Hana v. Illinois State Medical Inter-Insurance Exchange Mutual Insurance Company

2018 IL App (1st) 162166
Opinion filed: March 16, 2018
FIRST DISTRICT
FIFTH DIVISION
No. 1-16-2166
ALIZABETH HANA and ELVIN HANA, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellees, ) Cook County.
)
v. ) No. 15 L 5975
)
ILLINOIS STATE MEDICAL INTER-INSURANCE ) Honorable
EXCHANGE MUTUAL INSURANCE COMPANY, ) Irwin Solganick,
) Judge Presiding.
Defendant-Appellant. )
JUSTICE ROCHFORD delivered the judgment of the court, with opinion. *
Presiding Justice Reyes and Justice Hall concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs-appellees, Alizabeth Hana and Elvin Hana, filed this suit against defendant-
appellant, Illinois State Medical Inter-Insurance Exchange Mutual Insurance Company (ISMIE),
seeking to recover for ISMIE’s alleged bad-faith failure to settle an underlying lawsuit. A jury
ruled in favor of plaintiffs, entered a multimillion dollar verdict against ISMIE, and ISMIE
thereafter appealed raising a host of issues. For the following reasons, we reverse and remand for
a new trial.
¶2 I. BACKGROUND
¶3 Because of the limited number of issues we address in this opinion, we recite here only
those facts necessary to our resolution of this appeal.
¶4 A. Underlying Medical Malpractice Litigation
¶5 The underlying medical malpractice suit (Hana v. Chams, No. 05-L-7692 (Cir. Ct. Cook
County, Nov. 10, 2015)) was brought by plaintiffs against, inter alia, ISMIE’s insureds, Dr.
*
Justice Rochford has listened to the recording of the oral argument.
No. 1-16-2166
Albert Chams and Dr. Joyce Chams—as well as their joint-obstetrics practice group, Chams
Women’s Health Care, S.C.—in addition to Rush North Shore Medical Center (Rush North
Shore) and two of Rush North Shore’s emergency room doctors. The underlying suit sought to
recover for deficient prenatal care provided by the defendants, which resulted in physical injury
to Alizabeth and the death of plaintiffs’ child, Mary. Alizabeth was appointed as the special
administrator of Mary’s estate, and a wrongful death claim was included in the complaint. ISMIE
accepted defense of the underlying suit without reservation and retained an attorney to represent
the Chamses.
¶6 Prior to trial, a number of the defendants were either dismissed from the case or were
awarded summary judgment in their favor, and three of the defendants settled with plaintiffs.
Specifically, the trial court approved a $1.5 million settlement among plaintiffs, Rush North
Shore, and two of Rush North Shore’s emergency room doctors. These three defendants were
then dismissed from the underlying suit. As a part of this settlement, payments were made to
plaintiffs’ health insurers to settle any liens they might have on plaintiffs’ recovery in the
underlying case. This matter thereafter proceeded to a jury trial in May of 2009, involving only
plaintiffs’ claims against Dr. A. Chams, Dr. J. Chams, and Chams Women’s Health Care, S.C.
¶7 Following the trial, the jury returned a general verdict in favor of plaintiffs and against
the three remaining defendants. The jury awarded a total of $6,171,118.67 in damages, which
included (1) $621,118.67 for Alizabeth’s personal injuries; (2) $4.55 million for Mary’s survival
claim; and (3) $1 million for the wrongful death claim. Pursuant to a posttrial motion, the trial
court reduced this amount by $1.5 million to account for the pretrial settlement. The defendants’
subsequent posttrial motion for a new trial was denied, and on appeal we affirmed. Hana v.
Chams, 2011 IL App (1st) 100146-U.
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¶8 After ISMIE paid its policy limits on the underlying verdict, the Chamses were
personally responsible for the $1.35 million balance. In exchange for a covenant not to enforce
that excess judgment against the Chamses, plaintiffs were assigned whatever rights the Chamses
might have with respect to a bad faith claim for ISMIE’s failure to settle the underlying litigation
within the policy limits.
¶9 B. Bad Faith Lawsuit
¶ 10 Plaintiffs, thereafter, filed this suit seeking both, $1.35 million in compensatory damages
for ISMIE’s bad faith refusal to settle in count I, and $10 million in punitive damages for
ISMIE’s allegedly willful and wanton breach of fiduciary duty in count II. In count II, plaintiffs
also sought an award of costs, attorney fees, and penalties pursuant to section 155 of the Illinois
Insurance Code. 215 ILCS 5/155 (West 2016). Plaintiffs also filed a jury demand. Pursuant to
Public Act 98-1132 (eff. June 1, 2015), which amended section 2-1105(b) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-1105(b) (West 2016)) to provide for six-person juries in civil
cases, and over the objection of ISMIE, this matter was tried before a six-person jury.
¶ 11 That jury ultimately found in favor of plaintiffs on both counts, awarding plaintiffs $1.35
million in compensatory damages and $13 million in punitive damages. In addition, the trial
court awarded plaintiffs over $1.5 million in costs, attorney fees, interest, and penalties. ISMIE
timely appealed.
¶ 12 II. ANALYSIS
¶ 13 ISMIE raises a constitutional issue as to the size of the jury in this case, as well as a
number of other issues on appeal. However, because we conclude that this matter must be
remanded for a new trial due to the denial of ISMIE’s constitutional right to a 12-person jury,
and because we find that issue to be dispositive, we need only address that issue. Nevertheless,
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we will also address three issues related to the admissibility of evidence and the appropriateness
of jury instructions that are likely to recur upon remand.
¶ 14 Thus, we begin by considering ISMIE’s argument that the trial court improperly rejected
its contention that it was entitled to a new trial because of the denial of its constitutional right to
a 12-person jury.
¶ 15 In considering whether a motion for a new trial should be granted, the trial court should
set aside a jury’s verdict only if it is contrary to the manifest weight of the evidence or a party
has been denied a fair trial. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). The trial court is in
a superior position to consider errors that occurred, the fairness of the trial to all parties, and
whether substantial justice was accomplished. Smith v. City of Evanston, 260 Ill. App. 3d 925,
932-33 (1994). A trial court’s ruling on a motion for new trial will not be reversed unless there is
an affirmative showing that it clearly abused its discretion. Gustafson, 151 Ill. 2d at 455.
¶ 16 As noted above, Public Act 98-1132 (eff. June 1, 2015) amended section 2-1105(b) of the
Code (735 ILCS 5/2-1105(b) (West 2016)) to provide for 6-person juries in civil cases and to
eliminate the ability of either party to request a jury of 12. It was pursuant to the amended
version of section 2-1105(b) that this matter was tried before a 6-person jury.
¶ 17 However, in Kakos v. Butler, 2016 IL 120377, ¶ 28, our supreme court found that
“[b]ecause the size of the jury—12 people—was an essential element of the right of trial by jury
enjoyed at the time the 1970 Constitution was drafted, *** jury size is an element of the right
that has been preserved and protected in the constitution.” Our supreme court therefore found the
portion of Public Act 98-1132 amending section 2-1105(b) and reducing the size of a jury in civil
trials to be facially unconstitutional under the Illinois Constitution and therefore void ab initio.
Id. ¶ 29.
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¶ 18 Thus, because ISMIE was denied its constitutional right to a 12-person jury, it is apparent
that it was denied a fair trial. This matter must therefore be remanded for a new trial. Gustafson,
151 Ill. 2d at 454. In reaching this conclusion, we reject three specific arguments raised by
plaintiffs on appeal.
¶ 19 First, plaintiffs contend that ISMIE failed to preserve this issue for appeal by failing to
obtain a ruling from the trial court on its objection to seating a 6-person jury. However, the
record clearly reflects that ISMIE filed a pretrial written motion, asking the trial court to declare
Public Act 98-1132 unconstitutional and to seat a 12-person jury. Moreover, and contrary to
plaintiffs’ assertions on appeal, the record reflects that this motion was discussed on the record
and specifically denied by the trial court. This issue was thereafter included in ISMIE’s posttrial
motion. Therefore, we find that ISMIE properly preserved this issue for appeal.
¶ 20 Second, plaintiffs argue that ISMIE is not entitled to a new trial because no prejudice can
be established where “it is pure speculation to say the verdict would have been different if there
had been more jurors.” However, as noted above, our supreme court concluded that the portion
of Public Act 98-1132 amending section 2-1105(b) and reducing the size of a jury in civil trials
was “facially unconstitutional and void ab initio.” Kakos, 2016 IL 120377 ¶ 29. Thus, “the
statute was constitutionally infirm from the moment of its enactment and is, therefore,
unenforceable. As a consequence, we will give no effect to the unconstitutional statute.” People
v. Blair, 2013 IL 114122, ¶ 30. Our supreme court’s decision in Kakos with respect to the
amended version of section 2-1105(b) thus “stands as an impediment to the operation and
enforcement of the statute.” Id. Therefore, the trial court had no authority to try this matter
before a six-person jury, nor did it have any authority to enter a judgment upon the verdict
reached by such a jury. The verdict and judgment simply have no legal effect, and may not now
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be affirmed on direct appeal. See Heastie v. Roberts, 226 Ill. 2d 515, 535 (2007) (decisions of
our supreme court apply retroactively to causes pending at the time they are announced,
including cases on direct review in the appellate court).
¶ 21 Third, plaintiffs argue that ISMIE waived this issue by failing to strictly comply with
Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006), pursuant to which a litigant challenging the
constitutionality of a statute, ordinance, or administrative regulation must serve notice of the
challenge—describing the nature of the constitutional challenge—upon the Attorney General or
other affected agency or officer, with such notice occurring at the time of suit, answer or
counterclaim, if constitutionality is raised at that level, or promptly after the constitutional
question arises as a result of a circuit or reviewing court ruling or judgment. The purpose of the
notice is to give the affected agency or officer the opportunity to intervene in the proceeding for
the purpose of defending the constitutionality of the statute, ordinance, or administrative
regulation. Id.
¶ 22 As an initial matter, it is arguable that Rule 19 has no applicability here. In this appeal,
we are not ourselves considering the constitutionality of Public Act 98-1132’s amendment of
section 2-1105(b). Rather, we are simply applying our supreme court’s ruling in Kakos to this
case. The constitutional issue has already been definitively determined.
¶ 23 Even if Rule 19 is applicable, we do not find it to be an impediment. It is true, ISMIE did
not provide notice to the Attorney General prior to trial at the time it initially challenged the
constitutionality of Public Act 98-1132’s amendment of section 2-1105(b). Indeed, it was not
until plaintiffs raised the failure to comply with Rule 19 in response to ISMIE’s posttrial motion
that ISMIE provided the required notice. At that time, ISMIE was informed that the Attorney
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General would not seek to intervene, the same decision it had reached in “hundreds” of other
cases raising the same issue.
¶ 24 As our supreme court has recognized, “a party’s failure to timely comply with Rule 19
does not deprive the court of jurisdiction to consider the constitutional issue. However, failure to
strictly comply with the rule may result in waiver. Nevertheless, because waiver is a limitation
on the parties, not on the court [citation], a circuit court or the appellate court has the discretion
to permit late compliance with Rule 19 and thereafter to address the constitutional issue if the
purpose of the rule has been served.” Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 118-19
(2004).
¶ 25 In light of the fact that the Attorney General was ultimately notified by ISMIE, that the
Attorney General declined to intervene just as it had in other cases, and given that our supreme
court has now definitively ruled on the validity of Public Act 98-1132’s amendment of section 2­
1105(b), rendering any possible defense of the amendment futile, we conclude that the purpose
of Rule 19 has been served. As such, any possible failure to strictly comply with Rule 19 is not
an impediment to our consideration of ISMIE’s argument that its constitutional right to a 12­
person jury was violated.
¶ 26 Having determined that ISMIE is entitled to a new trial on this basis, all of the remaining
arguments it raised on appeal in support of a new trial are now moot and need not be addressed.
In re Jonathan P., 399 Ill. App. 3d 396, 400 (2010) (“Generally, courts of review do not decide
moot questions, render advisory opinions, or consider issues where the result will not be affected
regardless of how those issues are decided.”). As such, we generally decline to address those
remaining issues. Indeed, a number of the additional arguments raised by ISMIE on appeal
address issues specifically related to the award of damages, costs, attorney fees, and penalties.
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“Whether the additional issues will ever become relevant is therefore a matter of speculation.
Should they become germane, ‘the parties are free to raise [them] with the benefit of the
additional facts and evidence that will be adduced at the proceedings held on remand.’ [Citation.]
For now, however, any discussion of the issues is premature.” Pielet v. Pielet, 2012 IL 112064,
¶ 57; see also Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 463 (2003). Again, we
will therefore not address such issues here.
¶ 27 Nevertheless, a reviewing court may address issues that are likely to recur on remand in
order to provide guidance to the lower court and thereby expedite the ultimate termination of the
litigation. Pielet, 2012 IL 112064, ¶ 56. A number of the other arguments raised by ISMIE on
appeal relate to the admissibility of evidence and the appropriateness of jury instructions that fall
into this category, and we therefore choose to address those issues here. 1
¶ 28 First, we consider ISMIE’s contention that plaintiffs were improperly allowed to
introduce into evidence a 2013 letter from its counsel to ISMIE, offering to settle this lawsuit for
the $1.35 million excess verdict entered in the underlying case, as well as additional testimony
regarding this letter. In response, plaintiffs contend that this evidence was properly entered to
establish ISMIE’s bad faith and willful and wanton conduct as to the underlying claims, which
plaintiffs assert continued well after the excess verdict was entered in the underlying case.
¶ 29 In Illinois, evidence regarding settlement negotiations or offers to settle are generally not
admissible. Ford v. Grizzle, 398 Ill. App. 3d 639, 649 (2010). Such evidence is discouraged
because it might be construed as an admission of liability and because public policy favors
compromise. Morgan v. Richardson, 343 Ill. App. 3d 733, 740 (2003). However, when
1
One of the issues raised on appeal by ISMIE involves the appropriateness of a jury instruction
regarding a provision of the Rights of Married Persons Act. 750 ILCS 65/15 (West 2016). As framed by
the parties, however, the propriety of this instruction is dependent on the evidence produced at trial. We
therefore decline to address this issue at this time.
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settlement offers are relevant, they are admissible. Shimkus v. Board of Review of the Illinois
Department of Labor, 117 Ill. App. 3d 826, 831 n.2 (1983). Illinois Rule of Evidence 408
provides that while evidence of settlement offers and negotiations are generally inadmissible,
such evidence may be admitted for “permissible purposes,” one of which is “establishing bad
faith.” Ill. R. Evid. 408 (eff. Jan. 1, 2011).
¶ 30 As an initial matter, we agree with ISMIE that any evidence of the 2013 settlement offer
was barred by Rule 408. While Rule 408 does allow the introduction of evidence of settlement
offers and negotiations to establish bad faith, we do not believe that this exception includes the
introduction of evidence with respect to the settlement of the present litigation so as to establish
ISMIE’s bad faith with respect to its handling of the underlying case. While no Illinois case has
addressed this specific issue, we note that Rule 408 “mirrors the Federal Rule 408, which our
state courts have been applying to cases for years.” County of Cook v. Illinois Labor Relations
Board, Local Panel, 2012 IL App (1st) 111514, ¶ 35. At least one federal court has recognized
that evidence of an insurer’s refusal to settle a bad faith case is inadmissible for the purpose of
establishing the insurer’s bad faith in handling an underlying matter. Niver v. Travelers
Indemnity Co. of Illinois, 433 F. Supp. 2d 968, 994 (N.D. Iowa 2006). This is consistent with the
underlying policy of Rule 408; i.e., promoting settlement.
¶ 31 Even if this evidence was not specifically barred by Rule 408, we agree with ISMIE that
it is irrelevant. “ ‘Relevant evidence’ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). “Evidence
which is not relevant is not admissible.” Ill. R. Evid. 402 (eff. Jan. 1, 2011).
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¶ 32 In this case, the pleadings, evidence, arguments, and jury instructions all reflect that the
ultimate issue was whether ISMIE’s bad faith and willful and wanton conduct caused the excess
judgment to be entered against the Chamses in the underlying case. The underlying judgment
was entered in May 2009, and our prior decision affirming that judgment was entered in August
2011. The Chamses assigned their bad faith claim to plaintiffs in March 2010, in exchange for a
covenant not to enforce any excess judgment against the Chamses. In light of these facts, we fail
to see how any refusal of ISMIE to settle this lawsuit in 2013 has any relevance with respect to
whether ISMIE engaged in bad faith and willful and wanton conduct leading to the 2009 excess
judgment. Even if we accepted plaintiffs’ insistence that this evidence shows continuing willful
and wanton conduct occurring after the 2009 excess judgment, we reject any contention that such
evidence is in any way relevant to establishing that plaintiffs were therefore damaged by the
2009 judgment. Therefore, no evidence regarding the 2013 settlement letter should be admitted
at trial upon remand.
¶ 33 Next, we consider ISMIE’s contention that the trial court improperly provided the jury
with Illinois Pattern Jury Instructions, Civil, Nos. 710.02, 710.03 (2011) (hereinafter IPI Civil
(2011) Nos. 710.02, 710.03), and refused to provide ISMIE’s proposed modified instructions,
because those instructions did not accurately reflect current law.
¶ 34 Both IPI Civil (2011) No. 710.02, the pattern issues instruction for bad faith claims
against insurers, and IPI Civil (2011) No. 710.03, the pattern burden of proof instruction with
respect to such claims, provide that a plaintiff must generally establish that the insurer had a
“reasonable opportunity” to settle the underlying lawsuit against its insured within the policy
limits.2 Neither instruction has been amended in decades, and each instruction relies upon an
2
In relevant part, IPI Civil (2011) No. 710.02 provides: “[The plaintiff claims that [name of
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understanding that the “Illinois Supreme Court has yet to define the duty or the elements of this
cause of action.” Illinois Pattern Jury Instructions, Civil, 710.00 Intro. (2011).
¶ 35 However, this does not reflect the current state of Illinois law. With respect to a bad faith
claim against an insurer for failure to settle a lawsuit against an insured, our supreme court has
now specifically ruled:
“The duty does not arise at the time the parties enter into the insurance contract, nor does
it depend on whether or not a lawsuit has been filed. The duty of an insurance provider to
settle arises when a claim has been made against the insured and there is a reasonable
probability of recovery in excess of policy limits and a reasonable probability of a
finding of liability against the insured. Since Illinois law generally does not require an
insurance provider to initiate settlement negotiations [citations], this duty also does not
arise until a third party demands settlement within policy limits.” (Emphases added.)
Haddick ex rel. Griffith v. Valor Insurance, 198 Ill. 2d 409, 417 (2001).
In examining this ruling, this court has explained that the “reasonable probability” requirement
set out in Haddick essentially means that a plaintiff in a bad faith suit must establish that liability
in excess of the policy limits in the underlying suit was “at least more likely than not, but not
necessarily a certainty. ” Powell v. American Service Insurance Co., 2014 IL App (1st) 123643,
¶ 36.
¶ 36 “The function of jury instructions is to convey to the jury the correct principles of law
applicable to the submitted evidence and, as a result, jury instructions must state the law fairly
insurance company] had a reasonable opportunity to settle [name of injured person]’s claim against [name
of insured] within the policy limits.]” In relevant part, IPI Civil (2011) No. 710.03 provides: “The
plaintiff has the burden of proving all of the following propositions: [First, that [name of insurance
company] had a reasonable opportunity to settle [name of injured person]’s claim against [name of
insured] within the policy limits.]”
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***.” Dillon v. Evanston Hospital, 199 Ill. 2d 483, 507 (2002). Pattern instructions are presumed
to be accurate statements of Illinois law, and the jury is to be instructed using an approved
pattern instruction if the trial court determines that it is applicable to the circumstances of the
case. Luye v. Schopper, 348 Ill. App. 3d 767, 773 (2004). Nevertheless, pattern instructions are
not themselves law, and our supreme court has held that they “are not exempt from challenge.”
Powers v. Illinois Central Gulf R.R. Co., 91 Ill. 2d 375, 385 (1982). There has not been any
advance approval of IPI instructions by our supreme court, and “[a]n instruction is approved or
rejected only after it has been judicially questioned and considered.” Id.
¶ 37 Here, neither IPI Civil (2011) No. 710.02 nor IPI Civil (2011) No. 710.03 fairly and
accurately reflects the current state of the law. A trial court may give nonpattern jury instructions
when the pattern jury instruction on point does not adequately state the law. Van Winkle v.
Owens-Corning Fiberglas Corp., 291 Ill. App. 3d 165, 177-78 (1997). While we do not mandate
the exact form thereof at this time, upon remand, nonpattern jury instructions should be crafted
to be used in the place of IPI Civil (2011) No. 710.02 and IPI Civil (2011) No. 710.03. Those
instructions must reflect the holdings in Haddick and Powell.
¶ 38 Next, we address ISMIE’s contention that the trial court improperly provided the
following jury instruction proffered by plaintiffs:
“If you decide for the plaintiff on the question of liability, you must then award
the amount of money which will compensate the plaintiff for the damages proved by the
evidence to have resulted from ISMIE’s bad faith. The plaintiff’s damages are
$6,171,118.67 which is the amount of the judgment entered in favor of the plaintiff and
against insured, minus $3,321,118.67, and minus $1,500,000.00 for other allowable
offsets. This amount equals $1,350,000.00”
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¶ 39 This instruction was based upon Illinois Pattern Jury Instructions, Civil, No. 710.07
(2011) (hereinafter IPI Civil (2011) No. 710.07), which provides:
“If you decide for the plaintiff on the question of liability, you must then award
the amount of money which will compensate the plaintiff for the damages proved by the
evidence to have resulted from [name of insurance company]’s negligence or bad faith.
The plaintiff’s damages are $[insert sum] [which is the amount of the judgment entered in
favor of the plaintiff and against [name of insured] (minus the amount received by the
plaintiff from [name of insurance company] under the policy) (and) (minus the amount
received by the plaintiff from another insurance company) (and) (minus [describe any
other allowable offset(s)])].”
¶ 40 The “Notes on Use” commentary with respect to this instruction provides:
“In most cases, there will be no dispute as to the dollar amount of the damages to
which the plaintiff is entitled if the insurance company is found liable, and this
instruction has been drafted accordingly. This instruction also assumes that any additional
damages to which the plaintiff may be entitled (such as interest) can be added to the
verdict by the court and included in the judgment.
***
Whether the jury should be instructed as to how the sum claimed by the plaintiff
was calculated is a matter left to the discretion of the court and counsel, and therefore the
last part of this instruction is bracketed.” Id.
¶ 41 Here, should ISMIE be found liable, the amount of plaintiffs’ damages was undisputed:
$1.35 million. Moreover, there was no dispute among the parties or the trial court that IPI Civil
(2011) No. 710.07 generally provided the relevant pattern instruction in this instance. Once a
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trial court determines an instruction is to be given, then Illinois Supreme Court Rule 239(a) (eff.
Jan. 1, 1999) creates a presumption that one of the pattern instructions will be used. As such,
while the trial court had the discretion as to whether to include the final bracketed material, IPI
Civil (2011) No. 710.07, tailored only to include the relevant facts of this case, should have been
given. However, that is not what occurred here, where the jury instruction actually provided to
the jury both altered the language of the pattern instruction and added a third sentence.
¶ 42 The plain language of the pattern instruction and the notes on use commentary make it
clear that in this case only one numerical value should have been included in the second sentence
of this jury instruction: i.e., $1.35 million, the undisputed amount of plaintiffs’ damages caused
by ISMIE’s bad faith. Thereafter, in the discretion of the trial court, the instruction could have
also included a verbal description of how that figure was calculated. There should have been no
third sentence.
¶ 43 Therefore, once the trial court elected to provide such a description as to how the amount
of damages was calculated, the second sentence of the instruction in this case should have taken
the following general form: “The plaintiffs’ damages are $1,350,000.00 which is the amount of
the judgment entered in favor of the plaintiff and against the Chamses minus the amount
received by the plaintiffs from ISMIE under the policy and minus the amount of the pretrial
settlement in the underlying case.” At most, the language of IPI Civil (2011) No. 710.07 and the
notes on use commentary for this instruction would arguably have supported a second sentence
of the instruction in the following general form: “The plaintiffs’ damages are $1,350,000.00,
which is the amount of the judgment entered in favor of the plaintiffs and against the Chamses
($6,171,118.67) minus the amount received by the plaintiffs from ISMIE under the policy
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($3,321,118.67) and minus the amount of the pretrial settlement in the underlying case
($1,500,000.00).”
¶ 44 Thus, while on remand the trial court will retain the discretion to omit or include the
bracketed material contained in IPI Civil (2011) No. 710.07, should the bracketed portion of this
instruction be used, it should be phrased in the general form described above, in accord with the
language of the pattern instruction and the commentary. There should be no third sentence.
¶ 45 Finally, we note that, in addition to seeking a new trial on appeal, ISMIE also appeals
from the denial of its posttrial request for judgment n.o.v. Obviously, should we consider this
issue and rule in ISMIE’s favor, it would be entitled not to a new trial, but to a judgment in its
favor.
¶ 46 However, we are reluctant to address this issue in light of our conclusion that this matter
was improperly tried before a 6-person jury in violation of ISMIE’s constitutional right to a 12­
person jury and pursuant to a statutory amendment that was void ab initio. Arguably, the entire
proceedings were rendered void as a result of this fundamental error, and we are in no position to
allow a judgment of any kind—even one in ISMIE’s favor—to result from those proceedings.
Furthermore, we have similar misgivings about entering any judgment when all of the evidence
and arguments presented in this case were specifically tailored directly to a particular 6-person
jury selected from the venire in an unconstitutional manner. There are specific indications in the
record that the evidence and arguments presented below were in fact targeted at the particular
jurors seated in this case.
¶ 47 Putting aside our reluctance and the fact that this case will be remanded for a new trial,
even if we did address this issue, we would not find that the trial court erred in refusing to enter
judgment n.o.v. in ISMIE’s favor.
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¶ 48 Judgment n.o.v. should be entered “only in those cases in which all of the evidence, when
viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no
contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co.,
37 Ill. 2d 494, 510 (1967). The trial court may not enter a judgment n.o.v. if the evidence
demonstrates a substantial factual dispute, or where the assessment of witness credibility or the
determination regarding conflicting evidence is decisive to the outcome. Gustafson, 151 Ill. 2d at
454; Vanderhoof v. Berk, 2015 IL App (1st) 132927, ¶ 59. Furthermore, “[i]n making this
assessment, a reviewing court must not substitute its judgment for the jury’s, nor may a
reviewing court reweigh the evidence or determine the credibility of the witnesses.” Donaldson
v. Central Illinois Public Service Co., 199 Ill. 2d 63, 89 (2002). A motion for judgment n.o.v.
presents a question of law that we review de novo. Lawlor v. North American Corp. of Illinois,
2012 IL 112530, ¶ 37.
¶ 49 Without going into any great detail, the record clearly reflects that—at a minimum—the
parties presented materially conflicting evidence regarding the nature and sufficiency of the
communications between ISMIE and the Chamses both before and during the underlying trial.
The parties also presented conflicting testimony regarding the Chamses’ demand to settle the
underlying case and/or the possibility of entering into a “high/low” agreement with plaintiffs,
either of which would have protected the Chamses from an excess verdict. The credibility of a
number of witnesses was also clearly placed at issue at trial, with a determination as to the
credibility of the testimony of those witnesses clearly being central to the resolution of the issues
presented in this case.
¶ 50 In determining the propriety of a motion for judgment n.o.v., it is not our place to reweigh
this evidence or determine the credibility of the witnesses. As such, and because the evidence
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does not so overwhelmingly favor ISMIE such that no contrary verdict based on that evidence
could ever stand (Pedrick, 37 Ill. 2d at 510), we would reject ISMIE’s contention that its motion
for judgment n.o.v. was improperly denied. We make this determination with respect to both
ISMIE’s bad faith refusal to settle, as alleged in count I, and ISMIE’s willful and wanton breach
of fiduciary duty, as alleged in count II.
¶ 51 III. CONCLUSION
¶ 52 For the foregoing reasons, we reverse the judgment of the circuit court and remand this
matter for a new trial consistent with this opinion.
¶ 53 Reversed and remanded.
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