Motion 21-Motion to Vacate Judgment in Car Accident Case

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Plaintiff's Post-Trial Motion

James P. Newman, Shari S. Shelmadine, Newman & Pelafas, 118 South Clinton - Suite 300, Chicago, Illinois 60661, 312.756.5600, Atty No. 35702.

Judge Ellis Reid.

Room 2502

NOW COMES the Plaintiff, AMERICAN SERVICE INSURANCE COMPANY (“ASI”), by and through its attorneys, NEWMAN & PELAFAS, and for its Post-Trial Motion for a vacation of the judgment on September 18, 2000, for judgment in favor of ASI and against the Defendant, LESLAW OLSZEWSKI (“Olszewski”), or, in the alternative, for a new trial, states and alleges as follows:

BACKGROUND:

This declaratory judgment action, filed by ASI, derived from an automobile accident in which Olszewski was involved with Eva Kruth on December 31, 1997. On or before June 8, 1997, ASI issued its automobile insurance Policy Number IL PP 261498-00-01 to Olszewski as the named insured, subject to the terms, conditions and exclusions as set forth fully therein (the “Policy”). The Policy had effective dates of June 8, 1997 through December 8, 1997. It is ASI's position that Olszewski failed and neglected to pay the requisite renewal premium to ASI to renew his insurance policy when it expired on December 8, 1997. Accordingly, on December 31, 1997, when the automobile accident occurred between Olszewski and Eva Kruth, the ASI Policy was not in effect. The ASI Policy was thereafter renewed, with effective dates of January 6, 1998 to July 6, 1998.

In opposition to ASI's position, Olszewski asserted that on December 6, 1997, he requested a renewal of the Policy and paid the sum of $169.00 as a down payment pursuant to an installment plan, which he apparently arranged with and through Midwest Competent & Insurance Agency, and that he eventually paid the total requested premium. Olszewski further asserted that he received a copy of a Fax Copy Letter requesting such renewal, and that he thereafter received an Insurance Identification Card indicating an effective date of January 6, 1998.

THE TRIAL

On September 18, 2000, following several continuances, each of which was on the Court's own motion, this matter proceeded to a bench trial before Judge Ellis Reid. Following the evidence, the Court entered judgment in favor of Olszewski and against ASI. This Post-Trial Motion follows. Attached hereto as Exhibit “A” in support of ASI's Motion is a copy of the transcript of the trial before this Court.

THIS COURT SHOULD VACATE ITS JUDGMENT IN FAVOR OF OLSZEWSKI AND ENTER JUDGMENT IN FAVOR OF ASI, OR GRANT A NEW TRIAL ON ALL ISSUES

As the following discussion will aptly demonstrate, this Court committed several reversible errors, which errors warrant a vacation of the judgment in favor of Olszewski and the entry of judgment in favor of ASI, or, in the alternative, a new trial on all issues. First, this Court erred in denying ASI's oral motion to bar Olszewski from calling witnesses to testify at trial who were not disclosed to ASI prior to trial, or at any time in the history of this litigation. Second, this Court erred in entering judgment in favor of Olszewski, when Olszewski put forth no evidence, and solicited no testimony at all, during the trial on the issue of “agency.” Third, this Court erred in interjecting itself into the trial during ASI's closing argument. Finally, this Court erred in its interpretation of Illinois law on the issue of “agency.”

I. THIS COURT ERRED IN DENYING ASI'S MOTION TO BAR AN UNDISCLOSED WITNESS

Prior to trial, the parties, through their respective counsel, were asked, and indeed required, to tender to the Court, and to each other, “Trial Memoranda,” outlining the triable issues, disclosing their respective testifying witnesses, and setting forth what they believed to be the proper outcome. Attached hereto as Exhibit “B” is a true and accurate copy of Olszewski's Trial Memorandum tendered to counsel for ASI. Under subparagraph “F,” where Olszewski identified his witnesses, Olszewski named only himself. In his Answers to Supreme Court Rule 213 (f) & (g) Interrogatories, filed April 24, 2000, Olszewski answered that he had no testifying witnesses and no opinion witnesses. A copy of Olszewski's Answers to Supreme Court Rule 213 (f) & (g) Interrogatories is attached hereto as Exhibit “C.” Upon trial, however, Olszewski produced “Robert Mikolajczyk” as a testifying witness.

Counsel for ASI objected to Olszewski's calling Mikolajczyk to the witness stand to testify as Mikolajczyk had at no time been named or identified or disclosed to ASI at any phase of this litigation as a testifying trial witness. (Transcript, Pp. 3-7). While before the bench, counsel for ASI showed the Court her copy of Olszewski's Trial Memorandum, whichnowhere referred to a Robert Mikolajczyk. (Transcript, P. 6). Conversely, on the Court's copy of Olszewski's Trial Memorandum, the name “Robert Mikolajczyk” had been written in at some later point in time. (Transcript, P. 6).

This Court denied ASI's Motion to Bar, and allowed Mikolajczyk to testify. This was error. The reason for the Court denying ASI's Motion is tenuous at best. The Court stated, “Well, I assumed I was going to hear from the broker/agent in this type of case, but now it's on my trial memorandum and I'm not going to bar a- he's not going to be an expert.” (Transcript, P. 5). From this it is clear that this Court found it sufficient that its copy contained this name, even though the copy tendered to trial counsel did not.

Supreme Court Rule 213 (f) requires that, upon written interrogatory, a party must furnish the identity and location of witnesses who will testify at trial, together with the subject of their testimony. Supreme Court Rule 213 (f) . Supreme Court Rule 213 (i), which imposes upon litigants and their attorneys the duty to supplement, provides that, “A party has a duty to seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party.” Supreme Court Rule 213 (i) . In order that Rule 213 has any effect at all, it must be strictly construed and applied. Indeed, the Supreme Court rules on discovery are mandatory rules of procedure that courts and counsel must follow. Department of Transportation v. Crull, 294 Ill. App. 3d 531, 690 N.E.2d 143 (4th Dist. 1998) (emphasis added). These rules represent the court's best effort to manage the complex and important process of discovery. Id., 294 Ill. App. 3d at 537. Unless these rules are strictly construed and enforced, their abuse by parties and their attorneys is a certain result.

In failing to name and identify Mikolajczyk, Olszewski also failed to disclose and identify the subject matter of Mikolajczyk's testimony in violation of, and as contemplated by, Supreme Court Rule 213 (f). This Court, however, seemed unphased by this, stating to counsel for ASI that, “You know who the gentleman is....He's not a surprise, ...” (Transcript, P. 6). Whether a surprise or not, whether anticipated or not, a party is required, under Supreme Court Rule 213 (f), to name and identify his/her trial witnesses and “the subject of each individual's testimony.” This is not discretionary; it is mandatory. What the Court did here was to encourage, and indeed sanction, wholly improper disclosures if, in the Court's opinion, the attorney challenging the witness and objecting to the witness being called to the stand, is not somehow “surprised” by the disclosure of the witness on the day of trial. This is a dangerous and very slippery slope, which simply should not be condoned.

In addition to allowing Olszewski to cut this very important corner, this Court was not at all phased by the fact that, having been kept in the dark about Mikolajczyk up until the time ASI appeared before the Court for trial, ASI did not make arrangements for a rebuttal witness. These are the very reasons for, and the very purpose to be served by, the timely, thorough disclosure of trial witnesses - to eliminate surprise, and to ready the litigants for trial by having all necessary witnesses lined up. See Crull, supra. How one can be expected to line up a rebuttal witness for a testifying witness whose identity has been kept from trial counsel until the day of trial is hard to imagine. By shifting the burden to ASI to “prove” how it was “surprised” or “prejudiced” by Olszewski's failure to identify his trial witnesses, and by allowing an undisclosed witness to take the stand and testify during the trial, this Court committed reversible error.

II. THIS COURT ERRED IN ENTERING JUDGMENT IN FAVOR OF OLSZEWSKI WHEN HE INTRODUCED NO EVIDENCE AT ALL ON THE ISSUE OF “AGENCY”

During the trial of this matter, Olszewski solicited no testimony, and introduced no evidence whatsoever, as to the critical issue of “agency.” Although he pleaded an “Affirmative Defense,” this being that Midwest Competent, his broker, faxed a renewal request to Pritikin, he offered nothing during the trial to support or substantiate his allegations of an “agency” relationship between ASI and Pritikin. Indeed, nowhere in Olszewski's counsel's questioning, or in Olszewski's case in chief, did Olszewski solicit any testimony or evidence whatsoever concerning the relationship between ASI and M.E. Pritikin, or between ASI and Midwest Competent. Under Illinois law, however, Olszewski wasrequired to do so. Indeed, the party asserting the agency relationship has the burden of proving the agency's existence by a preponderance of the evidence. Allied American Insurance Company v. Ayala, 247 Ill. App. 3d 538, 616 N.E.2d 1349 (2nd Dist. 1993) (emphasis added).

To illustrate, Olszewski asked nothing about the relationship between ASI and M.E. Pritikin; nothing about the nature or course of dealings between the two entities; nothing about the exclusivity, if any, between these two entities; nothing about a “fixed” or “permanent” relationship between these two entities, etc. Over ASI's objection, and, respectfully, in error, Olszewski called Robert Mikolajczyk, a representative of Midwest Competent, to the stand. Mikolajczyk testified that to his knowledge, M.E. Pritikin was a “general agent.” (Transcript, P. 41, Lines 2-4). At another point in his testimony, Mikolajczyk referred to M.E. Pritikin as a “general broker.” (Transcript, P. 45, Lines 20-21). Moreover, in the entirety of Olszewski's “cross examination” of Erika Cwan, ASI's witness, Olszewski asked nothing about the relationship between ASI and M.E. Pritikin. (Transcript, Pp. 27-31). Indeed, despite the fact that the burden of proof was his, Olszewski rested without proffering any testimony or evidence on the issue of “agency.” (Transcript, P. 85).

Given this, the Court erred in entering judgment in favor of Olszewski at the close of the evidence presented. Indeed, the only evidence presented during the trial, by either the plaintiff or the defendant, was that Pritikin was a producer for ASI (transcript, P. 16); that Pritikin is an “independent producer soliciting business for” ASI (transcript, P. 17); that Pritikin was a “general agent” (transcript, P. 41); and that Pritikin was a “general broker” (transcript, P. 45). With only this evidence of record, Olszewski rested, Olszewski's counsel stating affirmatively, “No further evidence, Judge.” (Transcript, P. 85). That was the only evidence presented during the trial bearing on the issue of “agency.”

In light of the above, it was plain error for this Court to enter judgment in favor of Olszewski and against ASI. In order for the purported “faxed” notice to be deemed “received” by ASI, it was absolutely necessary that Olszewski prove, by a preponderance of the evidence, that it was “received” by an agent of ASI. This was not done. This Court's entry of judgment in favor of Olszewski on this record was blatant error.

III. THIS COURT ERRED IN INJECTING ITSELF INTO THE TRIAL

During ASI's closing arguments, this Court injected itself into the trial by asking counsel, and her witness, questions during counsel's closing remarks. Under the circumstances in this case, this constitutes reversible error.

It is black-letter law that closing arguments follow the close of evidence, and that counsel's remarks during closing arguments are not evidence. At the time ASI's counsel stood before the bench to make her closing remarks, the evidence was closed. (Transcript, P. 94). Both sides had rested. Counsel was merely attempting to wrap up the evidence as presented by counsel of record and make her concluding points in an effort to demonstrate to this Court why her position was the correct one, and why the Court should enter a declaratory judgment for ASI. Instead of allowing trial counsel to simply make her closing comments, this Court effectively “reopened” the proofs, asking counsel - and her witness - questions that had not been previously asked, and which had not previously been made part of the record by Olszewski's counsel. In doing so, this Court not only improperly interfered with the proofs, it alsoassumed the task and burden of Olszewski's burden of proof on a pivotal issue in the case. This was plainly erroneous.

Olszewski asserted an affirmative defense that necessarily called into question the nature of the relationship, if any, between ASI and the brokers, namely M.E. Pritikin and Midwest Competent. During the trial, however, Olszewski solicited no evidence or testimony whatsoever from either ASI's witness or his own witness bearing on this issue. Instead, this Court, for all intents and purposes, assumed the role of advocate for Olszewski, during ASI's closing argument. In fact, the only testimony whatsoever solicited during the trial on the issue of “agency” was done by this Court, after the parties had rested and after the evidence and proofs had been closed. This much is clear from even a cursory examination of the trial transcript. This constitutes reversible error.

Moreover, and just as if not more significantly, this Court, sitting in equity, simply had no authority to “inject” itself into and participate in this proceeding. The Supreme Court, by statute, has authorized, and indeed empowered, trial courts presiding over “small claims” cases to participate in the trial, solicit evidence, and call witnesses. Supreme Court Rule 285(b). Indeed, it is only in the small claims court that a judge may participate and take an active role in the trial by questioning witnesses and soliciting evidence. In every other court, this is strictly the job of counsel, or, in some instances, of pro se litigants. Had our Supreme Court intended judges sitting in equity to take an active role in the proffering and gathering of evidence during trial, our Court surely would have made this clear, just as they did in the arena of small claims. Its silence on this topic is objective, empirical proof that this type of interference by equity judges is simply not allowed. The Court erred in participating in this trial.

IV. THIS COURT ERRED IN ITS INTERPRETATION OF ILLINOIS LAW

As an alternative argument, and without waiving or in any way compromising its position that this Court erred in becoming an advocate for Olszewski during the closing remarks of counsel, this Court erred in its interpretation of Illinois law on the issue of “agency.” Initially, this Court erred in its comment during ASI's closing arguments that, “There's no such thing [as an independent agent].” (Transcript, P. 97). In Shafer-Pearson Agency, Inc. v. Chubb Corporation, 237 Ill. App. 3d 1031, 606 N.E.2d 17 (1st Dist. 1992), the Court stated, “Good Weather, throughindependent agents and brokers, offered drought insurance...” Id., 237 Ill. App. 3d at 1034 (emphasis added). Clearly, contrary to this Court's assertion, there most certainly is such a thing as an “independent agent” in the law.

Second, as was set forth clearly in ASI's Trial Memorandum filed with this Court and tendered to Olszewski well in advance of trial, there is a distinction under Illinois law between an “insurance broker” and an “insurance agent.” An “insurance broker” is one who procures insurance and acts as a middleman between the insured and the insurer, and solicits insurance business from the public under no employment from any special company, but having secured an order, places the insurance with the company selected by the insured, or, in the absence of any selection by him, with the company selected by the broker. An “insurance agent” is one who has a fixed and permanent relation to the companies he represents and who has certain duties and allegiances to such companies. Allied American Insurance Company v. Ayala, 247 Ill. App. 3d 538, 616 N.E.2d 1349 (2nd Dist. 1993). Moreover, and as stated above, the partyasserting the agency relationship has the burden of proving the agency's existence by a preponderance of the evidence. Id., 247 Ill. App. 3d at 552 (emphasis added).

Here, not only did Olszewski - the party asserting the agency relationship - fail completely in his burden of proof, the “proof” or “evidence” solicited not by counsel but instead by this Court was simply insufficient to support a finding, as a matter of law, that Pritikin was ASI's “agent” at any point in time. There was no evidence whatsoever that Pritikin had a “fixed and permanent” relationship to ASI, or that it had any “duties” or “allegiances” to ASI. As stated above, the only evidence presented during the trial, by either the plaintiff or the defendant, was that Pritikin was a “direct producer” for ASI (transcript, P. 16); that Pritikin is an “independent producer soliciting business for” ASI (transcript, P. 17); that Pritikin was a “general agent” (transcript, P. 41); and that Pritikin was a “general broker” (transcript, P. 45). That was the totality of the “evidence” on the subject of agency. For this Court to have concluded from this scant evidence that Pritikin was ASI's “agent” at the times relevant herein, and to then jump from this unsubstantiated conclusion to the equally unsubstantiated conclusion that Pritikin's actions must be imputed to ASI, constitutes reversible error.

CONCLUSION

There was clear error during the trial of the cause which warrants the relief sought by ASI. Indeed, this Court erred in not barring an undisclosed witness in light of the strict requirements imposed by Supreme Court Rule 213 ; in entering judgment in favor of Olszewski when he presented no evidence whatsoever of an “agency” relationship between ASI and Pritikin; for interfering in the proofs after the evidence was closed and the parties had rested; and in its interpretation of Illinois law. For all of the reasons set forth herein, ASI respectfully urges this Court to grant its relief for a vacation of the judgment entered on September 18, 2000, and for judgment in favor of ASI and against Olszewski, or, in the alternative, for a new trial on all issues.

Respectfully Submitted,

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