Acuity Insurance Company v. Illinois Department of Transportation

OPINION

Kubasiak, J.

Claimant, Acuity Insurance Company, owns this claim by virtue of its right to subrogate

under an automobile insurance policy issued to Leonard Indovina. Claimant brought this

negligence claim against Respondent on Oct. 27, 2009 after its claim with the Illinois

Department of Transportation (IDOT) was denied. Specifically, Acuity argues that IDOT is

liable for negligence because its employee was negligent in how he drove his snowplow and

proximately caused an automobile accident in which Indovina's vehicle was totaled.

The following facts are undisputed. On January 10, 2008, Claimant's insured, Mr.

Indovina, was driving a black 1996 Lexus sedan southbound on a snow-covered Barrington

Road, which has two southbound lanes and two northbound lanes. At the same time, two of [*278]

Respondent's IDOT employees, Sargon Alkas and Frank Ruscitti, were each driving a snowplow

on the same road, going the same direction. About two blocks south of Barrington's intersection

with Route 72, in the left lane, Indovina's Lexus collided with Ruscitti's snowplow. Indovina's

automobile was totaled and Claimant Acuity suffered $11,374 in damages. Ruscitti's snowplow

suffered damage to the left side of the rear bumper in a left-to-right direction. At the location in

question, there is a left turning lane coming out of the left lane. Respondent can be held

vicariously liable for its employee Ruscitti's actions in this case.

What is in dispute, and the issue before this Court, is how the accident occurred, and who is responsible for it. Both Ruscitti and Alkas testified that they were plowing snow and salting the road when the accident occurred. They testified that the blue strobe lights on top of their vehicles were turned on and were working. According to both men, Ruscitti was driving in the left lane of Barrington Road and Alkas was in the right lane, about one car length behind him.

They claimed that this was a standard tandem formation for snowplowing. Although Alkas stated that they were both always clearly in their respective lanes while on this road, Ruscitti conceded that he was "approximately" in the left lane because there was no way of knowing for sure since there was snow on the ground and he could not see the dividing lines.

Both men testified that, approximately two to four blocks south of Barrington's

intersection with Route 72, Ruscitti had his left turn signal on and was going to make a left turn.

Ruscitti and Alkas were going to make the left turn into a parking lot and then come out and get

on Barrington going northbound. Ruscitti could not describe the events leading up to the

accident because he could not see immediately behind him. Alkas, however, stated he saw what

transpired. Alkas explained that Indovina, who was in the left lane, sped up alongside Alkas and

tried to squeeze in front of him in the right lane. However, according to Alkas, there was not [*279]

enough room between Alkas's truck in the right lane and Ruscitti's truck in the left lane for

Indovina to make the lane change and Indovina lost control and hit Ruscitti's snowplow.

Alkas testified that at the time the accident occurred, Ruscitti was signaling his left turn

but had not yet begun to make the turn and was still going forward. Notably, Ruscitti had agreed

on cross-examination that if his bumper were hit while he was driving forward, it would have

been dented directly inward, not from a left-to-right direction, and that if he had been hit from

the right side, the bumper would have been dented in a right-to-left direction. Alkas had no

explanation for how the truck was damaged on left side if the accident occurred while Indovina

was attempting to move into the right lane.

Indovina testified that he was traveling in the left lane of Barrington Road. At

Barrington's intersection with Higgins Rd./Route 72 there was a red light. This intersection was

several blocks north of where the accident actually occurred. At the Higgins intersection,

Indovina could see Ruscitti's snowplow to his right, in the right lane, and the other snowplow

was behind Indovina in the left lane. He did not recall either vehicle having any strobe lights

turned on and stated that the vehicles did not appear to be plowing any snow.

When the light turned green, Indovina accelerated slowly on account of the fact that his

car fishtailed in the snow. Ruscitti's snowplow, however, had better traction and proceeded

between 35 to 50 feet ahead of Indovina in the right hand lane, while the plow behind Indovina

moved into the right hand lane. All of a sudden, Ruscitti, who was between 35 to 50 feet ahead

in the right lane moved into Indovina's lane in an attempt to get into the left turn lane. Indovina

immediately slammed on his brakes, but the car slid approximately 50 feet into the snowplow,

the hood of the Lexus coming into contact with the left side of the rear bumper.

[*280] The claimant in a negligence case has the burden to prove by a preponderance of the

evidence that the State was negligent and that such negligence was the proximate cause of the

claimant's damages. Allied Van Lines and Ray Houleite vs. Illinois (1992), 45 Ill. Ct. Cl. 94.

After reviewing the testimony and examining the evidence, we find the Claimant's testimony

credible and find that he has proved his case by the preponderance of the evidence. The impact

on the left side of Ruscitti's rear bumper is consistent with Indovina's version of events. Further,

testimony offered by Respondent does not refute Indovina's version of events because the

version of events offered by Respondent's employees is highly improbable. Namely, if Indovina

collided with Ruscitti's truck while Indovina was trying to move into the right lane, there is no

explanation for why the left side of Ruscitti's rear bumper was damaged - in a left-to-right

direction.

However, this does not end our analysis. Respondent's liability is limited by the extent to

which Indovina's failure to exercise reasonable care in providing for his own safety contributed

to his damages. Illinois follows a partial comparative negligence scheme: a plaintiff is barred

from recovery if his contributory fault accounts for more than 50 percent of the proximate cause

of his damages, but if his contributory fault accounts for 50 percent or less, the plaintiff's

recovery is diminished proportionate to the plaintiffs contributory fault. See Karas v. Strevell,

369 Ill.App.3d at 901 (discussing the comparative negligence scheme under 735 ILCS 5/2-

1116).

Here, given the snowy nature of the road and that Indovina knew his Lexus did not get

good traction on slippery roads, we would expect Indovina to stay a safe distance behind not

only any vehicle in front of him in his lane, but any vehicle, especially a IDOT snowplow, in the

adjacent lane as well. But Indovina stated that he had to "slam his brakes" when the snow plow [*281]

cut in front of him. This statement coupled with the nature of the accident can only lead us to

believe that, under the extremely bad road conditions that existed, he was traveling faster than he

should have been and also failed to keep a safe distance between himself and the snowplow.

Thus, we find that even though Ruscitti was negligent in cutting in front of Indovina,

Indovina could have prevented the accident or at least lessened its magnitude, had he been more

careful and aware of his surroundings. Accordingly, we find that Claimant's apportionment of

fault via its insured, Mr. Indovina, is 50 percent and Respondent is liable for 50 percent of his

damages.

Accordingly, Claimant's claim is GRANTED in part, and it is entitled to 50 percent of the

requested $11,374. Respondent is hereby ordered to pay Claimant $5,687.