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FIRST DIVISION
June 30, 2000

No. 1-99-3237

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

During jury deliberations in this personal injury case, the jury sent a question to the trial courtasking: "Were medical expenses covered by insurance?" Both counsel for plaintiff and defensereturned to the courtroom within minutes of being notified about the jury's question. At that time, the trial judge was involved in another trial. The jury in this case continued to deliberate andreached a verdict before receiving any response to its question. On appeal, plaintiff argues that thecourt's failure to answer the jury's question, while allowing deliberation of the jury to continue, whena jury instruction specifically addressed the issue of insurance, prejudiced plaintiff and denied hera fair trial. We agree and reverse and remand for a new trial.

On December 16, 1995, plaintiff was in a car accident with defendant. Plaintiff testified that,after the accident, she felt pain in her left neck and shoulder, and in her abdomen. Because plaintiffwas seven months pregnant, she initially received treatment from her obstetrician. After the birthof her child, plaintiff continued to have pain in her neck and shoulder. She testified that the paincontinued to worsen, that it radiated down her arm, and that it caused numbness. Plaintiff stated thatshe could no longer engage in the active life she enjoyed before the auto accident. She then soughttreatment from a variety of physicians, including orthopedists, a neurosurgeon, a physicist, andrehabilitation therapists. Diagnostic tests revealed that plaintiff suffered from herniated disks, andher treating physician testified that the auto accident caused these herniated disks. The partiesstipulated that her medical bills were $14,232.25. Plaintiff's treating physician also testified that herinjuries were permanent and that she would need future care and treatment. As a result, plaintiff'scounsel asked the jury to award her damages in an amount between $288,000 and $394,000.

At trial, defendant admitted her liability in the accident but challenged the nature and extentof plaintiff's injuries. Defendant contended that plaintiff merely sustained a "soft tissue" injury andcalled her own expert medical doctor in support of this theory. Defendant's expert witness testifiedthat plaintiff suffered from progressive degenerative disease that preexisted the auto accident. According to defendant's expert, the auto accident did not cause or aggravate plaintiff's preexistingcondition and did not cause her herniated disks. Based on this testimony, defense counsel requestedthat the jury award plaintiff an amount between $5,000 and $10,000.

According to the uncontested affidavit of plaintiff's counsel and the statements of the trialcourt on the record, the following series of events occurred during jury deliberations. Atapproximately 2:50 p.m., the jury began deliberations. Within the next hour, the jury sent thefollowing question to the trial court, "Were medical expenses covered by insurance?" At 3:55 p.m.,the judge's sheriff notified counsel for both parties by telephone that the jury submitted a question,and they agreed to return to court. Plaintiff's counsel arrived at the courtroom first about 4 p.m.,and defense counsel arrived about 4:10 p.m. Although the trial judge was engaged in another trial,before defense counsel arrived, the judge briefly stopped the trial and told plaintiff's counsel that hewould give him the jury's question and a proposed reply when defense counsel arrived. The courtresumed the second trial. Defendant's counsel arrived about 10 minutes later, at about 4:10 p.m. Thesheriff at that point, provided both counsel the jury's question and the court's proposed answer to thejury's question. Specifically, the trial court proposed to answer the question with Illinois Pattern JuryInstruction, Civil, No. 2.13 which states: "[w]hether a party is insured has no bearing whatever onany issue that you must decide. You must refrain from any inference, speculation, or discussionabout insurance." IPI Civil 3d No. 2.13. Illinois Pattern Jury Instructions, Civil, No. 2.13 (3d ed.1995) (hereinafter IPI Civil 3d No. 2.13). Plaintiff's counsel agreed to the instruction, but defensecounsel objected to answering the question with the instruction and wanted the trial judge to rule onthe objection. The judge, however, did not interrupt the second trial to rule on the objection. Thejury in this case continued deliberating and its question regarding insurance went unanswered. Around 5 p.m. the jury informed the court that it had reached a verdict. The trial court then receivedthe verdict from the jury in this case.

The jury awarded plaintiff $21,000 itemized as follows: $8,000 for loss of normal life; $8,000for past pain and suffering, and $5,000 for past medical expenses. The jury awarded plaintiff nodamages for future pain and suffering and for future medical expenses. After the verdict was read,plaintiff's counsel moved for a mistrial based on the court's failure to answer the jury's question. Atthat point, the trial court conducted a side bar and heard argument. The following discussionoccurred between the court and plaintiff's counsel:

"THE COURT: The jury had a question. While the question was given and we puta phone call out to plaintiff's and defense counsel's attorneys, they did not arrive in a timelytime, and therefore I started another trial. As soon as that trial finished, I brought counsel into see if they were ready to answer the question. In fact, I gave both plaintiff and defensecounsel the question earlier before the trial, along with my proposed answer, which wouldhave said, 'Whether [sic] a party's insured has no bearing whatever on any issue that you mustdecide. You must refrain from any inference, speculation, or discussion about insurance.' I gave my deputy the question and my proposed answer to plaintiff's counsel and said if theyhad no problem, I would hand that to the jury. The jury obviously decided that they didn'tneed to wait for my answer in terms of their question and therefore they reached a verdict.

[PLAINTIFF'S COUNSEL]: Plaintiff's counsel had no objection to the question. Itwas defendant's counsel who wanted to wait to speak to the court relative to the instructionbeing given.

THE COURT: Right. And we were in closing argument in another trial, andtherefore I would not stop the other trial since this trial already took three days of othercourt's time [sic]. And the other trial had been waiting for the whole day to get their trialdone while this trial was finished. And since they had waited patiently till 3:00 o'clock tostart a new trial, I felt they had the right to finish the trial. Therefore motion for mistrial isdenied."

The court then entered judgment on the verdict. Plaintiff argued in her posttrial motion that thecourt's failure to answer the jury's question as to whether medical expenses were covered byinsurance while allowing deliberation of the jury to continue prejudiced plaintiff and denied her a fair trial. The court denied plaintiff's posttrial motion and this appeal followed.

The general rule is that, when a trial court receives a question from the jury duringdeliberations, the court has a duty to instruct the jury further or clarify the point of law that hascaused doubt or confusion. Van Winkle v. Owens -Corning Fiberglass Corp., 291 Ill. App. 3d 165,172 (1997); People v. Millsap, 189 Ill. 2d 155, 160 (2000); People v. Childs, 159 Ill. 2d 217, 228-29(1994); People v. Reid, 136 Ill. 2d 27, 39 (1990). The trial court, however, has discretion and inexercising that discretion, depending on the nature of the question, may choose to draft an answerto a jury question, or choose to abstain from responding. We review the decision made by the trialjudge in this case under an abuse of discretion standard. Van Winkle, 291 Ill. App. 3d at 173.

Our research reveals one recent civil case that addressed the issue of a trial judge's duty toanswer a jury's question during deliberations. In Van Winkle v. Owens-Corning Fiberglass Corp.,plaintiff alleged that defendant conspired with others to suppress the health hazards of asbestosexposure. During deliberations, the jury asked a question about the underlying charge of a civilconspiracy. The trial court only referred the jury to the written jury instructions. Finding thisresponse to be an abuse of discretion, the appellate court first noted that the jury question manifestedconfusion on the law of civil conspiracy. The court further explained that the question raised theissue of who could enter into a conspiracy, which was critical to deciding the merits of the defense. Concluding that the trial court's failure to answer the question substantially prejudiced the defendant,the court stated: "[I]n the midst of jury deliberations after a vigorously contested trial, a questionfrom the jury deserves as much--if not more-- thoughtful consideration as did the originalinstruction." Van Winkle, 291 Ill. App. 3d at 174.

The Van Winkle court relied heavily upon the reasoning of the Illinois Supreme Court inChilds, one of many criminal cases discussing the trial court's duty to answer a jury questionsubmitted during jury deliberations. The Van Winkle court rejected the argument that the holdingin Childs should be limited to criminal cases and found that "the supreme court's analysis in Childsapplies fully to civil cases as well." Van Winkle, 291 Ill. App. 3d at 172. In Childs, the supremecourt indicated that jurors are entitled to have their questions answered and trial judges have a dutyto answer such questions. Childs, 159 Ill. 2d at 228. "Thus, the general rule is that the trial courthas a duty to provide instruction to the jury where it has posed an explicit question or requestedclarification on a point of law arising from facts about which there is doubt or confusion." Childs,159 Ill. 2d at 229. The duty to answer the jury's question applies even if the jury was properlyinstructed. Childs, 159 Ill. 2d at 229; see also Reid, 136 Ill. 2d at 39. Therefore, "[t]he failure toanswer or the giving of a response which provides no answer to the particular question of law posedhas been held to be prejudicial error." Childs, 159 Ill. 2d at 229.

In Childs, the jury requested clarification of jury instructions on an "intricate" and "difficult"point of law, namely, whether a guilty verdict on armed robbery mandated a guilty verdict of murderor still allowed for the jury to find defendant guilty of voluntary or involuntary manslaughter. Inresponse, the trial court briefly attempted to answer the question through an ex parte communication,but this response did not clarify the legal issues raised in the jury's question. While the trial courtadmitted that it did not understand the question, it made no effort to clarify the jury's question. Thesupreme court found that the question reflected juror confusion over a substantive legal issue andthe trial court had a duty to answer it. Therefore, the trial court's failure to address the problem thattriggered the question substantially prejudiced the defendant. Childs, 159 Ill. 2d at 234. Thesupreme court in reversing the judgment concluded, "It is not apparent to us that the manner in whichthe court dealt with the jury's inquiry was not a factor in the rendering of that verdict." Childs, 159Ill. 2d at 234-35.

While the jury is entitled to have its questions answered, the supreme court has not mandatedthat the trial court answer all questions. The court thus recognizes that under appropriatecircumstances the trial court may exercise its discretion and decline to respond to the jury's question. Reid, 136 Ill. 2d at 36; Millsap, 189 Ill. 2d at 161. The supreme court has determined that a trialjudge should not answer a jury's question "when the instructions are readily understandable andsufficiently explain the relevant law, where further instructions would serve no useful purpose orwould potentially mislead the jury, when the jury's inquiry involves a question of fact, or where thegiving of an answer would cause the court to express an opinion that would likely direct a verdictone way or another." Millsap, 189 Ill. 2d at 161.

In Reid, for instance, the jury asked the trial court whether it could find defendant guilty ofone charge and not the other. Although the answer to this question was yes, the trial court onlyinstructed the jury to review the original instructions and keep deliberating. The trial courtconcluded that the jury was sufficiently instructed on the applicable law because it received guiltyand not guilty verdict forms on each charge. On review, the supreme court did not find the court'sresponse an abuse of discretion. Reid, 136 Ill. 2d at 40. Besides noting the different verdict forms,the supreme court agreed with the trial court that a direct answer to the question may have indicateda specific verdict, which could have been detrimental to either side. Reid, 136 Ill. 2d at 41. Thus,a trial court may properly decline to answer a jury's question that falls within the confines of theoriginal written instructions or appears to seek an opinion from the court that may direct a verdictone way or the other.

This court, however, recently found reversible error from a trial judge's decision to abstainfrom answering a jury's question that the judge recognized deserved a response. People v. Hill, 1-98-0102, slip op. at 9 (March 6, 2000). In Hill, the trial judge that presided over the trial was absentfrom the courtroom during jury deliberations. The jury submitted two questions. A substitute judgereviewed the questions and noted an appropriate response. The substitute judge, however, decidednot to answer the questions, because he was not the trial judge and was not familiar with theevidence of the case. As a result of the decision made by the substitute judge to abstain fromanswering the questions, the jury received no response to its questions. The jury returned guiltyverdicts against the defendant. On appeal, this court held that abstention was not an appropriateresponse and that the failure of the substitute judge to answer the two questions submitted by the jury"was error and manifestly prejudicial to the defendant." Hill, 1-98-0102, slip op. at 9.

We find the analysis of Van Winkle, Childs, and Hill controlling on the issue presented hereregarding the court's failure to answer the jury's question. During the trial, the jury submitted asimple question: "Were medical expenses covered by insurance?" Neither party raised the issue ofinsurance during the trial. However, the jury received no answer to its question regarding insuranceand received no guidance as to what if any role the issue of insurance should play in its deliberationprocess. During the deliberation process, the jury brought a question to the attention of the trial courtconcerning a substantive legal issue, the application of health insurance to the issue of damages inthe context of a personal injury case. This particular question went to the issue at the heart of thecase, namely, damages. Liability was not contested, and the evidence at trial focused on the extentof the plaintiff's damages. The written jury instructions submitted to the jury made no mention ofinsurance. Therefore, at the point when the jury asked the question, the original written juryinstructions which were available for the jury to rely on provided no explanation of the law on thisissue. The question also did not involve a question of fact, and a proper answer to this questionwould not have caused the court to express an opinion that may have directed a verdict one way oranother. Consequently, the jury's question about whether medical expenses were covered byinsurance was not at all like the question asked in Reid. In Reid, the jury sought an opinion from thecourt regarding issues already covered in the written jury instructions and such opinion could havedirected a verdict one way or the other. Reid, 136 Ill. 2d at 41.

Moreover, a simple instruction would have been useful to the jury and provided anaccurate answer to their question. IPI Civil 3d No. 2.13 directly addresses the issue of insuranceand answers the jury's question. It states that "[w]hether a party is insured has no bearingwhatever on any issue that you must decide. You must refrain from any inference, speculation,or discussion about insurance." IPI Civil 3d No. 2.13. This simple, instruction would haveresolved the confusion of the jurors and properly informed them not to infer, speculate or discusswhether medical expenses were covered by insurance. The trial judge correctly determined thatthis instruction was the appropriate response but failed to communicate the response to the juryand allowed the jury to continue deliberating without this answer to their question.

The court stated that it had to finish another trial and that, following telephone calls to theparties' counsel, they did not return to the courtroom in a timely manner. The record reflects thatthe court chose an appropriate response and had that response communicated to plaintiff'scounsel and defense counsel. Moreover, both counsel for plaintiff and defense were in thecourtroom within minutes of being notified about the jury's question. The fact that the court wasengaged in another trial was problematic. However, the trial court had an obligation to answerthe jury's question if deliberation by the jury in this case was to properly continue. People v.Brouder, 168 Ill. App. 3d 938, 948 (1988); Hill, 1-98-0102, slip op. at 9; Van Winkle, 291 Ill.App. 3d at 173.

Defendant claims that even if the trial court had answered the jury's question, IPI Civil 3dNo. 2.13 would not have been an appropriate response because this instruction only applies toliability insurance and not to medical insurance. The Notes on Use to this instruction underminethis argument. IPI Civil 3d No. 2.13, Notes on Use. The Notes on Use refer generally toinsurance coverage and do not limit this instruction for use with any specific type of insurance. The instruction therefore should be used to prevent the jury from any inference, speculation ordiscussion about insurance. In this case, when the jury asked the trial court the question, "Weremedical expenses covered by insurance?," the jury was in the process of deliberating on the issueof damages. The exact reason why the jury submitted this question is not relevant to ouranalysis. Although insurance was not referenced during the trial, the jury's questions aboutinsurance may have been a result of some inference from the evidence or it may have been theresult of the jury's use of its own collective experiences and common sense. However, once thejury asked the trial court whether medical expenses were covered by insurance, the trial courtthen had a duty to instruct the jury that whether a party is insured has no bearing on any issue thejury must decide and the jury "must refrain from any inference, speculation, or discussion aboutinsurance." IPI Civil 3d No. 2.13.

Moreover, the collateral source rule provides that the jury should not consider thepayment of health insurance when deciding a plaintiff's damages because a plaintiff may recoverthe entire amount of damages sustained from medical bills regardless of who paid the bills. Smithv. General Casualty Co., 75 Ill. App. 3d 971, 974 (1979); Boden v. Crawford, 196 Ill. App. 3d71, 76 (1990) (a plaintiff's damages are not decreased because he or she received benefits from asource independent of and collateral to the wrongdoer); Lang v. Lake Shore Exhibits, Inc., 305Ill. App. 3d 283, 289 (1999) (the purpose of the collateral source rule is to preclude the jury fromconsidering payment of bills by insurance when it decides the issue of plaintiff's damages). IPICivil 3d No. 2.13 is the appropriate instruction to tender to the jury to prevent it from consideringpayments from medical insurance carriers and to prevent a violation of the collateral source rule.

In this case, the jury received conflicting evidence as to plaintiff's damages. Plaintiff'streating physician testified that the auto accident caused plaintiff to sustain multiple herniateddisks resulting in a permanent injury to her spine. Defendant's expert witness testified thatplaintiff only sustained muscle strain from the auto accident and that most of her treatment wasnot causally related to the accident. Although the jury's verdict in favor of plaintiff for $21,000supports the conclusion that the jury believed most of the testimony of defendant's expertwitness, the jury awarded her more damages for her medical bills than defendant's witness opinedwere related to the auto accident. The award was also far less than the total amount of plaintiff'sbills.

It is true that the amount of medical bills received into evidence "does not automaticallyconstitute a minimum level of recovery which is binding upon both a jury and a court of review." Montgomery v. City of Chicago, 134 Ill. App. 3d 499, 503 (1985). The jury has the exclusivefunction to resolve conflicts in the evidence as to proximate causation and the reasonableness ofplaintiff's damages. Nevertheless, consideration of the fact that plaintiff has or lacks healthinsurance is prejudicial and may constitute reversible error. Plooy v. Paryani, 275 Ill. App. 3d1074, 1087 (1995); Biehler v. White Metal Rolling & Stamping Corp., 30 Ill. App. 3d 435, 444(1975).

We appreciate the challenges faced by trial court judges when administering justice inservicing a busy court schedule. We are mindful of the work ethic demonstrated in this case bythe trial judge in simultaneously servicing two separate jury trials and in no way do we criticizethis work ethic. However, when as here, "a jury makes explicit its difficulties, a trial judgeshould clear them away with concrete accuracy." Bollenbach v. United States, 326 U. S. 607,612-13, 90 L. Ed. 350, 354, 66 S. Ct. 402, 405 (1945). Such specific and accurate answer to thejury's question in this case was readily provided by IPI Civil 3d No. 2.13. We note that the trialjudge properly identified IPI Civil 3d No. 2.13 as the correct response to the jury's question as towhether medical expenses were covered by insurance. Given the considerable importance of thisquestion to the resolution of the vigorously contested issue of damages, we conclude that thefailure of the trial court to communicate the answer to the jury while allowing the jury tocontinue to deliberate was prejudicial error and requires reversal. In so concluding, we note thatthe better practice would have been for the trial court judge to have briefly interrupted the secondtrial, overrule defendant's objection to IPI Civil 3d No. 2.13, and answer the jury's question withIPI Civil 3d No.2.13.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversedand the cause is remanded for a new trial on damages only.

Reversed and remanded.

RAKOWSKI and GALLAGHER, JJ., concur.