Cundiff v. Patel, 2012 IL App (4th) 120031 (Cook)
Facts: Plaintiff was injured in a rear end collision in April 2008 and received treatment the following day, but then did not seek chiropractic treatment for his accident related injuries until August 2008. In the meantime, he saw his primary care physician several times and did not make any complaints relating to his accident related injuries. Plaintiff sought to admit evidence of his conversation with an insurance adjuster and to admit the adjustor’s activity log where the plaintiff told the adjustor that he was still having pain and intended on seeing a chiropractor. The trial court barred the conversation and activity log pursuant to a motion in limine filed by the defendant on the basis that it was “self-serving part of settlement negotiations” and inadmissible hearsay. Plaintiff obtained a verdict where the jury only awarded medical bills from the date after the occurrence but not for the chiropractic treatment from several months later and appealed the trial court’s ruling on the motion in limine.
Holding: The trial court erred in barring evidence of the conversation because the statement could have been admitted without disclosing the existence of insurance and was not inadmissible hearsay because it was being offered to prove merely that plaintiff made a complaint of neck pain and not for the truth of the matter asserted that he actually had neck pain.
Filed in Trial Book Under: Hearsay; Evidence – Insurance Coverage; Evidence – Settlement Negotiations; Offer of Proof
Commentary: This is a case that challenges several assumptions that most trial lawyers make regarding the admissibility of this type of evidence at trial. Motions in limine on the inadmissibility of insurance coverage and evidence of settlement negotiations are so routine that many attorneys wouldn’t even try to admit the statements. I admire that the plaintiff’s attorney was so resilient in trying to get this evidence into his case and was also willing to appeal a case that even had the evidence been admitted would still likely result in a relatively small verdict. The appellate court solves the evidence of insurance coverage by concluding that the foundational issues of the statement could be resolved through a stipulation so that the jury would never know who the adjustor was or that the context of the statement was made during settlement negotiations. I’m not exactly sure how the mechanics of this would work or whether the trial judge can force the defendant to stipulate in that manner if they were unwilling to do so. There was another procedural twist to this case in that the plaintiff failed to make an offer of proof at trial, normally a waiver of the issue on appeal, but the defendant failed to raise that issue on appeal. As a result, the appellate court addressed the issue anyway and concluded that an offer of proof was not required to adequately review the issue because the records was clear as to the basis of the trial court’s finding. All too often the appellate court will take the waiver as an opportunity to resolve the case in favor of the jury’s verdict, so it’s refreshing to see the court go out of its way to rule on this issue, particularly on such a small case.