Richardson v. Chapman ( 1997 )


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  • NOTICE: Under Supreme Court Rule 367 a party has 21 days after

    the filing of the opinion to request a rehearing. Also, opinions

    are subject to modification, correction or withdrawal at anytime

    prior to issuance of the mandate by the Clerk of the Court.

    Therefore, because the following slip opinion is being made

    available prior to the Court's final action in this matter, it

    cannot be considered the final decision of the Court. The

    official copy of the following opinion will be published by the

    Supreme Court's Reporter of Decisions in the Official Reports

    advance sheets following final action by the Court.

                                       

             Docket Nos. 79254, 79302 cons.--Agenda 10--May 1996.

         KEVA RICHARDSON et al., Appellees, v. JEFFREY CHAPMAN et al.,

                                  Appellants.

                        Opinion filed January 30, 1997.

      

             JUSTICE MILLER delivered the opinion of the court:

             The plaintiffs, Keva Richardson and Ann E. McGregor, were

    injured when the car in which they were riding was hit from behind

    by a truck driven by defendant Jeffrey Chapman in Highland Park.

    The plaintiffs brought the present action in the circuit court of

    Cook County against Chapman; his employer, Tandem Transport, Inc.,

    successor to Carrier Service Company of Wisconsin, Inc.

    (Tandem/Carrier); and Rollins Leasing Corp., which had leased the

    truck in Wisconsin to Chapman's employer. Following a jury trial,

    the court entered judgment on verdicts in favor of Richardson and

    McGregor and against Tandem/Carrier and Chapman. The court later

    entered judgments against Rollins under the Wisconsin financial

    responsibility statute for the unsatisfied portions of the two

    awards. The court also permitted Rollins to obtain reimbursement

    for those expenses from Tandem/Carrier on a theory of contractual

    indemnity. A divided appellate court affirmed all the judgments

    against the defendants. Nos. 1--91--1736, 1--91--1737, 1--91--3868,

    1--92--1221, 1--92--1442 cons. (unpublished order under Supreme

    Court Rule 23). In addition, the appellate court allowed Rollins'

    claims for reimbursement from Tandem/Carrier on theories of both

    contractual and implied indemnity. We granted the petitions for

    leave to appeal filed by Rollins and by Chapman and Tandem/Carrier

    (155 Ill. 2d R. 315(a)) and consolidated the causes for purposes of

    oral argument and disposition.

             The accident at issue here occurred in the early morning

    hours of November 26, 1987, at the intersection of Interstate 94

    and Clavey Road in Highland Park. Plaintiff Keva Richardson was the

    driver of the car, and plaintiff Ann McGregor was a passenger in

    the vehicle. While stopped at a traffic light, their car was struck

    from behind by a semi-trailer being driven by defendant Chapman.

    Richardson suffered extensive injuries as a result of the accident

    and was rendered quadriplegic. McGregor sustained only slight

    injuries in the accident and has returned to her normal activities.

    At trial, Richardson introduced extensive testimony concerning her

    injuries and the expenses she will likely incur in the future as a

    consequence of the accident. That testimony will be summarized

    later in this opinion.

             The plaintiffs brought the present action against

    Chapman, Tandem/Carrier, and Rollins. The plaintiffs' second-

    amended complaint comprised three counts. Count I was against

    Rollins and alleged that the lessor was vicariously liable for

    Chapman's negligence under an agency theory. Count II, also against

    Rollins, alleged that the lessor was liable under the terms of the

    Wisconsin financial responsibility law. Count III, against

    Tandem/Carrier and Chapman, was based on common law negligence.

    Prior to trial, the judge granted Rollins' motion for summary

    judgment on count I, and that count is no longer at issue. Count II

    was severed prior to trial and was not submitted to the jury. The

    case proceeded to trial on count III alone.

             At the close of evidence, the trial judge directed a

    verdict in favor of the plaintiffs and against Tandem/Carrier and

    Chapman on the question of liability. Determining only the

    plaintiffs' damages, the jury returned verdicts against

    Tandem/Carrier and Chapman and in favor of Richardson and McGregor

    in the amounts of $22,358,814 and $102,215, respectively.

    Tandem/Carrier and Chapman, through their insurance carrier, Home

    Indemnity Company, subsequently tendered $1 million to the

    plaintiffs in partial satisfaction of the judgments; of that sum,

    $990,000 was credited to the judgment in favor of Richardson, and

    $10,000 to the judgment in favor of McGregor. At a later hearing

    the trial court considered the plaintiffs' claims against Rollins

    under the Wisconsin financial responsibility statute, and the judge

    determined that Rollins was liable to the plaintiffs for the

    portions of the judgments unpaid by Tandem/Carrier and Chapman. The

    court therefore entered judgment against Rollins and in favor of

    Richardson for $21,368,814, and judgment against Rollins and in

    favor of McGregor for $92,215, representing the unsatisfied

    portions of their awards from Tandem/Carrier and Chapman. Rollins

    had filed a counterclaim against Tandem/Carrier seeking contractual

    indemnity, and counterclaims against Tandem/Carrier and Chapman

    seeking both implied indemnity and contribution. Following a

    hearing, the trial judge entered judgment in Rollins' favor on the

    count seeking contractual indemnity but denied the counts seeking

    contribution and implied indemnity. The judge also entered a

    finding for contractual indemnity against Chapman, the driver of

    the vehicle, though Rollins had not sought recovery from him under

    that theory.

             The appellate court affirmed the judgments entered

    against Tandem/Carrier and Chapman on the plaintiffs' negligence

    claims against them, as well as the judgments entered against

    Rollins on the plaintiffs' statutory claims under the Wisconsin

    financial responsibility statute. The appellate court rejected the

    defendants' challenges to the amounts of damages awarded by the

    jury, and the court also rejected the defendants' arguments that

    certain trial errors had inflated the verdict returned in favor of

    Richardson. In addition, the appellate court held that the

    Wisconsin financial responsibility statute made Rollins liable to

    the plaintiffs for whatever portions of the judgments were not

    recoverable from Tandem/Carrier and Chapman. Finally, the appellate

    court ruled that Rollins could obtain reimbursement from

    Tandem/Carrier on theories of contractual and implied indemnity;

    the court did not believe, however, that an action for contribution

    would lie. The court did not address Rollins' claim against Chapman

    for implied indemnity.

             One member of the appellate panel concurred in part and

    dissented in part. Justice Cerda disagreed with the majority's

    interpretation of the Wisconsin financial responsibility statute

    and would have limited the plaintiffs' recovery under that theory

    to the amount of the insurance policy filed by Rollins pursuant to

    the Wisconsin statute. Accordingly, he would also have vacated the

    judgment in favor of Rollins and against Tandem/Carrier on Rollins'

    counterclaim for indemnity. In addition, Justice Cerda would have

    reduced McGregor's award for pain and suffering to $50,000,

    bringing her total compensation to $52,215.

             We allowed petitions for leave to appeal filed by Rollins

    and by Tandem/Carrier and Chapman. 155 Ill. 2d R. 315(a). The Truck

    Renting and Leasing Association, Inc., and the Wisconsin Automobile

    & Truck Dealers Association were each granted leave to submit

    briefs as amici curiae in support of Rollins. 155 Ill. 2d R. 345.

             After we heard oral argument in this case, but before our

    opinion could be filed, the plaintiffs settled their actions

    against defendant Rollins for undisclosed amounts. Plaintiff Keva

    Richardson executed a release and discharge in favor of Rollins on

    October 1, 1996, and plaintiff Anne McGregor executed a release and

    discharge in favor of Rollins on October 2, 1996. The plaintiffs

    and Rollins then submitted to this court a stipulated order for the

    dismissal of a portion of the claims involved in this appeal. We

    allowed the order on November 7, 1996, dismissing with prejudice

    Rollins' appeal from the judgments against it and in favor of the

    plaintiffs. The question of Rollins' liability to the plaintiffs

    under the Wisconsin financial responsibility law is therefore no

    longer before us. The settlements do not affect the plaintiffs'

    actions against Chapman and Tandem/Carrier, or Rollins' action

    against Tandem/Carrier for contractual indemnity or its actions

    Chapman and Tandem/Carrier for implied indemnity; Rollins may no

    longer seek contribution from the other defendants, however (see

    740 ILCS 100/2(e) (West 1994)).

      

                                        I

             In that portion of the appeal still remaining, Chapman

    and Tandem/Carrier (defendants) first challenge the amounts of

    damages awarded to the plaintiffs. The defendants contend that

    certain errors in the testimony of the economist who appeared at

    trial in behalf of Keva Richardson inflated the verdict returned in

    her favor and, further, that the damages awarded by the jury to

    Richardson and McGregor are excessive.

             In their initial challenge to the damages verdicts, the

    defendants complain of certain testimony introduced by plaintiff

    Richardson concerning the calculation of the present value of her

    future economic losses. The defendants maintain that Professor

    Charles Linke, who testified as Richardson's economist, improperly

    used non-neutral, actual figures in describing to the jury the

    calculation of present cash value. Richardson's life expectancy at

    the time of trial, in May 1990, was 54.5 years. Relying on

    information and figures supplied by Richardson's primary physician,

    Professor Linke testified that the present cash value of her future

    medical expenses had a lower bound of $7,371,914 and an upper bound

    of $9,570,034. The lower bound figure assumed a discount rate one

    percentage point higher than the growth rate; the upper bound

    figure assumed that the two rates would be equal. The difference

    between the two numbers was based on different assumptions

    concerning future growth rates and interest rates. Professor Linke

    also provided testimony regarding the present cash value of

    Richardson's lost future earnings. Assuming a work history of 27.5

    years, Professor Linke found that the present cash value of

    Richardson's lost income was between $854,107 and $971,944; using

    a longer work history of 35.8 years, Professor Linke arrived at a

    range of $1,068,343 to $1,265,363. Again, the differences between

    the two ranges were based on the witness' different assumptions

    regarding future growth and interest rates.

             Citing Allendorf v. Elgin, Joliet & Eastern Ry. Co., 8

    Ill. 2d 164 (1956), the defendants first contend that Professor

    Linke was required to use "neutral" figures--amounts having no

    relation to the damages alleged by the parties--in explaining the

    concept of present cash value to the jury. In Allendorf, a wrongful

    death action, this court stated:

                       "We are of the opinion that the proper method

                  of assisting a jury in making damage calculations

                  is for the actuary to use neutral figures. In the

                  usual situation where hypothetical inquiries are

                  permissible, it is necessary that the expert assume

                  a factual situation as reflected in the proof in

                  order to insure that his testimony bears upon the

                  issue to be determined. The actuary, however, is

                  called upon only to describe to the jury a

                  mathematical process that will simplify the jury's

                  task of determining the present value of the

                  contribution that plaintiffs would have received

                  had decedent not been killed. To accomplish that

                  purpose it is not necessary that he use figures

                  that correspond with those appearing in evidence,

                  and when he does so there is a danger that the jury

                  may be misled. Once the formula is before the jury,

                  its application to the facts of the case is a

                  matter for argument of counsel." Allendorf, 8 Ill.

                  2d at 177-78.

             In the present case, the defendants assert that Professor

    Linke was not qualified to testify to any specific amounts for Keva

    Richardson's future medical costs, including those figures provided

    by Dr. Yarkony, and that his use of the physician's estimates was

    therefore in error. The defendants would limit Professor Linke's

    testimony in this regard to the presentation of the appropriate

    formula for reducing future damages to their present cash value.

             As Allendorf makes clear, the basis for the neutral-

    figure requirement expressed in that case was the prohibition

    against opinions on the ultimate issue. See Varilek v. Mitchell

    Engineering Co., 200 Ill. App. 3d 649, 672 (1990). Subsequent cases

    have removed that bar, however, and have determined that a witness,

    whether expert or lay, may provide an opinion on the ultimate issue

    in a case. Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 545-46

    (1995); People v. Harris, 132 Ill. 2d 366, 385 (1989); Freeding-

    Skokie Roll-Off Service, Inc. v. Hamilton, 108 Ill. 2d 217, 221

    (1985); Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co.,

    49 Ill. 2d 118, 122 (1971). The trier of fact is not required to

    accept the expert's conclusion, and therefore such testimony cannot

    be said to usurp the province of the jury. Zavala, 167 Ill. 2d at

    545; Merchants National Bank, 49 Ill. 2d at 122. Because the rule

    against opinions on the ultimate issue no longer has any vitality,

    we believe that its corollary, which would require the use of

    neutral figures in presenting the jury with testimony about present

    cash values, has similarly lost its foundation. See M. Graham,

    Cleary & Graham's Handbook of Illinois Evidence §702.7, at 571-72

    (6th ed. 1994). Deprived of its theoretical footing, the "neutral

    figure" requirement expressed in Allendorf should no longer be

    followed.

             In a further objection to Professor Linke's testimony,

    the defendants also briefly argue that the economist erroneously

    included inflation and real growth in reducing Richardson's

    economic damages to their present cash value. As we have noted,

    Professor Linke testified to what he termed "lower bound" and

    "upper bound" figures in computing the future medical expenses and

    lost earnings. The "lower bound" figure assumed that the prevailing

    interest rate would be one percentage point higher than the growth

    rate of wages and prices, while the "upper bound" figure assumed

    that the two rates would be equal. In this way, Professor Linke

    attempted to avoid having to predict the exact rates that would

    prevail; as Professor Linke explained in his testimony, it is not

    the absolute levels of the interest rate and growth rate that

    determine present cash value, but the difference between them. Cf.

    Baird v. Chicago, Burlington & Quincy R.R. Co., 63 Ill. 2d 463,

    467-70 (1976) (using differential).

             We believe that Professor Linke's methodology was

    appropriate. In O'Shea v. Riverway Towing Co., 677 F.2d 1194, 1199-

    1200 (7th Cir. 1982), Judge Posner explained the necessity of

    treating inflation in a consistent manner in reducing an award of

    future economic damages to present cash value:

                       "There are (at least) two ways to deal with

                  inflation in computing the present value of lost

                  future wages. One is to take it out of both the

                  wages and the discount rate--to say to [plaintiff],

                  `we are going to calculate your probable wage in

                  [the future] on the assumption, unrealistic as it

                  is, that there will be zero inflation between now

                  and then; and, to be consistent, we are going to

                  discount the amount thus calculated by the interest

                  rate that would be charged under the same

                  assumption of zero inflation.' ***

                       An alternative approach, which yields the same

                  result, is to use a (higher) discount rate based on

                  the current risk-free 10-year interest rate, but

                  apply that rate to an estimate of lost future wages

                  that includes expected inflation. ***

                       Either approach to dealing with inflation is

                  acceptable (they are, in fact, equivalent) and we

                  by no means rule out others; but it is illogical

                  and indefensible to build inflation into the

                  discount rate yet ignore it in calculating the lost

                  future wages that are to be discounted. That

                  results in systematic undercompensation, just as

                  building inflation into the estimate of future lost

                  earning and then discounting using the real rate of

                  interest would systematically overcompensate."

             We conclude that Professor Linke's approach was a

    reasonable one; by using a differential between the two rates, he

    did not have to make a prediction of future growth and inflation

    rates. Professor Linke was consistent in his treatment of

    inflation, and he did not adopt a method that would undercompensate

    or overcompensate the plaintiff. See Varilek v. Mitchell

    Engineering Co., 200 Ill. App. 3d 649, 668-72 (1990); Stringham v.

    United Parcel Service, Inc., 181 Ill. App. 3d 312, 316-21 (1989).

             The defendants next contend that the damages awarded to

    the plaintiffs are excessive. Before resolving this question, we

    will briefly summarize the evidence presented at trial regarding

    the two women's injuries.

             Keva Richardson was 23 years old at the time of the

    accident. She grew up in Pampa, Texas, and received a bachelor's

    degree in elementary education in May 1987 from Texas Tech

    University. While in college, she participated in a number of

    athletic activities and was, by all accounts, a popular, happy

    person. After graduating from college, Keva obtained a position as

    a flight attendant with American Airlines. She planned to work in

    that capacity for several years before returning to school to gain

    a post-graduate degree in education; her ultimate goal was to

    teach. Keva met Ann McGregor in the flight attendant training

    program, and the two decided to room together upon completion of

    their training. At the conclusion of the program, they were

    assigned to the Chicago area, and they had moved there just several

    days before the accident occurred.

             Following the accident, Keva was initially taken to

    Highland Park Hospital for treatment. Because of the seriousness of

    her injuries, however, Keva was transferred that morning to

    Northwestern Memorial Hospital. Dr. Giri Gereesan, an orthopedic

    surgeon specializing in spinal surgery, determined that Keva had

    incurred a fracture of the fifth cervical vertebra, which severely

    damaged her spinal cord and resulted in incomplete quadriplegia.

    Dr. Gereesan performed surgery on Keva on December 1, 1987, to

    stabilize her spine so that she would be able to support her head;

    the surgery did not repair the damage to her spinal cord, and no

    treatment exists that could do so.

             Keva was transferred to the Rehabilitation Institute of

    Chicago in December 1987, where she came under the care of Dr. Gary

    Yarkony. Keva was initially dependent on others in all aspects of

    her daily life. At the Rehabilitation Institute she learned how to

    perform a number of basic tasks, such as sitting in a wheelchair,

    transferring from a bed to a wheelchair, brushing her teeth,

    washing her face, and putting on loose-fitting tops. Keva's initial

    stay at the Rehabilitation Institute lasted until April 1988, when

    she moved to her parents' home in Texas. Keva returned to the

    Rehabilitation Institute in 1988 and in 1989 for follow-up visits.

    Keva also required hospitalization in Texas on three subsequent

    occasions for treatment of conditions arising from the accident.

             Testifying in Keva's behalf at trial, Dr. Gary Yarkony,

    who had served as her primary physician at the Rehabilitation

    Institute, described Keva's current condition. He explained that

    she cannot use her legs and that she has only limited functioning

    in her arms, with loss of control of her fingers and fine muscles

    in her hands. She suffers pain in her legs and shoulders. Her chest

    and abdomen are paralyzed, and she has restrictive pulmonary

    disease. In addition, she has no control over her bladder or bowel

    functions and requires assistance in emptying them. As a

    consequence of her physical condition, she is at risk for bladder

    infections, pneumonia, and pressure ulcers. Keva also suffered a

    number of facial injuries in the accident. Some of these scars were

    later repaired through plastic surgery, but others remain.

             At trial, Keva's mother, Dixie Richardson, described her

    daughter's current activities and the level of care necessary to

    assist her in her daily routine. Keva requires help in taking a

    shower and getting dressed. She cannot put on underwear, socks, or

    pants by herself but is able to put on pullover shirts and

    sweaters. With assistance, she can brush her teeth, apply makeup,

    and put in her contact lenses. She is unable to cut food or button

    a sweater. She can push her wheelchair on a smooth, level surface

    but otherwise needs assistance. In her own testimony, Keva said

    that she is self-conscious about her appearance now and the

    impression she makes on others. She said that the thing she misses

    most is just being able to get up in the morning and begin her day;

    now she requires the assistance of others, throughout the day.

             The jury awarded Richardson a total of $22,358,814 in

    damages, divided among the following six elements: $258,814 for

    past medical care; $11,000,000 for future medical care; $900,000

    for past and future lost earnings; $3,500,000 for disability;

    $2,100,000 for disfigurement; and $4,600,000 for pain and

    suffering. In challenging Richardson's award of damages, the

    defendants first argue that the sum of the future medical costs

    found by the jury--$11,000,000--is not supported by the evidence,

    for it exceeds even the larger of the two figures supplied by

    Professor Linke, $9,570,034. The defendants contend that the

    decision to award Richardson nearly $1.5 million more illustrates

    the jury's failure to properly determine damages in this case.

             In response, Richardson argues that the larger award may

    simply be attributable to the jury's decision to make an award of

    expenses that she is likely to incur in the future but that were

    not specifically included in the calculations performed by

    Professor Linke. Richardson notes that Dr. Yarkony, in compiling

    for Linke's use the list of likely future medical costs, did not

    assign specific values to certain items, such as the expenses of

    future hospitalizations and the costs of wheelchairs and a

    specially equipped van. Richardson thus argues that the jury's

    decision to award an amount for future medical costs greater than

    Professor Linke's higher estimate might simply reflect the jury's

    desire to compensate her for those unspecified but likely expenses.

    We agree with Richardson that the trier of fact enjoys a certain

    degree of leeway in awarding compensation for medical costs that,

    as shown by the evidence, are likely to arise in the future but are

    not specifically itemized in the testimony. See Scheibel v.

    Groeteka, 183 Ill. App. 3d 120, 138 (1989); Levin v. Welsh Brothers

    Motor Service, Inc., 164 Ill. App. 3d 640, 659-60 (1987). In the

    present case, however, the amount awarded by the jury for future

    medical costs is nearly $1.5 million more than the higher of the

    two figures claimed at trial by Richardson. Notably, Professor

    Linke did not rely on the projections by the General Accounting

    Office (GAO) of the growth of future medical care costs, mentioned

    in the partial concurrence. Professor Linke explained that the

    GAO's study included a large number of technology-based items,

    while the main expense to be incurred by Richardson will be wages

    for attendant care. Given the disparity between the trial testimony

    and the jury's eventual award, we will not attribute the entire

    difference between those sums simply to miscellaneous costs

    Richardson is likely to incur in the future. For these reasons, we

    conclude that it is appropriate, by way of remittitur, to reduce by

    $1 million the nearly $1.5 million differential between the award

    for Richardson's future medical expenses and the higher figure

    presented in the testimony. This adjustment allows Richardson

    recovery for expected future medical costs for which no specific

    estimates were introduced, yet is not so large that it represents

    a departure from the trial testimony.

             We do not agree with the defendants, however, that the

    remainder of the award of damages to Richardson, including the sums

    for pain and suffering, disability, and disfigurement, is

    duplicative or excessive or lacks support in the record. The

    determination of damages is a question reserved to the trier of

    fact, and a reviewing court will not lightly substitute its opinion

    for the judgment rendered in the trial court. See Lau v. West Towns

    Bus Co., 16 Ill. 2d 442, 452-53 (1959); Marchese v. Vincelette, 261

    Ill. App. 3d 520, 529-30 (1994). An award of damages will be deemed

    excessive if it falls outside the range of fair and reasonable

    compensation or results from passion or prejudice, or if it is so

    large that it shocks the judicial conscience. Richter v.

    Northwestern Memorial Hospital, 177 Ill. App. 3d 247, 257 (1988).

    When reviewing an award of compensatory damages for a nonfatal

    injury, a court may consider, among other things, the permanency of

    the plaintiff's condition, the possibility of future deterioration,

    the extent of the plaintiff's medical expenses, and the

    restrictions imposed on the plaintiff by the injuries. Marchese,

    261 Ill. App. 3d at 530.

             Here, it was the jury's function to consider the

    credibility of the witnesses and to determine an appropriate award

    of damages. We cannot say that the present award to Richardson is

    the result of passion or prejudice, "shocks the conscience," or

    lacks support in the evidence. The record shows that Richardson

    suffered devastating, disabling injuries as a consequence of the

    accident. The defendants urge us to compare Richardson's damages

    with amounts awarded in other cases. Courts in this state, however,

    have traditionally declined to make such comparisons in determining

    whether a particular award is excessive (see Tierney v. Community

    Memorial General Hospital, 268 Ill. App. 3d 1050, 1065 (1994);

    Northern Trust Co. v. County of Cook, 135 Ill. App. 3d 329, 335

    (1985)), and we do not believe that such comparisons would be

    helpful here.

             The defendants also contend that the jury's award of

    damages to Ann McGregor is excessive. McGregor was 22 years old at

    the time of the accident. She grew up in Houston, Texas, and

    graduated from Southern Methodist University in May 1987 with a

    degree in psychology. Like Keva Richardson, McGregor was accepted

    after graduation for a position as a flight attendant with American

    Airlines. As mentioned earlier, the two women met while enrolled in

    the flight attendant training program and were sharing an apartment

    in the Chicago area at the time of the accident. Following the

    accident, McGregor was taken to Highland Park Hospital, where she

    was treated and released that day; she was then off work for about

    two weeks. A laceration she suffered on her forehead eventually

    healed, with only minimal scarring. At trial McGregor testified

    that she continues to suffer from nightmares about the accident.

    The jury awarded McGregor a total of $102,215 in damages, divided

    among the following components: $1,615 for past medical expenses,

    $600 for lost earnings, and $100,000 for pain and suffering.

             Like the dissenting justice below, we believe that the

    award of $100,000 for pain and suffering is, in these

    circumstances, excessive. McGregor was not seriously injured in the

    accident, incurring a laceration on her forehead, which left only

    a slight scar. The jury declined to award McGregor any compensation

    for disfigurement; rather, the bulk of her recovery consisted of

    compensation for pain and suffering. We conclude that a more

    appropriate figure for pain and suffering would be $50,000, which

    would reduce her total damages to $52,215. By way of remittitur, we

    accordingly reduce the judgment entered in favor of McGregor and

    against Tandem/Carrier and Chapman to that amount.

      

                                       II

             With Rollins having settled with the plaintiffs the

    question of its liability to them under the Wisconsin financial

    responsibility law, we now consider Rollins' claims against Chapman

    and Tandem/Carrier. Rollins had previously sought contractual

    indemnity from Tandem/Carrier, and implied indemnity and

    contribution from Chapman and Tandem/Carrier. Any right that

    Rollins might have had to obtain contribution from the other

    defendants has been extinguished by its settlement with the

    plaintiffs. 740 ILCS 100/2(e) (West 1994). Remaining before us,

    then, are Rollins' action against Tandem/Carrier for contractual

    indemnity, and its actions against Tandem/Carrier and Chapman for

    implied indemnity.

             Both the trial judge and the appellate court concluded

    that Rollins could seek indemnity from Tandem/Carrier under the

    terms of the truck rental agreement between Rollins and

    Tandem/Carrier. We agree, and conclude that Rollins is entitled to

    contractual indemnity from Tandem/Carrier. A review of the

    pertinent provisions of the agreement demonstrates Rollins' right

    to that relief. Paragraph 4 of the terms and conditions of the

    lease agreement between Rollins and Tandem/Carrier provides that

    the lessee:

                  "SHALL INDEMNIFY AND SAVE ROLLINS HARMLESS WITH

                  RESPECT TO ANY AND ALL INJURY OR DAMAGE TO PERSONS

                  OR PROPERTY ARISING OUT OF OWNERSHIP, MAINTENANCE,

                  USE AND/OR OPERATION OF THE VEHICLE[.]"

    In addition, paragraph 6(f) of the terms and conditions provides

    that the lessee agrees to indemnify Rollins from

                  "Claims or causes of action for death or injury to

                  persons, or loss or damage to property in excess of

                  the limits of liability insurance provided pursuant

                  to this lease."

    As the appellate court concluded, the plain language of the lease

    agreement grants Rollins the contractual right to seek indemnity

    from Tandem/Carrier for personal injury damages. Under the

    preceding provisions, Rollins may obtain indemnity from

    Tandem/Carrier for the amount in excess of the $1 million insurance

    policy provided under the rental agreement.

             Tandem/Carrier argues, however, that another provision in

    the lease agreement establishes that the contractual indemnity

    provisions were not operative in this case. The provision cited by

    Tandem/Carrier appears on the front side of the rental agreement,

    following a list of optional forms of insurance coverage made

    available to lessees, and it states:

                  "IF RENTER DECLINES ANY OF THE ABOVE COVERAGES, HE

                  SHALL BE BOUND TO THE CONDITIONS DETAILED ON THE

                  REVERSE SIDE."

    Because Tandem/Carrier accepted coverage in this case,

    Tandem/Carrier argues that the indemnity provisions are not

    applicable here. Tandem/Carrier believes that it would now be bound

    by the conditions on the reverse side of the agreement, including

    the indemnity provisions of paragraphs 4 and 6(f), only if it had

    declined the offer of insurance coverage. We do not agree.

             As an initial matter, we believe that Tandem/Carrier's

    interpretation of the agreement is refuted by paragraph 6(f), which

    contemplates that a renter could both obtain insurance and have a

    contractual duty to indemnify the vehicle owner. Paragraph 6(f)

    requires a renter to indemnify the owner for "Claims or causes of

    action for death or injury to persons, or loss or damage to

    property in excess of the limits of liability insurance provided

    pursuant to this lease." Thus, by the plain language of paragraph

    6(f), the duty to indemnify exists even if the renter accepts an

    offer of insurance.

             Moreover, Tandem/Carrier's interpretation of the

    agreement proves too much. Under Tandem/Carrier's view, none of the

    provisions on the reverse side of the rental agreement would take

    effect if the lessee declined the offer of insurance coverage. This

    could not have been the parties' intention, however. The reverse

    side of the agreement contains a number of provisions that are

    unrelated to insurance coverage and that are seemingly applicable

    whether or not a lessee accepts coverage. For example, one of the

    terms and conditions on the reverse side states that the rented

    vehicle is the property of Rollins. We do not believe that the

    applicability of that provision depends on whether the vehicle

    lessee accepts or declines insurance coverage. We believe instead

    that the import of the language cited by Tandem/Carrier is simply

    to refer lessees to a particular provision on the back of the

    agreement, applicable when insurance coverage is refused, requiring

    the lessee in that event to obtain its own policy under which

    Rollins is an additional insured.

             Tandem/Carrier also briefly argues that contractual

    indemnity is unavailable here because the agreement does not

    expressly allow indemnity for liability imposed pursuant to

    statute, which is the basis for the plaintiffs' claims against

    Rollins. The indemnity provisions are broadly written, however, and

    do not restrict the availability of the remedy in the manner

    suggested. We thus conclude that Rollins may obtain indemnity from

    Tandem/Carrier under the terms of the parties' lease agreement. In

    the wake of the plaintiffs' settlements with Rollins, we afforded

    Rollins, Tandem/Carrier, and Chapman the opportunity to submit

    additional briefs on the potential effect of the settlements on

    Rollins' claims against the other defendants. With regard to the

    action for contractual indemnity, Tandem/Carrier has rested on its

    original briefs in this appeal and does not argue that the

    settlement affects Rollins' right to obtain indemnity under the

    lease agreement.

             Although our resolution of Rollins' contractual indemnity

    claim against Tandem/Carrier renders moot Rollins' separate claim

    against Tandem/Carrier for implied indemnity, our inquiry is not at

    an end, for Rollins sought indemnity from Chapman, the driver of

    the truck and not a signatory to the rental agreement, only under

    an implied theory. We believe that Rollins is entitled to indemnity

    on this additional ground. In Frazer v. A.F. Munsterman, Inc., 123

    Ill. 2d 245, 261-64 (1988), and Thatcher v. Commonwealth Edison

    Co., 123 Ill. 2d 275, 278 (1988), this court concluded that implied

    indemnity was not available in a products liability action in which

    the party seeking indemnity was negligent or otherwise at fault in

    causing the underlying loss. Later, in American National Bank &

    Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d

    347, 354 (1992), we held that the enactment of the Contribution Act

    did not abolish common law actions for implied indemnity in quasi-

    contractual relationships involving vicarious liability. See also

    Faier v. Ambrose & Cushing, P.C., 154 Ill. 2d 384 (1993) (in legal

    malpractice action against two attorneys, first attorney, who

    settled with plaintiff, allowed under American National Bank

    rationale to pursue claim for implied indemnity against second

    attorney; second attorney, and not first attorney, had worked on

    specific matter giving rise to malpractice action, while first

    attorney handled separate aspect of case, and first attorney had

    merely introduced plaintiff, his client, to second attorney).

             Although the releases executed by the plaintiffs in favor

    of Rollins speak broadly and are not explicitly limited to actions

    under the Wisconsin statute, we do not believe that Rollins is

    precluded from obtaining indemnity because it may be negligent or

    otherwise at fault, as Chapman contends. Rather, the present claim

    for implied indemnity fits within the rule expressed in American

    National Bank. The judgments obtained by the plaintiffs against

    Rollins were based entirely on Rollins' alleged duty under the

    Wisconsin financial responsibility law. We note, moreover, the

    presence of a preoccurrence relationship of lessor/lessee between

    Rollins and Tandem/Carrier, Chapman's employer, a circumstance in

    which an implied right of indemnity has been found. See Kerschner

    v. Weiss & Co., 282 Ill. App. 3d 497, 503-04 (1996). Just as

    Rollins would, in these circumstances, possess a right of implied

    indemnity against Tandem/Carrier, so too do we believe that Rollins

    may assert the same right against Chapman, who was Tandem/Carrier's

    agent. Here, the indemnity defendants make no argument that an

    implied right of indemnity against the lessee would not also be

    effective against the driver. In the present case, Rollins is

    liable not because of anything it did or failed to do, but solely

    as a consequence of Chapman's negligence, and of the lower courts'

    interpretations of the Wisconsin statute, an issue not now before

    us. Rollins was not negligent or otherwise at fault in causing the

    loss, and Chapman has not explained why the settlement should deny

    Rollins a right to implied indemnity; thus, we conclude that it is

    appropriate to permit Rollins to obtain implied indemnity in this

    case.

      

                                     *  *  *

             For the reasons stated, the judgment of the appellate

    court is affirmed in part, reversed in part, and vacated in part,

    and the judgment of the circuit court of Cook County is affirmed in

    part, reversed in part, and vacated in part. Pursuant to the

    authority of Supreme Court Rule 366(a)(5) (155 Ill. 2d R.

    366(a)(5)), we affirm the judgments entered in favor of plaintiffs

    and against Tandem/Carrier and Chapman in their reduced amounts. In

    the absence of consent to the entry of a remittitur by each

    plaintiff within 21 days of the filing of this opinion or any

    further period in which the mandate is stayed, her individual

    action will be remanded to the circuit court of Cook County for a

    new trial on the question of damages. Otherwise, this cause is

    remanded to the circuit court of Cook County for entry of judgment

    on Rollins' claim for indemnity in an amount consistent with this

    opinion and the settlement between plaintiffs and Rollins.

      

    Judgments affirmed in part, reversed in part,

                                                        and vacated in part;

                                                             cause remanded.

                                                                            

             JUSTICE McMORROW, concurring in part and dissenting in

    part:

             I concur in the opinion of my colleagues in all but one

    respect: I do not agree with the majority that it is proper to

    order a remittitur of the jury's award of damages to Keva

    Richardson for present cash value of future medical expenses or the

    jury's award to Ann MacGregor for pain and suffering.

             In determining the total verdict awarded to Richardson,

    the jury considered extensive evidence relating to six separate

    components of damages. As noted by the majority, Richardson

    "suffered devastating, disabling injuries." The appellate court

    majority's unpublished opinion describes her condition:

                  "After the collision, doctors determined that the

                  communication connection between Richardson's brain

                  and the rest of her body had become severed and she

                  was rendered a quadriplegic. Richardson was soon

                  placed in traction with tongs affixed to her skull

                  by driving screws into the side of her head. She

                  was also placed in a roto-rest bed with 25 pounds

                  weights attached to her body for traction.

                  Eventually, Richardson underwent surgery to

                  stabilize her spine so it could support the weight

                  of her head which hung like a rag doll's head. In

                  that operation, bone from her hips was grafted to

                  her cervical spine with the use of metal plates and

                  screws. The surgery did not repair the injury to

                  Richardson's spinal cord, nor does medical

                  technology yet exist to rectify the injury."

    Other evidence related Richardson's need for assistance every six

    hours to empty her bladder by catheterization and daily assistance

    to empty her bowel, over which she permanently lacks control. She

    has lost the use of her legs, fingers, and the fine muscles of her

    hand. Her chest and abdomen are paralyzed. She is subject to risk

    of serious infections and other conditions and, according to the

    evidence, having a child would be life-threatening. The appellate

    court opinion further stated that Richardson "may expect to be

    hospitalized on a regular basis for the balance of her life."

             The jury awarded $11 million to compensate Richardson for

    her future medical needs. To this sum the majority applies a

    remittitur of $1 million, based on the majority's observation that

    the jury's award for this element of damages exceeded by $1.5

    million the testimony of economist Charles Linke regarding the

    "upper bound" of the present cash value of Richardson's future

    medical needs. Linke explained that he calculated a "lower bound

    present value ($7.4 million) and an upper bound present value ($9.5

    million)." His figures were derived from different assumptions

    regarding the relationship of the rate of interest to the rate of

    growth. In explaining his economic assumptions and methods, Linke

    also noted that there were different accounting methods that could

    be used to calculate Richardson's future medical needs. The one he

    employed yielded a more conservative figure for medical care than

    that used by the General Accounting Office, which, according to

    Linke, would yield the conclusion that "the present value of Keva

    Richardson's care needs would be approximately 12.1 million

    dollars."

             In assuming that the $9.5 million "upper bound" figure

    represents the maximum amount that is sustained by the evidence

    with respect to Richardson's future medical expenses, the majority

    opinion fails to acknowledge that the information upon which Linke

    based his calculation of present cash value of future medical

    expenses represented Richardson's minimum care needs for the rest

    of her life. Dr. Yarkony, upon whose testimony Linke's economic

    analysis was based, detailed the specific types of medical expenses

    that Richardson would be expected to need in the coming years. Dr.

    Yarkony testified, "[T]his is the basic minimum care not covering

    any hospital admissions for emergencies, complications, and the

    like." He further testified that in his opinion Richardson would

    continue to require hospitalizations in the future caused by

    complications related to her spinal cord injury, including

    infections, pressure sores, pneumonia, and blood clots.

             Notwithstanding the above testimony of Linke and Dr.

    Yarkony, the majority determines that the jury improperly affixed

    damages for future medical costs in an amount exceeding the

    experts' estimates by $1.5 million. The majority concedes that the

    jury could properly compensate Richardson for medical costs not

    otherwise included in the experts' calculations. The majority

    permits one third of the excess award to stand, and concludes that

    $500,000, rather than $1.5 million, represents the appropriate

    additional sum the jury could award in excess of Linke's upper

    bound estimate of $9.5 million. In so holding, the majority usurps

    the jury's function and substitutes its own judgment regarding what

    is reasonable and fairly supported by the expert economic and

    medical evidence with respect to the present value of Richardson's

    future medical costs. The majority's application of remittitur in

    the case at bar thereby operates as an arbitrary limitation on the

    jury's ability to assess the evidence. See, e.g., Lee v. Chicago

    Transit Authority, 152 Ill. 2d 432, 470 (1992); Barry v. Owens-

    Corning Fiberglas Corp., 282 Ill. App. 3d 199, 207 (1996); Riley v.

    Koneru, 228 Ill. App. 3d 883 (1992); Chambers v. Rush-Presbyterian-

    St. Luke's Medical Center, 155 Ill. App. 3d 458 (1987); Shaheed v.

    Chicago Transit Authority, 137 Ill. App. 3d 352 (1985); Guerrero v.

    City of Chicago, 117 Ill. App. 3d 348 (1983).

             In Riley, 228 Ill. App. 3d at 887-88, the appellate court

    summarized the applicable law of remittitur:

                       "Damages are a question of fact to be decided

                  by the jury, and courts are reluctant to interfere

                  with the jury's exercise of discretion in this

                  area. [Citations.] A reviewing court will not

                  disturb a jury's award of damages unless it is

                  obviously the result of passion or prejudice.

                  [Citation.] Furthermore, an award is not excessive

                  unless it falls outside the necessary limits of

                  fair and reasonable compensation or it shocks the

                  judicial conscience. [Citation.] A jury's award

                  will not be subject to remittitur where it falls

                  within the flexible range of conclusions which can

                  be reasonably supported by the facts. [Citation.]"

    In Barry v. Owens-Corning Fiberglas Corp., the court rejected

    defendant's argument that a wrongful death award of $6,850,000 and

    a total verdict in excess of $12 million was grossly excessive and

    should have been reversed or subject to remittur. The court stated,

    "Reviewing courts rarely disturb jury awards. For good reason. ***

    [Jurors] use their combined wisdom and experience to reach fair and

    reasonable judgments. We are neither trained nor equipped to

    second-guess those judgments about the pain and suffering and

    familial losses incurred by other human beings." Barry, 282 Ill.

    App. 3d at 207.

             Nothing in the record or the itemized jury verdict

    indicates that the jury departed from its customary duty to weigh

    the evidence and assess damages that would fairly compensate

    Richardson for her permanent and disabling injuries. The jury's

    award for future medical expenses, which arguably exceeded certain

    testimony, does not warrant the conclusion that the jury's

    determination was a departure from the flexible range of damages

    that was reasonably supported by the facts. There is no indication

    that the jury's award was the product of passion or prejudice. In

    fact, with respect to a different component of damages, i.e,

    Richardson's past and future lost earnings, the jury awarded a sum

    that was $1.265 million less than the higher of the testimonial

    estimates presented for that item of damages. If experts' estimates

    of a person's future income losses or medical expenses were an

    exact science capable of mathematical precision, there would be no

    need to have a jury make the final determination of proven damages.

      

             In the case at bar the jury heard all of the evidence,

    including the basis for the expert testimony. It appears

    uncontested that the evidence of Richardson's future medical

    expenses did not include every anticipated item, such as special

    equipment and repeated hospitalizations that are likely to occur in

    the future because of the serious conditions Richardson suffers as

    a result of her quadriplegia. The testimonial estimate of the

    present cash value of Richardson's future medical needs is only

    that--an estimate. This estimate was elicited as a minimum

    projection of Richardson's medical needs in the years to come. In

    light of these considerations, I would affirm the appellate court's

    holding that the variance between the jury's award for future

    medical needs and the experts' projection is "certainly not so

    great a variance that we must reject the verdict of people whom we

    have instructed to use their own observation and experience in the

    affairs of life during their deliberations."

             Similarly, I depart from the majority's holding that Ann

    MacGregor's damages award of $100,000 for pain and suffering was

    excessive. The majority orders a remittitur of $50,000 as a "more

    appropriate figure for pain and suffering." Slip op. at 12. The

    majority appears to base its conclusion on the relatively minor

    injury MacGregor sustained, noting that she suffered a laceration

    on her forehead that healed with only minimal scarring. Although

    the majority views the award of $100,000 as overly generous for a

    facial laceration that did not result in permanent disfigurement,

    the majority substitutes its own subjective judgment for the jury's

    evaluation of the evidence. The record indicates that MacGregor's

    lacerated forehead took six months to heal. The record further

    indicates that she suffered ongoing trauma, including recurrent

    nightmares resulting from the rear-end collision that left the

    other occupant of the car a quadriplegic. The jury, as finder of

    fact, had the superior ability to assess the evidence, including

    MacGregor's testimony relating to her traumatic and painful

    experience. I am aware of no sound reason to nullify the function

    of the jury and arbitrarily reduce MacGregor's award for pain and

    suffering to $50,000. Therefore, I cannot concur in the reasoning

    or result of the majority with respect to the reduction by

    remittitur of both plaintiffs' verdicts.

             For the reasons stated, I concur in part and dissent in

    part from the judgment of the majority.

      

             JUSTICE FREEMAN joins in this partial concurrence and

    partial dissent.