IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

DU PAGE COUNTY, WHEATON, ILLINOIS

 

ROBERT CHAMBERLIN,                                           )

            )

                                                            Plaintiff,            )          

v.                                                                                 )           No.: 2003 L 000103                  

                                                                                    )          

KURT KAMKA, Individually, and as Agent of               )           Associate Judge George J. Sotos

ROADRUNNERS AUTO TRANSPORT, INC.,           )

                                    )

Defendants.      )             

                                                                                                               

 MOTION FOR A NEW TRIAL PURSUANT TO 735 ILCS 5/2-1202

            NOW COMES the Defendant, KURT KAMKA[1], by and through his attorney, LAW OFFICES LOWELL D. SNORF, III, and moves this Honorable Court pursuant to 735 ILCS 5/2-1202 for a new trial.  In support of this motion, Defendant states as follows: 

BACKGROUND AND PROCEEDINGS TO DATE

            STATE FARM MUTUAL INSURANCE COMPANY filed a property damage and medical payment subrogation complaint in the case of State Farm Mutual Insurance Company a/s/o Linda and Robert Chamberlin v. Kurt Kamka and Roadrunners Driveaway, Inc., Case No. 2002 AR 003368.   On February 24, 2004, STATE FARM MUTUAL INSURANCE COMPANY’S medical payment subrogation and property damage case was settled for $13,000.00 (see Exhibit “1,” February 24, 2004 dismissal order).  Defendant’s insurance carrier agreed to pay STATE FARM MUTUAL INSURANCE COMPANY $13,000.00, specifying which bills were satisfied.  Since Defendant’s insurance carrier paid Plaintiff’s medical bills (through STATE FARM MUTUAL INSURANCE COMPANY), the collateral source rule did not apply, and the court would not allow Plaintiff to introduce STATE FARM MUTUAL INSURANCE COMPANY’S bills into evidence or allow a separate itemization of the bills at trial.  Later, Defendants presented their modified motions in limine (see Exhibit “2,” attached).  However, despite the court’s prior finding (that the medical bills could not be introduced into evidence) and the court’s ruling on Defendant’s modified motion in limine no. 23, the court stated Plaintiff “may reference expenses incurred and may use expenses as a factor in pain and suffering” (see Exhibit “2,” attached).   

            The case proceeded to trial.  Despite Defendant’s objection and the court’s prior ruling Plaintiff could not use any of the medical bills as direct evidence, the court allowed ROBERT CHAMBERLIN, III to testify about the medical bills incurred.  If the medical bills could not be used as direct evidence, presumably they should have been excluded under 735 ILCS 5/2-1109.  Since the bills were excluded as direct evidence, their reference as “damages for pain and suffering” within I.P.I. 30.05 was not proper. 

            At the close of the case, a jury instruction conference was held.  Over objection and prior to  submission of the case to the jury, Defendant objected to the use of the court’s non-pattern instruction (see Exhibit “3,” attached).  This instruction reads as follows:

“You may consider testimony regarding medical expenses in evaluating plaintiff’s claim for pain and suffering, however, plaintiff is not seeking reimbursement of these amounts nor should you include them as a separate element of damages.

I.

ARGUMENT:

 

UNDER I.P.I. 30.05, MEDICAL EXPENSES CANNOT BE USED AS EVIDENCE OF

PAIN AND SUFFERING, AND THE COURT’S SUBMISSION OF ITS

NON-PATTERN INSTRUCTION WAS IMPROPER

 

            Where an Illinois pattern instruction is adequate to charge the jury, the use of a non-Illinois pattern instruction is considered improper.  Preston v. Simmons, 321 Ill.App.3d 789, 747 N.E.2d 1059 (1st Dist., 2001).  The court’s instruction was tantamount to telling the jury medical expenses are damages in the case.  As stated in Snover v. McGraw, 172 Ill.2d 438, 667 N.E.2d 1310 (1996) and Murray v. Philpot, 305 Ill.App.3d 513, 713 N.E.2d 152 (5th Dist., 1999), medical expenses and pain and suffering are always submitted as separate damage elements.  Medical expenses were not damages in this case, as I.P.I. 30.06 was not given.  I.P.I. 30.04 and I.P.I. 30.05 were the only damage instructions submitted to the jury (see Exhibit “4,” attached).  To supplement I.P.I. 30.05 with portions of I.P.I. 30.06 was improper.  An included jury instruction (I.P.I.  30.05) could not be supplemented with matters contained in an excluded jury instruction (I.P.I. 30.06).  It is only when an Illinois pattern instruction does not cite the proper law on the subject that a court may give its own instruction on the subject.  S.C.R. 239(a).  See also: Seibert v. Grana, 102 Ill.App.2d 283, 233 N.E.2d 538 (1st Dist., 1968) [holding: approved I.P.I. instructions should be used where applicable unless the court determines that the particular instructions do not accurately state the law].  Had this court deemed it proper, it could have submitted I.P.I. 30.06.  I.P.I. 30.06 was the pattern instruction correctly and adequately charging the jury on medical expense.  Nowhere in I.P.I. 30.06 does it state medical expenses are equivalent to pain and suffering.   Similarly, I.P.I. 30.05 does not equate medical expense with pain and suffering.  Use of a non-pattern instruction which could be viewed to advise the jury to compensate Plaintiff for combined elements of damages was improper and created reversible error.  Van Winkle v. Owens-Corning Fiberglass Corporation, 291 Ill.App.3d 165, 683 N.E.2d 985 (4th Dist., 1997).  Similar to Van Winkle, id., this court’s reliance on its non-pattern instruction was improper, as it directly or implicitly combined included with excluded damages.  To combine medical expenses with pain and suffering created confusion.  To first deny the admissibility of Plaintiff’s medical bills, but then to allow the jury to hear the name of the treating institution, the amount of the bills, and then suggest to the jury they could use the medical bills as a combined element of pain and suffering, created error.  This error was not cured by cautioning the jury they could not award medical expense as a separate element of damages.  The court’s use of its own non-pattern instruction was not a slight modification of either 30.05 or 30.06, but amounted to creation of a new instruction not based on existing law.  Given that 30.05 and 30.06 adequately stated the law, the court’s amplification, modification, or supplementation of either of these instruction was not permissible under S.C.R. 239(a).  Here, if the medical bills were an excluded element of damages under 30.06, they could not be added into I.P.I. 30.05.  See: Podoba v. Pyramid Electric, Inc., 291 Ill.App.3d 545, 667 N.E.2d 167, 171 (5th Dist., 1996) [holding: supplementing or amplifying I.P.I. instructions improper]. Finally, if the court felt I.P.I. 30.06 was justified, I.P.I. 30.06 should have been submitted separately, and Defendant would have had set-off rights under 735 ILCS 5/2-608.  This would have avoided the confusion of the combined damage instructions. 

                        WHEREFORE, movant respectfully requests this Honorable Court enter an order in accordance with this motion.   

 

 

LAW OFFICES OF LOWELL D. SNORF, III                          ­­­­­­­­­­­­­­­­­­_________________                                            

77 West Washington Street                                                        Lowell D. Snorf, III

Suite 703                                                                                   Attorney for Defendant,

Chicago, Illinois  60602                                                              Kurt Kamka

Telephone: (312) 726-8961

ATT #71148                


[1]                 No verdict or judgment was entered against Roadrunners Driveaway, Inc.