Trucking Death – $8 Million – Agency Defense

Jury Instructions-IL > Motor Vehicle Accidents > Trucking Death – $8 Million – Agency Defense

McHale v. Transfreight LLC, Kiswani Trucking, Russell Kleppe 10 L 2934

Trucking Death – $8 million – Agency Defense

$8 million award to the family of a 36 year old mother and wife who was struck and killed by a tractor-trailer while standing by her disabled car on the shoulder of the interstate. The truck was carrying auto parts for a national auto manufacturer. The truck driver and his trucking company admitted liability; however the other defendant, who had hired the trucking company, denied agency by claiming to be an independent contractor/freight forwarder/logistics provider for a national auto manufacturer and not a “motor carrier” under definitions in federal regulations.

IPI 1.01 – Modified by the court to be read at end of case, and updated by IPI Committee in 2009 to include old IPI 3.01 language)

Now that the evidence has concluded, I will further instruct you as to the law and your duties. The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a corporation, partnership or an individual, should receive your same fair consideration.

I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them

You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

NON- IPI Party Identification Instruction

The Plaintiff in this case is: STEVEN McHALE, special administrator of the Estate of STACEY McHale, deceased.

The defendants in this case are: TRANSFREIGHT, LLC, KISWANI

TRUCKING, INC., AND MR. RUSSELL A. KLEPPE.

NON-IPI – Opinion Testimony – Legal Versus Conventional Trade Terms

When an opinion witness used the term “agent” or “employee” in his testimony, he was doing so only in the conversational sense of the words and he was referring to the common layman or industry definitions. In no way was the witness using the term in a legal sense, nor is he giving an opinion of the term from a legal standpoint.

Whether an individual is an agent or employee of another is for you to decide at the end of the case after you have heard all of the evidence and the instructions of law.

IPI 1.03B Admitted Fault and Causation

The defendants, Kiswani Trucking, Inc. and Russell Kleppe have admitted that they were liable for the death of the decedent, Stacey McHale. However, there are other issues you will need to decide in this case as to Kiswani Trucking, Inc. and Russell Kleppe.

The defendant, Transfreight, LLC. has acknowledged that the defendants, Kiswani Trucking, Inc. and Russell Kleppe were liable for the death of Stacey McHale. However, there are other issues you will need to decide in this case as to Transfreight, LLC.

IPI 2.01 – Evidence Deposition

The testimony of some witnesses was presented by video tape or the reading of their testimony. You should give this testimony the same consideration you would give it had the witnesses personally appeared in court.

IPI 3.02 Witness Who Has Been Interviewed by Attorney

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.

IPI 3.03 Insurance

Whether a party is insured has no bearing whatever on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.

IPI 3.04 Circumstantial Evidence

A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 3.08 – Opinion Testimony

You have heard a witness give opinions about matters requiring knowledge and skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case

IPI 20.01& 1.02 & 23.01B Combined – ISSUES – ADMITTED Negligence/ Modified for Admitted Negligence/Admitted Fault Only

The plaintiff claims to have sustained injuries and damages, and that the defendants were liable for the death of Stacey McHale.

As to Kiswani Trucking Inc. and Russell Kleppe:

The defendants, Kiswani Trucking, Inc. and Russell Kleppe have admitted they were liable for the death of Stacey McHale, so that is not an issue you will need to decide.

However, as to the defendants, Kiswani Trucking, Inc. and Russell Kleppe, you need only decide what amount of money will reasonably and fairly compensate the Estate of Stacey McHale for damages as a result of her death.

The defendants, Kiswani Trucking Inc. and Russell Kleppe, deny the extent of damages claimed by the plaintiff.

As to Transfreight, LLC:

The defendant, Transfreight, LLC. acknowledges that the defendants, Kiswani Trucking, Inc. and Russell Kleppe were liable for the death of Stacey McHale.

However, you need to decide whether Kiswani Trucking Inc. or Russell Kleppe were the agents of Transfreight LLC at the time of the occurrence. If so, then you will further need to decide what amount of money will reasonably and fairly compensate the Estate of Stacey McHale for damages as a result of her death.

The defendant, Transfreight LLC, denies that Kiswani Trucking Inc. or Russell Kleppe were acting as its agents at the time of the occurrence, and further deny the extent of damages claimed by the plaintiff.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which a party has the burden of proof is more probably true than not true.

21.02 Burden of Proof on the Issues— Admitted Negligence—One Plaintiff and One Defendant—No Contributory Negligence

As to Kiswani Trucking, Inc. and Russell Kleppe, the plaintiff has the burden of proving the extent of damages sustained by the Estate of Stacey McHale.

As to Transfreight, LLC, the plaintiff has the burden of proving: (1) that either Kiswani Trucking, Inc. or Russell Kleppe were agents of Transfreight LLC; and (2) if so,

the extent of damages sustained by the Estate of Stacey McHale.

IPI 31.04 Measure of Damages — Wrongful Death — Adult Decedent — Widow and Lineal Next of Kin Surviving Next of Kin Surviving

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate the widower and children of the decedent for the “pecuniary loss” proved by the evidence to have resulted to the widower and children from the death of the decedent. “Pecuniary loss” may include loss of money, benefits, goods, services, society, and sexual relations

Where a decedent leaves a widower and children, the law recognizes a presumption that the widower and children have sustained some substantial “pecuniary loss” by reason of the death of the decedent. The weight given this presumption is for you to decide from the evidence in this case.

IPI 31.11 Damages—Loss of Society—Definition

When I use the term “society” in these instructions, I mean the mutual benefits that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.

In determining pecuniary loss, you may consider what the evidence shows concerning the following:

What money, benefits, goods and services the decedent customarily contributed in the past;
What money, benefits, goods and services the decedent was likely to have contributed in the future;
Decedent’s personal expenses and other deductions;
What instruction, moral training, superintendence of education the decedent might reasonably have been expected to give her children had he lived;

Her age;
Her sex;
Her health;
Her habits of industry and thrift;
Her occupational abilities;
The grief, sorrow, and mental suffering of Steven McHale, Steven McHale, Jr., and Emily McHale;
The relationship between Steven McHale, Steven McHale, Jr., and Emily McHale, and Stacey McHale;
The marital relationship that existed between Steven McHale and Stacey McHale.

Whether pecuniary loss has been proved by the evidence is for you to determine.

[IPI 31.07 Measure of Damages — Wrongful Death — Factors Excluded]

In determining “pecuniary loss” you may not consider the following:

The pain and suffering of the decedent.

The poverty or wealth of the next of kin.

IPI 31.09 Action for Wrongful Death and Survival Action Brought by Personal Representative

The plaintiff, Steven McHale, brings this action in a representative capacity by reason of his being special administrator of the Estate of Stacey McHale, deceased. He represents himself, Steven McHale, Jr., and Emily McHale.

They are the real parties in interest in this lawsuit, and in that sense are the real plaintiffs whose damages you are to determine if you decide for the Estate of Stacey McHale.

31.12/13 (34.02/modified) Discount of Future Damages—Wrongful Death Case– Mortality Tables as Evidence of Damages

If you find for the plaintiff, then in assessing damages you may consider how long the widower and children will be likely to sustain pecuniary losses as a result of Stacey McHale’s death, considering how long Stacey McHale was likely to have lived and how long Steven McHale, Steven McHale, Jr., and Emily McHale are likely to live.

According to a table of mortality in evidence, the life expectancy of a female person aged 36 years (such as Stacey McHale at time of death) is 47.4 years. That of a male person aged 44 years (Steven McHale) is 38.4 years, that of a male person aged 16 years (Steve McHale, Jr.) is 60.6 years and that of a female person aged 12 years (Emily McHale) is 70.3 years . These figures are not conclusive. They are the average life expectancies of persons who have reached those ages. They may be considered by you in connection with other evidence relating to the probable life expectancies of the decedent and her widower and her next of kin including evidence of the decedent’s occupation, health, habits and activities, bearing in mind that some persons live longer and some persons live less than the average.

In calculating the amount of these pecuniary losses consisting of money, benefits, goods or services, you must determine their present cash value. “Present cash value” means the sum of money needed now which, together with what that sum may reasonably be expected to earn in the future, will equal the amounts of those pecuniary losses at the times in the future when they will be sustained.

Damages for loss of society, companionship, and sexual relations are not reduced to present cash value.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for the defendant, Transfreight, LLC on the question of agency, then

you will have no occasion to consider the question of damages as to Transfreight LLC.

41.03 Two or More Defendants

The rights of the defendants, Transfreight, LLC., Kiswani Trucking, Inc., and Russell Kleppe are separate and distinct. Each is entitled to a fair consideration of their own defense and you will decide each defendant’s case separately as if it were a separate lawsuit. Each defendant’s case must be governed by the instructions applicable to that case.

50.03 Both Principal and Agent Sued—Agency Denied—Principal Sued Under Respondeat Superior Only/modified

The Defendant, Transfreight, LLC, is sued as the principal and the defendants, Kiswani Trucking, Inc. and Russell Kleppe as the agents of Transfreight LLC.

Transfreight LLC has denied that any agency existed.

If you find that either of the defendants, Kiswani Trucking Inc. or Russell Kleppe, were the agents of the defendant, Transfreight LLC at the time of the occurrence, then you must also find that Transfreight LLC is liable.

On the other hand, if you find that both defendants, Kiswani Trucking, Inc. and Russell Kleppe, were not the agents of the defendant, Transfreight LLC, at the time of the occurrence, then you must find that Transfreight LLC is not liable.

IPI 50.06 Agent—Issue as to Scope of Authority of Agent Only

One of the questions for you to determine is whether or not Kiswani Trucking, Inc. or Russell Kleppe were acting within the scope of their respective authority.

An agent is acting within the scope of his authority if he is engaged in the transaction of business which has been assigned to him by his principal, or if he is doing anything which may reasonably be said to have been contemplated as a part of his employment. It is not necessary that an act or failure to act must have been expressly authorized by the defendant, Transfreight LLC.

IPI 50.10 Agent or Independent Contractor

The question has been raised whether at the time of the occurrence Kiswani Trucking, Inc. or Russell Kleppe were the agents of the defendant
Transfreight LLC or were an independent contractors.

An agent is a person or entity who by agreement with another, called the principal, represents the principal in dealings with third persons or transacts some other business, manages some affair, or does some service for the principal, with or without compensation. The agreement may be oral or written, express or implied.

The term “agent” is broader than either “servant” or “employee.” A servant or employee is an agent, but one may be an agent although he is neither servant nor employee.

If you find that one person or entity has the right to control the actions of another at a given time, you may find that the relation of principal and agent exists, even though the right to control may not have been exercised.

An independent contractor is a person or entity who undertakes a specific job where the person or entity that engages the independent contractor does not have the right to direct and control the method and manner of doing the work.

In determining whether at the time of the occurrence Kiswani, Inc or Russell Kleppe were agents of the defendant, Transfreight LLC, or were an independent contractors, you may also consider the method of payment; the right to discharge; the skill required in the work to be done; who provides tools, materials or equipment; whether the worker’s occupation is related to that of the employer.

The principal is liable to third persons for the negligence of his agent in the transaction of the business of the principal, if the agent himself is liable. But one who engages an independent contractor is not liable to others for the negligence of the contractor.

50.11 A Corporation Acts Through Its Employees

The defendants, Kiswani Trucking, Inc. and Transfreight LLC are corporations

and can act only through their officers and employees. Any act or omission of an officer or employee within the scope of his employment is the action or omission of the defendant corporation.

B45.01 – FORMS OF VERDICT – NO COMPARATIVE/MODIFIED

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

A Verdict Form is supplied with these instructions. After you have reached your verdict, fill in and sign the Verdict Form and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

A “Special Interrogatory” is supplied with these instructions. After you have reached a verdict, fill in and sign the Special Interrogatory and return it to the court along with the forms of verdict. The Special Interrogatory must be signed by each of you.

IPI B45.01.A – VERDICT FORM A

VERDICT FORM A

We, the jury, find for the Plaintiff, Estate of Stacey McHale, and against the following defendants;

Transfreight LLC YES _____ NO _____

Kiswani Trucking Inc. YES _X _ NO _____

Russell Kleppe YES _X _ NO _____

We assess the total damages in the sum of $______________________________________ itemized as follows:

Loss of society to Steven McHale $_________________

Loss of society to Steve McHale, Jr. $_________________

Loss of society to Emily McHale $_________________

Grief, sorrow and mental suffering to Steven McHale $_________________

Grief, sorrow and mental suffering to Steve McHale, Jr. $_________________

Grief, sorrow and mental suffering to Emily McHale $_________________

Loss of money goods and services to family $_________________

[Signature Lines ]

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(Foreperson)

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SPECIAL INTERROGATORY

Was Kiswani Trucking, Inc. or Russell Kleppe acting as an agent of Transfreight

LLC at the time of the occurrence on Interstate 294 on February 15, 2010 ?

YES _____ NO _____

[Signature Lines ]

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(Foreperson)

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