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                                     Appellate Court                        Date: 2017.09.18
                                                                            09:05:15 -05'00'




        State Farm Mutual Automobile Insurance Co. v. Plough, 2017 IL App (2d) 160307



Appellate Court          STATE FARM MUTUAL AUTOMOBILE INSURANCE
Caption                  COMPANY, as Subrogee of Annie Rodriguez, Plaintiff-Appellee, v.
                         WILLIAM PLOUGH, By and Through His Special Representative,
                         Ryan Blues, Defendant-Appellant.



District & No.           Second District
                         Docket No. 2-16-0307


Filed                    June 29, 2017



Decision Under           Appeal from the Circuit Court of Du Page County, No. 14-SR-1464;
Review                   the Hon. Michael A. Wolfe, Judge, presiding.



Judgment                 Affirmed.


Counsel on               Elizabeth Abraham and Samiha H. Yousuf, of Madison Law
Appeal                   Associates, LLC, of Chicago, for appellant.

                         John M. Mulherin and Daniel T. Rupkey, of Mulherin, Rehfeldt &
                         Varchetto, P.C., of Wheaton, for appellee.



Panel                    JUSTICE HUTCHINSON delivered the judgment of the court, with
                         opinion.
                         Justices Burke and Spence concurred in the judgment and opinion.
                                              OPINION

¶1        This appeal follows a small-claims subrogation trial and raises questions about the
     application of the Dead-Man’s Act (or Act) (735 ILCS 5/8-201 (West 2014)). We affirm the
     judgment of the trial court.
¶2        On November 25, 2013, Annie Rodriguez was involved in a traffic accident in Lombard,
     Illinois. Rodriguez was driving her SUV and was stopped at a red light at a major intersection.
     Her vehicle was then struck by an SUV driven by defendant, William Plough. According to
     Rodriguez, Plough’s vehicle approached the intersection “pretty fast,” failed to stop at the
     light, swerved to avoid another vehicle in the intersection, crossed into the opposing lanes, and
     struck Rodriguez’s SUV head on. Lombard police officer Scott Frieling responded to the scene
     and interviewed Plough. According to Frieling, Plough admitted that the light changed to red
     as he approached the intersection; he “tried to stop, lost control of [his] vehicle and hit
     [Rodriguez].” Rodriguez was taken to the hospital with minor injuries and her SUV was towed
     to a body shop.
¶3        Rodriguez had a vehicle insurance policy from plaintiff, State Farm Mutual Automobile
     Insurance Company (State Farm). After the accident, Rodriguez paid the $250 deductible
     under her policy directly to the body shop, and State Farm paid the body shop the remaining
     cost of $3623 to repair Rodriguez’s SUV. (For convenience, we have rounded to the nearest
     dollar.) State Farm also paid $4902 to Rodriguez’s treatment providers for her various medical
     expenses. Afterward, State Farm sued Plough in subrogation for negligence in the amount of
     $8775—i.e., the $8525 it had paid out per Rodriguez’s policy plus her $250 deductible.
     Ultimately, a jury found in State Farm’s favor, awarding it the $8525, but not the $250 for
     Rodriguez’s deductible.
¶4        Plough appeals (through his special representative as we explain below, but we need not
     distinguish between them for now). He does not dispute the facts supporting the jury’s verdict.
     Instead, he challenges some of the pretrial steps that led to that verdict as well as the admission
     of witness testimony at trial. Plough’s challenges to the pretrial process, however, have been
     forfeited. Two of Plough’s contentions—that the trial court should not have permitted State
     Farm to reject an arbitration award in Plough’s favor and that the trial court should have
     granted Plough’s motion to dismiss State Farm’s complaint—were not included in Plough’s
     posttrial motion. As noted, this case was tried before a jury and, with exceptions not relevant
     here (see Arient v. Shaik, 2015 IL App (1st) 133969, ¶ 29), “a party in a jury case may not
     argue to the appellate court ‘any point, ground, or relief not specified’ in his or her posttrial
     motion” (id. ¶ 32 (quoting Ill. S. Ct. R. 366(b)(2)(iii) (eff. Feb. 1, 1994)); see also Landers v.
     School District No. 203, 66 Ill. App. 3d 78, 80 (1978) (stating that a party is “precluded from
     raising the issue of the sufficiency of the complaint in this appeal since it failed to raise that
     matter in its post-trial motion” following a jury trial)). Since Plough failed to give the trial
     court an opportunity to reconsider its decisions concerning the arbitration award and State
     Farm’s complaint, both of those issues have been forfeited.
¶5        We turn then to the only issue that was preserved in Plough’s posttrial motion, the trial
     court’s application of the Dead-Man’s Act. The Act, rooted in English common law, has been
     an evidentiary rule in Illinois in one form or another since 1867. See Gunn v. Sobucki, 216 Ill.
     2d 602, 611-12 (2005) (plurality opinion) (citing Alexander v. Hoffman, 70 Ill. 114, 117-18
     (1873)). The Act provides in pertinent part as follows:

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             “In the trial of any action in which any party sues or defends as the representative of a
             deceased person or person under a legal disability, no adverse party or person directly
             interested in the action shall be allowed to testify on his or her own behalf to any
             conversation with the deceased or person under legal disability or to any event which
             took place in the presence of the deceased or person under legal disability.” 735 ILCS
             5/8-201 (West 2014).
     The purpose of the Act is to bar only that evidence which the decedent or the disabled could
     have refuted, which thereby equalizes the position of the parties in regard to the giving of
     testimony. Gunn, 216 Ill. 2d at 609; Rerack v. Lally, 241 Ill. App. 3d 692, 695 (1992).
¶6       Plough was never deposed and 18 months after the accident he became ill and was confined
     to a mental-health institution. Following an in camera hearing, the trial court found that
     Plough was legally disabled and it granted Plough’s special representative leave to proceed
     with the case in Plough’s stead. See 5 ILCS 70/1.06 (West 2014); 735 ILCS 5/2-1008(c) (West
     2014). Plough’s representative then filed a motion in limine under the Dead-Man’s Act to
     declare Rodriguez incompetent to testify about the accident and to declare Frieling
     incompetent to testify about Plough’s statements after the accident. The motion contended that
     the only person who could refute Rodriguez’s and Frieling’s testimony was Plough himself,
     who was now “under legal disability” for purposes of the Dead-Man’s Act. The trial court
     denied the representative’s motion in limine. At trial, Rodriguez, Frieling, and State Farm’s
     claims adjuster all testified. During Rodriguez’s testimony, Plough’s representative objected,
     citing the Dead-Man’s Act. However, no objection was made during Frieling’s testimony or
     during the testimony of State Farm’s claims adjuster. On appeal, Plough’s representative
     contends that the trial court erred when it admitted the testimony of Rodriguez, Frieling, and
     the adjuster, which violated the Dead-Man’s Act. We review the trial court’s admission of
     testimony for an abuse of discretion, and we review the construction of the Dead-Man’s Act
     de novo. Gunn, 216 Ill. 2d at 609.
¶7       Although Illinois is in the minority of jurisdictions that follow a “dead man’s rule” of
     evidence (see Ed Wallis, An Outdated Form of Evidentiary Law: A Survey of Dead Man’s
     Statutes and a Proposal for Change, 53 Clev. St. L. Rev. 75 (2005)), it has been argued that the
     Act serves important interests. See Robert S. Hunter, The Dead Man’s Act Must Be Retained,
     55 Ill. B.J. 512 (1967). In practice, however, the Act has a fairly narrow scope. Again,
     disqualification under the Act is limited to testimony by (1) an “adverse party or person
     directly interested in the action” testifying “on his or her own behalf” concerning (2) a
     “conversation with the deceased or person under legal disability or to any event which took
     place in the presence of the deceased or person under legal disability.” 735 ILCS 5/8-201
     (West 2014). As this court and others have explained, a person is interested under the Act “if
     he or she will directly experience a monetary gain or loss as an immediate result of the
     judgment.” People v. $5,608 United States Currency, 359 Ill. App. 3d 891, 895 (2005); see
     also Michalski v. Chicago Title & Trust Co., 50 Ill. App. 3d 335, 339 (1977) (same).
¶8       Initially, by failing to object during Frieling’s or the adjuster’s testimony at trial on the
     basis of the Dead-Man’s Act, Plough’s representative has forfeited our review of the propriety
     of their testimony. See McMath v. Katholi, 191 Ill. 2d 251, 256 (2000). In any event, it is
     undisputed that neither Frieling nor the adjuster was a party to the action. See $5,608 United
     States Currency, 359 Ill. App. 3d at 896. Moreover, we note that neither Frieling nor the
     adjuster was qualified as a “directly interested” witness, so their testimony would not have

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       been barred under the Act. See, e.g., Clifford v. Schaefer, 105 Ill. App. 2d 233, 246 (1969)
       (police officer not incompetent to testify in action between drivers); Gieseke v. Hardware
       Dealers Mutual Fire Insurance Co., 61 Ill. App. 2d 119, 124-25 (1965) (insurance agent not
       incompetent to testify in action against insurance company). That leaves only Plough’s
       representative’s challenge to Rodriguez.
¶9          Even though this was a subrogation case, all sides concede that Rodriguez was not, strictly
       speaking, a party to the action. However, Plough’s representative argues that Rodriguez was
       directly interested in the outcome of this case and was thereby rendered incompetent to testify
       about the accident under the Act. We agree.
¶ 10        At trial, Rodriguez testified about the accident and, in the context of auto accidents, it is
       generally understood that the “event which took place in the presence of the deceased or person
       under legal disability” was the collision itself. See Balma v. Henry, 404 Ill. App. 3d 233, 241
       (2010); Rerack, 241 Ill. App. 3d at 695; see also Patrick Boland, The Dead Man’s Act: What Is
       an Event?, DCBA Brief, April 2017, at 8; Michael H. Graham, Graham’s Handbook of Illinois
       Evidence § 601.13 (10th ed. 2010). Both parties agree that the accident is the only “event” at
       issue.
¶ 11        State Farm maintains that Rodriguez was not “directly interested” in the outcome of its
       subrogation suit against Plough. State Farm relies primarily on the fact that this was a
       subrogation suit, and that, in order to sue Plough, State Farm had to first indemnify (or
       compensate) Rodriguez to the extent of her insurance claim. See generally Capitol Indemnity
       Corp. v. Strike Zone S.S.B.&B. Corp., 269 Ill. App. 3d 594, 595-96 (1995) (discussing
       principles of subrogation). But merely labeling the underlying litigation as a “subrogation
       case” does not mean that Rodriguez had no financial interest in the outcome of the trial.
¶ 12        State Farm overlooks the fact that it did not sue just for the $8525 it paid in connection with
       Rodriguez’s claim; it sued for the amount of Rodriguez’s entire loss, including the $8525 State
       Farm paid plus her $250 deductible. In fact, as Plough’s representative noted in the trial court,
       the Illinois Insurance Code—specifically, section 143b (215 ILCS 5/143b (West
       2012))—dictated that State Farm was obliged to sue to recover Rodriguez’s deductible if it
       sued Plough at all. Moreover, the fact that the jury failed to award State Farm the recovery of
       Rodriguez’s deductible is immaterial. Section 143b provides:
                “Any insurance carrier whose payment to its insured is reduced by a deductible amount
                under a policy providing collision coverage is subrogated to its insured’s entire
                collision loss claim including the deductible amount unless the deductible amount has
                been otherwise recovered by the insured ***. If the deductible amount is included in
                the subrogated loss claim the insurance carrier shall pay the full pro rata deductible
                share to its insured out of the net recovery on the subrogated claim.” Id.
       In other words, because State Farm recovered approximately 97% of what it sought—$8525
       on its $8775 claim—Rodriguez will receive $243 as an immediate result of the judgment.
¶ 13        In fairness to the trial court, in court, Plough’s representative noted only “the Illinois
       Insurance Code” and failed to cite the specific section. But the fact remains that, when
       Rodriguez testified, she stood to receive a monetary gain as an immediate result of any
       judgment in State Farm’s favor. As such, given Rodriguez’s interest in the outcome of the
       litigation, she should not have been permitted to testify about the collision itself.



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¶ 14       Against this conclusion, State Farm makes a number of arguments, none of which is
       convincing. First, State Farm asserts that the trial court appointed to Plough a “special
       representative” as opposed to a “ ‘representative’ under the definition of the Dead Man’s Act.”
       The argument implies that a separate probate proceeding to establish a guardianship over
       Plough was required before Plough (or his representative) could invoke the protections of the
       Dead-Man’s Act. The Act itself contains no such requirement, and it has long been held that a
       separate probate proceeding is not required. See Head v. Wood, 20 Ill. App. 2d 97, 107-10
       (1959). State Farm also argues that Plough’s representative “opened the door” by
       cross-examining Rodriguez concerning the accident; however, Rodriguez’s cross-examination
       testimony was considerably narrower than the extensive and detailed testimony she had
       already given on direct examination. In short, the door was not opened by the defense, and the
       Act was not forfeited.
¶ 15       That said, although it was error for Rodriguez to testify about the collision itself, the error
       does not warrant reversal of the jury’s verdict. Rodriguez’s testimony that Plough caused the
       accident was merely cumulative of Frieling’s testimony that Plough admitted fault at the scene.
       See, e.g., Steele v. Provena Hospitals, 2013 IL App (3d) 110374, ¶ 107 (recognizing that
       improperly admitted testimony is harmless where it is duplicative of properly admitted
       testimony). Again, Frieling had no interest in the outcome of the litigation, and Plough’s
       “statement was an admission against interest made by [a party] and was properly admitted into
       evidence.” Clifford, 105 Ill. App. 2d at 246. Since the error in this case was harmless, we
       affirm the judgment of the circuit court of Du Page County.

¶ 16      Affirmed.




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