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$19 million crash verdict ‘not excessive’

Largest wrongful death verdict ever affirmed
Chicago Daily Law Bulletin
By Stephanie Potter
Law Bulletin staff writer

The 1st District Appellate Court on Friday affirmed a $19.2 million award to the family of a man killed in 1999 when two tractor-trailer trucks struck his car.

The size of the Cook County jury’s verdict in favor of the family of William J. Tengler was at issue due in part to a recent ruling in which the 1st District court ordered a trial judge to slash a $25 million loss of society award after finding that it was excessive. Mikolajczyk v. Ford Motor Co., 369 Ill.App.3d 78, 106 (2006).

The Illinois Supreme Court earlier this week ordered the appeals court to vacate and reconsider its ruling in Mikolajczyk due to a different issue.

In this case, Tengler’s widow, Billie Jo, was awarded $18.2 million for the wrongful-death count in her lawsuit. She also was awarded $1 million for a survival count alleging that her husband suffered prior to his death.

The verdict at a trial before Cook County Circuit Judge Carol Pearce McCarthy went against truck driver David Villarreal and the company he drove for, Preferred Unlimited Inc.

Writing for the court in its unpublished decision Friday, Justice Rodolfo Garcia distinguished Tengler’s case from Mikolajczyk. He wrote that the $18.2 million award to Tengler’s family covered both economic and non-economic damages, while the award in the Mikolajczyk concerned only non-economic damages.

Evidence at trial indicated that Tengler, a tool-and-dye maker, would have earned more than $1 million had he worked until he was 65. But neither side had requested that an itemized verdict form be given to the jury, so specific amounts were not awarded for economic losses and for non-economic damages, such as loss of society, the opinion said.

Garcia wrote that while the court therefore was unable to examine awards for economic and non-economic damages individually, the panel still was able to review the total award to determine ”if it is so large that it shocks the judicial conscience.” Richardson v. Chapman, 175 Ill.2d 98, 113 (1997).

The court found that the damage award was not excessive.

”In this case, although the damage award was large, we cannot say that it resulted from passion or prejudice, or that it had no reasonable relationship to the loss suffered,” Garcia wrote, citing Snelson v. Kamm, 204 Ill.2d 1, 37 (2003). ”The record shows that Tengler’s death was a devastating event for his family and that he was a devoted husband and father to two young children.”

Tengler, 28, was a passenger in a car waiting to make a left turn off Route 20 near the junction with Union Road near Marengo. Villarreal testified that he didn’t see the car until ”he was right on top of it because the sun obstructed his view,” the opinion said. Evidence presented at trial showed that Villarreal had cocaine and marijuana in his system.

Villarreal rear-ended the car, pushing it into the path of another semi, which was hauling powdered cement.

The driver of that truck, Zarko Trisic, and the company he drove for, Kazanova Cartage, also were named in Tengler’s suit. Kazanova filed a counterclaim for contribution against Villarreal and Preferred that was tried at the same time as Tengler’s claims. The jury found that Kazanova and Trisic were not at fault.

Also at issue on appeal was Preferred’s contention that McCarthy erred in allowing evidence concerning Villarreal’s drug use. An expert for Kazanova, Dr. Robert Barkin, testified that Villarreal was impaired at the time of the accident, and that the impairment would have affected his decision-making skills.

Preferred argued that the drug use evidence was not relevant because it had already admitted liability. But McCarthy found that Villarreal’s impairment was relevant to the counterclaim.

The appeals court agreed.

”In this case, although we recognize that the evidence of Villarreal’s drug use was prejudicial, we find no evidence in the record to support the defendants’ argument that it was not relevant to Kazanova’s counterclaim for contribution,” Garcia wrote. ”The trial court understood the nature of the contribution claim and found that this evidence was material to that claim.”

The appeals court also rejected the defendants’ argument that Tengler could not support her claim that her husband endured pain and suffering before he died.

Justices Margaret Stanton McBride and Robert Cahill concurred in the decision.

Tom Leahy, one of the attorneys for the Tengler family, said he was pleased that the court, while distinguishing the case from Mikolajczyk, directly addressed the issue of whether the verdict was excessive.

“It took a long, long time, but I’m hopeful we’re close to the end of the road on this case,” Leahy said.

Leahy’s partner, Peter D. Hoste, and Michael W. Rathsack also represented the Tengler family.

The appeals court’s 23-page decision was unpublished in accordance with Illinois Supreme Court Rule 23. Rathsack said he may request publication of the ruling.

The defendants were represented on appeal by Michael A. Pollard of Baker & McKenzie LLP. Pollard said his clients were assessing their options in terms of an appeal.

Billie Jo Tengler, etc. v. Prefered Unlimited Inc., et al., No. 1-04-2056.



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