpublished order under Supreme
Court Rule 23). In addition, the appellate court allowed Rollins'
claims for reimbursement from Tandem/Carrier on theories of both
contractual and implied indemnity. We granted the petitions for
leave to appeal filed by Rollins and by Chapman and Tandem/Carrier
(155 Ill. 2d R. 315(a)) and consolidated the causes for purposes of
oral argument and disposition.
The accident at issue here occurred in the early morning
hours of November 26, 1987, at the intersection of Interstate 94
and Clavey Road in Highland Park. Plaintiff Keva Richardson was the
driver of the car, and plaintiff Ann McGregor was a passenger in
the vehicle. While stopped at a traffic light, their car was struck
from behind by a semi-trailer being driven by defendant Chapman.
Richardson suffered extensive injuries as a result of the accident
and was rendered quadriplegic. McGregor sustained only slight
injuries in the accident and has returned to her normal activities.
At trial, Richardson introduced extensive testimony concerning her
injuries and the expenses she will likely incur in the future as a
consequence of the accident. That testimony will be summarized
later in this opinion.
The plaintiffs brought the present action against
Chapman, Tandem/Carrier, and Rollins. The plaintiffs' second-
amended complaint comprised three counts. Count I was against
Rollins and alleged that the lessor was vicariously liable for
Chapman's negligence under an agency theory. Count II, also against
Rollins, alleged that the lessor was liable under the terms of the
Wisconsin financial responsibility law. Count III, against
Tandem/Carrier and Chapman, was based on common law negligence.
Prior to trial, the judge granted Rollins' motion for summary
judgment on count I, and that count is no longer at issue. Count II
was severed prior to trial and was not submitted to the jury. The
case proceeded to trial on count III alone.
At the close of evidence, the trial judge directed a
verdict in favor of the plaintiffs and against Tandem/Carrier and
Chapman on the question of liability. Determining only the
plaintiffs' damages, the jury returned verdicts against
Tandem/Carrier and Chapman and in favor of Richardson and McGregor
in the amounts of $22,358,814 and $102,215, respectively.
Tandem/Carrier and Chapman, through their insurance carrier, Home
Indemnity Company, subsequently tendered $1 million to the
plaintiffs in partial satisfaction of the judgments; of that sum,
$990,000 was credited to the judgment in favor of Richardson, and
$10,000 to the judgment in favor of McGregor. At a later hearing
the trial court considered the plaintiffs' claims against Rollins
under the Wisconsin financial responsibility statute, and the judge
determined that Rollins was liable to the plaintiffs for the
portions of the judgments unpaid by Tandem/Carrier and Chapman. The
court therefore entered judgment against Rollins and in favor of
Richardson for $21,368,814, and judgment against Rollins and in
favor of McGregor for $92,215, representing the unsatisfied
portions of their awards from Tandem/Carrier and Chapman. Rollins
had filed a counterclaim against Tandem/Carrier seeking contractual
indemnity, and counterclaims against Tandem/Carrier and Chapman
seeking both implied indemnity and contribution. Following a
hearing, the trial judge entered judgment in Rollins' favor on the
count seeking contractual indemnity but denied the counts seeking
contribution and implied indemnity. The judge also entered a
finding for contractual indemnity against Chapman, the driver of
the vehicle, though Rollins had not sought recovery from him under
that theory.
The appellate court affirmed the judgments entered
against Tandem/Carrier and Chapman on the plaintiffs' negligence
claims against them, as well as the judgments entered against
Rollins on the plaintiffs' statutory claims under the Wisconsin
financial responsibility statute. The appellate court rejected the
defendants' challenges to the amounts of damages awarded by the
jury, and the court also rejected the defendants' arguments that
certain trial errors had inflated the verdict returned in favor of
Richardson. In addition, the appellate court held that the
Wisconsin financial responsibility statute made Rollins liable to
the plaintiffs for whatever portions of the judgments were not
recoverable from Tandem/Carrier and Chapman. Finally, the appellate
court ruled that Rollins could obtain reimbursement from
Tandem/Carrier on theories of contractual and implied indemnity;
the court did not believe, however, that an action for contribution
would lie. The court did not address Rollins' claim against Chapman
for implied indemnity.
One member of the appellate panel concurred in part and
dissented in part. Justice Cerda disagreed with the majority's
interpretation of the Wisconsin financial responsibility statute
and would have limited the plaintiffs' recovery under that theory
to the amount of the insurance policy filed by Rollins pursuant to
the Wisconsin statute. Accordingly, he would also have vacated the
judgment in favor of Rollins and against Tandem/Carrier on Rollins'
counterclaim for indemnity. In addition, Justice Cerda would have
reduced McGregor's award for pain and suffering to $50,000,
bringing her total compensation to $52,215.
We allowed petitions for leave to appeal filed by Rollins
and by Tandem/Carrier and Chapman. 155 Ill. 2d R. 315(a). The Truck
Renting and Leasing Association, Inc., and the Wisconsin Automobile
& Truck Dealers Association were each granted leave to submit
briefs as amici curiae in support of Rollins. 155 Ill. 2d R. 345.
After we heard oral argument in this case, but before our
opinion could be filed, the plaintiffs settled their actions
against defendant Rollins for undisclosed amounts. Plaintiff Keva
Richardson executed a release and discharge in favor of Rollins on
October 1, 1996, and plaintiff Anne McGregor executed a release and
discharge in favor of Rollins on October 2, 1996. The plaintiffs
and Rollins then submitted to this court a stipulated order for the
dismissal of a portion of the claims involved in this appeal. We
allowed the order on November 7, 1996, dismissing with prejudice
Rollins' appeal from the judgments against it and in favor of the
plaintiffs. The question of Rollins' liability to the plaintiffs
under the Wisconsin financial responsibility law is therefore no
longer before us. The settlements do not affect the plaintiffs'
actions against Chapman and Tandem/Carrier, or Rollins' action
against Tandem/Carrier for contractual indemnity or its actions
Chapman and Tandem/Carrier for implied indemnity; Rollins may no
longer seek contribution from the other defendants, however (see
740 ILCS 100/2(e) (West 1994)).
I
In that portion of the appeal still remaining, Chapman
and Tandem/Carrier (defendants) first challenge the amounts of
damages awarded to the plaintiffs. The defendants contend that
certain errors in the testimony of the economist who appeared at
trial in behalf of Keva Richardson inflated the verdict returned in
her favor and, further, that the damages awarded by the jury to
Richardson and McGregor are excessive.
In their initial challenge to the damages verdicts, the
defendants complain of certain testimony introduced by plaintiff
Richardson concerning the calculation of the present value of her
future economic losses. The defendants maintain that Professor
Charles Linke, who testified as Richardson's economist, improperly
used non-neutral, actual figures in describing to the jury the
calculation of present cash value. Richardson's life expectancy at
the time of trial, in May 1990, was 54.5 years. Relying on
information and figures supplied by Richardson's primary physician,
Professor Linke testified that the present cash value of her future
medical expenses had a lower bound of $7,371,914 and an upper bound
of $9,570,034. The lower bound figure assumed a discount rate one
percentage point higher than the growth rate; the upper bound
figure assumed that the two rates would be equal. The difference
between the two numbers was based on different assumptions
concerning future growth rates and interest rates. Professor Linke
also provided testimony regarding the present cash value of
Richardson's lost future earnings. Assuming a work history of 27.5
years, Professor Linke found that the present cash value of
Richardson's lost income was between $854,107 and $971,944; using
a longer work history of 35.8 years, Professor Linke arrived at a
range of $1,068,343 to $1,265,363. Again, the differences between
the two ranges were based on the witness' different assumptions
regarding future growth and interest rates.
Citing Allendorf v. Elgin, Joliet & Eastern Ry. Co., 8
Ill. 2d 164 (1956), the defendants first contend that Professor
Linke was required to use "neutral" figures--amounts having no
relation to the damages alleged by the parties--in explaining the
concept of present cash value to the jury. In Allendorf, a wrongful
death action, this court stated:
"We are of the opinion that the proper method
of assisting a jury in making damage calculations
is for the actuary to use neutral figures. In the
usual situation where hypothetical inquiries are
permissible, it is necessary that the expert assume
a factual situation as reflected in the proof in
order to insure that his testimony bears upon the
issue to be determined. The actuary, however, is
called upon only to describe to the jury a
mathematical process that will simplify the jury's
task of determining the present value of the
contribution that plaintiffs would have received
had decedent not been killed. To accomplish that
purpose it is not necessary that he use figures
that correspond with those appearing in evidence,
and when he does so there is a danger that the jury
may be misled. Once the formula is before the jury,
its application to the facts of the case is a
matter for argument of counsel." Allendorf, 8 Ill.
2d at 177-78.
In the present case, the defendants assert that Professor
Linke was not qualified to testify to any specific amounts for Keva
Richardson's future medical costs, including those figures provided
by Dr. Yarkony, and that his use of the physician's estimates was
therefore in error. The defendants would limit Professor Linke's
testimony in this regard to the presentation of the appropriate
formula for reducing future damages to their present cash value.
As Allendorf makes clear, the basis for the neutral-
figure requirement expressed in that case was the prohibition
against opinions on the ultimate issue. See Varilek v. Mitchell
Engineering Co., 200 Ill. App. 3d 649, 672 (1990). Subsequent cases
have removed that bar, however, and have determined that a witness,
whether expert or lay, may provide an opinion on the ultimate issue
in a case. Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 545-46
(1995); People v. Harris, 132 Ill. 2d 366, 385 (1989); Freeding-
Skokie Roll-Off Service, Inc. v. Hamilton, 108 Ill. 2d 217, 221
(1985); Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co.,
49 Ill. 2d 118, 122 (1971). The trier of fact is not required to
accept the expert's conclusion, and therefore such testimony cannot
be said to usurp the province of the jury. Zavala, 167 Ill. 2d at
545; Merchants National Bank, 49 Ill. 2d at 122. Because the rule
against opinions on the ultimate issue no longer has any vitality,
we believe that its corollary, which would require the use of
neutral figures in presenting the jury with testimony about present
cash values, has similarly lost its foundation. See M. Graham,
Cleary & Graham's Handbook of Illinois Evidence §702.7, at 571-72
(6th ed. 1994). Deprived of its theoretical footing, the "neutral
figure" requirement expressed in Allendorf should no longer be
followed.
In a further objection to Professor Linke's testimony,
the defendants also briefly argue that the economist erroneously
included inflation and real growth in reducing Richardson's
economic damages to their present cash value. As we have noted,
Professor Linke testified to what he termed "lower bound" and
"upper bound" figures in computing the future medical expenses and
lost earnings. The "lower bound" figure assumed that the prevailing
interest rate would be one percentage point higher than the growth
rate of wages and prices, while the "upper bound" figure assumed
that the two rates would be equal. In this way, Professor Linke
attempted to avoid having to predict the exact rates that would
prevail; as Professor Linke explained in his testimony, it is not
the absolute levels of the interest rate and growth rate that
determine present cash value, but the difference between them. Cf.
Baird v. Chicago, Burlington & Quincy R.R. Co., 63 Ill. 2d 463,
467-70 (1976) (using differential).
We believe that Professor Linke's methodology was
appropriate. In O'Shea v. Riverway Towing Co., 677 F.2d 1194, 1199-
1200 (7th Cir. 1982), Judge Posner explained the necessity of
treating inflation in a consistent manner in reducing an award of
future economic damages to present cash value:
"There are (at least) two ways to deal with
inflation in computing the present value of lost
future wages. One is to take it out of both the
wages and the discount rate--to say to [plaintiff],
`we are going to calculate your probable wage in
[the future] on the assumption, unrealistic as it
is, that there will be zero inflation between now
and then; and, to be consistent, we are going to
discount the amount thus calculated by the interest
rate that would be charged under the same
assumption of zero inflation.' ***
An alternative approach, which yields the same
result, is to use a (higher) discount rate based on
the current risk-free 10-year interest rate, but
apply that rate to an estimate of lost future wages
that includes expected inflation. ***
Either approach to dealing with inflation is
acceptable (they are, in fact, equivalent) and we
by no means rule out others; but it is illogical
and indefensible to build inflation into the
discount rate yet ignore it in calculating the lost
future wages that are to be discounted. That
results in systematic undercompensation, just as
building inflation into the estimate of future lost
earning and then discounting using the real rate of
interest would systematically overcompensate."
We conclude that Professor Linke's approach was a
reasonable one; by using a differential between the two rates, he
did not have to make a prediction of future growth and inflation
rates. Professor Linke was consistent in his treatment of
inflation, and he did not adopt a method that would undercompensate
or overcompensate the plaintiff. See Varilek v. Mitchell
Engineering Co., 200 Ill. App. 3d 649, 668-72 (1990); Stringham v.
United Parcel Service, Inc., 181 Ill. App. 3d 312, 316-21 (1989).
The defendants next contend that the damages awarded to
the plaintiffs are excessive. Before resolving this question, we
will briefly summarize the evidence presented at trial regarding
the two women's injuries.
Keva Richardson was 23 years old at the time of the
accident. She grew up in Pampa, Texas, and received a bachelor's
degree in elementary education in May 1987 from Texas Tech
University. While in college, she participated in a number of
athletic activities and was, by all accounts, a popular, happy
person. After graduating from college, Keva obtained a position as
a flight attendant with American Airlines. She planned to work in
that capacity for several years before returning to school to gain
a post-graduate degree in education; her ultimate goal was to
teach. Keva met Ann McGregor in the flight attendant training
program, and the two decided to room together upon completion of
their training. At the conclusion of the program, they were
assigned to the Chicago area, and they had moved there just several
days before the accident occurred.
Following the accident, Keva was initially taken to
Highland Park Hospital for treatment. Because of the seriousness of
her injuries, however, Keva was transferred that morning to
Northwestern Memorial Hospital. Dr. Giri Gereesan, an orthopedic
surgeon specializing in spinal surgery, determined that Keva had
incurred a fracture of the fifth cervical vertebra, which severely
damaged her spinal cord and resulted in incomplete quadriplegia.
Dr. Gereesan performed surgery on Keva on December 1, 1987, to
stabilize her spine so that she would be able to support her head;
the surgery did not repair the damage to her spinal cord, and no
treatment exists that could do so.
Keva was transferred to the Rehabilitation Institute of
Chicago in December 1987, where she came under the care of Dr. Gary
Yarkony. Keva was initially dependent on others in all aspects of
her daily life. At the Rehabilitation Institute she learned how to
perform a number of basic tasks, such as sitting in a wheelchair,
transferring from a bed to a wheelchair, brushing her teeth,
washing her face, and putting on loose-fitting tops. Keva's initial
stay at the Rehabilitation Institute lasted until April 1988, when
she moved to her parents' home in Texas. Keva returned to the
Rehabilitation Institute in 1988 and in 1989 for follow-up visits.
Keva also required hospitalization in Texas on three subsequent
occasions for treatment of conditions arising from the accident.
Testifying in Keva's behalf at trial, Dr. Gary Yarkony,
who had served as her primary physician at the Rehabilitation
Institute, described Keva's current condition. He explained that
she cannot use her legs and that she has only limited functioning
in her arms, with loss of control of her fingers and fine muscles
in her hands. She suffers pain in her legs and shoulders. Her chest
and abdomen are paralyzed, and she has restrictive pulmonary
disease. In addition, she has no control over her bladder or bowel
functions and requires assistance in emptying them. As a
consequence of her physical condition, she is at risk for bladder
infections, pneumonia, and pressure ulcers. Keva also suffered a
number of facial injuries in the accident. Some of these scars were
later repaired through plastic surgery, but others remain.
At trial, Keva's mother, Dixie Richardson, described her
daughter's current activities and the level of care necessary to
assist her in her daily routine. Keva requires help in taking a
shower and getting dressed. She cannot put on underwear, socks, or
pants by herself but is able to put on pullover shirts and
sweaters. With assistance, she can brush her teeth, apply makeup,
and put in her contact lenses. She is unable to cut food or button
a sweater. She can push her wheelchair on a smooth, level surface
but otherwise needs assistance. In her own testimony, Keva said
that she is self-conscious about her appearance now and the
impression she makes on others. She said that the thing she misses
most is just being able to get up in the morning and begin her day;
now she requires the assistance of others, throughout the day.
The jury awarded Richardson a total of $22,358,814 in
damages, divided among the following six elements: $258,814 for
past medical care; $11,000,000 for future medical care; $900,000
for past and future lost earnings; $3,500,000 for disability;
$2,100,000 for disfigurement; and $4,600,000 for pain and
suffering. In challenging Richardson's award of damages, the
defendants first argue that the sum of the future medical costs
found by the jury--$11,000,000--is not supported by the evidence,
for it exceeds even the larger of the two figures supplied by
Professor Linke, $9,570,034. The defendants contend that the
decision to award Richardson nearly $1.5 million more illustrates
the jury's failure to properly determine damages in this case.
In response, Richardson argues that the larger award may
simply be attributable to the jury's decision to make an award of
expenses that she is likely to incur in the future but that were
not specifically included in the calculations performed by
Professor Linke. Richardson notes that Dr. Yarkony, in compiling
for Linke's use the list of likely future medical costs, did not
assign specific values to certain items, such as the expenses of
future hospitalizations and the costs of wheelchairs and a
specially equipped van. Richardson thus argues that the jury's
decision to award an amount for future medical costs greater than
Professor Linke's higher estimate might simply reflect the jury's
desire to compensate her for those unspecified but likely expenses.
We agree with Richardson that the trier of fact enjoys a certain
degree of leeway in awarding compensation for medical costs that,
as shown by the evidence, are likely to arise in the future but are
not specifically itemized in the testimony. See Scheibel v.
Groeteka, 183 Ill. App. 3d 120, 138 (1989); Levin v. Welsh Brothers
Motor Service, Inc., 164 Ill. App. 3d 640, 659-60 (1987). In the
present case, however, the amount awarded by the jury for future
medical costs is nearly $1.5 million more than the higher of the
two figures claimed at trial by Richardson. Notably, Professor
Linke did not rely on the projections by the General Accounting
Office (GAO) of the growth of future medical care costs, mentioned
in the partial concurrence. Professor Linke explained that the
GAO's study included a large number of technology-based items,
while the main expense to be incurred by Richardson will be wages
for attendant care. Given the disparity between the trial testimony
and the jury's eventual award, we will not attribute the entire
difference between those sums simply to miscellaneous costs
Richardson is likely to incur in the future. For these reasons, we
conclude that it is appropriate, by way of remittitur, to reduce by
$1 million the nearly $1.5 million differential between the award
for Richardson's future medical expenses and the higher figure
presented in the testimony. This adjustment allows Richardson
recovery for expected future medical costs for which no specific
estimates were introduced, yet is not so large that it represents
a departure from the trial testimony.
We do not agree with the defendants, however, that the
remainder of the award of damages to Richardson, including the sums
for pain and suffering, disability, and disfigurement, is
duplicative or excessive or lacks support in the record. The
determination of damages is a question reserved to the trier of
fact, and a reviewing court will not lightly substitute its opinion
for the judgment rendered in the trial court. See Lau v. West Towns
Bus Co., 16 Ill. 2d 442, 452-53 (1959); Marchese v. Vincelette, 261
Ill. App. 3d 520, 529-30 (1994). An award of damages will be deemed
excessive if it falls outside the range of fair and reasonable
compensation or results from passion or prejudice, or if it is so
large that it shocks the judicial conscience. Richter v.
Northwestern Memorial Hospital, 177 Ill. App. 3d 247, 257 (1988).
When reviewing an award of compensatory damages for a nonfatal
injury, a court may consider, among other things, the permanency of
the plaintiff's condition, the possibility of future deterioration,
the extent of the plaintiff's medical expenses, and the
restrictions imposed on the plaintiff by the injuries. Marchese,
261 Ill. App. 3d at 530.
Here, it was the jury's function to consider the
credibility of the witnesses and to determine an appropriate award
of damages. We cannot say that the present award to Richardson is
the result of passion or prejudice, "shocks the conscience," or
lacks support in the evidence. The record shows that Richardson
suffered devastating, disabling injuries as a consequence of the
accident. The defendants urge us to compare Richardson's damages
with amounts awarded in other cases. Courts in this state, however,
have traditionally declined to make such comparisons in determining
whether a particular award is excessive (see Tierney v. Community
Memorial General Hospital, 268 Ill. App. 3d 1050, 1065 (1994);
Northern Trust Co. v. County of Cook, 135 Ill. App. 3d 329, 335
(1985)), and we do not believe that such comparisons would be
helpful here.
The defendants also contend that the jury's award of
damages to Ann McGregor is excessive. McGregor was 22 years old at
the time of the accident. She grew up in Houston, Texas, and
graduated from Southern Methodist University in May 1987 with a
degree in psychology. Like Keva Richardson, McGregor was accepted
after graduation for a position as a flight attendant with American
Airlines. As mentioned earlier, the two women met while enrolled in
the flight attendant training program and were sharing an apartment
in the Chicago area at the time of the accident. Following the
accident, McGregor was taken to Highland Park Hospital, where she
was treated and released that day; she was then off work for about
two weeks. A laceration she suffered on her forehead eventually
healed, with only minimal scarring. At trial McGregor testified
that she continues to suffer from nightmares about the accident.
The jury awarded McGregor a total of $102,215 in damages, divided
among the following components: $1,615 for past medical expenses,
$600 for lost earnings, and $100,000 for pain and suffering.
Like the dissenting justice below, we believe that the
award of $100,000 for pain and suffering is, in these
circumstances, excessive. McGregor was not seriously injured in the
accident, incurring a laceration on her forehead, which left only
a slight scar. The jury declined to award McGregor any compensation
for disfigurement; rather, the bulk of her recovery consisted of
compensation for pain and suffering. We conclude that a more
appropriate figure for pain and suffering would be $50,000, which
would reduce her total damages to $52,215. By way of remittitur, we
accordingly reduce the judgment entered in favor of McGregor and
against Tandem/Carrier and Chapman to that amount.
II
With Rollins having settled with the plaintiffs the
question of its liability to them under the Wisconsin financial
responsibility law, we now consider Rollins' claims against Chapman
and Tandem/Carrier. Rollins had previously sought contractual
indemnity from Tandem/Carrier, and implied indemnity and
contribution from Chapman and Tandem/Carrier. Any right that
Rollins might have had to obtain contribution from the other
defendants has been extinguished by its settlement with the
plaintiffs. 740 ILCS 100/2(e) (West 1994). Remaining before us,
then, are Rollins' action against Tandem/Carrier for contractual
indemnity, and its actions against Tandem/Carrier and Chapman for
implied indemnity.
Both the trial judge and the appellate court concluded
that Rollins could seek indemnity from Tandem/Carrier under the
terms of the truck rental agreement between Rollins and
Tandem/Carrier. We agree, and conclude that Rollins is entitled to
contractual indemnity from Tandem/Carrier. A review of the
pertinent provisions of the agreement demonstrates Rollins' right
to that relief. Paragraph 4 of the terms and conditions of the
lease agreement between Rollins and Tandem/Carrier provides that
the lessee:
"SHALL INDEMNIFY AND SAVE ROLLINS HARMLESS WITH
RESPECT TO ANY AND ALL INJURY OR DAMAGE TO PERSONS
OR PROPERTY ARISING OUT OF OWNERSHIP, MAINTENANCE,
USE AND/OR OPERATION OF THE VEHICLE[.]"
In addition, paragraph 6(f) of the terms and conditions provides
that the lessee agrees to indemnify Rollins from
"Claims or causes of action for death or injury to
persons, or loss or damage to property in excess of
the limits of liability insurance provided pursuant
to this lease."
As the appellate court concluded, the plain language of the lease
agreement grants Rollins the contractual right to seek indemnity
from Tandem/Carrier for personal injury damages. Under the
preceding provisions, Rollins may obtain indemnity from
Tandem/Carrier for the amount in excess of the $1 million insurance
policy provided under the rental agreement.
Tandem/Carrier argues, however, that another provision in
the lease agreement establishes that the contractual indemnity
provisions were not operative in this case. The provision cited by
Tandem/Carrier appears on the front side of the rental agreement,
following a list of optional forms of insurance coverage made
available to lessees, and it states:
"IF RENTER DECLINES ANY OF THE ABOVE COVERAGES, HE
SHALL BE BOUND TO THE CONDITIONS DETAILED ON THE
REVERSE SIDE."
Because Tandem/Carrier accepted coverage in this case,
Tandem/Carrier argues that the indemnity provisions are not
applicable here. Tandem/Carrier believes that it would now be bound
by the conditions on the reverse side of the agreement, including
the indemnity provisions of paragraphs 4 and 6(f), only if it had
declined the offer of insurance coverage. We do not agree.
As an initial matter, we believe that Tandem/Carrier's
interpretation of the agreement is refuted by paragraph 6(f), which
contemplates that a renter could both obtain insurance and have a
contractual duty to indemnify the vehicle owner. Paragraph 6(f)
requires a renter to indemnify the owner for "Claims or causes of
action for death or injury to persons, or loss or damage to
property in excess of the limits of liability insurance provided
pursuant to this lease." Thus, by the plain language of paragraph
6(f), the duty to indemnify exists even if the renter accepts an
offer of insurance.
Moreover, Tandem/Carrier's interpretation of the
agreement proves too much. Under Tandem/Carrier's view, none of the
provisions on the reverse side of the rental agreement would take
effect if the lessee declined the offer of insurance coverage. This
could not have been the parties' intention, however. The reverse
side of the agreement contains a number of provisions that are
unrelated to insurance coverage and that are seemingly applicable
whether or not a lessee accepts coverage. For example, one of the
terms and conditions on the reverse side states that the rented
vehicle is the property of Rollins. We do not believe that the
applicability of that provision depends on whether the vehicle
lessee accepts or declines insurance coverage. We believe instead
that the import of the language cited by Tandem/Carrier is simply
to refer lessees to a particular provision on the back of the
agreement, applicable when insurance coverage is refused, requiring
the lessee in that event to obtain its own policy under which
Rollins is an additional insured.
Tandem/Carrier also briefly argues that contractual
indemnity is unavailable here because the agreement does not
expressly allow indemnity for liability imposed pursuant to
statute, which is the basis for the plaintiffs' claims against
Rollins. The indemnity provisions are broadly written, however, and
do not restrict the availability of the remedy in the manner
suggested. We thus conclude that Rollins may obtain indemnity from
Tandem/Carrier under the terms of the parties' lease agreement. In
the wake of the plaintiffs' settlements with Rollins, we afforded
Rollins, Tandem/Carrier, and Chapman the opportunity to submit
additional briefs on the potential effect of the settlements on
Rollins' claims against the other defendants. With regard to the
action for contractual indemnity, Tandem/Carrier has rested on its
original briefs in this appeal and does not argue that the
settlement affects Rollins' right to obtain indemnity under the
lease agreement.
Although our resolution of Rollins' contractual indemnity
claim against Tandem/Carrier renders moot Rollins' separate claim
against Tandem/Carrier for implied indemnity, our inquiry is not at
an end, for Rollins sought indemnity from Chapman, the driver of
the truck and not a signatory to the rental agreement, only under
an implied theory. We believe that Rollins is entitled to indemnity
on this additional ground. In Frazer v. A.F. Munsterman, Inc., 123
Ill. 2d 245, 261-64 (1988), and Thatcher v. Commonwealth Edison
Co., 123 Ill. 2d 275, 278 (1988), this court concluded that implied
indemnity was not available in a products liability action in which
the party seeking indemnity was negligent or otherwise at fault in
causing the underlying loss. Later, in American National Bank &
Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d
347, 354 (1992), we held that the enactment of the Contribution Act
did not abolish common law actions for implied indemnity in quasi-
contractual relationships involving vicarious liability. See also
Faier v. Ambrose & Cushing, P.C., 154 Ill. 2d 384 (1993) (in legal
malpractice action against two attorneys, first attorney, who
settled with plaintiff, allowed under American National Bank
rationale to pursue claim for implied indemnity against second
attorney; second attorney, and not first attorney, had worked on
specific matter giving rise to malpractice action, while first
attorney handled separate aspect of case, and first attorney had
merely introduced plaintiff, his client, to second attorney).
Although the releases executed by the plaintiffs in favor
of Rollins speak broadly and are not explicitly limited to actions
under the Wisconsin statute, we do not believe that Rollins is
precluded from obtaining indemnity because it may be negligent or
otherwise at fault, as Chapman contends. Rather, the present claim
for implied indemnity fits within the rule expressed in American
National Bank. The judgments obtained by the plaintiffs against
Rollins were based entirely on Rollins' alleged duty under the
Wisconsin financial responsibility law. We note, moreover, the
presence of a preoccurrence relationship of lessor/lessee between
Rollins and Tandem/Carrier, Chapman's employer, a circumstance in
which an implied right of indemnity has been found. See Kerschner
v. Weiss & Co., 282 Ill. App. 3d 497, 503-04 (1996). Just as
Rollins would, in these circumstances, possess a right of implied
indemnity against Tandem/Carrier, so too do we believe that Rollins
may assert the same right against Chapman, who was Tandem/Carrier's
agent. Here, the indemnity defendants make no argument that an
implied right of indemnity against the lessee would not also be
effective against the driver. In the present case, Rollins is
liable not because of anything it did or failed to do, but solely
as a consequence of Chapman's negligence, and of the lower courts'
interpretations of the Wisconsin statute, an issue not now before
us. Rollins was not negligent or otherwise at fault in causing the
loss, and Chapman has not explained why the settlement should deny
Rollins a right to implied indemnity; thus, we conclude that it is
appropriate to permit Rollins to obtain implied indemnity in this
case.
* * *
For the reasons stated, the judgment of the appellate
court is affirmed in part, reversed in part, and vacated in part,
and the judgment of the circuit court of Cook County is affirmed in
part, reversed in part, and vacated in part. Pursuant to the
authority of Supreme Court Rule 366(a)(5) (155 Ill. 2d R.
366(a)(5)), we affirm the judgments entered in favor of plaintiffs
and against Tandem/Carrier and Chapman in their reduced amounts. In
the absence of consent to the entry of a remittitur by each
plaintiff within 21 days of the filing of this opinion or any
further period in which the mandate is stayed, her individual
action will be remanded to the circuit court of Cook County for a
new trial on the question of damages. Otherwise, this cause is
remanded to the circuit court of Cook County for entry of judgment
on Rollins' claim for indemnity in an amount consistent with this
opinion and the settlement between plaintiffs and Rollins.
Judgments affirmed in part, reversed in part,
and vacated in part;
cause remanded.
JUSTICE McMORROW, concurring in part and dissenting in
part:
I concur in the opinion of my colleagues in all but one
respect: I do not agree with the majority that it is proper to
order a remittitur of the jury's award of damages to Keva
Richardson for present cash value of future medical expenses or the
jury's award to Ann MacGregor for pain and suffering.
In determining the total verdict awarded to Richardson,
the jury considered extensive evidence relating to six separate
components of damages. As noted by the majority, Richardson
"suffered devastating, disabling injuries." The appellate court
majority's unpublished opinion describes her condition:
"After the collision, doctors determined that the
communication connection between Richardson's brain
and the rest of her body had become severed and she
was rendered a quadriplegic. Richardson was soon
placed in traction with tongs affixed to her skull
by driving screws into the side of her head. She
was also placed in a roto-rest bed with 25 pounds
weights attached to her body for traction.
Eventually, Richardson underwent surgery to
stabilize her spine so it could support the weight
of her head which hung like a rag doll's head. In
that operation, bone from her hips was grafted to
her cervical spine with the use of metal plates and
screws. The surgery did not repair the injury to
Richardson's spinal cord, nor does medical
technology yet exist to rectify the injury."
Other evidence related Richardson's need for assistance every six
hours to empty her bladder by catheterization and daily assistance
to empty her bowel, over which she permanently lacks control. She
has lost the use of her legs, fingers, and the fine muscles of her
hand. Her chest and abdomen are paralyzed. She is subject to risk
of serious infections and other conditions and, according to the
evidence, having a child would be life-threatening. The appellate
court opinion further stated that Richardson "may expect to be
hospitalized on a regular basis for the balance of her life."
The jury awarded $11 million to compensate Richardson for
her future medical needs. To this sum the majority applies a
remittitur of $1 million, based on the majority's observation that
the jury's award for this element of damages exceeded by $1.5
million the testimony of economist Charles Linke regarding the
"upper bound" of the present cash value of Richardson's future
medical needs. Linke explained that he calculated a "lower bound
present value ($7.4 million) and an upper bound present value ($9.5
million)." His figures were derived from different assumptions
regarding the relationship of the rate of interest to the rate of
growth. In explaining his economic assumptions and methods, Linke
also noted that there were different accounting methods that could
be used to calculate Richardson's future medical needs. The one he
employed yielded a more conservative figure for medical care than
that used by the General Accounting Office, which, according to
Linke, would yield the conclusion that "the present value of Keva
Richardson's care needs would be approximately 12.1 million
dollars."
In assuming that the $9.5 million "upper bound" figure
represents the maximum amount that is sustained by the evidence
with respect to Richardson's future medical expenses, the majority
opinion fails to acknowledge that the information upon which Linke
based his calculation of present cash value of future medical
expenses represented Richardson's minimum care needs for the rest
of her life. Dr. Yarkony, upon whose testimony Linke's economic
analysis was based, detailed the specific types of medical expenses
that Richardson would be expected to need in the coming years. Dr.
Yarkony testified, "[T]his is the basic minimum care not covering
any hospital admissions for emergencies, complications, and the
like." He further testified that in his opinion Richardson would
continue to require hospitalizations in the future caused by
complications related to her spinal cord injury, including
infections, pressure sores, pneumonia, and blood clots.
Notwithstanding the above testimony of Linke and Dr.
Yarkony, the majority determines that the jury improperly affixed
damages for future medical costs in an amount exceeding the
experts' estimates by $1.5 million. The majority concedes that the
jury could properly compensate Richardson for medical costs not
otherwise included in the experts' calculations. The majority
permits one third of the excess award to stand, and concludes that
$500,000, rather than $1.5 million, represents the appropriate
additional sum the jury could award in excess of Linke's upper
bound estimate of $9.5 million. In so holding, the majority usurps
the jury's function and substitutes its own judgment regarding what
is reasonable and fairly supported by the expert economic and
medical evidence with respect to the present value of Richardson's
future medical costs. The majority's application of remittitur in
the case at bar thereby operates as an arbitrary limitation on the
jury's ability to assess the evidence. See, e.g., Lee v. Chicago
Transit Authority, 152 Ill. 2d 432, 470 (1992); Barry v. Owens-
Corning Fiberglas Corp., 282 Ill. App. 3d 199, 207 (1996); Riley v.
Koneru, 228 Ill. App. 3d 883 (1992); Chambers v. Rush-Presbyterian-
St. Luke's Medical Center, 155 Ill. App. 3d 458 (1987); Shaheed v.
Chicago Transit Authority, 137 Ill. App. 3d 352 (1985); Guerrero v.
City of Chicago, 117 Ill. App. 3d 348 (1983).
In Riley, 228 Ill. App. 3d at 887-88, the appellate court
summarized the applicable law of remittitur:
"Damages are a question of fact to be decided
by the jury, and courts are reluctant to interfere
with the jury's exercise of discretion in this
area. [Citations.] A reviewing court will not
disturb a jury's award of damages unless it is
obviously the result of passion or prejudice.
[Citation.] Furthermore, an award is not excessive
unless it falls outside the necessary limits of
fair and reasonable compensation or it shocks the
judicial conscience. [Citation.] A jury's award
will not be subject to remittitur where it falls
within the flexible range of conclusions which can
be reasonably supported by the facts. [Citation.]"
In Barry v. Owens-Corning Fiberglas Corp., the court rejected
defendant's argument that a wrongful death award of $6,850,000 and
a total verdict in excess of $12 million was grossly excessive and
should have been reversed or subject to remittur. The court stated,
"Reviewing courts rarely disturb jury awards. For good reason. ***
[Jurors] use their combined wisdom and experience to reach fair and
reasonable judgments. We are neither trained nor equipped to
second-guess those judgments about the pain and suffering and
familial losses incurred by other human beings." Barry, 282 Ill.
App. 3d at 207.
Nothing in the record or the itemized jury verdict
indicates that the jury departed from its customary duty to weigh
the evidence and assess damages that would fairly compensate
Richardson for her permanent and disabling injuries. The jury's
award for future medical expenses, which arguably exceeded certain
testimony, does not warrant the conclusion that the jury's
determination was a departure from the flexible range of damages
that was reasonably supported by the facts. There is no indication
that the jury's award was the product of passion or prejudice. In
fact, with respect to a different component of damages, i.e,
Richardson's past and future lost earnings, the jury awarded a sum
that was $1.265 million less than the higher of the testimonial
estimates presented for that item of damages. If experts' estimates
of a person's future income losses or medical expenses were an
exact science capable of mathematical precision, there would be no
need to have a jury make the final determination of proven damages.
In the case at bar the jury heard all of the evidence,
including the basis for the expert testimony. It appears
uncontested that the evidence of Richardson's future medical
expenses did not include every anticipated item, such as special
equipment and repeated hospitalizations that are likely to occur in
the future because of the serious conditions Richardson suffers as
a result of her quadriplegia. The testimonial estimate of the
present cash value of Richardson's future medical needs is only
that--an estimate. This estimate was elicited as a minimum
projection of Richardson's medical needs in the years to come. In
light of these considerations, I would affirm the appellate court's
holding that the variance between the jury's award for future
medical needs and the experts' projection is "certainly not so
great a variance that we must reject the verdict of people whom we
have instructed to use their own observation and experience in the
affairs of life during their deliberations."
Similarly, I depart from the majority's holding that Ann
MacGregor's damages award of $100,000 for pain and suffering was
excessive. The majority orders a remittitur of $50,000 as a "more
appropriate figure for pain and suffering." Slip op. at 12. The
majority appears to base its conclusion on the relatively minor
injury MacGregor sustained, noting that she suffered a laceration
on her forehead that healed with only minimal scarring. Although
the majority views the award of $100,000 as overly generous for a
facial laceration that did not result in permanent disfigurement,
the majority substitutes its own subjective judgment for the jury's
evaluation of the evidence. The record indicates that MacGregor's
lacerated forehead took six months to heal. The record further
indicates that she suffered ongoing trauma, including recurrent
nightmares resulting from the rear-end collision that left the
other occupant of the car a quadriplegic. The jury, as finder of
fact, had the superior ability to assess the evidence, including
MacGregor's testimony relating to her traumatic and painful
experience. I am aware of no sound reason to nullify the function
of the jury and arbitrarily reduce MacGregor's award for pain and
suffering to $50,000. Therefore, I cannot concur in the reasoning
or result of the majority with respect to the reduction by
remittitur of both plaintiffs' verdicts.
For the reasons stated, I concur in part and dissent in
part from the judgment of the majority.
JUSTICE FREEMAN joins in this partial concurrence and
partial dissent.