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1-00-0069

October 12, 2001

Roberta and Harold Seldin (Roberta, Harold, and collectively as the Seldins) sued DonaldBabendir (Donald) to recover damages they suffered in an automobile accident while they werepassengers in a car driven by him. Following a jury trial, the jury returned a verdict in Donald'sfavor and against the Seldins. We affirm for the following reasons.

On the evening of June 5, 1994, Donald was driving his 1993 Toyota Camry northboundon the Edens Expressway. With him in the car were his wife, Carol, and his friends the Seldins. The Seldins were in the backseat while the Babendirs were in the front. They were travelingnorth on the Edens Expressway. At the time of the accident, the car was in the center lane,surrounded on the right by a traffic lane and the shoulder and on the left by a traffic lane, ashoulder and a concrete median separating northbound from southbound traffic. The eveningwas clear and the roadway was dry and in good condition. The car was traveling atapproximately 55 miles per hour. Donald testified he had both hands on the steering wheel and,even though there was conversation in the car, he was not distracted in any way prior to theaccident.

At the time of the accident, Donald's view of the road was not obstructed. His lane wasempty, other than his car, as was the lane to his left. There were no cars behind Donald, but therewere cars in the right lane approximately four car lengths ahead of his car. As Donald's car wasslowly overtaking the slower moving car in front of it in the right lane, that car abruptly mergedinto Donald's lane without a signal to indicate that movement was imminent. At the time of themerge, when the other car was approximately six feet in front of Donald's car, Donald wassurprised, making a sharp left turn and slamming on his brakes. Donald testified he felt he wouldhave struck the other vehicle had he remained in the center lane. Donald, now moving almostperpendicular to the flow of traffic, passed through the left lane and struck the cement wall. Donald also testified that he felt he would not have avoided a collision with the other car simplyby applying his brakes, slowing down his vehicle.

Donald's car was totaled. Harold's injuries required surgery, resulting in $49,286.38 inmedical expenses which he claims caused his practice as an optometrist to suffer. Roberta's handwas injured, resulting in six weeks in a cast and $1,956.75 in medical expenses. Dr. Jay Levin, aconsulting doctor hired at the request of Babendir's counsel, gave his prognosis that Harold'sshoulder now had limited motion and the shoulder should remain static. He also concluded thatthere should be no limitation on either daily activity or professional work.

The Seldins filed their complaint in the circuit court of Cook County on March 7, 1995. The complaint alleged that Donald negligently operated his vehicle by failing to keep it undercontrol. Donald filed his answer to the complaint on May 18, 1995. The answer denied theallegations of negligence and asserted the affirmative defense that the actions of the other driverwere the sole proximate cause of the Seldins' injuries.

Trial commenced on July 1, 1999. During voir dire, counsel for the Seldins askedpotential jurors whether they had any friends or relatives that are lawyers, claims investigators,insurance adjusters or had any connection to the insurance industry. Donald's lawyer objected tothis line of questioning . The trial court barred further questioning along those lines andpromised to give an instruction that whether a party was insured had no bearing on the case atbar. The proposed instruction was objected to, so it was never given. The Seldins argue that theinformation sought was necessary so they could effectively use their juror challenges. Donaldresponds that the questions were properly restricted because anything that informs the jurors thatthe parties have insurance is inadmissible on relevancy grounds.

During the trial, part of Harold's deposition was introduced during his cross-examination. That part read as follows:

"The accident occurred as we were driving north on the Edensexpressway and we had just passed Peterson. We were driving inthe middle lane. There were two cars on the right and the secondcar on the right moved into the middle lane and that caused theaccident."

Counsel for the Seldins tried to get more of the quote read to the jury on redirect examination. The trial court denied that request, ruling that Harold had already testified to the informationcontained in the testimony sought to be read. In the disputed portion, Harold expressed hisopinion as to the cause of the accident. He testified:

"It precipitated a movement by the car we were driving in whicheventually led to this car that we were driving in hitting the centerwall on the Edens expressway."

The trial court refused to allow that portion read to the jury and ordered it stricken when counselfor the Seldins referred to it in closing argument. The trial court specifically found that "he'salready testified to that."

Both sides presented motions for directed verdict which were denied. The jury thenrendered a general verdict for Donald and against the Seldins from which this appeal followed. The Seldins argue on appeal that Donald simply panicked and lost control of his vehicle,overreacting to the events. They seek either an outright reversal of the decision of the trial courtor, in the alternative, a new trial.

Donald argues that he was in control of his vehicle and breached no duty to the Seldins. He claims he was properly operating his vehicle when he was cut off by the other car. He claimshe adequately explained the cause of why his vehicle was forced out of the center lane, that beingthe negligence of the other car, which abruptly switched lanes without any signals.

A directed verdict is a complete removal of an issue from the province of the jury. Mohnv. Posegate, 184 Ill. 2d 540 (1998). A trial court should enter a directed verdict only where "`allof the evidence, when viewed in its aspect most favorable to the opponent, so overwhelminglyfavors movant that no contrary verdict based on that evidence could ever stand.'" Stiff v. EasternIllinois Area of Special Education, 279 Ill. App. 3d 1076, 1081-82 (1996), quoting Pedrick v.Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). "`The direction of a verdict does notrequire a complete absence of evidence of the side against which the verdict is directed, for theright to resolution of issues by the jury exists only if there are factual disputes of somesubstance.'" Green v. Jackson, 289 Ill. App. 3d 1001, 1009 (1997), quoting Poelker v.Warrensburg-Latham Community Unit School District No. 11, 251 Ill. App. 3d 270, 276 (1993). In denying the motions for directed verdict and allowing the matter to proceed to the jury, thetrial court sub silencio found the case sufficiently closely balanced so as to preclude resolutionwithout the jury. We can find no basis for upsetting the denial of those motions.

The jury found that the cause of the Seldins' injuries was the driver of the other car, andnot Donald. We agree. "To determine whether a duty exists in a certain instance, a courtconsiders the following factors: (1) the reasonable foreseeability of injury, (2) the likelihood ofinjury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequencesof placing that burden upon the defendant." Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d278, 303 (2000), citing Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 437-38(1990). "Lastly, the existence of a duty turns in large part on public policy considerations." Jones, 191 Ill. 2d at 303-04, citing Ward v. Kmart Corp., 136 Ill. 2d 132, 151 (1990). "A driverapproaching another vehicle from the rear has a duty to maintain a safe lookout and must takeinto account the prospect of having to stop his vehicle suddenly." Robinson v. Chicago TransitAuthority, 69 Ill. App. 3d 1003, 1008 (1979). "This duty clearly extends to drivers riding inadjacent lanes." Robinson, 69 Ill. App. 3d at 1008. "Whether [a driver] was negligent in [the]execution of [his or her driving duties] was a question of fact to be determined by the jury and, asa reviewing court, we will not disturb that determination unless it is contrary to the manifestweight of the evidence." Robinson, 69 Ill. App. 3d at 1008, citing Tipsword v. Melrose, 13 Ill.App. 3d 1009 (1973). Here it was entirely foreseeable that a car in an adjacent lane wouldsuddenly switch lanes. Courts have historically held that drivers on the roadways of Illinois aresupposed to drive defensively, ever vigilant to those foreseeable possibilities.

The question of proximate cause is ordinarily a question for the jury. Felty v. New BerlinTransit, Inc., 71 Ill. 2d 126, 130 (1978). "[I]t is the province of the jury to resolve conflicts in theevidence, to pass upon the credibility of the witnesses, and to decide what weight should begiven to the witnesses' testimony." Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992). "A trialcourt cannot reweigh the evidence and set aside a verdict merely because the jury could havedrawn different inferences or conclusions, or because the court feels that other results are morereasonable." Maple, 151 Ill. 2d at 452, citing Tennant v. Peoria & Pekin Union Ry. Co., 321U.S. 29, 35, 88 L. Ed. 520, 525, 64 S. Ct. 409, 412 (1944). "Likewise, the appellate court shouldnot usurp the function of the jury and substitute its judgment on questions of fact fairlysubmitted, tried, and determined from the evidence which did not greatly preponderate eitherway." Maple, 151 Ill. 2d at 452-53, citing Brendel v. Hustava, 97 Ill. App. 3d 792, 799-800(1981); Ford v. Baker, 61 Ill. App. 3d 45, 48 (1978); Koris v. Norfolk & Western Ry. Co., 30 Ill.App. 3d 1055, 1058 (1975); Johnson v. Princeville Community High School District 206, 65 Ill.App. 2d 487, 493 (1965).

We next address the claims of prejudicial error. The trial court refused to allow theSeldins to inquire whether the prospective jurors had any interest or connection to the insuranceindustry. Generally, evidence informing a jury that a defendant is insured against liability isinadmissible on grounds of relevance. Ross v. Aryan International, Inc., 219 Ill. App. 3d 634,643 (1991), citing Imparato v. Rooney, 95 Ill. App. 3d 11, 15 (1981). "However, `[n]ot everymention of the word "insurance" during a personal injury trial requires the court to declare amistrial.'" Neyzelman v. Treitman, 273 Ill. App. 3d 511, 514-15 (1995), quoting Twait v. Olson,104 Ill. App. 3d 191, 196 (1982). A reference to insurance is prejudicial if it directly indicatesthe defendant is insured. Neyzelman, 273 Ill. App. 3d at 515, citing Fedt v. Oak Lawn Lodge,Inc., 132 Ill. App. 3d 1061, 1070 (1985). It is also prejudicial if the mention of insurance is theproduct of conduct by counsel intended to influence or prejudice the jury. Neyzelman, 273 Ill.App. 3d at 515, citing Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258 (1990). An exceptionto the rule against informing the jury the parties have insurance is that plaintiff, in good faith, caninterrogate prospective jurors on their voir dire as to their interest and relationship to insurancecompanies. Ross, 219 Ill. App. 3d at 643; citing Imparato, 95 Ill. App. 3d at 15.

During the voir dire, the following interchange took place:

"THE PLAINTIFF: * * *Does anybody in this group have any friends orrelatives that are lawyers, claims investigators, insurance adjusters, anybodyinvolved in these actions?

THE COURT: Sidebar, sidebar, sidebar.

(The following proceedings were held outside the presence of the jury:)

THE COURT: Sir, do you have a motion?

THE DEFENSE: Your honor, on behalf of the defendant I'm moving for a mistrialand asking that the entire venire be dismissed. I think, first of all, that counsel's questioninquiring about insurance was improper. There was not one witness other than a manwho was excused by this court who said his mother worked for State Farm, and the courtadequately properly investigated whether or not he would - - that would create any biason his behalf. I let counsel go when he inquired about a claims adjuster. For counsel toget up and inquire whether anybody is involved or knows anybody that works in theinsurance industry I think is improper, and I'm asking for a mistrial. In support of that,your honor, I think this court should consider the delicate facts and unique facts in thiscase, that you have two very close friends, two plaintiffs suing a very close friend, and Ithink it's something that counsel should have considered before he inquired with the juryduring voir dire, and I'm asking for a mistrial.

THE COURT: Go ahead. What do you have to say?

THE PLAINTIFF: I think the question that was put to the juror, whether they have anyfriends or relatives that are insurance investigators or claim adjusters, it a proper andnecessary question to determine if these people can fairly hear this question. There isnothing magical about mentioning the word insurance in a lawsuit. That industry is notentitled to anything special. Certainly I am not going to ask any party if they haveinsurance, but certainly about the mind-set of these people to know if they or anybodyelse is a claims adjuster or insurance investigator is a proper and necessary question.

THE COURT: Anything further?

THE PLAINTIFF: No sir.

THE COURT: Anything further?

THE DEFENSE: Yes, your honor. I don't think that it's proper, and moreimportantly, I don't think it's necessary. I don't see any basis for inquiring aboutinsurance, particularly from the plaintiffs' standpoint, your honor.

THE COURT: Well, I'm going to give them the instruction in the Illinois pattern juryinstructions which reads whether a party is insured has no bearing whatsoever on anyissues that you must decide; you must refrain from any inference, speculation, ordiscussion about insurance. I'm going to given them that particular instruction at the timeto the entire voir dire. Now, I want to tell you something. You are a very busy man, sir. We had a conference here which you didn't attend on picking a jury and what I wanted. Now, the fact that you're so busy that you can't attend this conference, I think it not properfor you to go out there and not know what my rules are in this case. Now, you didn'tattend it. And I'm telling you now under no circumstances do I want you to start in onthis. If somebody says that they work for an insurance company or somebody in theirfamily works for an insurance company I'll investigate that, and if I didn't investigate it toyour satisfaction you got a right to go into it. Now this is how we're going to handle it.

THE DEFENSE: Your honor, may I make one other point? I have recently read theheadnotes or the notes on that, and I would invite you to do the same.

THE COURT: Yes.

THE DEFENSE: I don't believe that that instruction - - and I'm going to object tothat instruction being given to the jury.

THE COURT: Okay.

THE DEFENSE: I don't believe that that's a proper instruction in this case. It's onlywhen there is insurance that is involved in a lawsuit that I believe that that instructionshould go in. With all due respect, your honor, that's all I know about it, but I would likethe opportunity to research it. I think it's extremely detrimental for my case when youhave two best friends that are suing each other or one suing another to say just becausethere may be insurance here you're not supposed to consider it.

THE COURT: How else can we handle it?

THE DEFENSE: Just grant my motion for a mistrial.

THE COURT: I'm not going to grant your motion for a mistrial.

THE DEFENSE: I am making a record, your honor, and I appreciate that, but Iwould ask that that instruction not be given.

THE COURT: You don't want this instruction?

THE DEFENSE: I don't think I do. Your honor, if you read the notes on that, I don'tbelieve it is proper to give it.

THE COURT: Well, I don't know what to do in order to protect what you arestating. He's talking about insurance, and insurance is mentioned here. I'll give it at theend. Then I'll give it to them. I can give it to them when we give our instruction.

THE PLAINTIFF: I would ask that you do it right now, so we can move on with this,judge, your first suggestion, get it out of the way.

THE DEFENSE: I'd like to read the notes, if I may, your honor.

THE COURT: Well, I have read the notes here. This instruction, of course, mustnever be used in any case where the jury has not received any information that either ofthe parties is insured. Now we don't know. We don't know if any of the parties areinsured, but keep insurance out of the case. I'm not going to give the instruction, but I'mtelling you now - - and, you know, you started now, and I don't want to make anyspeeches. I just want you to ask questions. You can ask questions that go to thequalifications of the juror, that's all. I don't care how you handle it. If you want to ask alltwelve of them at one time or you want to ask one at one time or four at one time, I don'tcare, but you got ten minutes to do it and let's get on with this.

THE DEFENSE: My motion for a mistrial is denied?

THE COURT: Denied.

THE DEFENSE: Thank you, your honor.

THE PLAINTIFF: Judge, just so that I know the court's instruction, you are directingme not to use the word insurance? Is there a problem with me asking about investigators,claims investigators?

THE COURT: There's no claims investigators. If anybody's a claim investigator,if they say they got anything to do with claims or investigation, I go into it. There'snobody that's mentioned claims.

THE PLAINTIFF: Why don't you ask them?

THE COURT: Ask them what?

THE PLAINTIFF: When you ask the general question.

THE COURT: I asked them what they do. I asked what their wife does. I askedthem what their family does.

THE PLAINTIFF: You ask them if they are any friends that are doctors, any friendsthat are medical.

THE COURT: I'm not going to go into adjusters or anything else like that.

THE PLAINTIFF: That's not fair to us. We should be able to know that.

THE COURT: Well, I'm not fair to you? Then I'm not fair to you. I'm sorry. Let'sgo."

While the trial court was wise to tread carefully in the area of insurance when dealingwith prospective jurors, it should not have completely foreclosed the discussion. "As a matter ofpractice, the determination of the questions of good faith is for the trial court and will not bedisturbed absent an abuse of discretion." Strasma v. Rager, 145 Ill. App. 3d 826, 831 (1986),citing Wheeler v. Rudek, 397 Ill. 438, 443 (1947). Counsel could have been permitted to askopen-ended questions of the prospective jurors regarding their employment, provided he did notimply that the defendant was insured or mention the word "insurance" so often as to create animproper impression in the minds of the prospective jurors. Since there is no way to know thehistory of a prospective juror in advance, and jury cards only tend to ask about presentemployment, not employment history, some manner of questioning is likely to be necessary in acase such as this. There is a difference between asking about insurance and asking about prior experience. The goal should be to craft the questions so the desired information comes out of themouths of the jurors and not the lawyers. It will certainly fall to the trial court to determinewhether the questions asked are asked in good faith. In the case at bar, the trial court foundimproper the question of whether the jurors had "any friends or relatives that are lawyers, claimsinvestigators, insurance adjusters, anybody involved in these actions." While we might havehandled it differently, we find that any error occasioned by the trial court's ruling on these voirdire questions to be harmless.

The next claim of prejudicial error involves the alleged misuse of a deposition transcriptfor improper impeachment. Supreme Court Rule 212 reads, in pertinent part, as follows:

"If only a part of a deposition is read or used at the trial bya party, any other party may at that time read or use or require himto read any other part of the deposition which ought in fairness tobe considered in connection with the part read or used." 134 Ill. 2dR. 212(c).

"[T]he privilege to require additional portions of a deposition to be read is conditioned on thefairness test. This standard reflects the purpose of the rule, which is to prevent distortion thatmight occur when a party introduces isolated statements from a deposition into evidence. Beforea party can force another to read additional portions of a deposition, the trial court must firstconclude the additional statements are necessary to either explain or modify the statementsintroduced by the other party." Bank of Illinois v. Thweatt, 258 Ill. App. 3d 349, 361 (1994),citing Tarshes v. Lake Shore Harley Davidson, 171 Ill. App. 3d 143, 152 (1988). In Thweatt, thetrial court allowed additional deposition testimony and determined that the fairness standard setforth in Supreme Court Rule 212(c) required that such additional statements be introduced whichthe appellate court approved. However, in Thweatt, the court acted as it did for purposes offairness and for clarification purposes.

In examining the two statements in the case at bar, it is difficult to understand why theintroduction of the second passage is necessary for clarification purposes. The record indicatesthat the initial passage is in no way clarified by the second passage. The most important part ofthe first passage is that "there were two cars on the right and the second car on the right movedinto the middle lane and that caused the accident." The second passage, in saying "[i]tprecipitated a movement by the car we were driving in which eventually led to this car we weredriving in hitting the center wall on the Edens expressway," simply does not clarify anything. We can find no reason to disturb the ruling of the trial court regarding the deposition passages.

Accordingly, the judgment of the circuit court is affirmed.

Judgement affirmed.

Greiman, J. and Theis, J., concur.