                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Powers v. Rosine, 2011 IL App (3d) 100070




Appellate Court            DENNIS E. POWERS and BRENDA J. STORY-PHILLIPS,
Caption                    Individually, Plaintiffs-Appellees, v. EUGENE M. ROSINE, Defendant
                           (Scott E. Umland, Defendant’s Attorney, Contemnor-Appellant).



District & No.             Third District
                           Docket No. 3-10-0070


Filed                      August 23, 2011


Held                       In an action for personal injuries arising from an automobile accident
(Note: This syllabus       involving a drunk driver where plaintiffs sought punitive damages, the
constitutes no part of     trial court properly granted plaintiffs’ motion for supplemental discovery
the opinion of the court   concerning defendant’s financial status.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Tazewell County, No. 08-L-120; the
Review                     Hon. Scott A. Shore, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Scott E. Umland, of Fleming & Umland, of Peoria, for appellant.
Appeal
                           Edward R. Durree and Christopher H. Sokn, both of Kingery, Durree,
                           Wakeman & Ryan, of Peoria, for appellees.


Panel                      JUSTICE McDADE delivered the judgment of the court, with opinion.
                           Presiding Justice Carter and Justice Holdridge concurred in the judgment
                           and opinion.




                                             OPINION

¶1           The plaintiffs, Dennis E. Powers and Brenda J. Story-Phillips, brought suit against the
        defendant, Eugene M. Rosine, after sustaining injuries in an automobile accident caused by
        Rosine. The court granted the plaintiffs’ motion for leave to propound supplemental
        discovery to obtain information of Rosine’s financial status pursuant to their request for
        punitive damages. Rosine and his attorney, Scott E. Umland, objected to this request and
        refused to disclose Rosine’s financial information. Umland subsequently filed a “Request for
        Contempt Order” seeking “to test the correctness of the trial court’s discovery order.” The
        trial court thus found Umland in contempt. On appeal, Rosine and Umland contend that: (1)
        in a case where the plaintiffs seek punitive damages, evidence of a defendant’s financial
        status is not relevant, discoverable or admissible; and (2) the due process analysis in the
        cases of International Union of Operating Engineers, Local 150 v. Lowe Excavating Co.,
        225 Ill. 2d 456 (2006), BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), and State
        Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), “unintentionally
        creates a violation of state and federal equal protection clauses by irrationally protecting
        wealthy defendants and prejudicing less wealthy defendants.” We affirm.

¶2                                              FACTS
¶3          The record indicates that on September 17, 2008, the plaintiffs filed a complaint against
        Rosine for injuries they sustained during an automobile accident where Rosine drove under
        the influence and collided with Powers’ vehicle and the vehicle in which Story-Phillips was
        a passenger. Both Powers and Story-Phillips suffered injuries, and Rosine subsequently pled
        guilty to a charge of driving under the influence.
¶4          On January 28, 2009, the plaintiffs filed an amended complaint seeking to include a
        request for punitive damages. Pursuant to the filing of their amended complaint, the plaintiffs
        also filed a motion for leave to propound supplemental discovery of Rosine’s financial status.
        The plaintiffs specifically contended that since they now sought punitive damages from


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       Rosine, his financial status was relevant and discoverable. Rosine filed a motion objecting
       to the plaintiffs’ request. After a July 31, 2009, hearing, the trial court granted the plaintiffs’
       motion to propound supplemental discovery of Rosine’s financial status.
¶5          The plaintiffs subsequently served Rosine with a request for supplemental discovery
       regarding his financial status. In turn, Rosine filed a motion objecting to plaintiffs’ discovery
       request, contending that if the jury or court considered his wealth in fashioning an award of
       punitive damages, it would violate the equal protection clauses of the United States and
       Illinois Constitutions. Rosine thus did not answer the plaintiffs’ request for discovery of his
       financial status. The plaintiffs then filed a motion to compel discovery, and on November 24,
       2009, the trial court entered an order directing Rosine to respond to the discovery requests
       regarding his financial status.
¶6          On December 22, 2009, Umland filed a motion requesting a finding of contempt for
       failing to respond to the plaintiffs’ request for supplemental discovery on Rosine’s financial
       status. The trial court granted Umland’s motion and found him in contempt of court. Umland
       appealed.

¶7                                           ANALYSIS
¶8          On appeal, Umland first contends that “in cases where plaintiffs seek punitive damages,
       a defendant’s financial worth is [not] relevant, discoverable and/or admissible in light of the
       due process analysis expressed in Lowe Excavating, 225 Ill. 2d 456, Gore, 517 U.S. 559, and
       Campbell, 538 U.S. 408, regarding the constitutionality of punitive damages awards.”
       (Emphasis in original). Based on our review of the record, however, we believe the issue
       should be framed differently. Specifically, the question presented to this court is whether the
       trial court abused its discretion when it compelled Rosine to answer discovery regarding his
       financial status, and when it subsequently found Umland in contempt for failing to do so.
¶9          Our analysis begins with an examination of the law of punitive damages. There are two
       separate challenges available to a defendant who seeks to contest an award of punitive
       damages against him–one is a constitutional challenge, and the other arises pursuant to
       Illinois common law. See Franz v. Calaco Development Corp., 352 Ill. App. 3d 1129 (2004).
       Illinois courts have long recognized that “[t]he Illinois common law punitive damages
       inquiry is distinct from the constitutional challenge.” Blount v. Stroud, 395 Ill. App. 3d 8, 22
       (2009); see also Dubey v. Public Storage, Inc., 395 Ill. App. 3d 342 (2009); Lawlor v. North
       American Corp of Illinois, 409 Ill. App. 3d 149 (2011).
¶ 10        Punitive damages awards are intended to serve two purposes; first, to punish the
       wrongdoer, and second, to deter that party and others from committing similar wrongs in the
       future. Deal v. Byford, 127 Ill. 2d 192 (1989). Thus, the assessment of punitive damages is
       a “ ‘fact-sensitive’ undertaking.” Franz, 352 Ill. App. 3d at 1142 (citing Cooper Industries,
       Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 n.11 (2001)). In assessing whether
       an award of punitive damages is excessive in a particular case, Illinois courts consider a fact-
       specific set of relevant circumstances, including: (1) the nature and enormity of the wrong;
       (2) the financial status of the defendant; and (3) the potential liability of the defendant.
       Franz, 352 Ill. App. 3d 1129; see also Deal, 127 Ill. 2d 192.

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¶ 11       The financial status of the defendant is important because an amount sufficient to deter
       one individual may be trivial to another. Black v. Iovino, 219 Ill. App. 3d 378 (1991); see
       also Fopay v. Noveroske, 31 Ill. App. 3d 182, 200 (1975) (court noted that “the law in Illinois
       clearly allows evidence of the defendant’s net worth and pecuniary position in cases in which
       punitive damages are proper”). Essentially, the amount of the punitive damages award should
       send a clear message loud enough to be heard, but not so loud as to deafen the listener.
       Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94 (1994).
¶ 12       Illinois Supreme Court Rule 201(b)(1) (eff. July 1, 2002) provides for broad discovery
       and warrants “full disclosure regarding any matter relevant to the subject matter involved in
       the pending action.” A trial court is “afforded great latitude in determining the scope of
       pretrial discovery, as the concept of relevance for discovery purposes encompasses not only
       what is admissible at trial, but also that which may lead to the discovery of admissible
       evidence.” Tomczak v. Ingalls Memorial Hospital, 359 Ill. App. 3d 448, 456 (2005). A trial
       court’s ruling on a motion to compel discovery will not be reversed absent an affirmative and
       clear showing of an abuse of discretion. Tomczak, 359 Ill. App. 3d 448.
¶ 13       We conclude that in this case, Rosine’s financial status is relevant and therefore properly
       discoverable. Here, the trial court permitted the plaintiffs to file an amended complaint to
       include a request for punitive damages. On appeal, Umland does not challenge the propriety
       of this ruling. Pursuant to well-established Illinois common law jurisprudence, the financial
       status of a defendant is relevant in a case where a judge or jury may properly assess an award
       of punitive damages, as the intent of a punitive damage award is to punish the wrongdoer and
       deter that person, and others, from committing similar acts in the future. Consequently,
       information regarding Rosine’s financial status would need to be admitted to accomplish
       these purposes in this case.
¶ 14       Additionally, we note that a defendant may seek to challenge an award of punitive
       damages on appeal under the Illinois common law, the constitution, or both. Accordingly,
       in order to furnish a complete record for review, evidence of the defendant’s financial status
       is necessary for an appellate court to properly review a challenge to an award of punitive
       damages under the Illinois common law. Thus, it follows that in order to make a complete
       record for review, this information must be relevant, discoverable, and admissible at trial.
¶ 15       Essentially, we agree with the plaintiffs’ contention that Umland has offered an argument
       on appeal that only acknowledges case law centered on a constitutional review of an award
       of punitive damages. However, a defendant may request a court to review whether an award
       of punitive damages is excessive under the constitution, Illinois common law, or both. We
       make no comment on whether the financial status of a defendant is a relevant consideration
       under the constitutional inquiry, as that question is not before us today. Moreover, our review
       of the cases cited by Umland indicates that these courts considered only the constitutional
       side of the inquiry.
¶ 16       Specifically, the Lowe court noted “that neither party [was] raising a common law
       challenge to the award of punitive damages.” Lowe, 225 Ill. 2d at 466. Nothing in the
       language of Lowe indicates that our supreme court intended to extend its analysis of the
       constitutional claim to the common law challenge to punitive damages. Additionally, we note


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       that the Supreme Court in Gore and Campbell concluded that the respective punitive
       damages awards were excessive in violation of the fourteenth amendment due process clause.
       Gore, 517 U.S. 559; Campbell, 538 U.S. 408. Neither Court commented on the propriety of
       an award of punitive damages under an alternate standard, nor did they extend the federal
       constitutional analysis to the common law of any state.
¶ 17       Furthermore, we have not found, and defense counsel has not cited, a case or statute
       providing either that the financial status of a defendant is no longer a relevant inquiry under
       the Illinois common law, or that the financial status is wholly inadmissible in a trial
       involving punitive damages. Therefore, we conclude that the trial court did not abuse its
       discretion when it permitted the plaintiffs to propound supplemental discovery on Rosine
       regarding his financial status. Accordingly, the court did not err when it found Umland in
       contempt. However, because the plaintiffs do not object, we will grant Umland his requested
       relief of vacating the contempt order.
¶ 18       Umland also contends that the due process analysis in Lowe Excavating, Gore and
       Campbell unintentionally creates a violation of the equal protection clauses of the state and
       federal constitutions by irrationally protecting wealthy defendants and prejudicing less
       wealthy defendants. This case, however, is still in the pretrial stages; thus, neither the jury
       nor the court has imposed an award of punitive damages against Rosine. Consequently, in
       the absence of an actual award of punitive damages, we do not have sufficient information
       to determine whether an award of punitive damages has violated Rosine’s right to equal
       protection under the constitution. Therefore, this question is not ripe for our consideration,
       and we may not now consider it. See Smart Growth Sugar Grove, LLC v. Village of Sugar
       Grove, 375 Ill. App. 3d 780 (2007) (court noted that if the harm claimed by a plaintiff is
       speculative, the claim is unripe and the court should not rule on it).

¶ 19                                     CONCLUSION
¶ 20      For the foregoing reasons, the judgment of the trial court of Tazewell County is affirmed.

¶ 21      Affirmed.




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