New Trial On Damages Ordered by Illinois Appellate Court in Car Accident Case

Miguel Klesowitch filed a lawsuit against the defendant Chiquita Smith to recover for damages allegedly suffered as a result of the defendant’s negligence.  The trial judge granted summary judgment in favor of Klesowitch on the issue of defendant’s negligence only, leaving consideration of whether any of the plaintiff’s conduct was a proximate cause of his injuries and the amount of damages for trial.  At the trial before the jury, the judge admitted certain medical bills into evidence.  Portions of those bills had been written off by the medical providers.  The jury returned a verdict in favor of the plaintiff for the full amount of the medical bills admitted into evidence.  The verdict was affirmed in part, reversed in part and remanded back to the trial court with instructions.

On June 28, 2008, the plaintiff, Miguel Klesowitch, alleged that the defendant, Chiquita Smith, drove her car into the Klesowitch vehicle.  Smith drove her vehicle into an intersection without stopping at a stop sign and into the left side of Klesowitch’s vehicle.  Smith admitted not stopping because she did not see the stop sign.  The lawsuit complaint alleged that Klesowitch was injured physically, by expending large sums of money for medical expenses to be cured of said physical injuries and by lost money from being unable to pursue his usual occupation.  Smith filed an answer and affirmative defenses alleging that Klesowitch was guilty of contributory negligence.

In July 2014, Klesowitch filed a motion for summary judgment “on the issue of liability.”  Klesowitch’s motion asserted that at Smith’s deposition, she “set forth testimony indicating that she was clearly at fault for the accident.”

In response to plaintiff’s motion for summary judgment, Smith responded in asserting that during Klesowitch’s deposition, he “set forth testimony under oath that he was at least partially at fault for causing the accident.”  In September 2014, the trial judge entered a written order on the plaintiff’s motion for summary judgment.

The order reads, in part, as follows:  “Parties being present and the matter having been fully briefed, it is ordered that plaintiff’s motion is granted as to negligence but it reserved/remains pending as to proximate cause and damages.”  Klesowitch’s attorney filed three motions in limine.  The trial judge ruled that the total amounts of medical bills would go back to the jury.  The Smith attorney argued that  the bills “are not owed to anyone” because the medical provider has no expectations of payment, and  the “plaintiff does not owe them, so they cannot claim them.”

Smith argued that the trial judge erred in granting summary judgment in favor of Klesowitch on the issue of her negligence because genuine issue of material fact remained as to whether Klesowitch’s negligence contributed to the accident.  The defendant also implied the order granting summary judgment as to negligence alone – not liability – is a violation of Section 2-1005(c) of the Illinois Code of Civil Procedure.  735 ILCS 5/2-1005(c).  Smith admitted plaintiff’s contributory negligence was not ruled on in the summary judgment order, but she argued that the summary judgment as to her negligence prejudiced her at trial “by tainting the jury’s perspective as to the relative degree of fault between the parties.”

The plaintiff responded that the defendant weighed the issue by choosing not to include the transcript of the summary judgment hearing.  The Illinois appeals panel ruled that the plaintiff moved for summary judgment on the issue of the defendant’s liability but not on the issue of damages. “A reviewing court may affirm a circuit court’s grant of summary judgment on any basis supported by the record.”  The trial court could determine there were no genuine issues of material fact as to the defendant’s duty and breach of duty.  The court found there was no error in the trial judge’s order.  The order granting partial summary judgment was affirmed.

On the issue of the hospital bills, the plaintiff on the eve of trial produced a supplement to the defendant’s discovery requests.  The defendant did not include an objection to the timeliness of the plaintiff’s supplement to the discovery requests.  Because there was no ruling on the plaintiff’s motion in limine to exclude undisclosed bills, or specifically the hospital bills, the issue is waived.  “A party waives an objection where a ruling is not requested after the trial court fails to make one. Shields Pork Plus, Inc. v. Swiss Valley Ag Service, 329 Ill.App.3d 305, 313 (2002).

The Illinois appellate court held that the defendant’s argument that the trial court committed reversible error in admitting medical bills was waived.

At trial, Smith objected to amounts listed on the plaintiff’s medical bills as adjustments being admitted into evidence as if those bills were paid.  Smith’s position was that to admit the bills that were adjusted and not actually paid by a collateral source, plaintiff must lay a proper foundation with testimony from a medical provider that the amounts were reasonable and necessary.

The defendant argued that the plaintiff failed to lay a proper foundation for the “satisfied” portions of the medical bills as required by Wills v. Foster, 229 Ill.2d 393 (2008), and the trial court erred when it allowed a “satisfied” medical bill the same evidentiary status as a paid medical bill.  The defendant’s argument is based on the collateral source rule.

In Illinois, the rule is both a rule of evidence and a substantive rule of damages.  “As a rule of evidence, the rule prevents the jury from learning anything about collateral income.  For instance, the rule prevents defendants from introducing any evidence that all or a part of a plaintiff’s losses have been covered by insurance.”  “As a substantive rule of damages, the rule bars a defendant from reducing the plaintiff’s compensatory award by the amount the plaintiff received from the collateral source.”  Arthur v. Catour, 216 Ill.2d 72, 80 (2005).

Illinois follows the “reasonable-value approach,” which states that the plaintiff may seek to recover the amount originally billed by the medical provider.  In Illinois, “the plaintiff may place the entire billed amount into evidence, provided that the plaintiff establishes the proper foundational requirements to show the bills’ reasonableness.” (Citing Arthur, 216 Ill.2d at 81-83.  In this case, the defendant did not stipulate to the admission of the written-off amounts (from the hospital) and did object to the question of their reasonableness.

Specifically, the defendant argued that the plaintiff would have to “have testimony with respect to those remaining balances to meet the foundational requirements.”  The Illinois appellate court found that the trial court improperly admitted the written-off or settled portions of the plaintiff’s medical bills into evidence, and the jury awarded damages based on the improperly admitted medical bills.

In conclusion, the Circuit Court of Cook County’s judgment is affirmed, and the cause is remanded for entry of remittitur of the portion of the judgment for the written-off or settled portions of the medical bills, on the condition that the plaintiff consents to the remittitur.  In the absence of consent to the remittitur by plaintiff, the judgment was reversed and the cause remanded for a new trial on the issues of damages only.   Thus, the trial judge’s and jury’s verdict was affirmed in part, reversed in part and remanded with instructions.

Klesowitch v. Smith, 2016 IL App (1st) 150414 (March 17, 2016).

Kreisman Law Offices has been handling automobile accident cases, truck accident cases, motorcycle accident cases, bicycle accident cases, premises liability cases and nursing home abuse cases for individuals and families who have been injured or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Robbins, Merrionette Park, Blue Island, Oakbrook, Hillside, Bellwood, Melrose Park, Franklin Park, Northfield, Evergreen Park, Deerfield, Crete, Beecher, Brookfield, Buffalo Grove, LaGrange Park, Lansing, Lemont, Lincolnwood, Lincolnshire, Rosemont, Sauk Village, Winnetka, Wilmette and Riverdale, Ill.

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