Kennedy v. Commercial Carriers, Inc.

1-97-0563

CLINTON KENNEDY, DALE LONG, ) APPEAL FROM
KENNETH H. CHANDLER, and ) THE CIRCUIT COURT
HAROLD SUTPHIN, Indiv. ) COOK COUNTY.
and on Behalf of a Class of )
Similarly Situated Persons, )
)
Plaintiffs-Appellees, ) No. 89 CH 11486
)
v. )
)
COMMERCIAL CARRIERS, INC., ) THE HONORABLE
) JENNIFER DUNCAN-BRICE
Defendant-Appellant. ) JUDGE PRESIDING.

PRESIDING JUSTICE COUSINS delivered the opinion of the
court:
Plaintiffs, Clinton Kennedy, Dale Long, Kenneth H. Chandler
and Harold Sutphin, brought a class action on behalf of certain
union truck drivers against their employer, Commercial Carriers,
Inc. (CCI), alleging that CCI had breached its equipment leases
with each plaintiff and class member. After a jury trial, the
trial court entered judgment in favor of plaintiffs and against
CCI in the amount of $2,313,142.72. CCI appeals from that
judgment and from the trial court s order denying CCI s post-
trial motion for judgment notwithstanding the verdict or, in the
alternative, for a new trial. On appeal, CCI contends that the
trial court erred by denying CCI s request, pursuant to section
2-1201(c) of the Code of Civil Procedure (735 ILCS 5/2-1201(c)
(West 1992)), for separate verdict forms that CCI alleges would
have enabled the jury to find in favor of the plaintiffs on only
one of the two leases at issue.
BACKGROUND
CCI is an automobile transporter that hauls vehicles on
behalf of manufacturers and importers. Plaintiff class
representatives were owner-operators who leased their respective
tractors or tractor-trailers to CCI for use in CCI s business of
transporting automobiles. CCI and the owner-operators entered
into lease agreements that supplemented other terms of
employment. The plaintiff class consisted of 97 owner-operators
who signed certain forms of those leases. The lease agreements
required CCI to pay rent to the owner-operators in the amount of
65% of CCI's gross revenue. Plaintiffs brought breach of
contract claims under two different versions of the lease which
were attached to the complaint as exhibits A and B,
respectively. Clinton Kennedy's lease, attached as exhibit A
to the complaint, provided that rents were to be calculated as
follows:
"Company [CCI] agrees to pay Lessor [owner-operator] as
rental compensation for the use of the leased motor vehicles
and motor vehicle equipment, an amount earned in use of
Lessor s vehicle equal to the percentage of the gross
revenue accruing to the Company and exclusive of delivery
charges where Lessor s vehicle does not make final delivery,
based upon gross billings to customers, hereinafter set
forth less driver s wages and vacation pay, at the union
contract rates, less the transportation cost attributable
thereto." (Emphasis added.)
Harold Sutphin s lease, attached as exhibit B to the complaint,
provided a separate basis upon which rents were to be calculated
and provided as follows:
"[T]he COMPANY agrees to pay the LESSOR, as rental
compensation for the use of the Vehicle, an amount equal to
the percent of the gross revenue (based upon billings to
customers), derived by line-haul revenue only as herein
stated below, and exclusive of delivery charges where the
Vehicle does not make final delivery less driver s wages and
vacation pay, at the union contract rates, less the
transportation cost attributable thereto." (Emphasis added.)
Plaintiffs alleged that CCI breached its equipment leases by
reducing the gross revenues upon which plaintiffs' rents were
calculated by amounts that CCI referred to as "ancillary charges"
received by CCI. The ancillary charges covered costs associated
with the assimilation of shipping and delivery information and
ranged from $2.40 to $5.25 per delivery.
At trial, plaintiffs' expert, Leland Stewart Case, an
economic transportation consultant, explained that CCI included
ancillary charges in the rates it charged to customers. Those
rates were published in CCI's tariffs. Case explained that
tariffs are documents that provide the terms and conditions under
which a carrier such as CCI will make shipments and the prices
the carrier will charge for the shipments. It was Case's opinion
that the gross revenues referred to in the lease agreements
included ancillary charges that had been charged to the
customers.
On the other hand, CCI's expert, Mitchell Haller, testified
that line-haul revenue, referred to in the lease attached to the
complaint as exhibit B, is different from revenue of a motor
carrier because there can be revenue of a motor carrier that is
not attributable to line-haul service. Haller defined the term
"line haul" as a commonly used term in the trucking industry that
constitutes part of a full transportation service that is the
movement in a train or truck from the point of origin to the
point of destination.
Plaintiffs presented the damages attributable to each of the
97 class members in a demonstrative exhibit that was admitted
into evidence as plaintiffs' exhibit M1.
At the jury instruction conference, CCI tendered separate
verdict forms for each lease, which would allow the jury to make
separate findings of liability for each lease and assess separate
damages for each lease. In addition, CCI proposed a jury
instruction that instructed the jury to consider the leases
separately, determine whether each lease required CCI to include
ancillary charges in calculating the plaintiffs' compensation
and, if necessary, determine the separate damages for each
plaintiff under each lease respectively.
In response to CCI's proposed forms and instruction,
plaintiffs counsel argued that their exhibit, exhibit M1, did
not provide separate calculations for each lease, that CCI did
not provide an exhibit that would provide the jury with separate
calculations and that the jury would become frustrated if it had
to complete such calculations. Plaintiff also argued that CCI
was effectively seeking to divide the class into two subclasses
after all the evidence had been introduced, even though CCI had
made no pretrial motion for the creation of subclasses. The
trial court rejected CCI s verdict forms and accepted plaintiffs
forms, which included a special interrogatory. The interrogatory
provided:
"Do you find that, at the time the leases were
executed, revenues should have been reduced by ancillary
charges for purposes of calculating the rents owed to the
plaintiffs and class members[?]"
The jury answered this interrogatory in the negative.
Plaintiffs' verdict form provided:
"If you find for plaintiffs and the class and against
defendant for breach of the leases and for damages, then you
should use Verdict Form A.
If you find for defendant and against plaintiffs and
the class, then you should use Verdict Form B."
In finding for the plaintiffs, the jury used verdict form A,
which provided:
"We, the jury, find for the plaintiffs and the class
against defendant. We assess the damages in the sum of
***."
The jury returned a verdict in favor of the class and
against CCI and found damages in the amount of $1,364,131.68.
The trial court granted the class motion for prejudgment
interest and entered judgment in favor of the class in the amount
of $2,313,142.72. CCI appealed.
OPINION
CCI argues that the trial court erred in denying CCI s
request, pursuant to section 2-1201(c) of the Code of Civil
Procedure (735 ILCS 5/2-1201(c)(West 1992)), for verdict forms
that would have enabled the jury to consider the leases
separately. Plaintiffs argue that the trial court did not abuse
its discretion in rejecting CCI's proposed verdict forms and jury
instruction because the materials were inconsistent with the
posture of the case as a single-count class action. Plaintiffs
further argue that, assuming arguendo that the class claims were
theoretically severable, the trial court properly rejected CCI's
proffered materials because they were misleading and therefore
unacceptable.
The form of verdicts is a matter within the sound discretion
of the trial court. Gausselin v. Commonwealth Edison Co., 260
Ill. App. 3d 1068, 1077, 631 N.E.2d 1246 (1994). The law
regarding separate verdicts is clearly set forth in section 2-
1201(c) of the Code of Civil Procedure and provides:
"(c) If there are several counts in a complaint,
counterclaim or third-party complaint based on different
claims upon which separate recoveries might be had, the
court shall, on a motion of any party, direct the jury to
find a separate verdict upon each claim." 735 ILCS 5/2-
1201(c)(West 1992).
The joint committee comments to the original version of this
section explain:
"Separate verdicts are appropriate only when recovery on
different demands is sought in the same complaint.
Therefore, the words 'upon which separate recoveries might
be had' have been added, making clear that the provision
authorizing separate verdicts applies only to separate
causes of action based upon separate transactions." Ill.
Ann. Stat., ch. 110, par. 2-1201(c), Joint Committee
Comments, at 4 (Smith-Hurd 1983).
Although there is some authority for the proposition that
separate transactions within a single pleaded count may require
separate verdicts (see, e.g., In re Estate of Payton, 79 Ill.
App. 3d 732, 740, 398 N.E.2d 977 (1979)), CCI has cited no
authority for the proposition that separate verdicts are
appropriate in a class action where there is only one class and
no subclasses. We believe that the use of separate verdicts in a
class action is inappropriate, particularly in light of the
special nature of a class action.
A class action is appropriate when there are questions of
fact or law common to the class and these predominate over
questions affecting only individual members of such class. See
Slimack v. Country Life Insurance Co., 227 Ill. App. 3d 287, 292,
591 N.E.2d 70 (1992). A common question must predominate over
the individual questions that may be involved. Miner v. Gillette
Co., 87 Ill. 2d 7, 17, 428 N.E.2d 478 (1981). Once the basic
determination has been made that a predominating common question
of fact or law exists, the fact that there may be individual
questions will not defeat the predominating common question.
Miner, 87 Ill. 2d at 17-18. However, if certain individual
questions exist that may require individual determinations, these
individual questions may be handled within subclasses, as long as
the common issues predominate. Slimack, 227 Ill. App. 3d at 293;
Miner, 87 Ill. 2d at 18.
After carefully reviewing the record in this case, we
conclude that separate verdicts were not required. In the case
sub judice, the trial court certified a single class without
subclasses. CCI did not appeal the trial court's certification
of the class and does not argue on appeal that the trial court
should have created subclasses. Rather, relying on Caton v.
Flig, 343 Ill. App. 99, 98 N.E.2d 162 (1951), CCI argues that
separate verdicts should have been allowed. Caton, however, is
distinguishable from the instant case.
In Caton, three individual plaintiffs who occupied separate
apartments under separate leases brought suit against the
defendant landlord for overcharges in rent for their respective
apartments. 343 Ill. App. at 100. Defendant's petition to the
court for separate trials as to each plaintiff was overruled.
The cause went to trial as one proceeding before a jury and
resulted in a verdict for the plaintiffs for a lump-sum judgment
for all plaintiffs. 343 Ill. App. at 100. The appellate court
reversed the trial court's entry of judgment and held that the
single verdict and judgment was improper because each plaintiff
had a separate and distinct cause of action for separate claims
of damages for different amounts based upon separate and distinct
transactions. 343 Ill. App. at 101.
In the instant case, however, the single class proceeded to
trial on a single count. The single count addressed the sole
issue, which was a common question of law to all the class
members as to whether CCI should have reduced gross revenues by
ancillary charges for the purposes of calculating rents to the
plaintiffs. Since the single count was not based on different
demands upon which separate recoveries might be had, or separate
causes of action based upon separate transactions, the provision
of 2-1201(c) is inapplicable and separate verdicts were not
required. Since there are clearly no separate causes of actions
based upon separate transactions within a single class, we hold
that, where there is a single class without subclasses, separate
verdicts are inappropriate. Therefore, the trial court did not
err in refusing CCI's separate verdict forms.
Moreover, we also note that, if a jury's answer to a special
interrogatory is inconsistent with a general verdict, the special
interrogatory controls the outcome of the case. Morton v. City
of Chicago, 286 Ill. App. 3d 444, 449, 676 N.E.2d 985 (1997); see
also Snyder v. Curran Township, 281 Ill. App. 3d 56, 59, 666 N.E.2d 818 (1996). Here, the jury specifically found in the
special interrogatory that revenues should not have been reduced
by ancillary charges for the purpose of calculating the rents
owed to the plaintiffs under either lease. Thus, even if we were
to find error in the jury's general verdict, we would still
affirm the judgment based on the jury's answer to the special
interrogatory.
Assuming arguendo that separate forms were appropriate, we
agree with plaintiffs that CCI's proposed jury instruction was
misleading and improper. While a party is entitled to have
correct instructions submitted to the jury, the trial court's
refusal to give incorrect instructions is not error. Sweeney v.
Max A.R. Matthews & Co., 46 Ill. 2d 64, 69, 264 N.E.2d 170
(1970). See also Kinka v. Harley-Davidson Motor Co., 36 Ill.
App. 3d 752, 758, 344 N.E.2d 655 (1976). Moreover, a party who
fails to meet its obligation to tender a proper instruction
cannot complain that its instruction was refused. Sweeney, 94
Ill. App. 2d at 30.
In the instant case, CCI proposed the following instruction:
"The plaintiffs have the burden of proving the
following proposition with respect to each form of the
leases at issue:
That the leases between the defendant and the
plaintiffs required the defendant to include ancillary
charges in calculating the plaintiffs' compensation.
If you find from your consideration of all the evidence that
the proposition required of the plaintiffs has been proved
with respect to the leases in the form of both Plaintiffs
Exhibit [A] and Plaintiffs Exhibit [B], then you must
determine the damages sustained by all the plaintiffs. If,
on the other hand, you find from your consideration of all
the evidence that the proposition the plaintiffs are
required to prove has been proved only with respect to one
of the two leases, then you must only determine the damages
sustained by the plaintiffs to which that form of lease
applies. Finally, if you find from your consideration of
all the evidence that the proposition the plaintiffs are
required to prove has not been proved with respect to either
Plaintiffs Exhibit [A] or Plaintiffs Exhibit [B], then
your verdict should be for the defendant and you must not
consider any other issues in the case." (Emphasis added.)
Despite CCI's insistence at oral argument, it is our view that
this instruction, particularly its last sentence, is misleading
and improper. The use of the terms "either" and "or" would have
required a general verdict for CCI even if the jury was to find
against CCI on only one of the leases. Accordingly, the trial
court's refusal to give this instruction was not error.
For the foregoing reasons, the judgment of the circuit court
is affirmed.
Affirmed.
GORDON and CAHILL, JJ., concur.
JUSTICE GORDON, SPECIALLY CONCURRING,
I concur with the majority that this appeal should be
affirmed. However, my concurrence is predicated upon the second
reason advanced, namely, that the proffers of the verdict forms
were misleading and the court was therefore justified in
rejecting them. I am not persuaded, however, that the defendant
is bound to a single verdict because only a single class was
certified. Section 2-1201 of the Code of Civil Procedure (735
ILCS 5/2-1201 (West 1992)), which provides for separate verdict
forms, does not purport to interface with the class action
provisions and Sections 2-801 et seq of the Code (735 ILCS 5/2-
801 et seq.(West 1992)). Moreover, in this case, plaintiff did
request two separate subclasses, which the court denied. While
the failure to certify two subclasses would create administrative
problems in the event two separate verdict forms were submitted
and resulted in disparate verdicts, the prospect of such
administrative difficulty would not justify ignoring the separate
verdict requirement under Section 2-1201. Under the reasoning
of the majority, two wrongs would make a right in that a wrongful
failure to certify two classes would justify a wrongful failure
to submit separate verdicts under Section 2-1201. I would rather
adhere to the notion that if having been wrongfully denied the
certification of two subclasses, a party can still prevail at the
verdict stage, if two verdict forms are otherwise necessary.
However, since appellant failed to properly tender the two
verdict forms, the court was justified on that ground alone to
reject their tender.