MADISON - ST. CLAIR RECORD

The Illinois Appellate Court sided mainly with a Madison County claimant in a case where both the plaintiff and defendant appealed an injured truck driver's $1.4 million jury award in February 2004.

Carl Brdar will get another shot at a punitive damage claim against auto hauler manufacturer Cottrell, Inc., but his wife, Vicky, won't get anything for loss of consortium due to her husband's neck and shoulder injuries.

A Madison County jury awarded Brdar $1,486,584.40 on Feb. 6, 2004, for injuries he sustained in 1999 from a chain breaking while working as a truck driver for Cassens Transport. Brdar was based at the company's Smyrna, Tenn. facility.

The Brdars sued Cottrell, General Motors Corp. (GM), DaimlerChrysler Corp. (DaimlerChrysler), Cassens & Sons, Inc., and Cassens Corp. in March 2000, alleging negligence and strict liability. They also sought punitive damages and loss of consortium damages. Claims against all defendants except Cottrell were settled in June 2004.

The court's opinion issued Thursday by Justice Melissa Chapman found none of Cottrell's arguments for overturning the verdict to be persuasive. Cottrell appealed on grounds of forum, evidence and testimony.

Chapman wrote that Cottrell did not appeal Madison County Circuit Judge Andy Matoesian's decision on forum until after a jury verdict in the case. Cottrell argued that it was not only inconvenienced by the Madison County trial but also prejudiced by it as well because Tennessee law was not applied.

"Were we to reverse the verdict on grounds of forum non conveniens alone, we would be requiring the parties to go through an otherwise unnecessary second trial in a different forum after going through a Madison County trial," Chapman wrote. "To hold that a doctrine designed to promote convenience can lead to that result would be absurd."

Cottrell argued that Matoesian erred at trial by allowing an expert witness to testify for the plaintff, by admitting 18 documents that it contends were hearsay evidence without proper foundation, refusing to give Cottrell's proffered jury instructions on sole proximate cause and the necessity for the plaintiffs to prove that the trailer was in the same condition when the chain broke that it was in when it left Cottrell's possession, and denying its motion to dismiss on forum non conveniens grounds.

At trial Matoesian denied plaintiffs' claim for punitive damages stating that in order to recover for an action arising after March 9, 1995, a plaintiff had to prove "by clear and convincing evidence that the defendant acted with an evil motive, or with a reckless and outrageous indifference to a highly unreasonable risk of harm, and with a conscious indifference to the rights and safety of others."

The appellate court also ruled on the Brdars cross-appeal.

The Brdars argued that Matoesian erred in refusing to submit their claim for punitive damages to the jury and that Vicky Brdar is entitled to a new trial on her claim for loss of consortium. The jury did not award her any damages.

They argued Matoesian applied the wrong law in denying their motion to reinstate their claim for punitive damages.

Chapman partially agreed with the Brdars in remanding the case back to Madison County.

"While we agree with the Brdars that the court applied the wrong standard in denying their request to submit their punitive-damages claim to the jury, we do not agree that they are automatically entitled to a new trial on that issue," Chapman wrote.

"It is not clear what conclusion the court would have reached had it applied the correct law," she wrote.

"If the court concludes that there is a reasonable likelihood the Brdars will recover punitive damages, only then they will be entitled to a new trial limited to that issue."

The appellate court, however, denied the Brdars' claim for a new trial on loss of consortium.

Justices Spomer and Stewart concurred in the decision.