MOUNT VERNON – Jonathan Little tried for five years to prove someone else caused him to crash into a railroad overpass, and Fifth District appellate judges recently ruled that he can keep trying to prove it.
On Dec. 9, they reversed a summary judgment order that St. Clair County Associate Judge Julie Katz entered for Country Mutual Insurance.
“We find there was circumstantial evidence that could potentially establish that Little’s vehicle was struck by a phantom vehicle on March 24, 2015,” Justice Milton Wharton wrote.
Little drove his sister Madie Little’s car in rain that night, on Route 13.
His report for the state transportation department stated that he slowed for a curve due to the rain and a car came up behind him at fast speed.
He wrote that the car slowed down until he reached a straight area where it passed him, cut in front of him, and made contact with his front end.
“I braked and swerved making me in Car 1 come into immediate contact with the train overpass,” Little wrote in his report.
He wrote that the other car was nowhere in sight when he came to a stop.
“All I could remember was a chrome or silver bumper,” he wrote.
State trooper Erica Lavalle reported that she found no transfer of paint.
Country Mutual sued Little and his sister, claiming her coverage for uninsured motorists didn’t apply because no contact occurred.
The insurer filed photographs showing no damage from sideswiping.
Little filed photographs of the front end, showing damage to the headlight cover on the driver’s side.
Madie filed an affidavit stating her brother told a police officer at a hospital that a vehicle passed him and made contact.
She stated he told the officer it was an older vehicle with chrome bumper.
In 2016, Katz entered default judgment against Madie Little and denied Jonathan Little’s motion to introduce his photographs as exhibits.
Country Mutual moved for summary judgment in 2019, claiming Little’s deposition was unreliable.
The insurer stated that after the deposition, Little sent his physician a letter about a memory block he experienced while testifying.
Katz granted summary judgment, finding she couldn’t rely on Little’s testimony.
Little moved to vacate the order as his own counsel, though a lawyer had represented him in Katz’s court.
He stated he took cold and flu medicine and experienced fever at his deposition.
He stated he had regained clarity of all details.
Katz didn’t rule on Little’s motion, so he appealed and his lawyer withdrew.
In the appellate court ruling, Wharton wrote that facts weren’t brought to Katz’s attention.
“These facts are part of the common law record and consist of pleadings, an affidavit, and photographic exhibits filed by Little,” he wrote.
“We find that Madie’s affidavit filed on April 8, 2016, in response to Country Mutual’s motion for a default judgment, contains the background to the questions asked by the trial court at the summary judgment hearing.
“While officer Lavalle may have her opinions about whether another vehicle was involved, there is absolutely nothing in the record indicating that she looked at the headlight cover.
“Instead, officer Lavalle was intent on ruling out a phantom vehicle by ascertaining the lack of transfer paint.
“Although Little may be constrained by his deposition testimony he provided while he was suffering from memory impairment, the record nevertheless contains evidence supporting a genuine issue of material fact.”
Justices Mark Boie and Randy Moore concurred.
The Justices remanded the action to Katz for further proceedings.