Illinois Official Reports 

Appellate Court

Hana v. Illinois State Medical Inter-Insurance Exchange Mutual Insurance Co.,

2018 IL App (1st) 162166

Appellate Court 

Caption

ALIZABETH HANA and ELVIN HANA, Plaintiffs-Appellees, v. 

ILLINOIS STATE MEDICAL INTER-INSURANCE EXCHANGE 

MUTUAL INSURANCE COMPANY, Defendant-Appellant.

District & No. First District, First Division

Docket No. 1-16-2166

Filed March 16, 2018

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 15-L-5975; the 

Hon. Irwin Solganick, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Stamos & Trucco, LLP, of Chicago (James J. Stamos and Benjamin F. 

Klimek, of counsel), and Law Offices of Michael T. Reagan, of 

Ottawa (Michael T. Reagan, of counsel), for appellant.

Law Offices of Michael W. Rathsack, of Chicago (Michael W. 

Rathsack, Elizabeth A. Kaveny, and Michael L. Gallagher, of 

counsel), for appellees.
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Panel JUSTICE ROCHFORD delivered the judgment of the court, with 

opinion.*

Presiding Justice Reyes and Justice Hall concurred in the judgment 

and opinion.

 OPINION 

¶ 1 Plaintiffs, Alizabeth Hana and Elvin Hana, filed this suit against defendant, Illinois State 

Medical Inter-Insurance Exchange Mutual Insurance Company (ISMIE), seeking to recover 

for ISMIE’s alleged bad-faith failure to settle an underlying lawsuit. A jury ruled in favor of 

plaintiffs, entered a multimillion dollar verdict against ISMIE, and ISMIE thereafter appealed 

raising a host of issues. For the following reasons, we reverse and remand for a new trial. 

¶ 2 I. BACKGROUND 

¶ 3 Because of the limited number of issues we address in this opinion, we recite here only 

those facts necessary to our resolution of this appeal. 

¶ 4 A. Underlying Medical Malpractice Litigation 

¶ 5 The underlying medical malpractice suit (Hana v. Chams, No. 05-L-7692 (Cir. Ct. Cook 

County, Nov. 10, 2015)) was brought by plaintiffs against, inter alia, ISMIE’s insureds, Dr. 

Albert Chams and Dr. Joyce Chams—as well as their joint-obstetrics practice group, Chams 

Women’s Health Care, S.C.—in addition to Rush North Shore Medical Center (Rush North 

Shore) and two of Rush North Shore’s emergency room doctors. The underlying suit sought to 

recover for deficient prenatal care provided by the defendants, which resulted in physical 

injury to Alizabeth and the death of plaintiffs’ child, Mary. Alizabeth was appointed as the 

special administrator of Mary’s estate, and a wrongful death claim was included in the 

complaint. ISMIE accepted defense of the underlying suit without reservation and retained an 

attorney to represent the Chamses. 

¶ 6 Prior to trial, a number of the defendants were either dismissed from the case or were 

awarded summary judgment in their favor, and three of the defendants settled with plaintiffs. 

Specifically, the trial court approved a $1.5 million settlement among plaintiffs, Rush North 

Shore, and two of Rush North Shore’s emergency room doctors. These three defendants were 

then dismissed from the underlying suit. As a part of this settlement, payments were made to 

plaintiffs’ health insurers to settle any liens they might have on plaintiffs’ recovery in the 

underlying case. This matter thereafter proceeded to a jury trial in May of 2009, involving only 

plaintiffs’ claims against Dr. A. Chams, Dr. J. Chams, and Chams Women’s Health Care, S.C.

¶ 7 Following the trial, the jury returned a general verdict in favor of plaintiffs and against the 

three remaining defendants. The jury awarded a total of $6,171,118.67 in damages, which 

included (1) $621,118.67 for Alizabeth’s personal injuries, (2) $4.55 million for Mary’s 

survival claim, and (3) $1 million for the wrongful death claim. Pursuant to a posttrial motion, 

the trial court reduced this amount by $1.5 million to account for the pretrial settlement. The 

 

*

Justice Rochford has listened to the recording of the oral argument. 
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defendants’ subsequent posttrial motion for a new trial was denied, and on appeal we affirmed. 

Hana v. Chams, 2011 IL App (1st) 100146-U.

¶ 8 After ISMIE paid its policy limits on the underlying verdict, the Chamses were personally 

responsible for the $1.35 million balance. In exchange for a covenant not to enforce that excess 

judgment against the Chamses, plaintiffs were assigned whatever rights the Chamses might 

have with respect to a bad-faith claim for ISMIE’s failure to settle the underlying litigation 

within the policy limits. 

¶ 9 B. Bad Faith Lawsuit 

¶ 10 Plaintiffs, thereafter, filed this suit seeking both, $1.35 million in compensatory damages 

for ISMIE’s bad-faith refusal to settle in count I, and $10 million in punitive damages for 

ISMIE’s allegedly willful and wanton breach of fiduciary duty in count II. In count II, 

plaintiffs also sought an award of costs, attorney fees, and penalties pursuant to section 155 of 

the Illinois Insurance Code. 215 ILCS 5/155 (West 2016). Plaintiffs also filed a jury demand. 

Pursuant to Public Act 98-1132 (eff. June 1, 2015), which amended section 2-1105(b) of the 

Code of Civil Procedure (Code) (735 ILCS 5/2-1105(b) (West 2016)) to provide for six-person 

juries in civil cases, and over the objection of ISMIE, this matter was tried before a six-person 

jury. 

¶ 11 That jury ultimately found in favor of plaintiffs on both counts, awarding plaintiffs $1.35 

million in compensatory damages and $13 million in punitive damages. In addition, the trial 

court awarded plaintiffs over $1.5 million in costs, attorney fees, interest, and penalties. ISMIE 

timely appealed. 

¶ 12 II. ANALYSIS 

¶ 13 ISMIE raises a constitutional issue as to the size of the jury in this case, as well as a number 

of other issues on appeal. However, because we conclude that this matter must be remanded for 

a new trial due to the denial of ISMIE’s constitutional right to a 12-person jury, and because we 

find that issue to be dispositive, we need only address that issue. Nevertheless, we will also 

address three issues related to the admissibility of evidence and the appropriateness of jury 

instructions that are likely to recur upon remand. 

¶ 14 Thus, we begin by considering ISMIE’s argument that the trial court improperly rejected 

its contention that it was entitled to a new trial because of the denial of its constitutional right to 

a 12-person jury. 

¶ 15 In considering whether a motion for a new trial should be granted, the trial court should set 

aside a jury’s verdict only if it is contrary to the manifest weight of the evidence or a party has 

been denied a fair trial. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). The trial court is in a 

superior position to consider errors that occurred, the fairness of the trial to all parties, and 

whether substantial justice was accomplished. Smith v. City of Evanston, 260 Ill. App. 3d 925, 

932-33 (1994). A trial court’s ruling on a motion for new trial will not be reversed unless there 

is an affirmative showing that it clearly abused its discretion. Gustafson, 151 Ill. 2d at 455. 

¶ 16 As noted above, Public Act 98-1132 (eff. June 1, 2015) amended section 2-1105(b) of the 

Code (735 ILCS 5/2-1105(b) (West 2016)) to provide for 6-person juries in civil cases and to 

eliminate the ability of either party to request a jury of 12. It was pursuant to the amended 

version of section 2-1105(b) that this matter was tried before a 6-person jury. 
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¶ 17 However, in Kakos v. Butler, 2016 IL 120377, ¶ 28, our supreme court found that 

“[b]ecause the size of the jury—12 people—was an essential element of the right of trial by 

jury enjoyed at the time the 1970 Constitution was drafted, *** jury size is an element of the 

right that has been preserved and protected in the constitution.” Our supreme court therefore 

found the portion of Public Act 98-1132 amending section 2-1105(b) and reducing the size of a 

jury in civil trials to be facially unconstitutional under the Illinois Constitution and therefore 

void ab initio. Id. ¶ 29.

¶ 18 Thus, because ISMIE was denied its constitutional right to a 12-person jury, it is apparent 

that it was denied a fair trial. This matter must therefore be remanded for a new trial. 

Gustafson, 151 Ill. 2d at 454. In reaching this conclusion, we reject three specific arguments 

raised by plaintiffs on appeal. 

¶ 19 First, plaintiffs contend that ISMIE failed to preserve this issue for appeal by failing to 

obtain a ruling from the trial court on its objection to seating a 6-person jury. However, the 

record clearly reflects that ISMIE filed a pretrial written motion, asking the trial court to 

declare Public Act 98-1132 unconstitutional and to seat a 12-person jury. Moreover, and 

contrary to plaintiffs’ assertions on appeal, the record reflects that this motion was discussed 

on the record and specifically denied by the trial court. This issue was thereafter included in 

ISMIE’s posttrial motion. Therefore, we find that ISMIE properly preserved this issue for 

appeal. 

¶ 20 Second, plaintiffs argue that ISMIE is not entitled to a new trial because no prejudice can 

be established where “it is pure speculation to say the verdict would have been different if there 

had been more jurors.” However, as noted above, our supreme court concluded that the portion 

of Public Act 98-1132 amending section 2-1105(b) and reducing the size of a jury in civil trials 

was “facially unconstitutional and void ab initio.” Kakos, 2016 IL 120377, ¶ 29. Thus, “the 

statute was constitutionally infirm from the moment of its enactment and is, therefore, 

unenforceable. As a consequence, we will give no effect to the unconstitutional statute.” 

People v. Blair, 2013 IL 114122, ¶ 30. Our supreme court’s decision in Kakos with respect to 

the amended version of section 2-1105(b) thus “stands as an impediment to the operation and 

enforcement of the statute.” Id. Therefore, the trial court had no authority to try this matter 

before a six-person jury, nor did it have any authority to enter a judgment upon the verdict 

reached by such a jury. The verdict and judgment simply have no legal effect, and may not now 

be affirmed on direct appeal. See Heastie v. Roberts, 226 Ill. 2d 515, 535 (2007) (decisions of 

our supreme court apply retroactively to causes pending at the time they are announced, 

including cases on direct review in the appellate court). 

¶ 21 Third, plaintiffs argue that ISMIE waived this issue by failing to strictly comply with 

Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006), pursuant to which a litigant challenging the 

constitutionality of a statute, ordinance, or administrative regulation must serve notice of the 

challenge—describing the nature of the constitutional challenge—upon the attorney general or 

other affected agency or officer, with such notice occurring at the time of suit, answer or 

counterclaim, if constitutionality is raised at that level, or promptly after the constitutional 

question arises as a result of a circuit or reviewing court ruling or judgment. The purpose of the 

notice is to give the affected agency or officer the opportunity to intervene in the proceeding 

for the purpose of defending the constitutionality of the statute, ordinance, or administrative 

regulation. Id. 
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¶ 22 As an initial matter, it is arguable that Rule 19 has no applicability here. In this appeal, we 

are not ourselves considering the constitutionality of Public Act 98-1132’s amendment of 

section 2-1105(b). Rather, we are simply applying our supreme court’s ruling in Kakos to this 

case. The constitutional issue has already been definitively determined. 

¶ 23 Even if Rule 19 is applicable, we do not find it to be an impediment. It is true, ISMIE did 

not provide notice to the Attorney General prior to trial at the time it initially challenged the 

constitutionality of Public Act 98-1132’s amendment of section 2-1105(b). Indeed, it was not 

until plaintiffs raised the failure to comply with Rule 19 in response to ISMIE’s posttrial 

motion that ISMIE provided the required notice. At that time, ISMIE was informed that the 

Attorney General would not seek to intervene, the same decision it had reached in “hundreds” 

of other cases raising the same issue. 

¶ 24 As our supreme court has recognized, “a party’s failure to timely comply with Rule 19 does 

not deprive the court of jurisdiction to consider the constitutional issue. However, failure to 

strictly comply with the rule may result in waiver. Nevertheless, because waiver is a limitation 

on the parties, not on the court [citation], a circuit court or the appellate court has the discretion 

to permit late compliance with Rule 19 and thereafter to address the constitutional issue if the 

purpose of the rule has been served.” Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 118-19 

(2004). 

¶ 25 In light of the fact that the Attorney General was ultimately notified by ISMIE, that the 

Attorney General declined to intervene just as it had in other cases, and given that our supreme 

court has now definitively ruled on the validity of Public Act 98-1132’s amendment of section 

2-1105(b), rendering any possible defense of the amendment futile, we conclude that the 

purpose of Rule 19 has been served. As such, any possible failure to strictly comply with Rule 

19 is not an impediment to our consideration of ISMIE’s argument that its constitutional right 

to a 12-person jury was violated. 

¶ 26 Having determined that ISMIE is entitled to a new trial on this basis, all of the remaining 

arguments it raised on appeal in support of a new trial are now moot and need not be addressed. 

In re Jonathan P., 399 Ill. App. 3d 396, 400 (2010) (“Generally, courts of review do not decide 

moot questions, render advisory opinions, or consider issues where the result will not be 

affected regardless of how those issues are decided.”). As such, we generally decline to address 

those remaining issues. Indeed, a number of the additional arguments raised by ISMIE on 

appeal address issues specifically related to the award of damages, costs, attorney fees, and 

penalties. “Whether the additional issues will ever become relevant is therefore a matter of 

speculation. Should they become germane, ‘the parties are free to raise [them] with the benefit 

of the additional facts and evidence that will be adduced at the proceedings held on remand.’ 

[Citation.] For now, however, any discussion of the issues is premature.” Pielet v. Pielet, 2012 

IL 112064, ¶ 57; see also Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 463 (2003). 

Again, we will therefore not address such issues here. 

¶ 27 Nevertheless, a reviewing court may address issues that are likely to recur on remand in 

order to provide guidance to the lower court and thereby expedite the ultimate termination of 

the litigation. Pielet, 2012 IL 112064, ¶ 56. A number of the other arguments raised by ISMIE 
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on appeal relate to the admissibility of evidence and the appropriateness of jury instructions 

that fall into this category, and we therefore choose to address those issues here.1

¶ 28 First, we consider ISMIE’s contention that plaintiffs were improperly allowed to introduce 

into evidence a 2013 letter from its counsel to ISMIE, offering to settle this lawsuit for the 

$1.35 million excess verdict entered in the underlying case, as well as additional testimony 

regarding this letter. In response, plaintiffs contend that this evidence was properly entered to 

establish ISMIE’s bad faith and willful and wanton conduct as to the underlying claims, which 

plaintiffs assert continued well after the excess verdict was entered in the underlying case. 

¶ 29 In Illinois, evidence regarding settlement negotiations or offers to settle are generally not 

admissible. Ford v. Grizzle, 398 Ill. App. 3d 639, 649 (2010). Such evidence is discouraged 

because it might be construed as an admission of liability and because public policy favors 

compromise. Morgan v. Richardson, 343 Ill. App. 3d 733, 740 (2003). However, when 

settlement offers are relevant, they are admissible. Shimkus v. Board of Review of the Illinois 

Department of Labor, 117 Ill. App. 3d 826, 831 n.2 (1983). Illinois Rule of Evidence 408 

provides that while evidence of settlement offers and negotiations are generally inadmissible, 

such evidence may be admitted for “permissible purposes,” one of which is “establishing bad 

faith.” Ill. R. Evid. 408 (eff. Jan. 1, 2011).

¶ 30 As an initial matter, we agree with ISMIE that any evidence of the 2013 settlement offer 

was barred by Rule 408. While Rule 408 does allow the introduction of evidence of settlement 

offers and negotiations to establish bad faith, we do not believe that this exception includes the 

introduction of evidence with respect to the settlement of the present litigation so as to 

establish ISMIE’s bad faith with respect to its handling of the underlying case. While no 

Illinois case has addressed this specific issue, we note that Rule 408 “mirrors the Federal Rule 

408, which our state courts have been applying to cases for years.” County of Cook v. Illinois 

Labor Relations Board, Local Panel, 2012 IL App (1st) 111514, ¶ 35. At least one federal 

court has recognized that evidence of an insurer’s refusal to settle a bad faith case is 

inadmissible for the purpose of establishing the insurer’s bad faith in handling an underlying 

matter. Niver v. Travelers Indemnity Co. of Illinois, 433 F. Supp. 2d 968, 994 (N.D. Iowa 

2006). This is consistent with the underlying policy of Rule 408; i.e., promoting settlement. 

¶ 31 Even if this evidence was not specifically barred by Rule 408, we agree with ISMIE that it 

is irrelevant. “ ‘Relevant evidence’ means evidence having any tendency to make the existence 

of any fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” Ill. R. Evid. 401 (eff. Jan.1, 2011). “Evidence 

which is not relevant is not admissible.” Ill. R. Evid. 402 (eff. Jan. 1, 2011). 

¶ 32 In this case, the pleadings, evidence, arguments, and jury instructions all reflect that the 

ultimate issue was whether ISMIE’s bad faith and willful and wanton conduct caused the 

excess judgment to be entered against the Chamses in the underlying case. The underlying 

judgment was entered in May 2009, and our prior decision affirming that judgment was 

entered in August 2011. The Chamses assigned their bad-faith claim to plaintiffs in March 

2010, in exchange for a covenant not to enforce any excess judgment against the Chamses. In 

 

1One of the issues raised on appeal by ISMIE involves the appropriateness of a jury instruction 

regarding a provision of the Rights of Married Persons Act. 750 ILCS 65/15 (West 2016). As framed by 

the parties, however, the propriety of this instruction is dependent on the evidence produced at trial. We 

therefore decline to address this issue at this time. 
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light of these facts, we fail to see how any refusal of ISMIE to settle this lawsuit in 2013 has 

any relevance with respect to whether ISMIE engaged in bad faith and willful and wanton 

conduct leading to the 2009 excess judgment. Even if we accepted plaintiffs’ insistence that 

this evidence shows continuing willful and wanton conduct occurring after the 2009 excess 

judgment, we reject any contention that such evidence is in any way relevant to establishing 

that plaintiffs were therefore damaged by the 2009 judgment. Therefore, no evidence 

regarding the 2013 settlement letter should be admitted at trial upon remand. 

¶ 33 Next, we consider ISMIE’s contention that the trial court improperly provided the jury 

with Illinois Pattern Jury Instructions, Civil, Nos. 710.02, 710.03 (2011) (hereinafter IPI Civil 

Nos. 710.02, 710.03), and refused to provide ISMIE’s proposed modified instructions, because 

those instructions did not accurately reflect current law. 

¶ 34 Both IPI Civil No. 710.02, the pattern issues instruction for bad-faith claims against 

insurers, and IPI Civil No. 710.03, the pattern burden of proof instruction with respect to such 

claims, provide that a plaintiff must generally establish that the insurer had a “reasonable 

opportunity” to settle the underlying lawsuit against its insured within the policy limits.2

Neither instruction has been amended in decades, and each instruction relies upon an 

understanding that the “Illinois Supreme Court has yet to define the duty or the elements of this 

cause of action.” Illinois Pattern Jury Instructions, Civil, 710.00 Intro. (2011). 

¶ 35 However, this does not reflect the current state of Illinois law. With respect to a bad-faith 

claim against an insurer for failure to settle a lawsuit against an insured, our supreme court has 

now specifically ruled: 

“The duty does not arise at the time the parties enter into the insurance contract, nor 

does it depend on whether or not a lawsuit has been filed. The duty of an insurance 

provider to settle arises when a claim has been made against the insured and there is a 

reasonable probability of recovery in excess of policy limits and a reasonable 

probability of a finding of liability against the insured. Since Illinois law generally does 

not require an insurance provider to initiate settlement negotiations [citations], this 

duty also does not arise until a third party demands settlement within policy limits.” 

(Emphases added.) Haddick ex rel. Griffith v. Valor Insurance, 198 Ill. 2d 409, 417 

(2001). 

In examining this ruling, this court has explained that the “reasonable probability” requirement 

set out in Haddick essentially means that a plaintiff in a bad faith suit must establish that 

liability in excess of the policy limits in the underlying suit was “at least more likely than not, 

but not necessarily a certainty. ” Powell v. American Service Insurance Co., 2014 IL App (1st) 

123643, ¶ 36. 

¶ 36 “The function of jury instructions is to convey to the jury the correct principles of law 

applicable to the submitted evidence and, as a result, jury instructions must state the law fairly 

***.” Dillon v. Evanston Hospital, 199 Ill. 2d 483, 507 (2002). Pattern instructions are 

 

2

In relevant part, IPI Civil No. 710.02 provides: “[The plaintiff claims that [name of insurance 

company] had a reasonable opportunity to settle [name of injured person]’s claim against [name of 

insured] within the policy limits.]” In relevant part, IPI Civil No. 710.03 provides: “The plaintiff has the 

burden of proving all of the following propositions: [First, that [name of insurance company] had a 

reasonable opportunity to settle [name of injured person]’s claim against [name of insured] within the 

policy limits.]”
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presumed to be accurate statements of Illinois law, and the jury is to be instructed using an 

approved pattern instruction if the trial court determines that it is applicable to the 

circumstances of the case. Luye v. Schopper, 348 Ill. App. 3d 767, 773 (2004). Nevertheless, 

pattern instructions are not themselves law, and our supreme court has held that they “are not 

exempt from challenge.” Powers v. Illinois Central Gulf R.R. Co., 91 Ill. 2d 375, 385 (1982). 

There has not been any advance approval of IPI instructions by our supreme court, and “[a]n 

instruction is approved or rejected only after it has been judicially questioned and considered.” 

Id.

¶ 37 Here, neither IPI Civil No. 710.02 nor IPI Civil No. 710.03 fairly and accurately reflects 

the current state of the law. A trial court may give nonpattern jury instructions when the pattern 

jury instruction on point does not adequately state the law. Van Winkle v. Owens-Corning 

Fiberglas Corp., 291 Ill. App. 3d 165, 177-78 (1997). While we do not mandate the exact form 

thereof at this time, upon remand, nonpattern jury instructions should be crafted to be used in 

the place of IPI Civil No. 710.02 and IPI Civil No. 710.03. Those instructions must reflect the 

holdings in Haddick and Powell.

¶ 38 Next, we address ISMIE’s contention that the trial court improperly provided the following 

jury instruction proffered by plaintiffs: 

“If you decide for the plaintiff on the question of liability, you must then award the 

amount of money which will compensate the plaintiff for the damages proved by the 

evidence to have resulted from ISMIE’s bad faith. The plaintiff’s damages are 

$6,171,118.67 which is the amount of the judgment entered in favor of the plaintiff and 

against insured, minus $3,321,118.67, and minus $1,500,000.00 for other allowable 

offsets. This amount equals $1,350,000.00”

¶ 39 This instruction was based upon Illinois Pattern Jury Instructions, Civil, No. 710.07 (2011) 

(hereinafter IPI Civil No. 710.07), which provides: 

“If you decide for the plaintiff on the question of liability, you must then award the 

amount of money which will compensate the plaintiff for the damages proved by the 

evidence to have resulted from [name of insurance company]’s negligence or bad faith. 

The plaintiff’s damages are $[insert sum] [which is the amount of the judgment entered 

in favor of the plaintiff and against [name of insured] (minus the amount received by 

the plaintiff from [name of insurance company] under the policy) (and) (minus the 

amount received by the plaintiff from another insurance company) (and) (minus 

[describe any other allowable offset(s)])].”

¶ 40 The “Notes on Use” commentary with respect to this instruction provides:

“In most cases, there will be no dispute as to the dollar amount of the damages to 

which the plaintiff is entitled if the insurance company is found liable, and this 

instruction has been drafted accordingly. This instruction also assumes that any 

additional damages to which the plaintiff may be entitled (such as interest) can be 

added to the verdict by the court and included in the judgment. 

 ***

 Whether the jury should be instructed as to how the sum claimed by the plaintiff 

was calculated is a matter left to the discretion of the court and counsel, and therefore 

the last part of this instruction is bracketed.” Id.
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¶ 41 Here, should ISMIE be found liable, the amount of plaintiffs’ damages was undisputed: 

$1.35 million. Moreover, there was no dispute among the parties or the trial court that IPI Civil 

No. 710.07 generally provided the relevant pattern instruction in this instance. Once a trial 

court determines an instruction is to be given, then Illinois Supreme Court Rule 239(a) (eff. 

Jan. 1, 1999) creates a presumption that one of the pattern instructions will be used. As such, 

while the trial court had the discretion as to whether to include the final bracketed material, IPI 

Civil No. 710.07, tailored only to include the relevant facts of this case, should have been 

given. However, that is not what occurred here, where the jury instruction actually provided to 

the jury both altered the language of the pattern instruction and added a third sentence. 

¶ 42 The plain language of the pattern instruction and the notes on use commentary make it 

clear that in this case only one numerical value should have been included in the second 

sentence of this jury instruction: i.e., $1.35 million, the undisputed amount of plaintiffs’ 

damages caused by ISMIE’s bad faith. Thereafter, in the discretion of the trial court, the 

instruction could have also included a verbal description of how that figure was calculated. 

There should have been no third sentence. 

¶ 43 Therefore, once the trial court elected to provide such a description as to how the amount of 

damages was calculated, the second sentence of the instruction in this case should have taken 

the following general form: “The plaintiffs’ damages are $1,350,000.00 which is the amount of 

the judgment entered in favor of the plaintiff and against the Chamses minus the amount 

received by the plaintiffs from ISMIE under the policy and minus the amount of the pretrial 

settlement in the underlying case.” At most, the language of IPI Civil No. 710.07 and the notes 

on use commentary for this instruction would arguably have supported a second sentence of 

the instruction in the following general form: “The plaintiffs’ damages are $1,350,000.00, 

which is the amount of the judgment entered in favor of the plaintiffs and against the Chamses 

($6,171,118.67) minus the amount received by the plaintiffs from ISMIE under the policy 

($3,321,118.67) and minus the amount of the pretrial settlement in the underlying case 

($1,500,000.00).”

¶ 44 Thus, while on remand the trial court will retain the discretion to omit or include the 

bracketed material contained in IPI Civil No. 710.07, should the bracketed portion of this 

instruction be used, it should be phrased in the general form described above, in accord with 

the language of the pattern instruction and the commentary. There should be no third sentence.

¶ 45 Finally, we note that, in addition to seeking a new trial on appeal, ISMIE also appeals from 

the denial of its posttrial request for judgment n.o.v. Obviously, should we consider this issue 

and rule in ISMIE’s favor, it would be entitled not to a new trial, but to a judgment in its favor.

¶ 46 However, we are reluctant to address this issue in light of our conclusion that this matter 

was improperly tried before a 6-person jury in violation of ISMIE’s constitutional right to a 

12-person jury and pursuant to a statutory amendment that was void ab initio. Arguably, the 

entire proceedings were rendered void as a result of this fundamental error, and we are in no 

position to allow a judgment of any kind—even one in ISMIE’s favor—to result from those 

proceedings. Furthermore, we have similar misgivings about entering any judgment when all 

of the evidence and arguments presented in this case were specifically tailored directly to a 

particular 6-person jury selected from the venire in an unconstitutional manner. There are 

specific indications in the record that the evidence and arguments presented below were in fact 

targeted at the particular jurors seated in this case. 
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¶ 47 Putting aside our reluctance and the fact that this case will be remanded for a new trial, 

even if we did address this issue, we would not find that the trial court erred in refusing to enter 

judgment n.o.v. in ISMIE’s favor. 

¶ 48 Judgment n.o.v. should be entered “only in those cases in which all of the evidence, when 

viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no 

contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. 

Co., 37 Ill. 2d 494, 510 (1967). The trial court may not enter a judgment n.o.v. if the evidence 

demonstrates a substantial factual dispute, or where the assessment of witness credibility or the 

determination regarding conflicting evidence is decisive to the outcome. Gustafson, 151 Ill. 2d 

at 454; Vanderhoof v. Berk, 2015 IL App (1st) 132927, ¶ 59. Furthermore, “[i]n making this 

assessment, a reviewing court must not substitute its judgment for the jury’s, nor may a 

reviewing court reweigh the evidence or determine the credibility of the witnesses.” 

Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 89 (2002). A motion for 

judgment n.o.v. presents a question of law that we review de novo. Lawlor v. North American 

Corp. of Illinois, 2012 IL 112530, ¶ 37.

¶ 49 Without going into any great detail, the record clearly reflects that—at a minimum—the 

parties presented materially conflicting evidence regarding the nature and sufficiency of the 

communications between ISMIE and the Chamses both before and during the underlying trial. 

The parties also presented conflicting testimony regarding the Chamses’ demand to settle the 

underlying case and/or the possibility of entering into a “high/low” agreement with plaintiffs, 

either of which would have protected the Chamses from an excess verdict. The credibility of a 

number of witnesses was also clearly placed at issue at trial, with a determination as to the 

credibility of the testimony of those witnesses clearly being central to the resolution of the 

issues presented in this case. 

¶ 50 In determining the propriety of a motion for judgment n.o.v., it is not our place to reweigh 

this evidence or determine the credibility of the witnesses. As such, and because the evidence 

does not so overwhelmingly favor ISMIE such that no contrary verdict based on that evidence 

could ever stand (Pedrick, 37 Ill. 2d at 510), we would reject ISMIE’s contention that its 

motion for judgment n.o.v. was improperly denied. We make this determination with respect to 

both ISMIE’s bad-faith refusal to settle, as alleged in count I, and ISMIE’s willful and wanton 

breach of fiduciary duty, as alleged in count II. 

¶ 51 III. CONCLUSION 

¶ 52 For the foregoing reasons, we reverse the judgment of the circuit court and remand this 

matter for a new trial consistent with this opinion. 

¶ 53 Reversed and remanded.