                                                           NO. 5-04-0294
                        N O T IC E

 Decision filed 06/04/07. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

DEBORAH L. JONES, Individually and as Special          ) Appeal from the
Administrator of the Estate of Thomas R. Jones, Deceased,
                                                       ) Circuit Court of
                                                       ) Madison County.
   Plaintiff,                                          )
                                                       )
v.                                                     ) No. 96-L-560
                                                       )
O'BRIEN TIRE AND BATTERY SERVICE CENTER,               )
INC., and OHIO CASUALTY INSURANCE COMPANY, )
                                                       )
   Defendants and Third-Party Plaintiffs-Appellees and )
   Cross-Appellants,                                   )
                                                       )
v.                                                     )
                                                       )
DAVE MACIOS, d/b/a Sugarloaf Landscape                 )
Nursery,                                               )
                                                       )
   Third-Party Defendant,                              )
                                                       )
and                                                    )
                                                       )
COUNTRY MUTUAL INSURANCE COMPANY,                      ) Honorable
                                                       ) Nicholas G. Byron,
   Third-Party Defendant-Appellant and Cross-Appellee. ) Judge, presiding.
________________________________________________________________________

                  JUSTICE CHAPMAN delivered the opinion of the court:

                  The parties to this appeal were all defendants in litigation arising from a fatal vehicle

accident. O'Brien Tire and Battery Service Center, Inc. (O'Brien Tire), and Ohio Casualty

Insurance Company (Ohio Casualty) filed a third-party complaint against Dave Macios and

Country Mutual Insurance Company (Country Mutual) for negligent spoliation of evidence.

Country Mutual appeals a judgment against it, arguing that the trial court erred in denying

its motions for a judgment notwithstanding the verdict and a new trial. Country Mutual


                                                                1
contends it was entitled to that relief because (1) it owed no duty to the third-party plaintiffs

to preserve the evidence at issue, (2) it did not breach any duty it owed, (3) the third-party

plaintiffs did not demonstrate that they had sustained any damages, (4) the actions of a

nonparty were the sole proximate cause of the loss of the evidence, and (5) the jury's verdict

was against the manifest weight of the evidence. Third-party plaintiffs O'Brien Tire and

Ohio Casualty cross-appeal, arguing that (1) the trial court erred by instructing the jury that,

if it found Country Mutual to be liable, it was to determine the amount of damages that

would fairly and reasonably compensate the third-party plaintiffs (see Illinois Pattern Jury

Instructions, Civil, No. 30.01 (2000) (hereinafter IPI Civil (2000)), (2) the court erred in

denying their motion for leave to amend their complaint to add a count alleging willful and

wanton spoliation of evidence, and (3) the court erred in denying their motion for leave to

amend their complaint to request prejudgment interest. We affirm.

                                     I. BACKGROUND

       Country Mutual insured a truck owned by Dave Macios for use in his business,

Sugarloaf Landscape Nursery (Sugarloaf). Mechanic Wesley Lowery, a Sugarloaf employee,

was responsible for maintaining the business's vehicles. He performed minor repairs on the

vehicles himself but took them to auto repair shops for major work. On September 7, 1994,

Lowery took the truck to O'Brien Tire to have the tires inspected. The truck was a dual-

wheel truck, meaning that each rear axle held two wheels, side by side. Lowery asked Mark

Buenger, the general operations manager at O'Brien Tire, to inspect the truck's tires and do

whatever was necessary for the truck to pass a safety inspection. Buenger and his brother,

Scott, replaced all four rear tires. They also replaced the two left rear wheels because they

noticed that the wheels were a type of wheel that was obsolete and unsafe. On September

27, 1994, the left rear wheel assembly came off the truck, and the outer wheel struck a car

driven by Thomas Jones. This caused Jones to collide with a tractor-trailer. He died as a


                                               2
result of his injuries.

       When Sugarloaf secretary Cathy Rothmeier reported the accident to Country Mutual,

the case was assigned to claims adjustor Jerry Krone. Krone hired Tim Finley, an accident

reconstruction specialist, to determine the likely cause of the accident. Finley visited

Sugarloaf and inspected the truck and the wheels the day of the accident. He told Sugarloaf

employees to keep the wheels. W ithin one week of the accident, Krone told Macios to

preserve the wheels by keeping them "out of the weather". Macios stored both wheels, along

with the truck, in an open barn. We note that, although both left rear wheels came off of the

truck, it was the outer wheel that was critical to the case. On October 12, 1994, Krone sent

Macios a letter, which read, in relevant part:

               "This will confirm my telephone conversation with your secretary, [C]athy[,]

       on October 10, 1994. In our conversation[,] I indicated to her it would be crucial for

       our case for you to retain the two wheels and tires which came off of your vehicle

       during this collision.

               I would ask that you label them clearly 'evidence, do not touch' and store them

       in a secure place so that they may not be tampered with in the event we need these as

       evidence in a trial situation.

               I would also ask that when you have your [truck] repaired that [sic] you save

       the wheel studs and attach them to the wheels and also mark them clearly as evidence

       for trial purposes."

Macios testified that he did not receive this letter.

       Throughout the three months following the accident, Country Mutual was engaged

in settlement negotiations with the Jones estate on behalf of M acios. M acios testified that,

at least twice during this time, Macios asked Krone for permission to fix the truck, which he

needed for use in his business. Repairing it entailed mounting a new wheel on the truck. It


                                                 3
is not entirely clear whether both wheels were damaged and in need of replacement or only

the outer wheel. Because the tire mounted to the outer wheel was not damaged in the

accident, Macios intended to have it removed from the damaged wheel and mounted to a new

wheel and then have the entire wheel assembly mounted again on the truck. It is not clear

from the record why the truck had to remain out of service in order to preserve the evidence,

apart from the expense of purchasing a new tire. According to Macios, each time he

requested permission to get these repairs, Krone told him to wait. According to Krone,

however, he never told Macios to wait to repair the truck.

       On November 3, 1994, Finley issued his report. He concluded that the accident was

caused by (1) the failure of the wheel installer to tighten the lug nuts and (2) the failure of

the driver to conduct a pretrip inspection.

       In mid-December 1994, according to Macios, he again asked Krone if he could have

the truck repaired. This time, Krone told him yes. Although Macios did not specifically ask

whether he could throw away the wheels and Krone did not explicitly state that he could, the

truck remained out of service until this point precisely because Krone and Country Mutual

had told Macios several times not to fix it. On December 29, 1994, Lowery took the truck

to Patterson Brake and Front End Service (Patterson Tire) for repair. He did not take the

truck to O'Brien Tire, the repair shop Sugarloaf ordinarily used for such repairs, because

Krone had instructed Macios to take the truck elsewhere. The crucial outer wheel was

apparently discarded by an employee of Patterson Tire. Krone denied telling Macios that he

could repair the truck, that he could not repair the truck, or that he should not take the truck

to O'Brien Tire for the repair.

       On February 28, 1995, Jones's widow, Deborah, brought suit on behalf of his estate

against Macios and his insurer, Country Mutual. The parties reached a $475,000 settlement

in that case on October 27, 1995. In a letter dated December 12, 1995, Country Mutual


                                               4
informed Macios that the suit against him had been settled and dismissed. The letter stated,

"This litigation is now at an end and you need no longer concern yourself with it."

       On August 30, 1996, the Jones estate filed a suit against O'Brien Tire and its insurer,

Ohio Casualty. The parties reached a $1.45 million settlement on October 29, 1998. On

September 11, 1998, shortly before the settlement was reached, O'Brien Tire and Ohio

Casualty filed a third-party complaint against Country Mutual and Macios and alleged

negligent spoliation of evidence due to the loss of the wheels. The trial court granted

Country Mutual's motion for a judgment on the pleadings and Macios's motion to dismiss.

Ohio Casualty and O'Brien Tire appealed. We reversed on June 7, 2001, finding that the

third-party complaint sufficiently stated a claim for negligent spoliation of evidence. Jones

v. O'Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418, 425, 752 N.E.2d 8, 14-

15 (2001).

       On remand, in December 2003 and January 2004, Country Mutual filed motions for

a summary judgment on the issues of causation and duty. In its motions, Country Mutual

argued that it did not owe the third-party plaintiffs a duty to preserve evidence and that they

failed to demonstrate that the loss of the wheels left them completely unable to present a

defense in the underlying suit. On January 9, 2004, the third-party plaintiffs filed a motion

for leave to amend their complaint to add a count alleging willful and wanton spoliation of

evidence. The court denied all three motions on January 23, 2004. On February 5, the third-

party plaintiffs filed a motion for leave to amend their complaint to add a request for

prejudgment interest, which was also denied.

       On February 7, 2004, the case proceeded to a trial. At the opening of the trial, the

court granted O'Brien Tire's oral motion to voluntarily dismiss Macios as a third-party

defendant. On February 18, 2004, the jury returned a verdict of $475,000 in favor of O'Brien

Tire and Ohio Casualty. The court entered a judgment on the verdict the following day.


                                              5
Country Mutual filed motions for judgment notwithstanding the verdict and a new trial,

which the court denied. This appeal followed.

                           II. COUNTRY MUTUAL'S APPEAL

       In order to prevail on a claim of negligent spoliation of evidence, a party must show

that (1) the party alleged to have been negligent had a duty to preserve the evidence, (2) the

party breached that duty, (3) the breach proximately caused an injury, and (4) the party

seeking compensation for negligent spoliation suffered actual damages as a result. Boyd v.

Travelers Insurance Co., 166 Ill. 2d 188, 194-95, 652 N.E.2d 267, 270 (1995). In other

words, regular negligence principles apply. Boyd, 166 Ill. 2d at 194, 652 N .E.2d at 270.

Country Mutual contends that the third-party plaintiffs failed to demonstrate each of these

elements. It also argues that it was entitled to a jury instruction on sole proximate cause and

that the jury's verdict was against the manifest weight of the evidence. We address these

contentions in turn.

                             A. Duty to Preserve the Evidence

       Country Mutual first argues that it did not owe the third-party plaintiffs a duty to

preserve the evidence. The general rule is that a party has no duty to preserve evidence. That

duty may arise, however, if there is an agreement or contract between the parties imposing

the duty, if the duty is imposed by statute, or if some other special circumstance warrants it.

Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 270-71. A duty to preserve evidence may also arise

where a party voluntarily assumes the duty by its conduct. Boyd, 166 Ill. 2d at 195, 652

N.E.2d at 271. If any of these circumstances exist, a party owes the duty to preserve

evidence if a reasonable person in that party's position should have foreseen that the evidence

would be material to a potential lawsuit. Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 271.

       The supreme court recently clarified the law regarding the duty to preserve evidence

in Dardeen v. Kuehling, 213 Ill. 2d 329, 821 N.E.2d 227 (2004). There, the court explained


                                              6
that Boyd set out a two-prong test. Under the first prong, a spoliation plaintiff must

demonstrate that at least one of the circumstances outlined in Boyd exists. Dardeen, 213 Ill.

2d at 336, 821 N.E.2d at 231. Under the second prong, the plaintiff must show that the duty

extends to the specific evidence at issue by demonstrating that a reasonable person in the

defendant's position should have known the evidence would be material to potential civil

litigation. If the spoliation plaintiff does not satisfy both prongs of the test, there is no duty

to preserve the evidence at issue. Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 231.

       At issue in Dardeen was the first prong of Boyd. There, the plaintiff was injured

when he tripped on a hole in a brick sidewalk in front of the home of the defendant in the

underlying action. After the plaintiff informed the defendant of his injuries but before he

filed his premises liability suit, the defendant asked her insurance company if she could

repair the sidewalk so that no one else would be injured. A claims adjustor told her to go

ahead. Dardeen, 213 Ill. 2d at 331, 821 N.E.2d at 228.

       In his later spoliation claim against the insurance company, the plaintiff argued that

the contractual relationship between the defendant in the underlying action and her insurance

carrier satisfied the first prong of Boyd. Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 231. The

supreme court first noted that the defendant's insurance contract could not be read to impose

a contractual duty to preserve evidence for the plaintiff's benefit because he was not a party

to that contract. Dardeen, 213 Ill. 2d at 336-37, 821 N.E.2d at 231-32. The court then

rejected the plaintiff's argument that the relationship between the insured and the insurance

carrier constituted a "special circumstance" under Boyd sufficient to impose a duty to

preserve evidence. The plaintiff's argument was based on the nature of that relationship.

Specifically, he argued that the carrier had the opportunity to control the defendant's actions

with respect to the evidence at issue, thus giving rise to a duty to preserve it. That ability to

control the evidence stemmed from the carrier's "authority to guide or manage the actions of


                                                7
its insured." Dardeen, 213 Ill. 2d at 337, 821 N.E.2d at 232.

       For our purposes, it is important to note what the Dardeen plaintiff did not argue–he

did not argue that the insurance company did anything to voluntarily assume a duty to

preserve evidence. Thus, the court did not address this issue. As will become apparent, this

distinction is significant. What the plaintiff in Dardeen argued was that the insurance

company's ability to instruct its insured regarding how to handle evidence in her possession

gave the insurance company a degree of control over that evidence that was itself sufficient

to impose on the insurance company a duty to preserve evidence under the "special

circumstance" language in Boyd. See Dardeen, 213 Ill. 2d at 337, 821 N.E.2d at 232.

       In rejecting this argument, the supreme court explained that it had previously "hinted

at what special circumstance might give rise to a duty to preserve evidence in Miller v.

Gupta, 174 Ill. 2d 120[, 672 N.E.2d 1229] (1996)." Dardeen, 213 Ill. 2d at 338, 821 N.E.2d

at 232. In Miller, a physician defendant in a medical malpractice case left X rays requested

by the plaintiff where they were discarded by the hospital's cleaning staff. Miller, 174 Ill. 2d

at 123-24, 672 N.E.2d at 1231. The supreme court ruled that the plaintiff should be allowed

on remand to amend her complaint to conform with the supreme court's decision in Boyd,

which was decided while her appeal was pending. Miller, 174 Ill. 2d at 129, 672 N.E.2d at

1233. In Dardeen, the court distinguished the circumstances before it from those present in

Miller on the grounds that (1) the Dardeen plaintiff never asked either the defendant or her

insurer to preserve or provide him with evidence, (2) the insurance company in Dardeen did

not have possession of the evidence, and (3) the insurance company never "segregated [the

evidence] for the plaintiff's benefit." Dardeen, 213 Ill. 2d at 338, 821 N.E.2d at 232.

       We note that, in Country Mutual's first appeal in the instant matter, we found that

Macios's possession of the wheel was sufficient to constitute a special circumstance that

satisfied the first prong of Boyd, and we therefore imposed upon Macios a duty to preserve


                                               8
the wheel. Jones, 322 Ill. App. 3d at 422, 752 N.E.2d at 12. We then found that the same

reasoning was applicable to Country Mutual. Jones, 322 Ill. App. 3d at 425, 752 N.E.2d at

14-15. The supreme court announced its decision in Dardeen after the proceedings on

remand took place and the present appeal was filed. In the wake of Dardeen, the rationale

underlying our holding on the first appeal in this case may no longer be valid, at least with

respect to Country Mutual. We also note, however, that the Dardeen court emphasized that

the first prong of Boyd is satisfied if any one of the bases to impose a duty to preserve

evidence is present. Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 231 (relying on Boyd, 166

Ill. 2d at 195, 652 N.E.2d at 270-71). Because we will conclude that the first prong is

satisfied by a voluntary undertaking on the part of Country Mutual, we find that the result we

reached is still valid.

       Country Mutual argues that, like the insurance company involved in Dardeen, it did

not control the wheels because they belonged to Macios and Macios could therefore do with

them as he pleased. O'Brien Tire and Ohio Casualty, by contrast, argue that Country Mutual

did control the wheels through its ability to guide the actions of its insured. Unlike the

insurance company in Dardeen, they contend, Country Mutual exercised this control by

instructing Macios not to dispose of the wheels. In resolving these arguments, we must first

determine what degree of control is necessary to establish a duty to preserve evidence under

the circumstances before us.

       The Dardeen court expressly declined to decide whether actual possession of the

evidence is necessary to impose a duty to preserve evidence. The court held only that the

opportunity to control evidence, standing alone, does not impose that duty. See Dardeen,

213 Ill. 2d at 339, 821 N.E.2d at 233. Because the court found that the insurance company

had not exercised any control over the evidence, it did not need to consider what level of

control over the evidence a spoliation defendant must exercise in order to fit within the


                                              9
"special circumstance" language of Boyd. We need not determine this issue either. We

emphasize the distinction between Dardeen and the case before us: there, the only basis upon

which to find a duty to preserve evidence was the plaintiff's contention that the insurance

company had enough control over the evidence that it should be deemed a special

circumstance justifying the imposition of a duty to preserve; the issue here is whether

Country Mutual assumed a duty to preserve evidence through its actions. Thus, the third-

party plaintiffs need not allege or demonstrate that Country Mutual exercised enough control

over the wheel to constitute a special circumstance as contemplated by the Boyd court.

Nevertheless, the law cannot impose upon a party an obligation to do something that is

impossible for it to do. We must, therefore, consider whether Country Mutual had at least

enough control over the wheels to be able to fulfill an obligation to preserve them as

evidence. We find that it did.

       "Control" is defined as follows: "Power or authority to manage, direct, superintend,

restrict, regulate, govern, administer, or oversee. The ability to exercise a restraining or

directing influence over something." Black's Law Dictionary 329 (6th ed. 1990). In the

instant case, while it is certainly true that Country Mutual did not have the kind of complete

control over the wheels that it would have had if it had taken possession of them, it had–and

exercised–the authority to direct Macios, as its insured, to preserve the wheels. We thus find

that Country Mutual exercised enough control over the evidence to allow it to take

appropriate steps to preserve it.

       We further find that Country Mutual, through its actions, voluntarily assumed a duty

to exercise reasonable care and due diligence to preserve the evidence. Country Mutual

voluntarily undertook to preserve the wheels when it instructed its insured, Macios, to keep

them. Once Country Mutual undertook to preserve the evidence for its own benefit, this

voluntary undertaking imposed a duty to continue to exercise due care to preserve the


                                             10
evidence for the benefit of any other potential litigants. See Boyd, 166 Ill. 2d at 195, 652

N.E.2d at 271 (citing Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 74, 199 N.E.2d 769,

773 (1964) (explaining that "liability can arise from the negligent performance of a voluntary

undertaking")).

       Under the second prong of Boyd, we must determine whether Country Mutual's duty

to preserve evidence encompasses the evidence at issue, the damaged wheel assembly from

Macios's truck. In this regard, we note that Country Mutual acted through one of its claims

adjustors, Krone. Krone's job as a claims adjustor was to anticipate litigation and evaluate

evidence, as he did when he sent his expert, Finley, to Sugarloaf to examine the wheels. We

believe that a reasonable claims adjustor in Krone's position would have anticipated the

possibility of future litigation in this matter. Although Country Mutual and the Jones estate

had been engaged in settlement negotiations, no formal agreement had been reached at the

time the wheels were discussed. Moreover, Finley's report indicated that loose lug nuts

caused the wheel assembly to come off the truck, thereby making a claim against O'Brien

Tire by the Jones estate or a third-party claim against O'Brien Tire by Macios easy to foresee.

A reasonable claims adjustor in Krone's position would also anticipate that the cause of the

wheels coming off the truck would be a central issue in any such claim. It was reasonably

foreseeable that the wheels and tires would be critical evidence in future litigation, just as

Krone had foreseen their importance in Country Mutual's defense–he characterized their

preservation as "crucial for our case" in his letter to Macios. We conclude that Country

Mutual, once having undertaken the duty to preserve the wheels, had a duty to exercise

reasonable care to preserve the wheels as evidence for any party that might need to use them

in future litigation.

       Country Mutual also argues that it had no duty to inform O'Brien Tire or Ohio

Casualty of the existence and whereabouts of the evidence. In their brief, O'Brien Tire and


                                              11
Ohio Casualty point out that the rulings below were fully supported by evidence that Country

Mutual breached a duty to preserve the evidence and that allegations related to its failure to

inform Ohio Casualty of the location of the wheels were relevant to whether Country

Mutual's conduct was willful and wanton. At oral argument, however, they argued that, had

Ohio Casualty been informed of the existence and location of the wheels, it could have

retained an expert to photograph and/or examine the outer wheel, thereby allowing the third-

party plaintiffs to develop evidence that would serve the same purpose as the wheel itself.

In either case, they present no arguments that Country Mutual had a duty to inform them of

the location of the evidence as an independent duty. Moreover, we believe that the rulings

and verdict below are supported by our conclusions regarding Country Mutual's duty to

preserve the evidence. Thus, we need not consider Country Mutual's arguments concerning

the lack of a duty to inform another party concerning the existence or whereabouts of

evidence.

                                         B. Breach

       Country Mutual next argues that the court erred in denying its motion for a judgment

notwithstanding the verdict because the evidence did not demonstrate that it had breached

its duty to preserve evidence, assuming it owed that duty. We disagree.

       Country Mutual's argument is twofold. It first argues that it did preserve the evidence

by preserving the photographs Finley had taken of the outer wheel on the day of the accident.

It also argues that it acted with reasonable caution in instructing Macios to keep the wheels.

Wade Bartlett, a mechanical engineer and automobile technician who testified as an expert

witness on behalf of Ohio Casualty, explained why these photographs were not sufficient.

He explained that the photographs taken by Finley allowed him to conclude, just as Finley

had, that improperly tightened lug nuts had caused the wheel assembly to come loose. He

testified, however, that Finley's photographs were not sufficiently detailed to permit him to


                                             12
conclude to a reasonable degree of engineering certainty when the lug nuts were last

tightened. He explained that some types of repairs require that the wheels be removed and

then replaced. For example, in order to work on the brakes, a mechanic must remove the

wheels in order to have access to the brakes. There was conflicting evidence in this case

concerning whether any subsequent repairs took place. According to Buenger, when Lowery

brought the truck to O'Brien Tire, he told Buenger that he was going to work on the brakes

so that the truck would pass inspection. Records from Sugarloaf, however, indicate that no

such repairs took place after the truck left O'Brien Tire. This uncertainty regarding whether

the wheels were removed and replaced after the truck left O'Brien Tire could have been

resolved by determining when the lug nuts were last tightened.

       Bartlett opined that the lug nuts likely all came off at the same time, something that

most likely occurred when the truck had been driven only a few miles after the wheel

assembly had been last remounted on the truck. He explained that Finley's photographs

showed marks made from the lug nuts scratching against the metal surface of the outer

wheel. Some of the markings looked crisp and silvery in the photographs. Bartlett explained

that these features indicate that the lug nuts had been recently tightened, due to the fact that

the wheels are made of steel, a metal which corrodes quickly. Had the scratches been made

several days or even weeks before the accident, there would be rust or dirt on them. The

problem with the photographs, he further explained, is that they do not provide enough close-

up detail of the scratches for Bartlett to be able to reach such a conclusion definitively.

       Bartlett testified that having access to the outer wheel itself would be the best way to

make the determination. This would have allowed him to look at the scratches through a

microscope and eliminate the possibility that the lighting in the photographs made the

scratches look silvery when in fact they had corroded. He further testified that photographs

would be an acceptable substitute for the wheel itself if they were taken by a camera able to


                                              13
take close-up photographs of an area the size of a human thumbnail clearly enough to

document the "fine detail" of the markings. Thus, we find that the jury properly concluded

that the evidence was not preserved by the photographs when the wheels themselves were

lost.

        As previously noted, claims of spoliation of evidence are governed by traditional

negligence principles. Thus, the third-party plaintiffs needed to demonstrate that Country

Mutual did not exercise reasonable care in acting to preserve the evidence. Country Mutual

argues that it did exercise reasonable care by requesting several times that Macios not dispose

of the wheels and never telling him explicitly that he could dispose of them. This argument

fails for two reasons. First, the evidence supports a conclusion that Krone acted negligently

by permitting Macios to have the truck repaired in December 1994 without reiterating to him

at that time the importance of preserving the wheels. Macios knew nothing about the

preservation of evidence and relied upon Krone to tell him what to do to properly preserve

the wheels. Krone, on the other hand, knew or should have known that the wheels were

critical evidence that needed to be protected from possible corrosion. He also knew or

should have known that Macios–who ran a landscape business and, unlike Krone, was not

regularly involved in automobile accident litigation–was unlikely to know how to preserve

the evidence without guidance from Krone. According to Macios, prior to December 1994,

Krone had instructed him not to repair the truck. It does not take much foresight to predict

that, once told he could repair the truck, Macios might assume that the change in Krone's

instructions meant the wheels were no longer needed. It was negligent for Krone to fail to

consider this possibility and not to remind Macios to make sure to get the wheels back from

the repair shop. If we consider Krone's version of events, his negligence is even more

glaring. According to Krone, he never discussed the repair of the truck with Macios.

Although the request in Krone's October 1994 letter that Macios retain the wheel studs and


                                              14
attach them to the wheels might be interpreted to contain an implicit instruction to be sure

to retain the wheels after having the truck repaired, Krone admitted that he never followed

up on the letter to be sure M acios received and understood it.

       Country Mutual's argument also fails because it acted negligently in failing to take

adequate steps to instruct Macios on how to preserve the wheels in the condition they were

in on the day of the accident. Macios stored the wheels, along with the truck, in an open barn

on Sugarloaf's property. Bartlett testified that the wheels needed to be stored in an airtight

plastic bag. There was evidence that Country Mutual sent Macios a letter on October 12,

1994, which gave somewhat more detailed instructions on preserving evidence than the

verbal instructions to store it out of the weather. While the letter did not instruct him to store

the wheel assembly in an airtight bag, it did highlight the importance of keeping it intact,

requesting that the wheels be labeled "do not touch" and stored "in a secure place so that they

may not be tampered with." There was also evidence that Macios never received the letter

and that Country Mutual never checked to see that Macios was taking proper steps to

preserve the wheels in their condition at the time of the accident. We conclude that the jury

properly found that Country Mutual breached its duty to exercise reasonable care in

preserving the wheels.

                                          C. Causation

       Next, Country Mutual contends that it was entitled to a judgment notwithstanding the

verdict because the evidence did not support a finding that any negligence on its part

proximately caused the wheels to be lost. This argument has two components. First, Country

Mutual contends that the actions of Macios and Lowery, rather than those of Krone or any

other Country Mutual employee, caused the wheels to be lost. This argument will be

discussed in more detail when we address the parties' arguments concerning the court's

refusal to give Country Mutual's requested sole-proximate-cause instruction. However, we


                                               15
believe that the evidence supported a conclusion that Krone's negligence, as previously

described, contributed to the actions Macios and Lowery took which eventually led to the

loss of the wheel. We thus reject this argument.

       The second part of Country Mutual's argument regarding causation revolves around

precisely what harm must be proved by a party alleging spoliation of evidence. Country

Mutual contends that it is insufficient to demonstrate that the loss of the evidence made the

underlying case more difficult to prove but, rather, that the party must prove that it was

unable to mount any defense in the underlying action. In support of this position, Country

Mutual points to language in Boyd, where the supreme court stated, "[I]n a negligence action

involving the loss or destruction of evidence, a plaintiff must allege sufficient facts to support

a claim that the loss or destruction of the evidence caused the plaintiff to be unable to prove

an underlying lawsuit." (Emphasis in original.) Boyd, 166 Ill. 2d at 196, 652 N.E.2d at 271.

       Country Mutual argues that the third-party plaintiffs have not met this standard

because other evidence existed that allowed them to mount a defense. For instance, Bartlett

was able to opine that the lug nuts had been tightened within a few miles before the accident,

on the basis of the photographs that existed, albeit less conclusively than he would have been

able to do had the outer wheel been preserved. We believe that this argument misreads Boyd.

We find nothing in Boyd or subsequent cases to suggest that a spoliation plaintiff can only

prevail by demonstrating that the loss of critical evidence leaves it with no evidence at all to

support a claim or defense in the underlying litigation. Indeed, the quoted language was

meant to emphasize the fact that, if a spoliation plaintiff did not have a valid claim or defense

supporting a reasonable chance of success in the underlying action, it should not be able to

prevail on a spoliation claim because the evidence is lost. Boyd, 166 Ill. 2d at 196 n.2, 652

N.E.2d at 271 n.2.

       The only case cited by Country Mutual which found that a spoliation claim could not


                                               16
succeed without an allegation that the plaintiff was prevented from raising any claims or

defense at all is Veazey v. LaSalle Telecommunications, Inc., 334 Ill. App. 3d 926, 935, 779

N.E.2d 364, 372 (2002). There, however, the court found that both counts of the underlying

action could not succeed for reasons other than the loss of evidence. Veazey, 334 Ill. App.

3d at 935, 779 N.E.2d at 372. Under those circumstances, the plaintiff could only meet his

burden of proving that he had a reasonable chance of succeeding had the evidence not been

lost, as required in Boyd, if he could show that he was prevented from raising some other

claim. As Ohio Casualty and O'Brien Tire correctly note, Boyd requires a spoliation plaintiff

to demonstrate that lost evidence made the plaintiff unable to prove the underlying case,

which could happen when a critical piece of evidence is lost even if it is not the sole piece

of evidence available to the party. We conclude that the jury could properly conclude from

the evidence before it that the third-party plaintiffs met this burden.

                                         D. Damages

       Country Mutual next argues that it was entitled to a judgment notwithstanding the

verdict because the settlement was paid by West American Insurance Company (West

American) rather than by Ohio Casualty or O'Brien Tire. Thus, it contends, the third-party

plaintiffs failed to demonstrate that they suffered any damages as a result of the loss of the

wheels. We disagree. Jim Schiller, the casualty manager for Ohio Casualty, testified that

West American and Ohio Casualty are both a part of the Ohio Casualty Group. He further

testified that West American wrote the policy covering O'Brien Tire and that he could not

recall whether it was Ohio Casualty or West American that wrote the umbrella policy. In his

capacity as Ohio Casualty's manager, Schiller had the ultimate authority to settle the Jones

estate's claim against O'Brien Tire. From this it is clear that, as the third-party plaintiffs

contend, West American and Ohio Casualty are parts of the same entity. Thus, Country

Mutual's argument that damages were not proven fails.


                                              17
                            E. Manifest Weight of the Evidence

       Country Mutual next argues that the court erred in denying its motion for a new trial

because the jury's verdict was against the manifest weight of the evidence. In support of this

contention, it refers to the arguments it made regarding each element of a cause of action for

negligent spoliation previously outlined. We have already found that the court correctly

determined that Country Mutual had a duty to preserve the wheels as evidence and that the

evidence supported the jury's findings of breach, causation, and damages. We thus conclude

that Country Mutual was not entitled to a new trial on the basis that the jury's verdict was

against the manifest weight of the evidence.

                                 F. Jury Instruction on Duty

       Country Mutual contends that it was entitled to a new trial because the court

improperly instructed the jury that it owed the third-party plaintiffs a duty to preserve the

evidence. It argues that whether there was a duty to preserve the wheels was a question of

fact for the jury to determine. W e disagree. Ordinarily, the existence of a duty is a question

of law to be determined by the court. Washington v. City of Chicago, 188 Ill. 2d 235, 239,

720 N.E.2d 1030, 1032 (1999). However, where the duty depends on the existence of facts

that are in dispute, the existence of the relevant facts presents a question for the jury to

resolve. King v. NLSB, 313 Ill. App. 3d 963, 966, 730 N.E.2d 1222, 1225 (2000). Here, the

existence of a duty to preserve the wheels as evidence was dependant on a factual finding on

whether Krone or Country Mutual had undertaken the duty voluntarily. Although Macios's

testimony regarding his discussions with Krone relating to the preservation of the wheels

conflicted with Krone's testimony, the parties stipulated that Krone had sent the October

1994 letter instructing Macios to retain the wheels for possible use as evidence. It is

unrefuted that Krone did at least this much to preserve the evidence. Consequently, the trial

court directed a verdict on the issue of duty, a ruling we find was proper. Thus, the jury was


                                              18
properly instructed.

                                   G. Sole Proximate Cause

       Finally, Country Mutual argues that it was entitled to a new trial because the court

erred in directing a verdict for the third-party plaintiffs on the issue of sole proximate cause,

refusing to instruct the jury on sole proximate cause, and giving the third-party plaintiffs'

requested instruction. We disagree.

       The instruction at issue is IPI Civil (2000) No. 12.04. The first paragraph reads:

              "More than one person may be to blame for causing an injury. If you decide

       that the defendant was negligent and that its negligence was a proximate cause of

       injury to the plaintiff, it is not a defense that some third person who is not a party to

       the suit may also have been to blame." IPI Civil No. (2000) 12.04.

The second paragraph provides:

              "However, if you decide that the sole proximate cause of injury to the plaintiff

       was the conduct of some person other than the defendant, then your verdict should be

       for the defendant." IPI Civil No. (2000) 12.04.

Ohio Casualty and O'Brien Tire requested that only the first paragraph be given. Country

Mutual requested that the second paragraph be given as well.

       A party is entitled to have the second paragraph given to the jury if there is some

competent evidence in the record to support it. McDonnell v. McPartlin, 192 Ill. 2d 505,

522, 736 N.E.2d 1074, 1085 (2000). Country Mutual argues that, because Wesley Lowery,

an employee of Sugarloaf, brought the wheel to Patterson Tire, where it was discarded, ample

evidence supported an instruction apprising the jury that it could find that Lowery's actions

were the sole proximate cause of the loss of the wheel. We disagree. The fact that Lowery

took the wheel to Patterson Tire was never disputed. What was at issue was whether Krone

and Country Mutual acted negligently in the guidance they gave Macios and his employees


                                               19
regarding the preservation of the wheel and whether this led to the loss of the wheel. We are

not faced with a situation in which an employee of the insured discarded evidence in spite

of explicit instructions to the contrary. In that case, our conclusion might be different. Under

the facts presented, Country Mutual was not entitled to an instruction on sole proximate

cause, and the court did not err in refusing to give the instruction, giving the instruction

requested by the third-party plaintiffs, or directing a verdict in favor of the third-party

plaintiffs on the issue of sole proximate cause.

            III. O'BRIEN TIRE AND OHIO CASUALTY'S CROSS-APPEAL

       The third-party plaintiffs argue that (1) the court erred in its jury instruction on

damages, (2) the court abused its discretion in denying their motion for leave to amend their

complaint to add a count alleging willful and wanton spoliation of evidence, and (3) the court

erred in denying their motion for leave to amend their complaint to add a request for

prejudgment interest.

                                    A. Measure of Damages

       Ohio Casualty and O'Brien Tire contend that the court erred in instructing the jury that

it was to determine an amount of damages that would fairly compensate them. Instead, they

argue, the court should have fixed the damages at $1.45 million, the amount for which they

settled the underlying case with the Jones estate. As a result of this claimed error, they argue

that they are entitled to a new trial due to the prejudicial nature of the instruction, an addittur

of $975,000 ($475,000 plus $975,000 equals $1.45 million), or a conditional new trial limited

to the issue of damages. We conclude that the trial court properly allowed the jury to

determine the appropriate amount of damages to award.

       In most spoliation-of-evidence cases cited by both parties, the party asserting the

spoliation claim was also the plaintiff in the underlying litigation. The only case of which

we are aware to consider spoliation claims by defendants to the underlying action is our


                                                20
decision in Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707, 722 N.E.2d 1167

(1999). That case, like this one, involved a defendant who had settled the underlying action.

We held that the settlement did not preclude a recovery for negligent spoliation of evidence;

however, we did not have to consider what the proper measure of damages would be. Stinnes

Corp., 309 Ill. App. 3d at 718, 722 N.E.2d at 1175.

       Courts that have considered the issue in the context of plaintiffs' claims for spoliation

of evidence have struggled to find the appropriate measure of damages in those cases. Some

have concluded that the appropriate measure of damages is the amount that the plaintiff

would have recovered had they prevailed at a trial, multiplied by the probability of trial

success. See Petrik v. Monarch Printing Corp., 150 Ill. App. 3d 248, 260-61, 501 N.E.2d

1312, 1320 (1986) (citing Smith v. Superior Court, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829

(1984)). Others have found it more appropriate to compensate plaintiffs for the full amount

they would have recovered if the evidence had been available to them and they had prevailed

at a trial. See Petrik, 150 Ill. App. 3d at 261, 501 N.E.2d at 1320. Although two panels of

the First District Appellate Court have indicated in dicta that they would follow the latter

method (Schusse v. Pace Suburban Bus Division of the Regional Transportation Authority,

334 Ill. App. 3d 960, 966, 779 N.E.2d 259, 264 (2002); Fremont Casualty Insurance Co. v.

Ace-Chicago Great Dane Corp., 317 Ill. App. 3d 67, 75, 739 N.E.2d 85, 91 (2000)), no

Illinois case has squarely addressed the issue. The supreme court expressly declined to do

so in Boyd. Boyd, 166 Ill. 2d at 198, 652 N.E.2d at 272.

       The third-party plaintiffs argue that here the measure of damages is certain because

we know exactly what they were required to pay in the underlying action: $1.45 million. To

conclude that this is the proper measure of damages requires us to assume that, had the

evidence not been lost, the third-party plaintiffs would not have settled with the Jones estate

and likely would have won at a trial. This assumes too much. As Country Mutual points out,


                                              21
Bernie Esser, the Ohio Casualty claims adjustor responsible for investigating the claim

against O'Brien Tire in the underlying action, testified that he would not have recommended

taking the case to a trial unless there was an expert witness who was "100 percent certain"

that no one at O'Brien Tire was responsible for the accident. Esser further testified that, if

there was an expert who could testify to a reasonable degree of engineering certainty that the

wheel assembly was replaced after the truck left O'Brien Tire, he likely would have tried to

settle for a lower amount. As a practical matter, the most accurate measure of damages

would be the difference between the amount for which the case settled without the evidence

and the amount upon which the jury finds it likely that the parties would have settled had the

evidence existed allowing the defendant to present a stronger case. We thus conclude that

the court properly instructed the jury regarding damages and that the third-party plaintiffs

were not entitled to any of the requested relief.

                              B. Willful and Wanton Spoliation

       The third-party plaintiffs next argue that the court abused its discretion in denying

them leave to amend their petition to add a claim for willful and wanton spoliation of

evidence. We disagree.

       Section 2-616 of the Code of Civil Procedure permits parties to amend their pleadings

at any time before a final judgment is rendered "on just and reasonable terms". 735 ILCS

5/2-616(a) (West 2002). This statute is to be interpreted liberally so that cases may be

decided on their merits rather than on the basis of flaws in the pleadings. The decision to

permit or deny leave to amend pleadings is within the discretion of the trial court, and we will

not reverse its decision absent an abuse of that discretion. Trinity Bible Baptist Church v.

Federal Kemper Insurance Co., 219 Ill. App. 3d 156, 163, 578 N.E.2d 1375, 1379 (1991).

Courts are to consider the following factors when deciding whether to grant leave to amend

pleadings: (1) whether the proposed amendment would cure a defect in the pleadings, (2)


                                              22
whether other parties would sustain prejudice if the amendment is allowed, (3) whether the

amendment is timely, and (4) whether the party had previous opportunities to amend the

pleadings. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273, 586 N.E.2d

1211, 1215-16 (1992).

       In the instant case, the proposed amendment added a cause of action rather than cured

a defect in the pleadings. The first factor is thus inapplicable. Considering the timing and

nature of the proposed amendment, we believe that the court acted within its discretion in

denying the third-party plaintiffs' motion to amend. Whether Illinois courts will recognize

a cause of action for willful and wanton or intentional spoliation of evidence remains an open

question. See Boyd, 166 Ill. 2d at 201, 652 N.E.2d at 273. Thus, the third-party plaintiffs'

motion for leave to amend its complaint sought to add a claim under a novel theory of law

in this state merely one month before the trial. Allowing the amendment would have

prejudiced Country Mutual by requiring it to defend against this novel claim with only a few

weeks to prepare. Moreover, the proposed amendment was based on information obtained

during a November 18, 2003, deposition of Country Mutual claims adjustor Jerry Krone. The

third-party plaintiffs could have filed a motion for leave to amend sooner than January 9,

2004. Given the complexity and novelty of the issue involved and the proximity of the trial

date, we do not believe a two-month delay in filing the request for leave to amend can be

considered timely. We find no abuse of discretion.

                                  C. Prejudgment Interest

       Finally, O'Brien Tire and Ohio Casualty contend that the trial court abused its

discretion by denying their last-minute motion to amend their complaint to add a request for

prejudgment interest. Prejudgment interest may be awarded if equitable considerations

warrant it. Whether to award prejudgment interest is a matter within the sound discretion of

the trial court. In re Estate of Wernick, 127 Ill. 2d 61, 87, 535 N.E.2d 876, 888 (1989). An


                                             23
award of interest may be justified where a party breaches its fiduciary duty to another and,

in so doing, retains a substantial amount of funds belonging to the other party (see Neumann

v. Neumann, 334 Ill. App. 3d 305, 310, 777 N.E.2d 981, 985 (2002)) or retains funds

belonging to the other party for a long period of time (see In re Estate of Wernick, 127 Ill.

2d at 88, 535 N.E.2d at 888). We do not believe that the trial court would have abused its

discretion had it denied even a timely request for prejudgment interest. Thus, we conclude

that it did not abuse its discretion by denying the third-party plaintiffs leave to amend their

complaint two days before the trial to add a request the court had the discretion to deny.

                                     IV. CONCLUSION

       For the foregoing reasons, we affirm the judgment.



       Affirmed.



       GOLDENHERSH, J., concurs.



       JUSTICE SPOMER, dissenting:

       I respectfully dissent. Based on the Illinois Supreme Court's decision in Dardeen v.

Kuehling, 213 Ill. 2d 329 (2004), I would find that, as a matter of law, Country Mutual owed

no duty to preserve the wheel assembly at issue. The majority recognizes that, in light of

Dardeen, the rationale underlying this court's holding in its disposition of the first appeal in

this case "may no longer be valid, at least with respect to Country Mutual." Slip op. at 9; see

Jones v. O'Brien Tire & Battery Service Center, Inc., 322 Ill. App. 3d 418, 425 (2001). The

majority then goes on to distinguish Dardeen from this case on the basis that the insurance

adjuster in Dardeen, by instructing its insured not to preserve the evidence, did not

voluntarily assume a duty to preserve the evidence, while the Country Mutual adjuster in this


                                              24
case, by instructing the insured to preserve the evidence, did voluntarily assume a duty to

preserve the evidence. I find this to be a distinction that, in addition to misinterpreting the

supreme court's holding in Dardeen, is without merit and goes against logic.

       While the Illinois Supreme Court has heretofore declined to specifically decide

whether possession is required in every negligent spoliation case, I can conceive of no

situation where an insurance company would have control over property owned by its insured

absent possession or a possessory interest in the property. This is especially true where, as

here, the truck at issue did not have collision coverage with Country Mutual such that the

adjuster could potentially control the disposition of salvage parts upon the repair of the

vehicle.   Country Mutual only issued liability coverage to Sugarloaf and Macios.

Consequently, I disagree with the majority's holding that, in instructing Macios to preserve

the wheel assembly, Country Mutual exercised enough control to constitute a voluntary

undertaking sufficient to impose a duty to preserve the wheel assembly. Dardeen specifically

held that State Farm Fire and Casualty Company, who did nothing but answer a question

posed by its insured, had neither possession nor control of the evidence and, therefore, owed

the injured party no duty to preserve it. Dardeen, 213 Ill. 2d at 339. In the absence of a clear

possessory interest on the part of the defendant insurance company (such as was the case of

the defendant workers' compensation carrier in Boyd v. Travelers Insurance Co., 166 Ill. 2d

188 (1995), the defendant doctor in Miller v. Gupta, 174 Ill. 2d 120 (1996), the defendant

employer in Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707 (1999), and the

defendant employer in Anderson v. Mack Trucks, Inc., 341 Ill. App. 3d 212 (2003)), the

decision by an adjuster to instruct the owner of the evidence on whether to maintain or

discard the evidence does not alter the amount of control the adjuster has over the potential

evidence. The person receiving the instruction is still free to disregard that instruction and

retain or discard the evidence. Accordingly, although the Dardeen court did not decide


                                              25
whether possession is required, it is clear under Dardeen that Country Mutual did not have

the requisite control over the evidence to impose a duty.

       In addition, the majority's distinction goes against logic and would in effect turn

public policy on its head. It defies common sense to say that by advising an insured not to

preserve evidence, an insurance company can avoid liability (Dardeen, 213 Ill. 2d at 339),

but by advising an insured to preserve evidence, an insurance company is assuming liability.

The public policy implication of the majority's holding would be to encourage insurance

companies to advise their insureds not to preserve evidence. This cannot be the intention of

the Illinois Supreme Court's pronouncement in Dardeen.

       Also troublesome is the majority's holding that "[o]nce Country Mutual undertook to

preserve the evidence for its own benefit, this voluntary undertaking imposed a duty to

continue to exercise due care to preserve the evidence for the benefit of any other potential

litigants." (Emphasis added.) Slip op. at 11. Even if Country Mutual's instruction to its

insured constituted a voluntary undertaking sufficient to impose a duty to preserve the wheel

assembly, which, as explained above, is contrary to Dardeen, to hold that its duty would

continue "for the benefit of any other potential litigants" is unlimited in time and scope and,

consequently, unworkable. I do not find any Illinois law or law of any other jurisdiction that

imposes such a continuing, limitless duty. This is, in part, because such a rule could

conceivably prevent the repair of a vehicle involved in an accident until all the relevant

statutes of limitations had run and would require an insurance company to foresee the actions

of the injured party or his/her attorney, who may decide to sue some parties, even after the

settlement of litigation against other parties, as was done in this case.

       Finally, I disagree with the majority's conclusion that O'Brien Tire met its burden of

proof of causation in this case. The supreme court made clear in Boyd that in order to prove

causation, "[a] [spoliation] plaintiff must demonstrate *** that but for the defendant's loss


                                              26
or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in the

underlying suit." Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 196 n.2 (1995). Here,

even assuming that Country Mutual had a duty to avoid the loss of the wheel assembly, Ohio

Casualty's expert, Wade Bartlett, testified that it was his opinion, to a reasonable degree of

engineering certainty, that the lug nuts had been improperly tightened within a few miles

before the accident. This means that in his opinion, O'Brien Tire was not responsible for the

accident because it had replaced the tires approximately 360 miles before the accident.

       Although upon further questioning Mr. Bartlett testified that his opinion was only

based on 51% certainty, he testified that he could only come to a more definitive opinion if

he was able to inspect the wheel assembly itself on the day of the accident or within several

days after the accident. In order to come to a more definitive opinion several months after

the accident, which is when O'Brien Tire first received notice of the accident, according to

the evidence in the record, Mr. Bartlett testified that the wheel assembly would have to be

preserved in a way that would prevent corrosion, which meant that it would have had to have

been protected from oxygen and moisture by placement in an airtight bag in a humidity-

controlled environment or sprayed with a clear laquer. Mr. Bartlett testified that he knew

about this preservation requirement due to his work for 4½ years in a materials testing lab.

       The clear implication of Mr. Bartlett's testimony is that the loss of the wheel assembly

did not prejudice O'Brien Tire in its defense. In order for O'Brien Tire to have had any better

proof that someone had improperly tightened the lug nuts closer to the time of the accident,

O'Brien Tire would have had to have inspected the wheel assembly within days after the

accident, and the record shows that O'Brien Tire did not have notice of the accident until

several months later. Illinois law certainly does not impose a duty on an insurance company

to notify a potential codefendant of its insured of an accident. Alternatively, in order for Mr.

Bartlett to formulate a more certain opinion, the wheel assembly would have had to have


                                              27
been preserved in the manner described by Mr. Bartlett, who is a mechanical engineer with

expertise in materials testing. If Country Mutual did have a duty to preserve the wheel

assembly, it would be a duty to exercise ordinary care. It would not be a duty to preserve the

wheel assembly as would a mechanical engineer with expertise in materials testing.

Accordingly, the facts in this case were insufficient to prove causation under the "but for"

standard enunciated in Boyd.

       For the foregoing reasons, I would reverse the judgment of the circuit court.




                                             28
