                                     2018 IL App (1st) 162166
                                    Opinion filed: March 16, 2018
                                                                               FIRST DISTRICT
                                                                               FIFTH DIVISION

No. 1-16-2166

 ALIZABETH HANA and ELVIN HANA,                                 )              Appeal from the
                                                                )              Circuit Court of
            Plaintiffs-Appellees,                               )              Cook County.
                                                                )
 v.                                                             )              No. 15 L 5975
                                                                )
 ILLINOIS STATE MEDICAL INTER-INSURANCE                         )              Honorable
 EXCHANGE MUTUAL INSURANCE COMPANY,                             )              Irwin Solganick,
                                                                )              Judge Presiding.
            Defendant-Appellant.                                )


        JUSTICE ROCHFORD delivered the judgment of the court, with opinion. *
        Presiding Justice Reyes and Justice Hall concurred in the judgment and opinion.

                                              OPINION

¶1      Plaintiffs-appellees, Alizabeth Hana and Elvin Hana, filed this suit against defendant-

appellant, Illinois State Medical Inter-Insurance Exchange Mutual Insurance Company (ISMIE),

seeking to recover for ISMIE’s alleged bad-faith failure to settle an underlying lawsuit. A jury

ruled in favor of plaintiffs, entered a multimillion dollar verdict against ISMIE, and ISMIE

thereafter appealed raising a host of issues. For the following reasons, we reverse and remand for

a new trial.

¶2                                       I. BACKGROUND

¶3      Because of the limited number of issues we address in this opinion, we recite here only

those facts necessary to our resolution of this appeal.

¶4                          A. Underlying Medical Malpractice Litigation

¶5      The underlying medical malpractice suit (Hana v. Chams, No. 05-L-7692 (Cir. Ct. Cook

County, Nov. 10, 2015)) was brought by plaintiffs against, inter alia, ISMIE’s insureds, Dr.


        *
        Justice Rochford has listened to the recording of the oral argument.
No. 1-16-2166

Albert Chams and Dr. Joyce Chams—as well as their joint-obstetrics practice group, Chams

Women’s Health Care, S.C.—in addition to Rush North Shore Medical Center (Rush North

Shore) and two of Rush North Shore’s emergency room doctors. The underlying suit sought to

recover for deficient prenatal care provided by the defendants, which resulted in physical injury

to Alizabeth and the death of plaintiffs’ child, Mary. Alizabeth was appointed as the special

administrator of Mary’s estate, and a wrongful death claim was included in the complaint. ISMIE

accepted defense of the underlying suit without reservation and retained an attorney to represent

the Chamses.

¶6     Prior to trial, a number of the defendants were either dismissed from the case or were

awarded summary judgment in their favor, and three of the defendants settled with plaintiffs.

Specifically, the trial court approved a $1.5 million settlement among plaintiffs, Rush North

Shore, and two of Rush North Shore’s emergency room doctors. These three defendants were

then dismissed from the underlying suit. As a part of this settlement, payments were made to

plaintiffs’ health insurers to settle any liens they might have on plaintiffs’ recovery in the

underlying case. This matter thereafter proceeded to a jury trial in May of 2009, involving only

plaintiffs’ claims against Dr. A. Chams, Dr. J. Chams, and Chams Women’s Health Care, S.C.

¶7     Following the trial, the jury returned a general verdict in favor of plaintiffs and against

the three remaining defendants. The jury awarded a total of $6,171,118.67 in damages, which

included (1) $621,118.67 for Alizabeth’s personal injuries; (2) $4.55 million for Mary’s survival

claim; and (3) $1 million for the wrongful death claim. Pursuant to a posttrial motion, the trial

court reduced this amount by $1.5 million to account for the pretrial settlement. The defendants’

subsequent posttrial motion for a new trial was denied, and on appeal we affirmed. Hana v.

Chams, 2011 IL App (1st) 100146-U.


                                              -2­
No. 1-16-2166

¶8     After ISMIE paid its policy limits on the underlying verdict, the Chamses were

personally responsible for the $1.35 million balance. In exchange for a covenant not to enforce

that excess judgment against the Chamses, plaintiffs were assigned whatever rights the Chamses

might have with respect to a bad faith claim for ISMIE’s failure to settle the underlying litigation

within the policy limits.

¶9                                     B. Bad Faith Lawsuit

¶ 10   Plaintiffs, thereafter, filed this suit seeking both, $1.35 million in compensatory damages

for ISMIE’s bad faith refusal to settle in count I, and $10 million in punitive damages for

ISMIE’s allegedly willful and wanton breach of fiduciary duty in count II. In count II, plaintiffs

also sought an award of costs, attorney fees, and penalties pursuant to section 155 of the Illinois

Insurance Code. 215 ILCS 5/155 (West 2016). Plaintiffs also filed a jury demand. Pursuant to

Public Act 98-1132 (eff. June 1, 2015), which amended section 2-1105(b) of the Code of Civil

Procedure (Code) (735 ILCS 5/2-1105(b) (West 2016)) to provide for six-person juries in civil

cases, and over the objection of ISMIE, this matter was tried before a six-person jury.

¶ 11   That jury ultimately found in favor of plaintiffs on both counts, awarding plaintiffs $1.35

million in compensatory damages and $13 million in punitive damages. In addition, the trial

court awarded plaintiffs over $1.5 million in costs, attorney fees, interest, and penalties. ISMIE

timely appealed.

¶ 12                                      II. ANALYSIS

¶ 13   ISMIE raises a constitutional issue as to the size of the jury in this case, as well as a

number of other issues on appeal. However, because we conclude that this matter must be

remanded for a new trial due to the denial of ISMIE’s constitutional right to a 12-person jury,

and because we find that issue to be dispositive, we need only address that issue. Nevertheless,


                                               -3­
No. 1-16-2166

we will also address three issues related to the admissibility of evidence and the appropriateness

of jury instructions that are likely to recur upon remand.

¶ 14    Thus, we begin by considering ISMIE’s argument that the trial court improperly rejected

its contention that it was entitled to a new trial because of the denial of its constitutional right to

a 12-person jury.

¶ 15    In considering whether a motion for a new trial should be granted, the trial court should

set aside a jury’s verdict only if it is contrary to the manifest weight of the evidence or a party

has been denied a fair trial. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). The trial court is in

a superior position to consider errors that occurred, the fairness of the trial to all parties, and

whether substantial justice was accomplished. Smith v. City of Evanston, 260 Ill. App. 3d 925,

932-33 (1994). A trial court’s ruling on a motion for new trial will not be reversed unless there is

an affirmative showing that it clearly abused its discretion. Gustafson, 151 Ill. 2d at 455.

¶ 16    As noted above, Public Act 98-1132 (eff. June 1, 2015) amended section 2-1105(b) of the

Code (735 ILCS 5/2-1105(b) (West 2016)) to provide for 6-person juries in civil cases and to

eliminate the ability of either party to request a jury of 12. It was pursuant to the amended

version of section 2-1105(b) that this matter was tried before a 6-person jury.

¶ 17    However, in Kakos v. Butler, 2016 IL 120377, ¶ 28, our supreme court found that

“[b]ecause the size of the jury—12 people—was an essential element of the right of trial by jury

enjoyed at the time the 1970 Constitution was drafted, *** jury size is an element of the right

that has been preserved and protected in the constitution.” Our supreme court therefore found the

portion of Public Act 98-1132 amending section 2-1105(b) and reducing the size of a jury in civil

trials to be facially unconstitutional under the Illinois Constitution and therefore void ab initio.

Id. ¶ 29.


                                                 -4­
No. 1-16-2166

¶ 18   Thus, because ISMIE was denied its constitutional right to a 12-person jury, it is apparent

that it was denied a fair trial. This matter must therefore be remanded for a new trial. Gustafson,

151 Ill. 2d at 454. In reaching this conclusion, we reject three specific arguments raised by

plaintiffs on appeal.

¶ 19   First, plaintiffs contend that ISMIE failed to preserve this issue for appeal by failing to

obtain a ruling from the trial court on its objection to seating a 6-person jury. However, the

record clearly reflects that ISMIE filed a pretrial written motion, asking the trial court to declare

Public Act 98-1132 unconstitutional and to seat a 12-person jury. Moreover, and contrary to

plaintiffs’ assertions on appeal, the record reflects that this motion was discussed on the record

and specifically denied by the trial court. This issue was thereafter included in ISMIE’s posttrial

motion. Therefore, we find that ISMIE properly preserved this issue for appeal.

¶ 20   Second, plaintiffs argue that ISMIE is not entitled to a new trial because no prejudice can

be established where “it is pure speculation to say the verdict would have been different if there

had been more jurors.” However, as noted above, our supreme court concluded that the portion

of Public Act 98-1132 amending section 2-1105(b) and reducing the size of a jury in civil trials

was “facially unconstitutional and void ab initio.” Kakos, 2016 IL 120377 ¶ 29. Thus, “the

statute was constitutionally infirm from the moment of its enactment and is, therefore,

unenforceable. As a consequence, we will give no effect to the unconstitutional statute.” People

v. Blair, 2013 IL 114122, ¶ 30. Our supreme court’s decision in Kakos with respect to the

amended version of section 2-1105(b) thus “stands as an impediment to the operation and

enforcement of the statute.” Id. Therefore, the trial court had no authority to try this matter

before a six-person jury, nor did it have any authority to enter a judgment upon the verdict

reached by such a jury. The verdict and judgment simply have no legal effect, and may not now


                                                -5­
No. 1-16-2166

be affirmed on direct appeal. See Heastie v. Roberts, 226 Ill. 2d 515, 535 (2007) (decisions of

our supreme court apply retroactively to causes pending at the time they are announced,

including cases on direct review in the appellate court).

¶ 21   Third, plaintiffs argue that ISMIE waived this issue by failing to strictly comply with

Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006), pursuant to which a litigant challenging the

constitutionality of a statute, ordinance, or administrative regulation must serve notice of the

challenge—describing the nature of the constitutional challenge—upon the Attorney General or

other affected agency or officer, with such notice occurring at the time of suit, answer or

counterclaim, if constitutionality is raised at that level, or promptly after the constitutional

question arises as a result of a circuit or reviewing court ruling or judgment. The purpose of the

notice is to give the affected agency or officer the opportunity to intervene in the proceeding for

the purpose of defending the constitutionality of the statute, ordinance, or administrative

regulation. Id.

¶ 22   As an initial matter, it is arguable that Rule 19 has no applicability here. In this appeal,

we are not ourselves considering the constitutionality of Public Act 98-1132’s amendment of

section 2-1105(b). Rather, we are simply applying our supreme court’s ruling in Kakos to this

case. The constitutional issue has already been definitively determined.

¶ 23   Even if Rule 19 is applicable, we do not find it to be an impediment. It is true, ISMIE did

not provide notice to the Attorney General prior to trial at the time it initially challenged the

constitutionality of Public Act 98-1132’s amendment of section 2-1105(b). Indeed, it was not

until plaintiffs raised the failure to comply with Rule 19 in response to ISMIE’s posttrial motion

that ISMIE provided the required notice. At that time, ISMIE was informed that the Attorney




                                                -6­
No. 1-16-2166

General would not seek to intervene, the same decision it had reached in “hundreds” of other

cases raising the same issue.

¶ 24      As our supreme court has recognized, “a party’s failure to timely comply with Rule 19

does not deprive the court of jurisdiction to consider the constitutional issue. However, failure to

strictly comply with the rule may result in waiver. Nevertheless, because waiver is a limitation

on the parties, not on the court [citation], a circuit court or the appellate court has the discretion

to permit late compliance with Rule 19 and thereafter to address the constitutional issue if the

purpose of the rule has been served.” Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 118-19

(2004).

¶ 25      In light of the fact that the Attorney General was ultimately notified by ISMIE, that the

Attorney General declined to intervene just as it had in other cases, and given that our supreme

court has now definitively ruled on the validity of Public Act 98-1132’s amendment of section 2­

1105(b), rendering any possible defense of the amendment futile, we conclude that the purpose

of Rule 19 has been served. As such, any possible failure to strictly comply with Rule 19 is not

an impediment to our consideration of ISMIE’s argument that its constitutional right to a 12­

person jury was violated.

¶ 26      Having determined that ISMIE is entitled to a new trial on this basis, all of the remaining

arguments it raised on appeal in support of a new trial are now moot and need not be addressed.

In re Jonathan P., 399 Ill. App. 3d 396, 400 (2010) (“Generally, courts of review do not decide

moot questions, render advisory opinions, or consider issues where the result will not be affected

regardless of how those issues are decided.”). As such, we generally decline to address those

remaining issues. Indeed, a number of the additional arguments raised by ISMIE on appeal

address issues specifically related to the award of damages, costs, attorney fees, and penalties.


                                                 -7­
No. 1-16-2166

“Whether the additional issues will ever become relevant is therefore a matter of speculation.

Should they become germane, ‘the parties are free to raise [them] with the benefit of the

additional facts and evidence that will be adduced at the proceedings held on remand.’ [Citation.]

For now, however, any discussion of the issues is premature.” Pielet v. Pielet, 2012 IL 112064,

¶ 57; see also Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 463 (2003). Again, we

will therefore not address such issues here.

¶ 27    Nevertheless, a reviewing court may address issues that are likely to recur on remand in

order to provide guidance to the lower court and thereby expedite the ultimate termination of the

litigation. Pielet, 2012 IL 112064, ¶ 56. A number of the other arguments raised by ISMIE on

appeal relate to the admissibility of evidence and the appropriateness of jury instructions that fall

into this category, and we therefore choose to address those issues here. 1

¶ 28    First, we consider ISMIE’s contention that plaintiffs were improperly allowed to

introduce into evidence a 2013 letter from its counsel to ISMIE, offering to settle this lawsuit for

the $1.35 million excess verdict entered in the underlying case, as well as additional testimony

regarding this letter. In response, plaintiffs contend that this evidence was properly entered to

establish ISMIE’s bad faith and willful and wanton conduct as to the underlying claims, which

plaintiffs assert continued well after the excess verdict was entered in the underlying case.

¶ 29    In Illinois, evidence regarding settlement negotiations or offers to settle are generally not

admissible. Ford v. Grizzle, 398 Ill. App. 3d 639, 649 (2010). Such evidence is discouraged

because it might be construed as an admission of liability and because public policy favors

compromise. Morgan v. Richardson, 343 Ill. App. 3d 733, 740 (2003). However, when

        1
         One of the issues raised on appeal by ISMIE involves the appropriateness of a jury instruction
regarding a provision of the Rights of Married Persons Act. 750 ILCS 65/15 (West 2016). As framed by
the parties, however, the propriety of this instruction is dependent on the evidence produced at trial. We
therefore decline to address this issue at this time.

                                                  -8­
No. 1-16-2166

settlement offers are relevant, they are admissible. Shimkus v. Board of Review of the Illinois

Department of Labor, 117 Ill. App. 3d 826, 831 n.2 (1983). Illinois Rule of Evidence 408

provides that while evidence of settlement offers and negotiations are generally inadmissible,

such evidence may be admitted for “permissible purposes,” one of which is “establishing bad

faith.” Ill. R. Evid. 408 (eff. Jan. 1, 2011).

¶ 30    As an initial matter, we agree with ISMIE that any evidence of the 2013 settlement offer

was barred by Rule 408. While Rule 408 does allow the introduction of evidence of settlement

offers and negotiations to establish bad faith, we do not believe that this exception includes the

introduction of evidence with respect to the settlement of the present litigation so as to establish

ISMIE’s bad faith with respect to its handling of the underlying case. While no Illinois case has

addressed this specific issue, we note that Rule 408 “mirrors the Federal Rule 408, which our

state courts have been applying to cases for years.” County of Cook v. Illinois Labor Relations

Board, Local Panel, 2012 IL App (1st) 111514, ¶ 35. At least one federal court has recognized

that evidence of an insurer’s refusal to settle a bad faith case is inadmissible for the purpose of

establishing the insurer’s bad faith in handling an underlying matter. Niver v. Travelers

Indemnity Co. of Illinois, 433 F. Supp. 2d 968, 994 (N.D. Iowa 2006). This is consistent with the

underlying policy of Rule 408; i.e., promoting settlement.

¶ 31    Even if this evidence was not specifically barred by Rule 408, we agree with ISMIE that

it is irrelevant. “ ‘Relevant evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). “Evidence

which is not relevant is not admissible.” Ill. R. Evid. 402 (eff. Jan. 1, 2011).




                                                 -9­
No. 1-16-2166

¶ 32   In this case, the pleadings, evidence, arguments, and jury instructions all reflect that the

ultimate issue was whether ISMIE’s bad faith and willful and wanton conduct caused the excess

judgment to be entered against the Chamses in the underlying case. The underlying judgment

was entered in May 2009, and our prior decision affirming that judgment was entered in August

2011. The Chamses assigned their bad faith claim to plaintiffs in March 2010, in exchange for a

covenant not to enforce any excess judgment against the Chamses. In light of these facts, we fail

to see how any refusal of ISMIE to settle this lawsuit in 2013 has any relevance with respect to

whether ISMIE engaged in bad faith and willful and wanton conduct leading to the 2009 excess

judgment. Even if we accepted plaintiffs’ insistence that this evidence shows continuing willful

and wanton conduct occurring after the 2009 excess judgment, we reject any contention that such

evidence is in any way relevant to establishing that plaintiffs were therefore damaged by the

2009 judgment. Therefore, no evidence regarding the 2013 settlement letter should be admitted

at trial upon remand.

¶ 33   Next, we consider ISMIE’s contention that the trial court improperly provided the jury

with Illinois Pattern Jury Instructions, Civil, Nos. 710.02, 710.03 (2011) (hereinafter IPI Civil

(2011) Nos. 710.02, 710.03), and refused to provide ISMIE’s proposed modified instructions,

because those instructions did not accurately reflect current law.

¶ 34   Both IPI Civil (2011) No. 710.02, the pattern issues instruction for bad faith claims

against insurers, and IPI Civil (2011) No. 710.03, the pattern burden of proof instruction with

respect to such claims, provide that a plaintiff must generally establish that the insurer had a

“reasonable opportunity” to settle the underlying lawsuit against its insured within the policy

limits.2 Neither instruction has been amended in decades, and each instruction relies upon an


       2
        In relevant part, IPI Civil (2011) No. 710.02 provides: “[The plaintiff claims that [name of

                                               - 10 ­
No. 1-16-2166

understanding that the “Illinois Supreme Court has yet to define the duty or the elements of this

cause of action.” Illinois Pattern Jury Instructions, Civil, 710.00 Intro. (2011).

¶ 35    However, this does not reflect the current state of Illinois law. With respect to a bad faith

claim against an insurer for failure to settle a lawsuit against an insured, our supreme court has

now specifically ruled:

        “The duty does not arise at the time the parties enter into the insurance contract, nor does

        it depend on whether or not a lawsuit has been filed. The duty of an insurance provider to

        settle arises when a claim has been made against the insured and there is a reasonable

        probability of recovery in excess of policy limits and a reasonable probability of a

        finding of liability against the insured. Since Illinois law generally does not require an

        insurance provider to initiate settlement negotiations [citations], this duty also does not

        arise until a third party demands settlement within policy limits.” (Emphases added.)

        Haddick ex rel. Griffith v. Valor Insurance, 198 Ill. 2d 409, 417 (2001).

In examining this ruling, this court has explained that the “reasonable probability” requirement

set out in Haddick essentially means that a plaintiff in a bad faith suit must establish that liability

in excess of the policy limits in the underlying suit was “at least more likely than not, but not

necessarily a certainty. ” Powell v. American Service Insurance Co., 2014 IL App (1st) 123643,

¶ 36.

¶ 36    “The function of jury instructions is to convey to the jury the correct principles of law

applicable to the submitted evidence and, as a result, jury instructions must state the law fairly



insurance company] had a reasonable opportunity to settle [name of injured person]’s claim against [name
of insured] within the policy limits.]” In relevant part, IPI Civil (2011) No. 710.03 provides: “The
plaintiff has the burden of proving all of the following propositions: [First, that [name of insurance
company] had a reasonable opportunity to settle [name of injured person]’s claim against [name of
insured] within the policy limits.]”

                                                 - 11 ­
No. 1-16-2166

***.” Dillon v. Evanston Hospital, 199 Ill. 2d 483, 507 (2002). Pattern instructions are presumed

to be accurate statements of Illinois law, and the jury is to be instructed using an approved

pattern instruction if the trial court determines that it is applicable to the circumstances of the

case. Luye v. Schopper, 348 Ill. App. 3d 767, 773 (2004). Nevertheless, pattern instructions are

not themselves law, and our supreme court has held that they “are not exempt from challenge.”

Powers v. Illinois Central Gulf R.R. Co., 91 Ill. 2d 375, 385 (1982). There has not been any

advance approval of IPI instructions by our supreme court, and “[a]n instruction is approved or

rejected only after it has been judicially questioned and considered.” Id.

¶ 37   Here, neither IPI Civil (2011) No. 710.02 nor IPI Civil (2011) No. 710.03 fairly and

accurately reflects the current state of the law. A trial court may give nonpattern jury instructions

when the pattern jury instruction on point does not adequately state the law. Van Winkle v.

Owens-Corning Fiberglas Corp., 291 Ill. App. 3d 165, 177-78 (1997). While we do not mandate

the exact form thereof at this time, upon remand, nonpattern jury instructions should be crafted

to be used in the place of IPI Civil (2011) No. 710.02 and IPI Civil (2011) No. 710.03. Those

instructions must reflect the holdings in Haddick and Powell.

¶ 38   Next, we address ISMIE’s contention that the trial court improperly provided the

following jury instruction proffered by plaintiffs:

                “If you decide for the plaintiff on the question of liability, you must then award

       the amount of money which will compensate the plaintiff for the damages proved by the

       evidence to have resulted from ISMIE’s bad faith. The plaintiff’s damages are

       $6,171,118.67 which is the amount of the judgment entered in favor of the plaintiff and

       against insured, minus $3,321,118.67, and minus $1,500,000.00 for other allowable

       offsets. This amount equals $1,350,000.00”


                                               - 12 ­
No. 1-16-2166

¶ 39   This instruction was based upon Illinois Pattern Jury Instructions, Civil, No. 710.07

(2011) (hereinafter IPI Civil (2011) No. 710.07), which provides:

                “If you decide for the plaintiff on the question of liability, you must then award

       the amount of money which will compensate the plaintiff for the damages proved by the

       evidence to have resulted from [name of insurance company]’s negligence or bad faith.

       The plaintiff’s damages are $[insert sum] [which is the amount of the judgment entered in

       favor of the plaintiff and against [name of insured] (minus the amount received by the

       plaintiff from [name of insurance company] under the policy) (and) (minus the amount

       received by the plaintiff from another insurance company) (and) (minus [describe any

       other allowable offset(s)])].”

¶ 40   The “Notes on Use” commentary with respect to this instruction provides:

                “In most cases, there will be no dispute as to the dollar amount of the damages to

       which the plaintiff is entitled if the insurance company is found liable, and this

       instruction has been drafted accordingly. This instruction also assumes that any additional

       damages to which the plaintiff may be entitled (such as interest) can be added to the

       verdict by the court and included in the judgment.

                ***

                Whether the jury should be instructed as to how the sum claimed by the plaintiff

       was calculated is a matter left to the discretion of the court and counsel, and therefore the

       last part of this instruction is bracketed.” Id.

¶ 41   Here, should ISMIE be found liable, the amount of plaintiffs’ damages was undisputed:

$1.35 million. Moreover, there was no dispute among the parties or the trial court that IPI Civil

(2011) No. 710.07 generally provided the relevant pattern instruction in this instance. Once a


                                                 - 13 ­
No. 1-16-2166

trial court determines an instruction is to be given, then Illinois Supreme Court Rule 239(a) (eff.

Jan. 1, 1999) creates a presumption that one of the pattern instructions will be used. As such,

while the trial court had the discretion as to whether to include the final bracketed material, IPI

Civil (2011) No. 710.07, tailored only to include the relevant facts of this case, should have been

given. However, that is not what occurred here, where the jury instruction actually provided to

the jury both altered the language of the pattern instruction and added a third sentence.

¶ 42   The plain language of the pattern instruction and the notes on use commentary make it

clear that in this case only one numerical value should have been included in the second sentence

of this jury instruction: i.e., $1.35 million, the undisputed amount of plaintiffs’ damages caused

by ISMIE’s bad faith. Thereafter, in the discretion of the trial court, the instruction could have

also included a verbal description of how that figure was calculated. There should have been no

third sentence.

¶ 43   Therefore, once the trial court elected to provide such a description as to how the amount

of damages was calculated, the second sentence of the instruction in this case should have taken

the following general form: “The plaintiffs’ damages are $1,350,000.00 which is the amount of

the judgment entered in favor of the plaintiff and against the Chamses minus the amount

received by the plaintiffs from ISMIE under the policy and minus the amount of the pretrial

settlement in the underlying case.” At most, the language of IPI Civil (2011) No. 710.07 and the

notes on use commentary for this instruction would arguably have supported a second sentence

of the instruction in the following general form: “The plaintiffs’ damages are $1,350,000.00,

which is the amount of the judgment entered in favor of the plaintiffs and against the Chamses

($6,171,118.67) minus the amount received by the plaintiffs from ISMIE under the policy




                                               - 14 ­
No. 1-16-2166

($3,321,118.67) and minus the amount of the pretrial settlement in the underlying case

($1,500,000.00).”

¶ 44     Thus, while on remand the trial court will retain the discretion to omit or include the

bracketed material contained in IPI Civil (2011) No. 710.07, should the bracketed portion of this

instruction be used, it should be phrased in the general form described above, in accord with the

language of the pattern instruction and the commentary. There should be no third sentence.

¶ 45     Finally, we note that, in addition to seeking a new trial on appeal, ISMIE also appeals

from the denial of its posttrial request for judgment n.o.v. Obviously, should we consider this

issue and rule in ISMIE’s favor, it would be entitled not to a new trial, but to a judgment in its

favor.

¶ 46     However, we are reluctant to address this issue in light of our conclusion that this matter

was improperly tried before a 6-person jury in violation of ISMIE’s constitutional right to a 12­

person jury and pursuant to a statutory amendment that was void ab initio. Arguably, the entire

proceedings were rendered void as a result of this fundamental error, and we are in no position to

allow a judgment of any kind—even one in ISMIE’s favor—to result from those proceedings.

Furthermore, we have similar misgivings about entering any judgment when all of the evidence

and arguments presented in this case were specifically tailored directly to a particular 6-person

jury selected from the venire in an unconstitutional manner. There are specific indications in the

record that the evidence and arguments presented below were in fact targeted at the particular

jurors seated in this case.

¶ 47     Putting aside our reluctance and the fact that this case will be remanded for a new trial,

even if we did address this issue, we would not find that the trial court erred in refusing to enter

judgment n.o.v. in ISMIE’s favor.


                                               - 15 ­
No. 1-16-2166

¶ 48   Judgment n.o.v. should be entered “only in those cases in which all of the evidence, when

viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no

contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co.,

37 Ill. 2d 494, 510 (1967). The trial court may not enter a judgment n.o.v. if the evidence

demonstrates a substantial factual dispute, or where the assessment of witness credibility or the

determination regarding conflicting evidence is decisive to the outcome. Gustafson, 151 Ill. 2d at

454; Vanderhoof v. Berk, 2015 IL App (1st) 132927, ¶ 59. Furthermore, “[i]n making this

assessment, a reviewing court must not substitute its judgment for the jury’s, nor may a

reviewing court reweigh the evidence or determine the credibility of the witnesses.” Donaldson

v. Central Illinois Public Service Co., 199 Ill. 2d 63, 89 (2002). A motion for judgment n.o.v.

presents a question of law that we review de novo. Lawlor v. North American Corp. of Illinois,

2012 IL 112530, ¶ 37.

¶ 49   Without going into any great detail, the record clearly reflects that—at a minimum—the

parties presented materially conflicting evidence regarding the nature and sufficiency of the

communications between ISMIE and the Chamses both before and during the underlying trial.

The parties also presented conflicting testimony regarding the Chamses’ demand to settle the

underlying case and/or the possibility of entering into a “high/low” agreement with plaintiffs,

either of which would have protected the Chamses from an excess verdict. The credibility of a

number of witnesses was also clearly placed at issue at trial, with a determination as to the

credibility of the testimony of those witnesses clearly being central to the resolution of the issues

presented in this case.

¶ 50   In determining the propriety of a motion for judgment n.o.v., it is not our place to reweigh

this evidence or determine the credibility of the witnesses. As such, and because the evidence


                                               - 16 ­
No. 1-16-2166

does not so overwhelmingly favor ISMIE such that no contrary verdict based on that evidence

could ever stand (Pedrick, 37 Ill. 2d at 510), we would reject ISMIE’s contention that its motion

for judgment n.o.v. was improperly denied. We make this determination with respect to both

ISMIE’s bad faith refusal to settle, as alleged in count I, and ISMIE’s willful and wanton breach

of fiduciary duty, as alleged in count II.

¶ 51                                     III. CONCLUSION

¶ 52   For the foregoing reasons, we reverse the judgment of the circuit court and remand this

matter for a new trial consistent with this opinion.

¶ 53   Reversed and remanded.




                                               - 17 ­
