                              2015 IL App (1st) 132625

                    Nos. 1-13-2625, 1-13-2626 and 1-13-3067
                                 (Consolidated)


                                  Filed August 14, 2015


                                                                   FIFTH DIVISION



                           IN THE APPELLATE COURT
                                      OF ILLINOIS
                            FIRST JUDICIAL DISTRICT



STEVEN MCHALE, Special Administrator of the Estate of     )   Appeal from the
Stacey Lynn McHale, Deceased,                             )   Circuit Court
                                                          )   of Cook County
            Plaintiff-Appellee,                           )
                                                          )
v.                                                        )
                                                          )   No. 10 L 2934 F
W.D. TRUCKING, INC., a Corporation,                       )
                                                          )
            Defendant,                                    )
                                                          )   Honorable
and                                                       )   William Haddad,
                                                          )   Judge Presiding.
KISWANI TRUCKING, INC., a Corporation, RUSSELL A.         )
KLEPPE and TRANSFREIGHT, LLC.,                            )
                                                          )
            Defendants-Appellants.                        )
                                                          )
                                                          )
TRANSFREIGHT, LLC.,                                       )
                                                          )
            Third-Party Plaintiff-Appellee,               )
                                                          )
v.                                                        )
                                                          )
W.D TRUCKING, INC.,                                       )
                                                          )
     1-13-2625) 13-2626) 13-3067)


                    Third-Party Defendant,                             )
                                                                       )
      and                                                              )
                                                                       )
      RUSSELL A. KLEPPE and KISWANI TRUCKING, INC., an                 )
      Illinois Corporation                                             )
                                                                       )
                    Third-Party Defendants-Appellants.                 )


            PRESIDING JUSTICE PALMER delivered the judgment of the court, with
     opinion.
            Justices McBride and Gordon concurred in the judgment and opinion.


                                              OPINION


¶1          Stacey Lynn McHale was killed when a tractor-trailer driven by Russell A. Kleppe

     hit her as she stood at the side of the road beside her automobile. Stacey's husband

     Steven McHale, as the special administrator of Stacey's estate, filed a wrongful death

     action against Kleppe, Kleppe's employer Kiswani Trucking, Inc. (Kiswani) and

     Transfreight, LLC (Transfreight). Kleppe and Kiswani admitted negligence in Stacey's

     death. The trial court entered judgment on an $8 million jury verdict in favor of plaintiff in

     the wrongful death action. It also entered judgment in favor of Transfreight in its third-

     party indemnification action against Kiswani.

¶2          Kiswani and Kleppe appeal from the court's entry of judgment on the jury verdict,

     arguing the court erred in denying their motion for a new trial as the court's failure to

     enforce its decisions on various motions in limine denied them a fair trial. Transfreight

     appeals from the same order, arguing the trial court erred in failing to grant its motion for

     (1) a judgment notwithstanding the verdict as it had no liability for Stacey's death as a

     matter of law and (2) a new trial as the jury's verdict was against the manifest weight of


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     the evidence and the court committed multiple trial errors. Kiswani also appeals from

     the judgment against it in Transfreight's indemnification action, arguing the court's

     finding that Transfreight did not modify the indemnification clause in the agreement

     between the parties was against the manifest weight of the evidence. We have

     consolidated the three appeals for review. We affirm.

¶3                                       BACKGROUND

¶4         Transfreight, Inc., a Canadian corporation, and Transfreight, LLC, a Delaware

     Corporation, (collectively Transfreight) entered into a written agreement with Toyota

     Motor Manufacturing North America (Toyota), a Kentucky corporation, to act as a

     "logistics provider." Under the agreement, Transfreight agreed to provide to Toyota or to

     arrange for the provision of "transportation and coordination of various commodities" as

     set forth in detail in the "scope of work" appendix attached to the agreement.

¶5         Toyota operated the production lines at its manufacturing plants throughout the

     United States on a "just in time" basis, meaning auto parts were delivered to the

     production lines only as the production lines needed them. Since the manufacturing

     plants shared suppliers, Toyota arranged to have auto parts destined for multiple plants

     picked up at one time from each supplier by truck. Each truck picked up auto parts from

     several suppliers and delivered the parts to a "cross-dock," where the parts were

     unloaded, sorted and consolidated into full truck loads that would then be delivered to a

     particular manufacturing plant.

¶6         In the agreement, Transfreight acknowledged that time was of the essence in the

     performance of the transportation services and, if it or its subcontractors were unable to

     meet Toyota's logistics schedule, Transfreight was to notify Toyota immediately.



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     Transfreight could subcontract any portion of the transportation services and would

     "have sole and exclusive control over the manner in which [it] and its employees and

     subcontractor(s) perform the Transportation Services," with the understanding that any

     subcontractors "shall be considered to be solely the employees or subcontractor(s)" of

     Transfreight. The agreement provided "[t]he relationship between the parties shall, at all

     times, be that of independent Logistics Providers and such status shall govern all

     relations among Logistics Provider and any third parties."

¶7             Relevant here is Transfreight's role as a logistics provider for Toyota at the

     Toyota Tsusho Bedford Park cross-dock. The cross-dock was managed and staffed by

     Toyota Tsusho. 1 Transfreight was one of several logistics providers for Toyota at the

     cross-dock and managed a portion of Toyota's inbound material flow there. It had three

     employees on site. Although Transfreight was itself a certified motor carrier and could

     pick up and deliver the Toyota parts, it did not operate in this capacity at the Bedford

     Park cross-dock. Instead, it contracted with other motor carriers to perform the Toyota

     "runs."

¶8             Transfreight received route specifications from Toyota for the supply runs. Each

     route specification included the supplier stops to be made on the route, the number of

     miles to be traveled and the number of days per week the route was to be run. It also

     included the time windows during which a driver was to start the route, arrive at each

     supplier, load supplies and depart the supplier and end the route back at the cross-

     dock. When Transfreight received the route specifications, it provided them to its

     approved carriers, who would then bid on the routes. Transfreight selected one of the


               1
                   It is unclear from the record whether Toyota Tsusho is a subsidiary of Toyota.

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       carriers to run each route, paying the carrier according to the rate presented in the bid.

¶9            A subcontracted carrier fulfilling a Toyota route for Transfreight would dispatch a

       driver and truck to the cross-dock to pick up a trailer and begin the route. The Toyota

       Tsusho personnel at the cross-dock prepared the paperwork for each route, including

       pre and postroute inspection reports and the route specifications, and assigned a trailer

       to each driver on a route. The driver would pick up the paperwork packet, hook-up the

       assigned trailer, complete a preinspection of the empty trailer and start the route. After

       fulfilling the designated pickups at the parts suppliers on the route, the driver would

       return with the filled trailer to the cross-dock and complete the postinspection report.

       Transfreight required that it be notified by Kiswani or the driver when the driver left the

       cross-dock to start a route and when the driver returned to the cross-dock at the

       completion of a route. It also required that it be notified if an "exception" such as delay

       or accident occurred on a route. As required by its agreement with Toyota, Transfreight

       would then notify Toyota regarding the delay. As Toyota operated its production lines in

       a just-in-time manner, any delay in a production line's receipt of auto parts could

       negatively impact production, thus requiring Toyota to adjust the affected route or the

       manufacturing schedules for which the parts were intended.

¶ 10          One of the motor carriers Transfreight used for the Toyota runs was Kiswani.

       Pursuant to an October 2006 written "agreement for transportation services" between

       Transfreight and Kiswani, Kiswani agreed "to act as a sub-contract carrier for

       Transfreight for Transfreight’s performance under its Master Agreement with [Toyota],

       or arrange for the provision of, the transportation and coordination of various

       commodities" as provided in the agreement. Kiswani would provide "transportation



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       services" "at all times required by Transfreight to support" Toyota's "North American

       Manufacturing Companies" and as set forth in the "scope of work" appendix attached to

       the agreement.

¶ 11          The "scope of work" appendix provided that Kiswani was responsible for the "just

       in time *** delivery of auto parts" to designated locations "to be assigned by

       Transfreight" and would "manage all assigned [Transfreight] routes based on the

       monthly regional route design specifications as provided by Transfreight." Kiswani was

       to monitor "all freight delivery flow" and inform Transfreight "of all abnormal situations"

       through the channels set forth in Transfreight's "operating procedures." It was to load

       and deliver all trailers based on Toyota's standards and follow the freight verification

       procedures established by Toyota's North American logistics network. The appendix set

       forth in detail the services Kiswani was to perform to provide the transportation services,

       including the requirement that it monitor the driver's progress on the routes, report any

       abnormal conditions to Transfreight and supervise the loading and offloading of the

       trailers to endure the integrity of the shipments.

¶ 12          The Transfreight-Kiswani agreement provided that "[t]he relationship between the

       parties hereto shall, at all times, be that of Independent Carriers and such status shall

       govern all relations among Carrier [Kiswani] and any third parties." Kiswani's provision

       of the transportation services would include, at Kiswani’s expense, provision "of the

       [necessary] facilities, equipment, materials, labor (including any overtime), related

       overhead and all other items." Kiswani could, "[o]nly with the prior written consent of

       Transfreight, as a part of the Transportation Services," provide or arrange for its

       subcontractor(s) to provide drivers and equipment necessary to perform the required



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       transportations services. Kiswani was to have "sole and exclusive control over the

       manner in which [it] and its employees and subcontractor(s) perform[ed] the

       Transportation Services." It could "engage and employ *** and subcontract" with any

       persons it deemed necessary, with the understanding that "such person(s) shall be

       considered to be solely the employees and subcontractor(s)" of Kiswani.

¶ 13         The agreement provided that Kiswani was to procure and maintain not less than

       $5 million each in both comprehensive liability insurance and vehicle liability insurance

       and name Toyota, Transfreight and their affiliates as additional insureds on the

       insurance policies. Kiswani agreed "[t]he purchase of such insurance coverage *** shall

       not be deemed to satisfy [Kiswani's] liability as set forth herein or in any way modify

       [Kiswani's] obligation to indemnify Transfreight or its Affiliates hereunder." The

       indemnification clause in the agreement provided:

             "[Kiswani] agrees to indemnify and save harmless Transfreight, [Toyota]

             and its Affiliates from and against any and all claims for loss, damage or

             injury, any suit, actions or legal proceedings brought against Transfreight,

             [Toyota] and its Affiliates for or on account of any loss or damage to the

             property of Transfreight, [Toyota] and its Affiliates, or for [or] on account of

             any injuries received or sustained by any person *** to the extent caused

             by, or arise [sic] out of any act or omission, or willful misconduct of

             [Kiswani] or its employees, agents or subcontractor(s) or their employees,

             agents or subcontractors in performing the Transportation Services

             provided for under this agreement."

       The agreement further provided that no waiver of a breach of any provision in the



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       agreement would constitute the waiver of any other breach of the agreement and

       Transfreight's failure to require strict performance of any term in the agreement would

       not be deemed a waiver of Transfreight's rights under the agreement. The agreement

       would be construed in accordance with the laws of the province of Ontario or the

       Commonwealth of Kentucky and was automatically renewed on a yearly basis.

¶ 14          Although the Transfreight-Kiswani agreement required Kiswani to carry $5 million

       both comprehensive liability insurance and vehicle liability insurance, Transfreight had

       determined sometime before August 6, 2009, that carriers such as Kiswani did not need

       to maintain this level of insurance. Instead, Transfreight required its carriers, including

       Kiswani, to carry only $1 million of each insurance. In 2010, Kiswani therefore

       maintained $1 million in comprehensive liability insurance and $1 million in vehicle

       liability insurance under policies naming Transfreight as an additional insured as

       required by Transfreight.

¶ 15          On February 15, 2010, truck driver Russell Kleppe drove a tractor owned by

       W.D. Trucking (W.D.) to the Bedford Park cross-dock to start a Toyota route assigned to

       Kiswani by Transfreight. Kiswani had a contract with W.D. pursuant to which W.D. was

       to haul freight for Kiswani. At the cross-dock, Kleppe picked up an empty trailer owned

       by Transfreight for the 15-hour route to pick up Toyota parts at various suppliers. He left

       the cross-dock and started driving the tractor-trailer to a gas station in Indiana, where he

       was to pick up his "team" codriver for the route. This stop was not listed in the route

       specifications. On his way to the gas station, Kleppe crossed the safety line in the road

       with the tractor-trailer and struck and killed Stacey McHale, who was standing beside

       her disabled vehicle on the shoulder of the highway.



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¶ 16           Plaintiff, Stacey’s husband Steven McHale, as the special administrator of

       Stacey’s estate, filed a wrongful death action against Kleppe, W.D. and Kiswani. He

       then filed a second amended complaint adding a wrongful death count against

       Transfreight, alleging that Kleppe was an authorized agent of Transfreight and that

       Transfreight and Kleppe were negligent in the operation of the tractor. Plaintiff

       subsequently dismissed his claim against W.D.

¶ 17           Transfreight filed a third-party action against W.D., Kiswani and Kleppe. In its

       amended third-party complaint, it sought contribution from W.D., Kleppe and Kiswani

       and, citing the Transfreight-Kiswani agreement, full indemnification from Kiswani. The

       court entered an agreed order dismissing with prejudice the contribution counts and

       Transfreight's action proceeded on the indemnification count against Kiswani. Plaintiff’s

       wrongful death action would be heard by a jury. Transfreight’s indemnification action

       would be heard by the trial court in a bench trial after the conclusion of the jury trial on

       plaintiff's action.

¶ 18           On March 14, 2013, the day before trial was scheduled to start, the trial court

       granted plaintiff leave to file a third amended complaint over Transfreight's objections. In

       the new complaint, plaintiff alleged that “Kiswani/Kleppe” were both agents of

       Transfreight and that Transfreight, Kiswani and Kleppe were negligent in the operation

       of the tractor, causing the death of Stacey McHale. 2   Kleppe and Kiswani admitted

       their negligence and that it proximately caused Stacey's death. They also admitted that

       Kleppe was Kiswani's "employee/agent." The case against them went to the jury solely

               2
               In his second amended complaint, plaintiff had alleged Kleppe was
       Transfreight's agent. In his third amended complaint, he changed the allegation to
       claiming "Kiswani/Kleppe" were agents of Transfreight.


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       on damages. The case against Transfreight focused on whether Kiswani and/or Kleppe

       were agents of Transfreight.

¶ 19         At trial, the jury heard several days of testimony regarding, inter alia, the

       contracts between the parties and Transfreight's and Kiswani's roles and responsibilities

       under those contracts, Transfreight's role and responsibilities under its contract with

       Toyota, Transfreight's control over or right to control Kiswani and/or Kleppe, the

       operations procedures at the cross-dock, the procedures Transfreight required Kiswani

       and its drivers to follow, how Kiswani obtained the routes and fulfilled them and Kleppe's

       actions on the day of the accident. It heard testimony regarding Stacey's life, education,

       and job history and regarding the McHale's marital difficulties, subsequent reconciliation

       and money troubles. The jury also heard testimony regarding the emotional impact of

       Stacey's death on her husband and children as well as conflicting expert testimony

       regarding the economic impact of Stacey's death on her family.

¶ 20         The jury heard Kiswani general manager Jehad Mohammed testify, over

       objections, to his understanding that Kiswani was acting as an agent of Transfreight at

       the time of the accident and that Kleppe was an employee of Kiswani. It heard plaintiff's

       trucking industry expert witness Lew Grill testify, over objections, that, under various

       rules and regulations of the United States Department of Transportation, Transfreight

       was an "employer" and Kleppe an "employee" of both Transfreight and Kiswani at the

       time of the accident, with Transfreight being Kleppe's "ultimate employer." The jury

       heard the opposite opinion from Transfreight's trucking industry expert witness Michael

       Napier, who testified the motor carrier rules and regulations relied on by Grill did not

       apply to Transfreight in the action, Kleppe was Kiswani's "employee" under the



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       regulations at the time of the accident and could not be Transfreight's "employee" as

       Transfreight could not be an "employer" under the regulations. 3

¶ 21          On March 22, 2013, the jury entered a verdict in favor of plaintiff and against

       Transfreight, Kiswani and Kleppe, awarding damages of $8 million. On the verdict form,

       the damages were itemized on separate lines as follows: $1 million each to plaintiff,

       Stacey's son and Stacey's daughter for loss of society, $1 million to plaintiff and $1.75

       million each to Stacey's son and daughter for "grief[,] sorrow and mental suffering" and

       $500,000 to "family" for loss of money, goods and services. The jury answered "yes" to

       a special interrogatory asking whether Kiswani or Kleppe was "acting as an agent" of

       Transfreight at the time of the accident. The court entered judgment on the jury verdict.

¶ 22          On July 17, 2013, the court denied Kiswani and Kleppe's posttrial motion for a

       new trial and Transfreight's posttrial motion for judgment notwithstanding the verdict

       (JNOV) or a new trial. Kiswani and Kleppe (appeal No. 1-13-2625) and Transfreight

       (appeal No. 1-13-2626) filed notices of appeal from the court’s orders.

¶ 23          In April 2013, after entry of the jury verdict, Kiswani had moved for summary

       judgment or a directed verdict on Transfreight's indemnification claim, arguing its duty to

       indemnify was capped at $1 million. It asserted Transfreight had orally modified the

       insurance provision in the contract by reducing the amount of insurance to be held by

       Kiswani from $5 million to $1 million and, by this modification, also had modified the

       indemnification clause under which Kiswani was to hold Transfreight harmless against

       all claims. On July 17, 2013, the trial court denied Kiswani's motion, finding the contract

              3
                Transfreight informed the trial court it was calling its defense expert Napier to
       testify solely to respond to Grill's testimony and that, by having Napier testify, it was not
       waiving its objections to Grill's testimony "or the testifying as to any rules and
       regulations or laws or interpretation of them" by a nonlawyer.
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       specifically provided that the purchase of insurance coverage would not be deemed to

       satisfy Kiswani's liability under the contract or its obligations to indemnify Transfreight.

       The court stated there was no evidence to show that the insurance was to be the sole

       source of indemnification and, although the insurance and indemnification provisions

       were related, they were not dependent upon each other.

¶ 24          Transfreight then moved for entry of judgment against Kiswani on the

       indemnification claim. The court granted the motion, entering judgment for Transfreight

       against Kiswani on the "contractual" indemnification claim under section 13 of the

       transportation services agreement between the parties. On September 3, 2013, it

       denied Kiswani’s posttrial motion for reversal of judgment and/or a JNOV, stating there

       was no reason to delay enforcement of the order. Kiswani filed a timely notice of appeal

       on September 27, 2013 (appeal No. 1-13-3067).

¶ 25          For review, we have consolidated the three appeals, Nos. 1-13-2625 (Kiswani

       and Kleppe's appeal from the $8 million jury verdict in the wrongful death action), 1-13-

       2626 (Transfreight's appeal from the same jury verdict) and 1-13-3067 (Kiswani's

       appeal from the court's entry of judgment in favor of Transfreight in the indemnification

       action). We first consider the two appeals in the wrongful death action and then

       consider the appeal in the indemnity action.

¶ 26                                           ANALYSIS

¶ 27          I. KISWANI AND KLEPPE'S APPEAL IN THE WRONGFUL DEATH ACTION

¶ 28          Kiswani and Kleppe argue the trial court erred in denying their motion for a new

       trial in the wrongful death action. They assert they suffered prejudice and were denied a

       fair trial when the court allowed the introduction of evidence regarding plaintiff's poverty



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       and Kiswani's financial condition in violation of the court's orders granting motions in

       limine barring such evidence. The admission of evidence is within the sound discretion

       of the trial court and we will not reverse the court "unless that discretion was clearly

       abused." Gill v. Foster, 157 Ill. 2d 304, 312-13 (1993). An abuse of discretion occurs

       when the court's ruling is arbitrary, fanciful or unreasonable or where no reasonable

       person would adopt the court's view. TruServ Corp. v. Ernst & Young LLP, 376 Ill. App.

       3d 218, 227 (2007). If the trial court commits an abuse of discretion in allowing the

       admission of evidence, we will order a new trial only if admission of the evidence

       appears to have affected the outcome of the trial. Calloway v. Bovis Lend Lease, Inc.,

       2013 IL App (1st) 112746, ¶ 126.

¶ 29         Prior to trial, the court granted plaintiff's motion in limine No. 15, barring

       defendants from, in any way, referring to or inferring "that Steven McHale once filed

       bankruptcy or suffered financial hardship." It granted Kiswani and Kleppe's motion in

       limine No. 7, barring any reference to or inference regarding "the wealth of Kiswani

       Trucking, Inc.," including Kiswani's size, its employees, the number of tractors it owned

       or leased, its revenues or any financial data. The court also granted Transfreight's

       motions in limine Nos. 12 and 16, barring any evidence or inference regarding the

       poverty, wealth or helplessness of the parties or Transfreight's financial status or

       condition.

¶ 30         As Kiswani and Kleppe assert, the court's orders and its discussion of the

       motions were clear: the wealth and poverty of any party was not to be referred to or

       inferred at trial. When, as here, only compensatory damages are recoverable, the

       financial condition of the parties is irrelevant and often prejudicial as it appeals to the



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       sympathy of the jury, which presumably will favor those least able to bear the loss. Rush

       v. Hamdy, 255 Ill. App. 3d 352, 362 (1993). Therefore, reference to the parties' financial

       condition is impermissible. Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026,

       1036 (2003). However, not every reference which touches on a party's financial status

       constitutes reversible error. Lagoni v. Holiday Inn Midway, 262 Ill. App. 3d 1020, 1033

       (1994). "The reference must be reasonably understood to refer to the financial status of

       the parties and must also be so harmful and prejudicial that it resulted in an improper

       verdict." Id. Only if undue emphasis is placed on the irrelevant evidence, or if the jury's

       verdict is affected by it, is reversal warranted. Rush, 255 Ill. App. 3d at 362.

¶ 31          Kiswani and Kleppe argue a new trial is warranted as it was prejudiced when the

       trial court allowed plaintiff to violate the court's orders on the motions in limine on three

       occasions: (1) during the testimony of Kiswani's general manager Mohammad, (2)

       during plaintiff's testimony and (3) during plaintiff's closing argument.

¶ 32                                   A. Mohammad's Testimony

¶ 33          Kiswani and Kleppe first argue the court erred by allowing plaintiff, over their

       objections and in violation of their motion in limine No. 7, to elicit testimony from

       Kiswani's general manager Mohammad that (1) Kiswani owned approximately 15

       trailers and leased another 10 trailers and (2) Kiswani's "gross sales were above 1

       million" and it "made millions of dollars" over the course of its contract with Transfreight.

       We find no reversible error in the admission of this testimony.

¶ 34          Mohammad's testimony regarding the number of trailers Kiswani owned and

       leased and the "millions" Kiswani earned under the Transfreight contract did violate the

       court's order granting motion in limine No. 7, which explicitly barred mention of or



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       inference regarding Kiswani's revenues or size and "reference to the number of tractors

       it owns or leases." It also could reasonably be understood to refer to Kiswani's financial

       status. However, improper comments that also violate a motion in limine are not

       necessarily reversible error. Willaby v. Bendersky, 383 Ill. App. 3d 853, 862 (2008)

       (“ 'Violation of a motion in limine is not per se reversible error.' ") (quoting Magna Trust

       Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 395 (2000)). Although improper, a

       reference to a party's corporate wealth does not require that the verdict be set aside if it

       appears that no actual prejudice resulted. Ruffiner v. Material Service Corp., 134 Ill.

       App. 3d 747, 758 (1985) rev'd on other grounds 116 Ill.2d 53 (1987). "On appeal, the

       question is not whether the trial was error free, but whether error occurred which

       prejudiced the appellant or unduly affected the outcome." Id. at 758-59. The references

       to Kiswani's revenues and truck fleet in Mohammad's testimony do not rise to the level

       of reversible error.

¶ 35          Looking at the challenged testimony in context, Mohammad made the statements

       during questioning regarding the volume of business Kiswani did for Transfreight under

       the Transfreight-Kiswani agreement. He explained that, although the agreement

       provided Kiswani could do business with other companies, most of its work was for

       Transfreight, from which it earned "millions." Although Mohammad's testimony could

       lead the jury to speculate regarding Kiswani's wealth, it was also relevant to the

       question of agency between Transfreight and Kiswani. The thrust of plaintiff's questions

       to Mohammad was to show that the majority of Kiswani's business came from

       Transfreight, leading to the inference that Transfreight had leverage and control over




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       Kiswani. Control by the principal over an agent is the crux of any agency determination. 4

       Therefore, Mohammad's testimony was entirely relevant to one of the questions before

       the jury: whether Transfreight had the right to control Kiswani such that Kiswani was an

       agent of Transfreight. Further, the record shows plaintiff's counsel did not improperly

       stress Kiswani's financial condition during his questioning of Mohammad. His questions

       regarding the size of Kiswani's fleet and the amount of business Kiswani did for

       Transfreight were not solely intended to demonstrate Kiswani's wealth to the jury.

       Accordingly, we find the admission of this evidence did not seriously prejudice Kiswani

       and Kleppe.

¶ 36          Further, a trial court rules on a motion in limine before hearing the full evidence at

       trial that may justify admission or require exclusion of the evidence. People v. Drum,

       321 Ill. App. 3d 1005, 1008 (2001). Therefore, the court's ruling on a motion in limine is

       an interlocutory order and always subject to reconsideration during trial. Id. at 1008-09;

       People v. Hansen, 327 Ill. App. 3d 1012, 1027 (2002). " 'A court should make whatever

       correction or interpretation of an in limine order is necessary during the trial.' " Davis v.

       City of Chicago, 2014 IL App (1st) 122427, ¶ 93 (quoting Cunningham v. Millers

       General Insurance Co., 227 Ill. App. 3d 201, 205 (1992)). Here, having heard the

       context of the questioning, the court overruled Kiswani and Kleppe's objections to

       Mohammad's testimony and allowed admission of this evidence. We find no error in the

              4
                A principal is liable for the actions of an agent but generally not for the actions
       of an independent contractor, unless the independent contractor is also an agent.
       Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶¶ 42-43. It is the principal's
       right or duty to supervise and control the manner in which the agent performs his work
       (rather than its exercise of the right) which determines whether a principal-agent
       relationship exists. Powell v. Dean Foods Co., 2013 IL App (1st) 082513-B, ¶ 70;
       Lawlor, 2012 IL 112530, ¶ 44.
       .
                                                    16
       1-13-2625) 13-2626) 13-3067)


       court's admission of this evidence.

¶ 37                                     B. Plaintiff's Testimony

¶ 38          Kiswani and Kleppe next argue the court erred in allowing plaintiff, over their

       objections and the court's orders on their motion in limine No.7 and Transfreight's

       motion in limine No. 12, to elicit testimony from plaintiff regarding the McHale's financial

       status, specifically their "poverty" or "financial hardship." For example, plaintiff was

       allowed to testify, over objections, that Stacey worked two jobs, McHale was

       unemployed, Stacey and plaintiff separated as a result of financial pressures in the

       relationship and, when they reunited, Christmas had been "lean as far as presents and

       stuff." Kiswani and Kleppe claim plaintiff purposely elicited the testimony that Christmas

       was "lean" and "tough" in a direct play for sympathy from the jury for Stacey's children.

       In Illinois, the wealth, poverty, health or helplessness of the beneficiary cannot be

       considered in determining the damages in an action for wrongful death. Exchange

       National Bank of Chicago v. Air Illinois, Inc., 167 Ill. App. 3d 1081, 1089 (1988). We find

       no error in the court's admission of this testimony.

¶ 39          It is unquestionable that, standing alone, the challenged testimony might

       reasonably be understood to refer to the McHales' financial status, i.e., their lack of

       financial resources or "poverty." However, a review of the entire direct examination of

       plaintiff shows that plaintiff's counsel did not ask the questions which elicited the

       challenged testimony in an effort to highlight the family's financial status for the jury.

       Rather, counsel's questions of plaintiff were directed to the relationship between Stacey

       and plaintiff, focusing on the fact that they almost divorced but reconciled and were very

       happy together. Plaintiff's testimony that Christmas was "lean" after the reconciliation



                                                   17
       1-13-2625) 13-2626) 13-3067)


       was peripheral to the central point of his testimony, which was that the McHale's were

       so happy to be reunited that they did not care about the lack of presents that year,

       Stacey worked hard to support the family since plaintiff was unemployed and Stacey

       was the glue that held the family together. The challenged testimony showed the role

       Stacey played in the "happy" family and the economic and personal losses the family

       suffered as a result of Stacey's death. Thus, the court did not err in allowing the

       admission of plaintiff's testimony.

¶ 40          Moreover, the trial court gave the jury Illinois Pattern Jury Instruction 31.7, which

       expressly prohibits the jury in a wrongful death action from considering "[t]he poverty or

       wealth of the next of kin" in determining damages. Illinois Pattern Jury Instructions, Civil,

       No. 31.07 (2011) (hereinafter, IPI Civil (2011)). "The jury is presumed to follow the

       instructions given to it by the court." People v. Fields, 135 Ill. 2d 18, 53 (1990).

       Therefore, even if plaintiff's testimony improperly led the jury to speculate regarding the

       McHale's financial status, the instruction cured any prejudice from that testimony.

¶ 41          Kiswani and Kleppe assert the court improperly allowed plaintiff to use the

       McHale's financial information as a shield and a sword when it allowed plaintiff to show

       the McHales suffered financial hardship but barred defendants from countering this

       information with evidence of a bankruptcy petition plaintiff had filed. The court had

       granted plaintiff's motion in limine No. 15, barring introduction of or reference to the fact

       that plaintiff once filed bankruptcy or suffered financial hardship. Kiswani and Kleppe

       claim the bankruptcy petition would have showed the lean times were self-inflicted and

       the McHales "had brought on their own financial ruin" as Stacey had incurred huge

       debts well before plaintiff lost his job. As held above, plaintiff's testimony regarding the



                                                    18
       1-13-2625) 13-2626) 13-3067)


       McHales' financial hardships was not improper evidence of their financial status but

       rather was evidence of the personal and economic losses the family suffered as a result

       of Stacey's death. As plaintiff's testimony regarding the McHale's reduced financial

       circumstances was admissible for purposes other than to show financial hardship, there

       was no reason to allow Kiswani and Kleppe to introduce the bankruptcy petition to show

       the lean times were self-inflicted. The court did not err in granting plaintiff's motion in

       limine barring introduction of the bankruptcy petition.

¶ 42          In sum, the court did not err in allowing admission of the challenged testimony

       and denying Kiswani and Kleppe's motion for a new trial on this basis.

¶ 43                                      C. Closing Argument

¶ 44          Kiswani and Kleppe lastly argue "the final nail was put into the coffin" during

       plaintiff's closing argument, when the court overruled Kiswani and Kleppe's objection to

       the following statement:

              "Mr. Mohammad signed the contract and went to work for Transfreight. It

              was a pretty good living. He testified over the years that they had that

              contract with Transfreight, that there were millions of dollars."

       There is no question this statement reasonably could be understood to refer to

       Kiswani's financial status, specifically to its wealth. Reference to the parties' financial

       condition is impermissible during closing argument. Thomas, 344 Ill. App. 3d at 1036.

       Further, the statement violated the motions in limine expressly prohibiting reference to

       or inference regarding the parties' financial condition.

¶ 45          "An improper insinuation during closing argument that violates an in limine order

       can be the basis for a new trial." Boren v. The BOC Group, Inc., 385 Ill. App. 3d 248,



                                                    19
       1-13-2625) 13-2626) 13-3067)


       257 (2008). However, improper comments during closing argument are not reversible

       error unless substantial prejudice is shown. LID Associates v. Dolan, 324 Ill. App. 3d

       1047, 1065 (2001). Where the trial court sustains a timely objection and instructs the

       jury to disregard the improper comment, the court sufficiently cures any prejudice.

       Willaby, 383 Ill. App. 3d at 862.

¶ 46          Here, the court initially overruled Kiswani and Kleppe's objection to the "millions

       of dollars" statement plaintiff made during his closing argument. However, immediately

       after the conclusion of plaintiff's closing argument, the court addressed the jury as

       follows:

                     "Before we take a break, folks, a little housekeeping. Mr. Tobin

              [Kiswani and Kleppe's counsel] made an objection and that's sustained.

              You heard the Plaintiff refer to the financial status of Jay Mohammad and

              Kiswani Trucking. Although there's some evidence Kiswani owned several

              trucks and had a few employees, I think he said five, any reference to

              millions of dollars or the wealth or poverty of any party is absolutely

              irrelevant and immaterial. You're instructed to disregard the financial

              status of the Defendant or Plaintiffs [sic]. The wealth or poverty is

              absolutely irrelevant in this case. You are to put all parties on a level

              playing field and not allow any sympathy or prejudice one way or the other

              regarding that issue." (Emphasis added.)

¶ 47          In other words, although the court initially overruled Kiswani and Kleppe's

       objection to the "millions of dollars" closing statement, it shortly thereafter reversed its

       ruling and sustained the objection. It also immediately gave the jury a limiting instruction



                                                   20
       1-13-2625) 13-2626) 13-3067)


       reflecting the rule that the wealth and poverty of the parties should not be considered.

       Again, "[t]he jury is presumed to follow the instructions given to it by the court." Fields,

       135 Ill. 2d at 53. "A circuit court's instruction to disregard certain evidence can cure

       prejudice resulting from the jury's exposure to that evidence." Kim v. Evanston Hospital,

       240 Ill. App. 3d 881, 891 (1992). Thus, by correctly admonishing the jury that wealth or

       poverty was absolutely irrelevant in the case and to disregard the financial status of the

       parties, the court cured any prejudice to Kiswani and Kleppe arising from the improper

       statement. Accordingly, the statement was not so harmful and prejudicial as to

       constitute reversible error.

¶ 48          In sum, we find no reversible error in (1) the admission of Mohammad's

       testimony regarding Kiswani's "millions" of dollars and the size of its trucking fleet, (2)

       the admission of plaintiff's testimony regarding his family's "lean" Christmas and the

       financial stress his family suffered due to his unemployment or (3) plaintiff's counsel's

       statement in closing argument that Kiswani had made a "pretty good living," "millions of

       dollars." The court did not err in denying Kiswani and Kleppe's motion for a new trial on

       these bases.

¶ 49                  II. TRANSFREIGHT'S APPEAL IN THE WRONGFUL DEATH ACTION

¶ 50          Transfreight argues the trial court erred in failing to grant its motion for (1) a

       JNOV in the wrongful death action as it had no liability for Stacey's death as a matter of

       law and the case should never have gone to the jury and (2) a new trial as the jury's

       verdict was against the manifest weight of the evidence and the court committed

       assorted trial errors. For the following reasons, we find that the trial court did not err in

       denying Transfreight's motions for JNOV or a new trial.



                                                    21
       1-13-2625) 13-2626) 13-3067)


¶ 51                           (A) Judgment Notwithstanding the Verdict

¶ 52          Transfreight first argues the court erred in denying its motion for a JNOV. A court

       may enter a JNOV only where "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). A motion for a JNOV presents "a question of law as to whether,

       when all of the evidence is considered, together with all reasonable inferences from it in

       its aspect most favorable to the plaintiffs, there is a total failure or lack of evidence to

       prove any necessary element of the plaintiffs' case." Merlo v. Public Service Co. of

       Northern Illinois, 381 Ill. 300, 311 (1942). We review the court's denial of Transfreight's

       motion for JNOV de novo. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102,

       132 (1999).

¶ 53          Transfreight asserts plaintiff presented no evidence to the jury establishing that

       either Kleppe or Kiswani was an agent of Transfreight and, therefore, plaintiff failed to

       show Transfreight was liable for Kleppe's and/or Kiswani's negligent acts or omissions

       under the doctrine of respondeat superior. Although a person injured by the tortious

       action of another must generally seek his or her remedy from the person who caused

       the injury, the principal-agent relationship is an exception to this rule. Lawlor v. North

       American Corp. of Illinois, 2012 IL 112530, ¶ 42. " 'Under the doctrine of respondeat

       superior, a principal may be held liable for the tortious actions of an agent which cause

       a plaintiff's injury, even if the principal does not himself engage in any conduct in

       relation to the plaintiff.' " Id. (quoting Woods v. Cole, 181 Ill. 2d 512, 517 (1998)). An

       employer usually is not vicariously liable for the tortuous actions of an independent



                                                   22
       1-13-2625) 13-2626) 13-3067)

       contractor. Id. However, the fact that someone is an independent contractor does not

       bar the attachment of vicarious liability for the independent contractor's actions if he or

       she is also an agent. Id. ¶ 43. The determination of whether a person is an agent or

       independent contractor rests upon the particular facts and circumstances of each case.

       Id. ¶ 44. "The burden of proving the existence and scope of an agency relationship is on

       the party seeking to impose liability on the principal." Id.

¶ 54          Viewing the evidence in the light most favorable to plaintiff, we find the evidence

       does not so overwhelmingly favor Transfreight that no contrary verdict could ever stand.

       In fact, as discussed in section II(B)(1), the jury's verdict in favor of plaintiff and its

       finding that Kiswani or Kleppe was an agent of Transfreight at the time of the accident

       was not against the manifest weight of the evidence. Infra ¶¶ 60-71. The trial court did

       not err in denying Transfreight's motion for JNOV.

¶ 55                                           (B) New Trial

¶ 56          Transfreight argues that the trial court erred in denying its motion for a new trial.

       On a motion for a new trial, the trial court will set aside the jury verdict and order a new

       trial only if (1) the jury verdict is contrary to the manifest weight of the evidence or (2)

       serious and prejudicial errors were made at trial in the exclusion or admission of

       evidence. Favia v. Ford Motor Co., 381 Ill. App. 3d 809, 815-16 (2008). We will not

       reverse the trial court's ruling on a motion for a new trial unless "it is affirmatively shown

       that it clearly abused its discretion." Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992).

¶ 57          Transfreight argues a new trial was warranted as (1) the jury's verdict was

       against the manifest weight of the evidence. It also argues the trial court committed

       prejudicial trial errors by (1) allowing into evidence Grill's legal conclusions on the issue



                                                     23
       1-13-2625) 13-2626) 13-3067)


       of agency, (2) allowing into evidence the contract between Transfreight and Toyota into

       evidence, (3) allowing into evidence Mohammad's opinion testimony regarding agency,

       (4) allowing plaintiff to file a third amended complaint on the eve of trial, (5) allowing the

       verdict form which called for apportionment of the wrongful death damages and (6)

       failing to submit Transfreight's proposed instruction regarding Mohammad's admission

       of agency to the jury. Transfreight lastly argues the accumulation of serious errors

       deprived it of a fair trial.

¶ 58           For the following reasons, we find the jury's verdict was not against the manifest

       weight of the evidence and the alleged trial errors did not deny Transfreight a fair trial

       such that a new trial was warranted.

¶ 59                                  (1) Manifest Weight of the Evidence

¶ 60           Transfreight argues the jury's verdict finding Transfreight liable for Kiswani and

       Kleppe's negligence was against the manifest weight of the evidence as the evidence

       pointed to a conclusion directly at odds with the evidence, showing that neither Kleppe

       nor Kiswani were Transfreight's agents. "A verdict is against the manifest weight of the

       evidence only where the opposite result is clearly evident or where the jury's findings

       are unreasonable, arbitrary and not based upon any of the evidence." Lawlor, 2012 IL

       112530, ¶ 38. It is for the jury to weigh the evidence, determine the credibility of

       witnesses and resolve any conflicts in expert testimony and we cannot substitute our

       judgment for that of the jury in such determinations. Dabros v. Wang, 243 Ill. App. 3d

       259, 264 (1993); Becht v. Palac, 317 Ill. App. 3d 1026, 1035 (2000). The jury's verdict in

       favor of plaintiff was not against the manifest weight of the evidence.

¶ 61           Kiswani and Kleppe admitted their liability for the accident and that Kleppe was



                                                      24
       1-13-2625) 13-2626) 13-3067)


       the "employee/agent" of Kiswani. The jury found Transfreight liable for Kiswani and/or

       Kleppe's negligence under the doctrine of respondeat superior, finding Kiswani or

       Kleppe was Transfreight's agent at the time of the accident. Under the doctrine, a

       principal may be liable for the tortious actions of its agent. Lawlor, 2012 IL 112530, ¶ 42.

       An agency is a fiduciary relationship in which a principal has the right to control the

       manner in which the agent performs his work and the agent has the power to act on the

       principal’s behalf and subject the principal to liability. Saletech, LLC v. East Balt, Inc.,

       2014 IL App (1st) 132639, ¶¶ 14-15. In contrast, an independent contractor is not under

       the orders or control of the person for whom he/she does work. Lawlor, 2012 IL 112530,

       ¶ 43. Instead, an independent contractor seeks to produce a given result for that person

       and may use his own discretion in matters not otherwise specified and is not subject to

       the orders of the person for whom the work is done in respect to the details of the work.

       Id. Although a principal is not generally vicariously liable for the actions of an

       independent contractor, such liability may arise if the independent contractor is also an

       agent. Id. ¶¶ 42-43.

¶ 62          "[N]o precise formula exists for deciding when a person's status as an

       independent contractor is negated." Id. ¶ 44. " '[T]he cardinal consideration is whether

       that person retains the right to control the manner of doing the work.' " Id. (quoting

       Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 46 (1999)). It is the right or

       duty to supervise and control, not the exercise of the right, which determines whether a

       principal-agent relationship exists. Powell v. Dean Foods Co., 2013 IL App (1st)

       082513-B, ¶ 70. In considering whether a person is an agent or an independent

       contractor, courts should also consider the following factors: "(1) the question of hiring;



                                                     25
       1-13-2625) 13-2626) 13-3067)


       (2) the right to discharge; (3) the manner of direction of the servant; (4) the right to

       terminate the relationship; and (5) the character of the supervision of the work done."

       Lawlor, 2012 IL 112530, ¶ 44.

¶ 63          The presence of one or more of these factors is " 'not necessarily conclusive' " of

       whether the person is an agent or an independent contractor. Id. ¶ 44 (quoting

       Petrovich, 188 Ill. 2d at 47). Rather, the factors " 'merely serve as guides to resolving

       the primary question of whether the alleged agent is truly an independent contractor or

       is subject to control.' ” Id. (quoting Petrovich, 188 Ill. 2d at 47). In addition to the above

       factors, courts can also consider the method of payment for the worker's services,

       whether the employer provides the tools, materials or equipment for the worker, the

       level of skill required to perform the work and whether the employer deducts or pays for

       insurance, social security, and taxes on the employee’s behalf. Dowe v. Birmingham

       Steel Corp., 2011 IL App (1st) 091997, ¶ 30. "The burden of proving the existence and

       scope of an agency relationship is on the party seeking to impose liability on the

       principal." Lawlor, 2012 IL 112530, ¶ 44.

¶ 64          Transfreight argues plaintiff submitted no evidence to support a finding that either

       Kleppe or Kiswani was its agent. It first asserts plaintiff submitted no evidence to

       establish Transfreight retained any right to control the manner in which Kleppe

       performed his work, specifically the manner in which he drove the tractor-trailer on the

       day of the accident. It claims, to the contrary, that the evidence showed the sole and

       exclusive control over the manner in which Kleppe performed his work rested with

       Kleppe's coemployers Kiswani and W.D. and did not show any of the secondary factors

       in determining an agency relationship, specifically that Transfreight had the right to hire



                                                    26
       1-13-2625) 13-2626) 13-3067)


       or discharge Kleppe or that it had provided him with the tools necessary to perform his

       work. Transfreight then asserts plaintiff submitted no evidence to the jury to establish

       Transfreight retained any right to control the methods Kiswani used to perform its

       obligations under the parties' agreement. It claims, to the contrary, that the evidence

       showed Kiswani had the sole and exclusive control over the manner in which it fulfilled

       its contractual obligations to Transfreight. Specifically, it asserts the evidence showed

       Kiswani had the sole responsibility for any trailers in its possession and to ensure

       Department of Transportation compliance, to hire and train its drivers and to assign and

       remove its drivers from the Toyota routes. We find plaintiff met its burden to show that

       an agency relationship existed between Transfreight as the principal and Kiswani (and

       Kiswani's own agent Kleppe) as the agent.

¶ 65         Transfreight is correct that the jury heard ample evidence showing Transfreight

       did not have the right to control Kleppe's performance under the parties' agreement. For

       example, the Transfreight-Kiswani agreement for transportation services provides

       Kiswani "shall have sole and exclusive control over the manner in which *** its

       employees and subcontractor(s) perform Transportation Services." Kiswani admitted

       Kleppe was its employee. Kleppe testified he drove for Kiswani, was paid by W.D.,

       received his instructions regarding how to pick up a trailer at the cross-dock and what

       route to run from Kiswani and drove tractors owned by W.D. Except for the time

       windows specified in the route for start and end times and vendor pickups, Kleppe was

       free to run the route as he chose, selecting the roads to take and when and where to

       stop to refuel. Kleppe stated Kiswani directed him on where to pick up the route

       specification envelope at the cross-dock and a Kiswani dispatcher dispatched him. He



                                                   27
       1-13-2625) 13-2626) 13-3067)


       had never had person-to-person communication with anyone at Transfreight and

       received no instructions from Transfreight. Kiswani assigned Kleppe the routes and

       trained him on the cross-dock procedures such as where to pick up the paperwork

       packet for the route, filling out route reports and performing pre and postrun inspections

       of the trailer. Kiswani provided Kleppe with the tractor, W.D. assigned him his team

       driver and Kleppe turned his completed driving logs in to Kiswani or W.D. Further,

       Napier, Transfreight trucking industry expert witness, testified Kleppe was an

       "employee" of Kiswani not Transfreight as defined in the Federal Transportation Safety

       Regulations applicable in the trucking industry.

¶ 66          The jury also heard evidence showing Transfreight did not have the right to

       control Kiswani. For example, the Transfreight-Kiswani agreement provided Kiswani's

       provision of the transportation services would include, at Kiswani’s expense, provision

       "of the [necessary] facilities, equipment, materials, labor (including any overtime),

       related overhead and all other items." Kiswani was to have "sole and exclusive control

       over the manner in which [it] and its employees and subcontractor(s) perform[ed] the

       Transportation Services" and could "engage and employ *** and subcontract" with any

       persons it deemed necessary, with the understanding that "such person(s) shall be

       considered to be solely the employees and subcontractor(s)" of Kiswani. Transfreight

       did not pay Kiswani a salary or hourly wage but rather paid it based on the per-mile bid

       Kiswani had made on each route. Mohammed, Kiswani's general manager, testified

       Kiswani had the sole responsibility to hire or discharge drivers without Transfreight's

       involvement and was free to do business with other companies. He stated Kiswani

       assigned a driver to a route, had sole responsibility for any trailer in its possession, had



                                                   28
       1-13-2625) 13-2626) 13-3067)


       sole authority to move a driver off a route and operated its business without

       Transfreight's interference.

¶ 67          Debra Fulkerson Soper, a longtime Transfreight employee, testified Toyota

       planned all its integrated routes and provided the routes to Transfreight, who would then

       provide the routes to its approved carriers for bidding. 5 Soper testified Transfreight had

       three employees at the Bedford Park cross-dock but the Toyota Tsusho personnel at

       the cross-dock assigned the trailers to the various routes, prepared all the documents to

       be given to the driver of a route and placed the document packet in the "bin" for a driver

       to pick up at the start of his route. John Back, Transfreight's former general manager of

       purchase transportation, testified the determination regarding window times and flow of

       parts through the Toyota delivery system was outside Transfreight's knowledge and

       came directly from Toyota, which supplied Transfreight with the route specifications

       such as start and end times, supplier stops, supplier time windows and packaging

       requirements. He testified Transfreight required its subcontractors to report any delays

       while on a route only so that Transfreight could communicate this to Toyota, as it was

       required under its contract with Toyota to inform Toyota of any delays. Back testified

       under Transfreight's agreement with Kiswani, Transfreight was to provide the trailers but

       Kiswani was to provide the tractors, tools and drivers and that Transfreight left it to the

       carriers and drivers to decide which roads to take on a route.

¶ 68          However, the jury also heard evidence from which it could determine that

              5
               Soper testified she had been the "contract manager" responsible for the
       "Toyota integrated routes" and had at one time been a service center manager at the
       Bedford Park cross-dock. She explained an integrated route provides for the pickup of
       goods from multiple plants on one truck, delivery by the truck of the goods to a cross-
       dock, separation of the goods at the cross-dock into other trucks and delivery of the
       sorted parts to a particular plant.
                                                   29
       1-13-2625) 13-2626) 13-3067)

       Transfreight did retain the right to control Kiswani's manner of fulfilling the agreement

       and Kleppe's conduct in driving a route under the agreement. For example, the

       Transfreight-Toyota contract provided:

             "[Transfreight] shall have sole and exclusive control over the manner in

             which    [it]   and   its   employees   and   subcontractor(s)   perform   the

             Transportation Services, and [it] shall engage and employ such persons,

             and subcontract with person(s) approved by [Toyota] ***, it being

             understood and agreed that such person(s) shall be considered to be

             solely the employees or subcontractor(s) of [Transfreight]."

       It provided Transfreight was responsible for ensuring the Toyota routes were

       fulfilled according to the specifications in the contract by ensuring its

       subcontractor complied with all Toyota's requirements. Back testified that, if a

       carrier violated any of its material obligations under the Transfreight-Kiswani

       agreement, Transfreight had the right to cancel the agreement.

¶ 69         Further, Grill, Transfreight's trucking industry expert witness, testified that, under

       the Federal Motor Carrier Safety Regulations applicable in the trucking industry, a driver

       could have multiple employers and, under the regulations, Kleppe was the "employee"

       of both Kiswani and Transfreight. Kiswani general manager Mohammad testified it was

       his understanding that Kiswani was acting as an agent of Transfreight at the time of the

       accident and Kleppe became an employee of Kiswani pursuant to the federal

       regulations since he was working for Kiswani at the time of the accident. Mohammad

       stated Transfreight determined the route and time windows, whether a route was a solo

       or team run and which trailer to pick up at the cross-dock. He stated that, at the



                                                     30
       1-13-2625) 13-2626) 13-3067)


       beginning of the Transfreight-Kiswani relationship, Transfreight required Kiswani to

       report its drivers' progress within 15 minutes to an hour of the time window specified in a

       route. Although, over time, Transfreight "became looser" and only required a phone call

       when the driver left and returned to the cross-dock, Mohammad stated Transfreight

       could still require the multiple phone calls although it did not exercise this control. If a

       delay occurred on a route, Kiswani was to notify Transfreight. Mohammad testified

       Kiswani reported to Transfreight "all monthly performance indicators" so that

       Transfreight could track the percentage of times Kiswani was on time for its deliveries.

       Mohammad knew Kiswani's business with Transfreight was in furtherance of

       Transfreight's contract with Toyota but had not seen the Toyota contract and did not

       know Transfreight's obligations there under. Mohammad also testified the scope of work

       appendix attached to the Transfreight-Kiswani agreement for transportation services

       made Kiswani responsible for the "just in time" pickup and delivery of auto parts to

       locations to be assigned by Transfreight. Kiswani was to follow the Toyota standards for

       loading, delivering and freight verification, track and follow a driver's progress and report

       abnormal conditions to Transfreight.

¶ 70          The jury's finding that Transfreight was liable for Kiswani and/or Kleppe's actions

       under the doctrine of respondeat superior was neither unreasonable nor arbitrary. The

       jury heard days of conflicting testimony regarding the relationship between the parties

       and the factors to be considered in determining whether an agency relationship exists

       such as right to control, right to hire and fire, right to supervise and provision of tools

       and supplies. In part, it heard Grill testify Kleppe was an "employee" of Transfreight

       under the federal regulations and Napier testify Kleppe was not Transfreight's employee



                                                    31
       1-13-2625) 13-2626) 13-3067)


       under the regulations. It heard Mohammad testify that Kiswani was an agent of

       Transfreight and assorted other witnesses testify Kiswani was an independent

       contractor of Transfreight. The jury heard Mohammad testify Transfreight determined all

       the route specifications while Soper and Back testified Toyota designed the routes and

       gave them to Transfreight. It heard Mohammad testify that Transfreight set the

       procedures at the cross-dock while Soper testified the Toyota Tsusho personnel set the

       procedures and prepared the paperwork. The jury considered the Transfreight-Kiswani

       agreement, in which Kiswani agreed it was an independent contractor and had sole

       control over the manner in which its subcontractors ran the Toyota routes but in which

       the scope of work appendix set out the requirements for Kiswani's performance in

       precise detail and arguably showed an entirely different relationship, that of an agent. It

       heard Mohammad testify he ran Kiswani without Transfreight's interference but also

       heard Mohammad's litany of the requirements set by Transfreight with which Kiswani

       needed to comply.

¶ 71          The jury was instructed in the common law of agency, weighed all the evidence,

       determined the credibility of the witnesses and resolved the conflicts in expert testimony

       in plaintiff's favor, finding the evidence supported finding an agency relationship existed

       sufficient to impose liability on Transfreight for the accident under the doctrine of

       respondeat superior. We cannot substitute our judgment for that of the jury in such

       determinations. Dabros, 243 Ill. App. 3d at 264. The jury's finding was based upon

       credible evidence showing Transfreight had the right to control the manner in which

       Kiswani and/or Kiswani's admitted employee and agent Kleppe drove the Toyota route

       at the time of the accident. Its verdict was, therefore, not against the manifest weight of



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       1-13-2625) 13-2626) 13-3067)


       the evidence and the court did not err in denying the motion for a new trial on this basis.

¶ 72                            (2) Admission of Grill's Legal Conclusions

¶ 73            Transfreight argues it was denied a fair trial when the trial court allowed into

       evidence the testimony of Lew Grill, plaintiff's retained truckling industry expert witness,

       that, under section 390.5 of the Federal Motor Carrier Safety Regulations (49 C.F.R. §

       390.5 (2012)), Kleppe was an "employee" of Transfreight at the time of the accident.

       The court had denied Transfreight's motion in limine No. 33 seeking to bar Grill from

       testifying to this opinion and overruled Transfreight's objections to Grill's testimony at

       trial.

¶ 74            The admission of evidence is within the sound discretion of the trial court and we

       will not reverse the trial court " 'unless that discretion was clearly abused.' ” Calloway v.

       Bovis Lend Lease, Inc., 2013 IL App (1st) 112746, ¶ 82 (quoting Gill v. Foster, 157 Ill.

       2d 304, 312-13 (1993)). An abuse of discretion occurs when the trial court's ruling is

       arbitrary, fanciful or unreasonable, or where no reasonable person would adopt the

       court's view. Id. If the trial court did commit an abuse of discretion in admitting evidence,

       a new trial should be ordered only if the admission of evidence substantially prejudiced

       the aggrieved party and affected the outcome of the trial. Id. ¶ 126; Ramirez v. FCL

       Builders, Inc., 2014 IL App (1st) 123663, ¶ 198. The party seeking reversal bears the

       burden of showing such prejudice. Id. ¶ 198.

¶ 75            Transfreight argues Grill's testimony was inadmissible for four reasons: (1)

       section 390.5 had no application to the issues presented at trial, (2) by allowing Grill to

       testify that section 390.5 did apply, the court "usurp[ed]" its own role to construe a

       statute or administrative rule, (3) even if the regulation did apply to the facts of the case,



                                                    33
       1-13-2625) 13-2626) 13-3067)


       the statutory definition of "employee" referenced in Grill's testimony was irrelevant to the

       issue of common law agency and necessarily included "a category of persons who

       would, as a matter of law, lie outside the traditional concept of agent," and (4) Grill's

       testimony that Kleppe was "an agent" of Transfreight at the time of the accident was a

       legal conclusion on the ultimate issue in the case, thus improperly invading the province

       of the jury. We find no prejudicial error in the admission of Grill's testimony.

¶ 76          First, Grill did not testify that Kleppe was Transfreight's agent. He limited his

       testimony to stating Kleppe was an "employee" of Transfreight under the Federal Motor

       Carrier Regulations. Granted, under common law, an employee is generally an agent,

       however, Grill did not specifically testify to this.

¶ 77          Second, Grill's opinions were not legal conclusions. "[E]xperts cannot offer legal

       conclusions that infringe on the jury's duties." (Internal quotation marks omitted.) Todd

       W. Musburger, Ltd., v. Meier, 394 Ill. App. 3d 781, 800 (2009). " '[E]xpert testimony as

       to legal conclusions that will determine the outcome of the case is inadmissible.' " Id.

       (quoting Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557,

       564 (7th Cir. 2003)). Grill stated his opinions regarding the application of the Federal

       Motor Carrier Regulations to the facts of the case were based on "how we apply [the

       regulations] in the [trucking] industry." He testified he based his opinions on his own

       education, experience and background, his knowledge of industry customs and practice

       and "how we apply [the regulations] for practical purposes." Applying those regulations

       in order to define the roles of the parties, Grill concluded Transfreight was a "motor

       carrier" and "employer" at the time of the accident and Kleppe was its "employee."

¶ 78          Expert testimony should be admitted if:



                                                      34
       1-13-2625) 13-2626) 13-3067)


             “(1) the proffered expert has knowledge and qualifications uncommon to

             laypersons that distinguish him as an expert; (2) the expert's testimony

             would help the jury understand an aspect of the evidence that it otherwise

             might not understand, without invading the province of the jury to

             determine credibility and assess the facts of the case; and (3) the expert's

             testimony would reflect generally accepted scientific or technical

             principles.” People v. Simpkins, 297 Ill. App. 3d 668, 681 (1998).

       As the trial court stated in denying Transfreight's renewed motion to bar Grill's

       testimony, "[a]n industry expert can come in and talk about how [the regulations apply],

       not in a legal sense, but in an industry custom usage sense as to motor carriers under

       the federal regulations." Grill, a trucking industry expert, provided the jury with his

       specialized knowledge regarding the relationship of the parties in the context of the

       trucking industry in which they operated. He did not state an opinion regarding the

       ultimate issue in the case, whether Kleppe was an agent of Transfreight. He did not

       opine that an "employee" under the regulations is an agent or an employee at common

       law. Grill merely determined that, under section 390.5 of the regulations, as a result of

       Transfreight's ownership of the trailer involved in the accident, Transfreight was a

       "motor carrier" and thus the "ultimate employer" of "employee" Kleppe as understood in

       the trucking industry. Napier, Transfreight's own trucking industry expert witness,

       similarly used his background and experience with trucking industry custom and

       practice to interpret the regulations in support of his determination that Kleppe was not

       employee of Transfreight. Neither expert stated a legal conclusion.

¶ 79         Further, immediately before plaintiff's counsel began his direct examination of



                                                  35
1-13-2625) 13-2626) 13-3067)


Grill, the court gave the jury the following admonishment at Transfreight's request:

      "[F]olks, when a witness uses terminology, and I've told you this before,

      that you are going to have to determine, issues of agency, employment

      and so on, he's doing so only in a conventional sense of the words and is

      referring to them in a laymen's common definition in the trade or industry

      that they claim expertise in.

             In no way is a witness using any terms such as agent, employee

      and so on in a legal sense nor is he giving an opinion of the term from a

      legal standpoint. You will make the determination of those issues as to

      what is an agent or employee or other such issues at the end of this case

      and you will be given instructions of law and we will tell you some of that

      information.

             Whether an individual is an agent or employee of another is for you

      to decide after the evidence at the end of the case and my instructions,

             I want you to hear this as well as Mr. Grill and make sure he

      understands it as well."

The court previously had given a similar admonishment during Mohammad's testimony

and subsequently repeated the admonishment a third time during Napier's testimony.

As a result, the jury had been reminded repeatedly that Grill's opinions, as well as those

of the other witnesses, were not legal conclusions and it was for the jury, not the

witnesses, to decide whether Kleppe was an agent or employee of Transfreight. Any

inference that Grill's opinions were legal conclusions was cured by this repeated

admonishment.



                                           36
       1-13-2625) 13-2626) 13-3067)


¶ 80          Third, Grill did not usurp the function of court by his interpretation of the federal

       regulations. Transfreight asserts it is the role of the judge to construe a statute or

       administrative rule and, by allowing Grill to state legal conclusions, the court allowed

       him to usurp the court's role. See Northern Illinois Automobile Wreckers & Rebuilders

       Ass'n v. Dixon, 75 Ill. 2d 53, 59 (1979) ("[i]t is a court's task to construe a statute or rule,

       if consistent with the legislative intent, in a manner compatible with constitutional

       limitations"); Mejia v. White GMC Truck, Inc., 336 Ill. App. 3d 702, 707 (2002) ("[t]he

       meaning of federal regulations is a question of law, to be resolved by the court").

¶ 81          "It is the duty of the trial court to decide the legal issues; while the role of the jury

       is to decide factual issues. The trial court instructs the jury as to the law and no expert

       can opine as to the law." Todd W. Musburger, Ltd., 394 Ill. App. 3d at 800-01. However,

       as held above, Grill did not resolve issues of law or state legal conclusions. He applied

       the federal regulations to the facts of the case to define the roles of the parties in the

       trucking industry. He did not state Kleppe was an agent of Transfreight or perform a

       legal analysis of the regulation and did not usurp the court's role by his testimony. There

       was no error in allowing Grill to apply the regulation to the facts of the case.

¶ 82          Fourth, assuming arguendo that Transfreight is correct that section 390.5 does

       not apply in the case, the admission of Grill's testimony did not substantially prejudice

       Transfreight or affect the outcome of the trial as the jury heard contrary evidence from

       Napier, Transfreight's trucking industry expert witness. Grill had told the jury that,

       pursuant to section 390.3 of the Federal Motor Carrier Regulations, the regulations

       applied to the case as, under the definitions in section 390.5, Transfreight was an




                                                     37
       1-13-2625) 13-2626) 13-3067)


       "employer" at the time of the accident and Kleppe was Transfreight's "employee." 6 He

       testified Transfreight was an "employer" under section 390.5 as it was a "motor carrier,"

       a business engaged in interstate commerce that owned a commercial motor vehicle,

       specifically the trailer involved in the accident. Grill explained Kleppe met the section

       390.5 definition of "employee" as he was the driver operating the commercial motor

       vehicle, the trailer, at the time of the accident. He told the jury a driver could have

       multiple employers under the regulation and, while Kiswani was Kleppe's employer,

       Transfreight was Kleppe's "ultimate employer."

¶ 83         The jury then heard the opposite opinion from Napier, who told the jury the

       federal regulations did not apply to Transfreight as the section 390.5 definition of

       "employer" did not apply to Transfreight. Napier explained the definition applied only to

       firms transporting property, and Transfreight was not transporting property at the time of

       the accident. He told the jury section 390.3 applied only to motor carriers doing the

       physical driving of the commercial motor vehicle involved in an accident and here that

       was "only Kiswani," the "motor carrier Kiswani driven by its employee driver Mr.

       Kleppe." Contradicting Grill's opinion, Napier stated Transfreight was not an "employer"

       under the regulations as, although it was certified as a motor carrier, it was not

       operating as a motor carrier in the transaction even though it owned the trailer, a

       commercial motor vehicle. Transfreight had executed a written "trailer interchange

       agreement" with Kiswani under which Kiswani assumed all liability arising from

       operation of the trailer, the commercial motor vehicle involved in the accident. It was



             6
             Section 390.3 provides the regulations apply to "all employers, employees, and
       commercial motor vehicles, which transport property or passengers in interstate
       commerce." 49 C.F.R. § 390.3 (2012).
                                                  38
       1-13-2625) 13-2626) 13-3067)


       Napier's opinion that, as a result of this agreement, Kiswani had sole responsibility to

       operate the trailer and Kiswani, not Transfreight, was the "motor carrier" involved in the

       accident and the "employer" of Kleppe in the transaction. Napier pointed out that,

       although Grill had ample experience as a truck driver and owner of trucking schools, he,

       unlike Napier, had no experience in logistics and freight forwarding and did not

       understand the nuances of the regulations as applied to freight forwarders such as

       Transfreight.

¶ 84          The jury heard Grill's and Napier's completely contradictory opinions regarding

       whether the trucking industry regulations applied to the Transfreight such that Kleppe

       was an employee of Transfreight. If Grill was wrong that section 390.5 applied to

       Transfreight, his error was balanced by the "correct" opinion espoused by Napier, that

       section 390.5 did not apply to Transfreight. It was for the jury to decide which of the two

       conflicting trucking industry experts to credit and how much weight to give their

       testimony in making its final decision regarding agency. There was no prejudice to

       Transfreight if Grill was wrong in his interpretation of section 390.5.

¶ 85          Lastly, Transfreight argues the question of whether Kleppe was Transfreight's

       "employee" under the federal regulations has nothing to do with the common law

       question at bar: whether Transfreight had the right to control the manner in which

       Kleppe performed his work. It asserts it was forced to put Napier on the stand to rebut

       Grill's testimony and, thereby, to create a "trial within a trial on a wholly irrelevant issue,"

       the federal regulations, rather than focusing on whether Transfreight had the right to

       control the manner in which Kleppe hauled the freight. Grill testified that, in the case at

       bar, the ownership of the trailer determined the roles of the parties under the federal



                                                     39
       1-13-2625) 13-2626) 13-3067)


       regulations which, in turn, defined the roles of the parties for the trucking industry. His

       expert testimony regarding how the trucking industry viewed the relationship between

       the parties was relevant to the jury's understanding of that relationship, which lay at the

       core of the common law agency question before the jury. Accordingly, Grill's testimony

       was relevant to the question before the jury.

¶ 86          The court did not err in allowing Grill's testimony and Transfreight suffered no

       prejudice from its admission. The court, therefore, did not err in denying Transfreight's

       motion for a new trial on this basis.

¶ 87                       (3) Admission of the Transfreight-Toyota Contract

¶ 88          Transfreight argues it was severely prejudiced when the trial court, over

       Transfreight's motion in limine and subsequent objections, allowed into evidence the

       contract between Transfreight and Toyota. 7 It asserts the Transfreight-Toyota contract

       should not have been admitted as it is entirely irrelevant to the questions before the jury,

       specifically whether Transfreight had an agency relationship with either Kleppe or

       Kiswani, and the resulting prejudice to Transfreight compels reversal of the jury verdict

       and a new trial.

¶ 89          " 'The rule is stark and absolute: "Irrelevant evidence is not admissible." ' "

       Ramirez, 2014 IL App (1st) 123663, ¶ 208 (quoting Downey v. Dunnington, 384 Ill. App.

       3d 350, 387 (2008), quoting Maffett v. Bliss, 329 Ill. App. 3d 562, 574 (2002)).

       " ' "[E]vidence is relevant if it has any tendency to make the existence of a fact that is of

              7
               The court had denied Transfreight's motion in limine No. 19 seeking to exclude
       the contract as irrelevant to the question of whether Kleppe and Kiswani were agents of
       Transfreight. At trial, it overruled Transfreight's objections to plaintiff's questioning
       Transfreight's general manager of outsource transportation John Back and plaintiff's
       expert witness Grill regarding the contract and to plaintiff's use of the contract in closing
       argument.
                                                    40
       1-13-2625) 13-2626) 13-3067)


       consequence to the determination of the action either more or less probable [than] it

       would be without the evidence." ' " Id. (quoting In re Estate of Bitoy, 395 Ill. App. 3d 262,

       277 (2009), quoting Downey, 384 Ill. App. 3d at 387). It is in the trial court's discretion to

       admit or exclude evidence and we will not disturb its decision unless the court abused

       its discretion. Id. ¶ 198. Further, we will not reverse a verdict based upon the trial court's

       evidentiary rulings unless the court's error substantially prejudiced the aggrieved party

       and affected the outcome of the case. Id. We find the trial court did not abuse its

       discretion in allowing the admission of the Transfreight-Toyota contract as it was

       relevant to the question of agency between Transfreight and Kiswani and/or Kleppe.

¶ 90          Although the Transfreight-Toyota contract binds only the parties thereto and

       Kiswani was not a party to that contract, the contract is relevant to the question of

       agency between Transfreight and Kiswani as it set forth the control Transfreight agreed

       to maintain over its subcontractors in order to fulfill its obligations to Toyota under the

       contract. Specifically, in a section titled "control of transportation services," the contract

       provided:

              "[Transfreight] shall have sole and exclusive control over the manner in

              which   [it]   and   its   employees   and   subcontractor(s)    perform    the

              Transportation Services, and [it] shall engage and employ such persons,

              and subcontract with person(s) approved by [Toyota] ***, it being

              understood and agreed that such person(s) shall be considered to be

              solely the employees or subcontractor(s) of [Transfreight]."

¶ 91          On its face, the Transfreight-Toyota contract shows that, although Transfreight

       could hire others to fulfill its transportation services obligations under the agreement, it



                                                     41
       1-13-2625) 13-2626) 13-3067)


       was to retain control over how those transportation services were performed. This leads

       to the inference that, if Transfreight failed to retain full control of the manner in which its

       subcontractors performed the transportation services, then it would be in breach of the

       Toyota contract. Grill explained to the jury that, under the Toyota contract, Transfreight

       had the right to have other motor carriers pull the freight, but only as long as the other

       carriers were subcontractors to Transfreight "who would have sole and exclusive control

       over that truck and that driver," i.e., over how the Toyota routes were run by the

       subcontractors. He testified that, in the trucking industry, "sole and exclusive control" of

       transportation services means the party with the control could not delegate it and had to

       control the operations and ensure they ran correctly. Accordingly, the contract was

       relevant to the main issue the jury had to decide in the case against Transfreight, the

       question of Transfreight's control over the manner in which its subcontractor Kiswani

       and/or Kiswani's employee Kleppe ran the Toyota routes. The trial court did not abuse

       its discretion in allowing admission of the Transfreight-Toyota agreement and

       Transfreight suffered no prejudice from its admission.

¶ 92                       (4) Admission of Mohammad's Opinion Testimony

¶ 93          Transfreight argues its right to a fair trial was seriously impaired by the trial

       court's admission of Kiswani general manager Mohammad's testimony that, at the time

       of the accident, Kiswani was acting as an agent of Transfreight. The court had denied

       Transfreight's motion in limine seeking to bar the testimony. At trial, Mohammad first

       testified at length regarding the numerous requirements Transfreight imposed on

       Kiswani under the parties' agreement, such as requiring phone reports at the start and

       end of a route and at every supplier stop, pre and postroute truck inspections and



                                                     42
       1-13-2625) 13-2626) 13-3067)


       specific cross-dock procedures. He then acknowledged he had "been in the trucking

       industry for sometime [sic] now" and stated, over Transfreight's objection, that it was his

       "understanding" that, at the time of the accident, "Kiswani was acting as the agent of

       Transfreight."

¶ 94          Transfreight argues the trial court abused its discretion in admitting this evidence

       as a lay witness should not be allowed to testify to a legal conclusion at issue, here the

       question whether Kiswani or Kleppe was an agent of Transfreight. It asserts that by

       allowing Mohammad's testimony regarding the central legal issue in the case, the court

       invited the jury to allow Mohammed's judgment of the issue to substitute for their own.

       Transfreight argues the error was compounded by the "the sheer irrelevance" of

       Mohammad's opinion on the issue, as a purported agent's statement that he was acting

       as an agent for a purported principal does not substantively prove that an agency

       relationship existed. It asserts the error was further compounded by the fact that

       Mohammad's testimony formed the only basis for liability under the claim that Kiswani

       was Transfreight's agent, first raised in the third amended complaint filed on the eve of

       trial. It claims the jury "undoubtedly substituted Mohammad's judgment on the issue for

       [its] own" as there was no other evidence to suggest an agency relationship between

       Transfreight and Kiswani.

¶ 95          "[A] lay witness should not be permitted to testify to a legal conclusion at issue

       ***." Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412, ¶ 44. Nevertheless, "a

       lay witness can express an opinion on an issue in a cause if that opinion will assist the

       trier of fact." Id. "Accordingly, as long as this opinion is based on the witness's personal

       observation, is one that a person is generally capable of making, and is helpful to a



                                                   43
       1-13-2625) 13-2626) 13-3067)

       clear understanding of an issue at hand, it may be permitted at trial." Id.

¶ 96          The question of agency is not a legal conclusion. Rather, when, as here, there is

       some dispute as to the extent of the parties' relationship, the existence and scope of an

       agency relationship are questions of fact for the jury to determine. Pantaleo v. Our Lady

       of the Resurrection Medical Center, 297 Ill. App. 3d 266, 277 (1998). Further, pursuant

       to Illinois Rule of Evidence 701 (eff. Jan 1. 2011) (opinion testimony by lay witnesses)

       and Illinois Rule of Evidence 704 (eff. Jan. 1 , 2011) (opinion on ultimate issue), laymen

       may testify regarding an ultimate issue to be decided by the trier of fact.

¶ 97          Mohammad was Kiswani's general manager and had worked with Transfreight

       under the Transfreight-Kiswani agreement for years, since the inception of the contract.

       As a result, he was intimately familiar with the requirements Transfreight imposed on

       Kiswani under the agreement and the relationship between the parties. Mohammad's

       opinion regarding the parameters of that relationship, his overall impression that

       Transfreight sufficiently controlled Kiswani such that Kiswani was Transfreight's agent in

       the transaction, was valuable to the jury in understanding Transfreight's right to control

       Kiswani. Accordingly, as Mohammad's opinion that Kiswani was Transfreight's agent

       was based on his extensive personal observation, was one he was amply capable of

       making and was helpful to the jury's clear understanding of the alleged right to control

       between Transfreight and Kiswani, his opinion was permitted at trial. Klingelhoets, 2013

       IL App (1st) 112412, ¶ 44.

¶ 98          Further, immediately after Mohammad made the challenged statement, the court

       gave the jury the following admonishment:

                     "When a witness or a lawyer in a situation like with Mr. Mohammad



                                                   44
       1-13-2625) 13-2626) 13-3067)


             uses the term employee or agent, words like that, in the testimony, he's

             doing so only in a conversational sense of the word, and he's referring to a

             layman's common definition. In no way is a witness using the term in a

             legal sense, nor is he giving an opinion of the term from a legal standpoint.

             Whether an individual is an agent or an employee of another, well, that's

             for you to decide at the end of this cases after you've heard all of the

             evidence and my instructions. So that's why learned counsel made that

             objection, because I think he wanted to kind of remind me to let you know

             that."

       By the admonishment, the court remediated any inference by the jury that Mohammad's

       opinion that Kiswani was Transfreight's agent was a legal conclusion. We disagree with

       Transfreight assertion that the admonishment is confusing and demonstrates the

       irrelevance of Mohammad's layman's opinion. Mohammad's layman's testimony

       regarding his personal observations of Kiswani's role under the Transfreight-Kiswani

       agreement was relevant to the issue before the jury.

¶ 99         "It is equally well settled that where the existence of an agency is an issue in a

       case where the alleged principal is a party, the mere statements of the agent made out

       of the presence of the principal and not subsequently approved by him are not

       admissible to establish the existence of such relationship." City of Evanston v.

       Piotrowicz, 20 Ill. 2d 512, 518-19 (1960). "But this principle which bars the admission of

       the agent's statement is not to be confused with the rule which permits an alleged agent

       to be called as a witness for the purpose of establishing the existence of an agency."

       Id. at 519. The court did not err in allowing Mohammad to testify that Kiswani was an



                                                  45
        1-13-2625) 13-2626) 13-3067)


        agent of Transfreight and Transfreight suffered no prejudicial error from his testimony.

¶ 100                                 (5) Third Amended Complaint

¶ 101         Transfreight argues the court erred in allowing plaintiff to file a third amended

        complaint on the eve of trial over Transfreight's objections. It asserts the third amended

        complaint alleged for the first time in the litigation that Kiswani was an agent of

        Transfreight and thereby sought to hold Transfreight liable on the new theory that it was

        liable for Kiswani's negligence under the doctrine of respondeat superior. In the second

        amended complaint, plaintiff's theory of liability against Transfreight was solely that

        Kleppe was an agent of Transfreight.

¶ 102         Section 2-616(a) of the Illinois Code of Civil Procedure (735 ILCS 5/2-616(a)

        (West 2012)) provides amendments to pleadings may be allowed at any time prior to

        final judgment. 8 Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273

        (1992). Section 2-616(c) provides "[a] pleading may be amended at any time, before or

        after judgment, to conform the pleadings to the proofs." 735 ILCS 5/2-616(c) (West

        2012). The trial court has broad discretion in deciding motions to amend pleadings prior

        to entry of final judgment. Loyola Academy, 146 Ill. 2d at 273. We will not find that the

        court's decision on a motion to amend is prejudicial error warranting a new trial unless

        there has been a manifest abuse of the court's discretion. Id. at 273-74. In order to



              8
                Section 616(a) provides:
              "At any time before final judgment amendments may be allowed on just
              and reasonable terms, introducing any party who ought to have been
              joined as plaintiff or defendant, dismissing any party, changing the cause
              of action or defense or adding new causes of action or defenses, and in
              any matter, either of form or substance, in any process, pleading, bill of
              particulars or proceedings, which may enable the plaintiff to sustain the
              claim for which it was intended to be brought or the defendant to make a
              defense or assert a cross claim." 735 ILCS 5/616(a) (West 2012).
                                                   46
        1-13-2625) 13-2626) 13-3067)


        determine whether the trial court has abused its discretion in deciding a motion for leave

        to file an amended complaint, we look at the following four factors: "(1) whether the

        proposed amendment would cure the defective pleading; (2) whether other parties

        would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether

        the proposed amendment is timely; and (4) whether previous opportunities to amend

        the pleading could be identified." Id. at 273.

¶ 103          Transfreight argues application of each factor shows the court abused its

        discretion in allowing plaintiff to file the third amended complaint as: (a) the complaint

        did not cure any defective pleading and the parties had been proceeding on the second

        amended complaint for two years, (b) Transfreight sustained prejudice and surprise as a

        result of the proposed third amended complaint as it set forth an entirely new action

        against Transfreight based on alleged Kiswani's agency, especially given that Kiswani

        admitted negligence and (c) the third amended complaint was not timely, as plaintiff had

        2 1/2 years after the filing of the second amended complaint to file a third amended

        complaint and no newly discovered evidence changed plaintiff's theory of the case.

        Transfreight asserts the trial court abused its discretion in allowing plaintiff to proceed

        on the third amended complaint as plaintiff's filing the third amended complaint on the

        eve of trial was a "bait-and-switch, taken for no other reason than to prejudice"

        Transfreight and its ability to take discovery on the Transfreight-Kiswani agency

        relationship and prepare a trial defense or strategy on the new claim. We find that the

        trial court properly exercised its discretion in allowing plaintiff to filed its third amended

        complaint.

¶ 104          The complaint did not cure a defective pleading. It did, however, as the trial court



                                                     47
        1-13-2625) 13-2626) 13-3067)


        found in the hearing on the motion for leave to amend, conform the pleading to the

        proof, specifically to the evidence Mohammad would present by his testimony that

        Kiswani was an agent of Transfreight. Mohammad had testified in his discovery

        deposition that Kiswani was Transfreight's agent and, given Kiswani's and Kleppe's

        recent admission that, as their counsel told the court, "Kleppe was the employee/agent

        of Kiswani," plaintiff sought to conform its complaint to this proof. The motion for leave

        to amend was timely, as it was filed before entry of judgment and a pleading may be

        amended at any time before or after judgment to conform the pleadings to the proofs.

        735 ILCS 5/2-616(c) (West 2012).

¶ 105          The record supports the trial court's finding that defendants suffered no prejudice

        of surprise from the amended complaint as the factual allegations underlying the third

        amended complaint were the same as those Transfreight had been defending

        throughout the proceedings. Further, Transfreight declined the opportunity to conduct

        additional discovery to ameliorate any prejudice. After finding there was no prejudice to

        defendants from the amended complaint, the court told the defendants that, if they

        believed there was severe prejudice of surprise, they should "put it to" the court and it

        would consider allowing them "to voir dire any witness they wish to voir dire before they

        testify on this if they need to discover more." Neither defendant accepted this offer.

        Transfreight cannot now complain of prejudice.

¶ 106          The third amended complaint was timely, conformed the pleading to the proof

        and caused no prejudice of surprise to Transfreight. Accordingly, the trial court did not

        err in allowing plaintiff to file the third amended complaint.

¶ 107                                         (6) Verdict Form



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        1-13-2625) 13-2626) 13-3067)


¶ 108          Transfreight argues the trial court committed prejudicial error when, over

        Transfreight's objection, it submitted to the jury a verdict form containing separate lines

        calling for apportionment of wrongful death damages to each beneficiary. 9 It asserts

        section 2 of the Wrongful Death Act (740 ILCS 180/2 (West 2012)) provides for

        distribution of damages by the judge based on a certain statutory formula and, the court,

        by failing to apportion the damages itself, seriously prejudiced Transfreight's right to a

        fair trial. Transfreight argues, by allowing the jury to determine the amount of damages

        suffered by each beneficiary through the use of the multi-lined verdict form, the form

        inflated the jury's award as the form circumvented the "sticker shock" a jury faces when

        it must determine a single award. It asserts IPI Civil (2011) No. 45.04A, a verdict form

        for claims under the Wrongful Death Act that does not itemize the damages by

        beneficiary, should have been used in lieu of the form submitted to the jury. 10


               9
                   The trial court submitted to the jury a verdict form providing, in relevant part:
                        "We assess the total damages in the sum of $ _________ itemized
                as follows:
                        Loss of society to Steven McHale                            $_______
                        Loss of society to Steve McHale, Jr.                        $_______
                        Loss of society to Emily McHale                             $_______
                        Grief, sorrow and mental suffering to Steven McHale $_______
                        Grief, sorrow and mental suffering to Steve McHale, Jr. $_______
                        Grief, sorrow and mental suffering to Emily McHale          $_______
                        Loss of money goods and services to family                  $_______."
        On the verdict form, the jury awarded $8 million in total damages, $1 million in each to
        plaintiff, Steve and Emily for loss of society, $ 1 million to plaintiff and $1.75 million each
        to Steve and Emily for grief, sorrow and mental suffering and $500,000 to the family for
        loss of money goods and services.
               10
                 The IPI Civil (2011) No. 45.04A verdict form provides, in relevant part:
                      "First: We find that the total amount of damages suffered by the
               Estate of      ___________, deceased, is $______, itemized as follows:
                      [Loss of money, benefits, goods and services]:     $__________
                      [Grief, sorrow and mental suffering]:              $__________
                      [Loss of society] and [loss of sexual relations]:  $__________
                      [(Other damages: insert from 30.04, 30.04.01,
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¶ 109          Plaintiff argues Transfreight's objection to the verdict form is forfeited as it did not

        object to the verdict form during the instruction conference or tender a copy of the

        remedial verdict form to the court. "On appeal, a litigant waives the right to object to

        instructions or verdict forms that are given to a jury when the party fails to make a

        specific objection during the jury-instruction conference or when the form is read to the

        jury." Compton v. Ubilluz, 353 Ill. App. 3d 863, 869 (2004). Further, "[e]ven if the litigant

        properly objects to an instruction or verdict form, the litigant must still submit a remedial

        instruction or verdict form to the trial court." Id.

¶ 110          Transfreight's objection to the verdict form is not forfeited. Although it did not

        object to the verdict form during the instruction conference, it raised the objection the

        next day, shortly before the court was to open court and read the instructions to the jury.

        Further, although it did not tender a paper copy of the IPI Civil (2011) No. 45.04A form

        to the court, the record shows the trial court would not have submitted IPI Civil (2011)

        No. 45.04A to the jury even if Transfreight had provided a copy. A party's failure to

        tender a paper copy of a proposed instruction or verdict form is not a forfeiture if the

        record shows the trial court would not have submitted instruction or verdict form even if

        it had been provided with a copy. See People v. Rosario, 166 Ill. App. 3d 383, 395

        (1988) (failure to tender the proposed instruction did not result in forfeiture of the issue

        on appeal "since the trial court expressly stated that such an instruction would be

        refused even if formally tendered"); In re Estate of Payton, 79 Ill. App. 3d 732, 739

        (1979) (respondent did not forfeit her objection to the petitioner's verdict form by her


                       30.05, 30.05.01, 30.06, 30.07, 30.09
                        or as applicable)]                                  $__________
                       PLAINTIFF'S TOTAL DAMAGES                            $__________."

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        1-13-2625) 13-2626) 13-3067)


        failure to tender her proposed forms to the court; given the court's "unequivocal

        decision" that it would not give separate verdict forms as the respondent requested, her

        tender of the proposed forms "would have been a futile endeavor").

¶ 111          Here, Transfreight objected to the verdict form and argued IPI Civil (2011) No.

        45.04A was the proper form, asserting there should only be single lines for each type of

        damages on a wrongful death verdict form and it was for the court, not the jury, to divide

        "who gets what from the estate." Plaintiff responded there were multiple lines on the

        verdict form "because the defendants had made an issue as to Mr. McHale's

        relationship with his wife that has nothing to do with the children" and, as a result the

        children's losses were different from plaintiff's "and should be acknowledged as such by

        the jury on the verdict form." The court agreed, telling Transfreight "[t]here was an issue

        put to the jury for separate consideration by the Defendants in this case that the loss of

        society as to the husband should be viewed differently than the children because of a

        divorce and other questions with regard to their relationship. Now you ask that it be

        done as to one item on the verdict form." The court asked Transfreight for "a case on

        this that would enlighten the court other than what it reads in the IPI verdict form." When

        Transfreight did not have one, the court informed the parties "I'm going to leave it as it

        was yesterday when we closed our conference and not alter the instructions

        substantively." In short, the court considered the objection to the verdict form, found a

        basis existed for submitting that verdict form to the jury and thus denied the objection.

        Given this decision, the court would not have submitted the IPI Civil (2011) No. 45.04A

        verdict form even if it had been tendered. Therefore, Transfreight's failure to tender a

        copy of IPI Civil (2011) No. 45.04A to the court did not result in forfeiture of its objection.



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¶ 112          The jury should not have received a verdict form providing for individual awards

        to each of Stacey's survivors as it allowed the jury to apportion the wrongful death

        damages. Section 2 of the Wrongful Death Act provides for distribution of wrongful

        death damages by the judge, not the jury. Jones v. Chicago Osteopathic Hospital, 316

        Ill. App. 3d 1121, 1137 (2000). It provides:

                      "The amount recovered in any such action shall be distributed by

               the court in which the cause is heard *** to each of the surviving spouse

               and next of kin of such deceased person in the proportion, as determined

               by the court, that the percentage of dependency of each such person

               upon the deceased person bears to the sum of the percentages of

               dependency of all such persons upon the deceased person.

                                                       ***

                      The trial judge shall conduct a hearing to determine the degree of

               dependency of each beneficiary upon the decedent. The trial judge shall

               calculate the amount of damages to be awarded each beneficiary, taking

               into account any reduction arising from either the decedent's or the

               beneficiary's contributory fault." 740 ILCS 180/2 (West 2012).

        "The statute clearly envisions a single jury award, with the judge who heard the case to

        distribute the money to the survivors based on a certain statutory formula." Barry v.

        Owens-Corning Fiberglas Corp., 282 Ill. App. 3d 199, 205 (1996). Submitting the form to

        the jury was error.

¶ 113          Nevertheless, even though the jury should not have received the verdict form

        providing for individual awards to Stacey's husband and children, use of the incorrect



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        form does not warrant a new trial. We cannot know how the verdict form impacted the

        jury's damage award. Transfreight argues that the form inflated the jury's award by

        circumventing the "sticker shock" a jury faces when it must determine a single award,

        but this is pure speculation. Further, plaintiff requested $15 million in damages and the

        jury awarded only $8 million, slightly more than half the compensation sought. We

        therefore cannot conclude that use of the verdict form apportioning the damages

        between the survivors inflated the total wrongful death award. Accordingly, we find no

        support for Transfreight's claim that it suffered prejudice by submission of the erroneous

        verdict form. See Jones, 316 Ill. App. 3d at 1137 (holding there was no support for claim

        of prejudice from verdict form that provided for individual awards as there was "no

        evidence the separate lines inflated the overall award, especially since, *** the amount[ ]

        awarded *** was significantly less than the amount requested" (following Barry, 282 Ill.

        App. 3d at 205 (holding no prejudice resulted from verdict form providing for individual

        awards to each survivor as "all [the court was] left with [was] speculation" since it could

        not "know how the jury determined the amounts it placed on the separate lines" and

        there was "no reason to conclude that the use of separate lines somehow inflated the

        total wrongful death award"))). The court's submission of the verdict form to the jury was

        not prejudicial error warranting a new trial.

¶ 114                          (7) Transfreight's Proposed Jury Instruction

¶ 115          Transfreight argues the trial court committed prejudicial error when it refused to

        submit to the jury Transfreight's proposed instruction No. 42 regarding Kiswani general

        manager Mohammad's testimony that, at the time of the accident, Kiswani was acting

        as Transfreight's agent. Transfreight had tendered to the court the following instruction:



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        1-13-2625) 13-2626) 13-3067)


                       "You have heard testimony from an alleged agent with respect to

               his beliefs and opinion regarding agency relationship. You may not

               consider this testimony when deciding the agency issues in this case.

                       This evidence does not prove an agency relationship exists under

               Illinois law."

¶ 116          The trial court has the discretion to grant or deny a jury instruction and we will not

        reverse a court's decision unless, taken as a whole, the instructions did not fully, fairly

        and comprehensively inform the jury of the relevant legal principles, considering the

        instructions in their entirety. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 100

        (1995); Sanders v. City of Chicago, 306 Ill. App. 3d 356, 364 (1999). "The test in

        determining the propriety of tendered instructions is whether the jury was fairly, fully,

        and comprehensively informed as to the relevant principles ***." Leonardi, 168 Ill. 2d at

        100. " 'As a general rule, a judgment will not be reversed where the jury instructions are

        faulty unless they mislead the jury and the complaining party suffered prejudice.' "

        Calloway, 2013 IL App (1st) 112746, ¶ 130 (quoting Hudson v. City of Chicago, 378 Ill.

        App. 3d 373, 403 (2007).

¶ 117          Transfreight asserts its proposed instruction No. 42 is a modified version of IPI

        Civil (2011) No. 3.08 based on Yugoslav-American Cultural Center, Inc. v. Parkway

        Bank & Trust Co., 289 Ill. App. 3d 728, 735 (1997) and Jones v. Beker, 260 Ill. App. 3d

        481, 484-85 (1994), which stand for the rule that an alleged agent's statement that he

        was acting as an agent for the purported principal does not substantively show the

        existence of an agency relationship. It argues the court's failure to give the instruction

        prejudiced its right to a fair trial as the instruction would have placed Mohammad's



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        testimony regarding Kiswani's agency relationship, which it asserts was improperly

        admitted, in a more appropriate context for the jury. Transfreight asserts that, by failing

        to give the instruction, the jury was left to rely on Mohammad's belief of an agency

        relationship to determine the only liability issue before the jury. As held in section

        II(B)(4), Mohammad's testimony was not improperly admitted and was not prejudicial as

        his testimony was not the only evidence of the agency relationship between Transfreight

        and Kiswani and did not form the only basis for liability on plaintiff's claim that Kiswani

        was Transfreight's agent. Supra ¶¶ 93-99. Accordingly, Transfreight suffered no

        prejudice from the court's refusal to give instruction No. 42 and a new trial is not

        warranted on this basis.

¶ 118                                    (8) Accumulation of Errors

¶ 119          Pointing to the "serious errors" addressed above, Transfreight argues the trial

        was "riddled with error" and it is entitled to a new trial as the accumulation of these

        errors deprived it of a fair trial. It asserts it "very likely" the jury verdict would have been

        different if: (a) only the Transfreight-Kiswani contract had been discussed, (b) Grill had

        not been allowed to offer legal conclusions and create "a trial-within-a-trial on the issue

        of the Federal Motor Carrier Safety Regulations, (c) Mohammed had not been allowed

        to testify on the ultimate issue, (d) the correct jury verdict form had been used, (e) the

        jury was instructed regarding Mohammed's purported "admission" of agency and (f) the

        case had been tried on the second amended complaint. " 'A new trial is necessary when

        the cumulative effect of trial errors so deprives a party of a fair trial that the verdict might

        have been affected.' " Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663, ¶ 225

        (quoting Netto v. Goldenberg, 266 Ill. App. 3d 174, 184 (1994)). However, as set forth



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        supra, we found only a single error by the trial court and no prejudice to Transfreight

        from that error. Transfreight was not denied a fair trial.

¶ 120          In sum, as the jury's verdict was not against the manifest weight of the evidence

        and Transfreight was not prejudiced by any trial court error, the trial court did not err in

        denying Transfreight's motion for a new trial.

¶ 121                 III. KISWANI'S APPEAL IN THE INDEMNIFICATION ACTION

¶ 122          Kiswani argues the court erred in denying its motion for a summary judgment or

        a directed verdict and in entering judgment in favor of Transfreight in Transfreight's

        action seeking full indemnification from Kiswani. The evidence shows that Transfreight

        did not enforce the contract provision requiring Kiswani to maintain $5 million in both

        general liability and auto liability coverage and instead, by oral agreement, required

        Kiswani to maintain only $1 million each in general liability coverage and auto liability

        coverage. Kiswani argues its liability to Transfreight under the indemnification provision

        in the Transfreight-Kiswani agreement was not unlimited as, by modifying the

        contractual insurance requirement from $5 million to $1 million, Transfreight also

        modified   the    contractual   "save    harmless"    indemnification   provision   to   cap

        indemnification at $1 million. Kiswani asserts, in the alternative, that Transfreight waived

        the indemnification provision by continuing to do business with Kiswani as an approved

        carrier even though Kiswani provided a certificate of insurance for only $1 million in

        insurance coverage.

¶ 123          Summary judgment is proper where there are no disputed questions of fact and

        the moving party is entitled to judgment as a matter of law. Kennedy v. Four Boys Labor

        Services, Inc., 279 Ill. App. 3d 361, 365 (1996). Where only the construction of a



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        contract is at issue, "the legal effect and interpretation of the contract is a question of

        law, and summary judgment is proper." Kennedy, Ryan, Monigal & Associates, Inc. v.

        Watkins, 242 Ill. App. 3d 289, 295 (1993). We review de novo the trial court's denial of

        Kiswani's motion for summary judgment. Kennedy, 279 Ill. App. 3d at 366. We also

        review de novo the trial court's denial of Kiswani's motion for a direct verdict. Lawlor,

        2012 IL 112530, ¶ 37. A motion for a directed verdict should be granted only where all

        of the evidence, when viewed in its aspect most favorable to the opponent, so

        overwhelmingly favors the movant that no contrary verdict based on that evidence could

        ever stand. Id.

¶ 124          Pursuant to the Transfreight-Kiswani agreement, matters arising under the

        agreement are to be decided by the law of either Kentucky or the Canadian province of

        Ontario. As the trial court and the parties applied Kentucky law rather than Ontario law

        in deciding the indemnification issue, we presume this was by agreement of the parties

        and will apply Kentucky law to our interpretation of the contract. "The primary object in

        construing a contract *** is to effectuate the intentions of the parties." Cantrell Supply,

        Inc. v. Liberty Mutual Insurance Co., 94 S.W.3d 381, 384 (Ky. Ct. App. 2002).

        Agreements must be construed as a whole, giving weight to all of the parts and every

        word contained therein. Id. at 384-85. If an agreement is ambiguous or silent on a

        particular matter, the court may consider extrinsic evidence regarding the circumstances

        and the execution of the agreement. Id. at 385. However, if there is no ambiguity in the

        agreement, the intentions of the parties must be derived from the four corners of the

        agreement without the use of extrinsic evidence. Id. "The fact that one party may have

        intended different results, however, is insufficient to construe a contract at variance with



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        its plain and unambiguous terms." Id.

¶ 125         Under Kentucky law, the oral modification of an agreement is allowed even when

        the agreement requires that any modification must be in writing. Glass v. Bryant, 194

        S.W.2d 390, 391 (Ky. Ct. App. 1946). The party claiming that a written agreement was

        orally modified bears the burden to show the oral modification by "clear and convincing

        evidence." (Internal quotations marks omitted.) Id. at 393; Cassinelli v. Stacy, 38 S.W.2d

        980, 983 (Ky. Ct. App. 1931). "Clear and convincing" in this context "means that the

        evidence in support of the oral agreement is not vague, ambiguous or contradictory, and

        comes from a credible source." Glass, 194 S.W.2d at 393. The evidence need not be

        established beyond a reasonable doubt or be uncontradicted. Id. Rather, " '[i]t is

        sufficient if there is proof of a probative and substantial nature carrying the weight of

        evidence sufficient to convince ordinarily prudent minded people.' " Id. (quoting Rowland

        v. Holt, 70 S.W. 2d 5, 9 (Ky. Ct. App. 1934)). If evidence of the oral modification is not

        clear and convincing, the written agreement stands. Id. at 391.

¶ 126         It is uncontested that Transfreight orally amended the insurance requirement in

        its agreement with Kiswani. Back, Transfreight's general manager of purchase

        transportation at the time the Transfreight-Kiswani agreement was executed, testified in

        his evidence deposition that Transfreight determined sometime in 2006 that the contract

        provision requiring its carriers to maintain $5 million in both general and auto coverage

        was too onerous and it would require its carriers to carry only $1 million in both general

        liability and auto liability, as was the industry standard. Back testified he or someone in

        his department informed Kiswani of this modification and Kiswani complied with it.

        Although the agreement between Transfreight and Kiswani required that any



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        modification of the agreement must be "in writing signed by the parties," it is

        uncontested that the oral modification reducing the insurance requirement from $5

        million to $1 million each for general and auto liability was valid. Further, Back's

        probative and substantial testimony regarding the oral modification of the insurance

        requirement is clear and convincing evidence of the modification, showing Transfreight

        communicated the modified insurance requirement to Kiswani and Kiswani complied

        with it.

¶ 127              Kiswani argues Back's testimony also presents clear and convincing evidence

        that the indemnification provision in the agreement was modified to cap Kiswani's

        potential liability at $1 million. Under the written indemnification provision in the

        agreement, Kiswani "agree[d] to indemnify and save harmless Transfreight *** from any

        and all claims," i.e., Kiswani agreed to accept unlimited liability. Pointing to the following

        colloquy during Back's evidence deposition, Kiswani asserts Back specifically testified

        that Kiswani was only required to provide Transfreight indemnification up to $1 million:

                          "Q. (Counsel for Kiswani): So *** after this agreement was entered

                   into and during the days between February 5, 2009, in February of 2010,

                   the requirements were to have one $1,000,000 of insurance in place in

                   order to indemnify Transfreight for any type of lost [sic], is that correct?

                          A. (John Back): One million auto and one million general, that’s

                   correct.

                          Q. And that’s in case a person brought a claim against Transfreight,

                   is that correct?

                          A. Correct.



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                      Q. All right. *** one more question in that area. And it was the

               change in that contract was something that Transfreight decided to do of

               its own accord, is that correct?

                      A. Yes.

                      Q. And that would apply to all the terms within the contract that

               there would be a million dollars to indemnify Transfreight solely, correct?

                      A. Yes."

¶ 128          Kiswani asserts Back's above-quoted testimony "set the limits of indemnification

        to Transfreight in case of an accident" and demonstrated the oral modification of the

        indemnification terms by Transfreight. We disagree. Back's testimony shows his

        understanding that the modified insurance requirement was intended by Transfreight to

        provide $1 million each in general and auto liability insurance coverage which Kiswani

        would have available to indemnify Transfreight. Back did not testify, in this colloquy or

        anywhere else in his 92-page evidence deposition, that $1 million was to be the extent

        of that indemnification or that the intent of modifying the insurance requirement was to

        concomitantly cap the indemnification requirement at the $1 million.

¶ 129          Although the insurance provision in the agreement limits the amount of insurance

        Kiswani is required to carry, the indemnification provision does not similarly limit the

        extent of Kiswani's potential liability as it provides, without restriction, that Kiswani will

        hold Transfreight "harmless." Further, the agreement does not condition the

        indemnification provision on the insurance requirement. In fact, the insurance provision

        states: "[t]he purchase of such insurance coverage *** shall not be deemed to satisfy

        [Kiswani's] liability as set forth herein or in any way modify [Kiswani's] obligation to



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        indemnify Transfreight or its Affiliates hereunder." In other words, under the insurance

        provision, Kiswani specifically agreed that its potential liability under the indemnification

        provision would not be affected in any way by the amount of insurance it was required

        to purchase under the agreement. Back's testimony does not show otherwise.

        Moreover, Kiswani presented no evidence or argument that anyone at Transfreight

        informed Kiswani that the indemnification provision was modified to cap indemnity at $1

        million.

¶ 130          Kiswani argues "[i]t makes no sense that the insurance requirements would be

        lowered for an accident and subcontractors told *** of the lower limit but then there

        would be complete indemnification for an accident." However, nothing in the parties'

        written agreement or verbal modification of the insurance requirement somehow placed

        the burden on Transfreight to ensure Kiswani could meet its obligation under the

        indemnification provision. In that provision, Kiswani agreed to hold Transfreight

        harmless without limitation. In order to protect Kiswani's business entity, it was for

        Kiswani, not Transfreight, to ensure Kiswani had sufficient resources, whether through

        insurance or other means, to cover the potentially unlimited loss it had agreed to

        indemnify. Transfreight's insurance requirement ultimately provided Kiswani would have

        $1 million in coverage for an indemnified loss. We find that the amount of insurance

        Transfreight required Kiswani to carry was unrelated to the amount of liability to which

        Kiswani might be subjected pursuant to the unlimited liability provision.

¶ 131          Kiswani argues that the trial court erred in ruling against its affirmative defense

        that Transfreight waived the indemnification provision when it continued to engage in

        business with Kiswani despite the fact that Kiswani provided only $1 million in general



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        and auto liability insurance. “Waiver is the intentional relinquishment of a known right. It

        may be implied from conduct inconsistent with the assertion of that right.” FS

        Investments, Inc. v. Asset Guaranty Insurance Co., 196 F. Supp. 2d 491, 505 (E.D. Ky.

        2002). Under Kentucky law, "[a] party may waive or relinquish rights to which he is

        entitled under a contract, and having done so may not reverse his position to the

        prejudice of another party to the contract." Stamper v. Ford’s Adm'x, 260 S.W.2d 942,

        943 (Ky. Ct. App. 1953).

¶ 132          Transfreight did not waive performance of the indemnification provision. First, the

        parties' agreement specifically provided that (1) a waiver of a breach of any provision in

        the agreement would not constitute the waiver of any other breach of the agreement

        and (2) Transfreight's failure to require strict performance of any term in the agreement

        would not be deemed a waiver of Transfreight's rights under the agreement. Second,

        Kiswani presented no evidence that Transfreight acted in a manner inconsistent with its

        enforcement of the indemnification provision. As held above, Transfreight's reduction of

        its insurance requirement from $5 million each to $1 million each for general liability and

        auto liability was a valid oral modification of the insurance provision in the parties'

        agreement that did not impact the indemnification provision. Throughout the years

        Kiswani did business with Transfreight, it consistently complied with the insurance

        provision, maintaining the required $1 million in insurance coverages and naming

        Transfreight as an additional insured on the policies. As Kiswani was in compliance with

        the insurance provision and the insurance provision had no impact on the

        indemnification provision, Transfreight did not waive enforcement of either provision

        when it continued to do business with Kiswani. Further, as required by the agreement,



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        Transfreight sent Kiswani a letter seeking indemnification as soon as it was named in

        plaintiff's action and it sought enforcement of the indemnification provision at trial.

        Transfreight did not waive enforcement of the indemnification provision.

¶ 133          As the agreement shows Kiswani's liability under the indemnification provision is

        not affected by the modification in the insurance requirement and Back's testimony does

        not support Kiswani's assertion that its liability under the agreement was to be capped

        at $1 million, the court did not err in denying Kiswani's motion for summary judgment or

        a directed verdict in the indemnification action and entering judgment in favor of

        Transfreight.

¶ 134                                         CONCLUSION

¶ 135          For the reasons stated above, we affirm the orders of the trial court entering

        judgment on the jury verdict in favor of plaintiff in the wrongful death action and

        judgment in favor of Transfreight on its third-party indemnification action.

¶ 136          Affirmed.




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