2020 IL App (1st) 190232-U

No. 1-19-0232 

Third Division

May 20, 2020 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

MARIANNA MCMAHON and KRYSTIAN 

MISTERKA, 

Plaintiffs-Appellants, 

 v. 

MONIKA KULIG, 

Defendant-Appellee. 

_______________________________________________ 

STATE FARM MUTUAL AUTOMOBILE 

INSURANCE COMPANY a/s/o JULIA JOWAK,

 Plaintiff

 v. 

MONIKA KULIG,

 Defendant.

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Appeal from the

Circuit Court of 

Cook County. 

No. 16 L 010063 

Cons. with 

No. 17 M1 13210 

Honorable 

John P. Callahan, Jr. 

Judge, presiding. 

JUSTICE COBBS delivered the judgment of the court. 

 Presiding Justice Ellis and Justice Howse concurred in the judgment. 
No. 1-19-0232 

- 2 - 

ORDER

¶ 1 Held: The trial court did not err in refusing to sever consolidated cases or in excluding a 

photograph from evidence. 

¶ 2 On February 22, 2015, defendant Monika Kulig was the driver of a vehicle that collided 

with the vehicle of Martha Basurto before also striking a parked car. Plaintiffs Marianna McMahon 

and Krystian Misterka, who were passengers in Kulig’s vehicle, sued Kulig for injuries allegedly 

sustained in the accident. Plaintiffs’ case was later consolidated with a property damage action 

brought against Kulig by State Farm Mutual Automobile Insurance Company (State Farm), the 

insurer of the parked car. After a trial, the jury rendered a verdict in favor of Kulig. The trial court 

subsequently denied plaintiffs’ motion for a new trial and a motion to reconsider that denial. 

Plaintiffs now appeal, arguing that the court abused its discretion by refusing to (1) sever their 

claims from those of State Farm, and (2) allow them to introduce a post-accident photograph of 

Kulig’s vehicle into evidence. For the following reasons, we affirm. 

¶ 3 I. BACKGROUND

¶ 4 On December 21, 2016, plaintiffs filed an amended complaint alleging negligence against 

both Kulig and Basurto.1 According to the amended complaint, “a collision occurred” between 

Kulig’s and Basurto’s vehicles because Kulig “[n]egligently, carelessly, and improperly overtook 

[Basurto] at an unsafe distance” while Basurto “made a left turn into [Kulig’s] vehicle.” The 

amended complaint also alleged that Kulig was negligent because she “operated [her] vehicle at 

an excessive rate of speed” and “failed to keep [her] vehicle under proper and sufficient control so 

1 The amended complaint also alleged negligence against a Martha Bocanegra, which was 

apparently an alias Basurto gave to police following the accident. 
No. 1-19-0232 

- 3 - 

that it could be readily stopped and slackened in speed.” Plaintiffs voluntarily dismissed their 

claims against Basurto in June 2017 and proceeded only on their claims against Kulig. 

¶ 5 On August 24, 2017, the trial court entered an order consolidating plaintiffs’ and State 

Farm’s respective claims against Kulig. No objection to the consolidation nor any transcripts of a 

hearing regarding the motion to consolidate appear in the record on appeal. 

¶ 6 The record also does not contain any transcripts from the trial proceedings. What does 

appear in the record are depositions from two doctors who treated plaintiffs (which are essentially 

irrelevant to the issues presented on appeal) and a two-paragraph bystander’s report prepared by 

plaintiffs’ trial counsel. According to that report, plaintiffs’ counsel made an oral motion to sever 

the cases “[p]rior to the start of the trial,”2 which was denied. Counsel also showed the trial court 

a post-accident photograph of Kulig’s vehicle that plaintiffs sought to introduce “for a number of 

reasons,” including as evidence that Kulig was speeding before the accident. The court excluded 

the photograph, but the bystander’s report does not explain why. 

¶ 7 The case proceeded to trial, where the jury found in favor of Kulig. Plaintiffs filed a motion 

for a new trial, arguing that the trial court erred by refusing to sever the cases or admit the postaccident photograph of Kulig’s vehicle. At the hearing on the motion, the transcript of which is 

included in the record on appeal, plaintiffs argued that they were prejudiced by the consolidation 

because the fact that Kulig was being sued by State Farm while not being defended by her own 

insurance company caused “a very high likelihood of confusion [and] of feeling really sorry for 

[Kulig], that [Kulig] actually didn’t have insurance.” The court denied the motion with respect to 

2 According to Kulig, the oral motion to sever was made on the day of trial and without any notice. 

Plaintiffs do not dispute that characterization, nor do they explain why they did not move to sever until 

more than one year after the cases were consolidated. 
No. 1-19-0232 

- 4 - 

the severance issue, stating that State Farm was a “proper party in this particular event” and that 

plaintiffs received a fair trial. The court also specifically noted that plaintiffs’ trial counsel “put on 

an excellent case given what he had” and that State Farm “never interjected themselves in any way 

into the plaintiffs’ case during the course of this trial.” 

¶ 8 Regarding the admissibility of the post-accident photograph, plaintiffs argued that it was 

“not [an] abuse of discretion but [an] error of law to require expert testimony [to use] this 

photograph for the purposes of showing that [Kulig] was speeding” because that issue was not 

outside the understanding of an average juror. In response, the court asked plaintiffs’ counsel why 

the photograph made it more likely that Kulig was speeding. Counsel replied, “Because she 

couldn’t stop” and, “Because the car entered into a pile of heap.” The court opined that the 

photograph alone would not “let a juror know whether the person driving that car had been 

speeding before the accident” without such information as the type of car it was, the material of 

which it was made, or the “quality of construction.” Plaintiffs’ counsel continued to argue that any 

reasonable juror would have concluded that Kulig was speeding based on the photograph. The 

court ultimately denied the motion for a new trial, stating that the photograph was not “really 

relevant” because it was not “going to lend anything other than speculation to this jury” where 

there were two separate collisions and “[t]hey heard four witnesses testify about the speed or lack 

of speed during the course of this accident.” 

¶ 9 Plaintiffs subsequently filed a motion to reconsider, arguing that Peach v. McGovern, 2019 

IL 123156, which was decided by our supreme court just weeks after the trial court denied the 

motion for a new trial, held that post-accident photographs “are relevant and that juries should be 

permitted to consider photographs that depict the damage or lack thereof to the vehicle.” The 
No. 1-19-0232 

- 5 - 

record does not contain any ruling on the motion to reconsider, but it was apparently denied. This 

appeal followed. 

¶ 10 II. ANALYSIS

¶ 11 A. Motion to Sever 

¶ 12 On appeal, plaintiffs first argue that the trial court abused its discretion by refusing to sever 

their claims from those of State Farm. A trial court may consolidate two pending actions as an aid 

to convenience whenever it can be done without prejudice to the parties’ substantial rights. 735 

ILCS 5/2-1006 (West 2016). Illinois courts generally favor consolidation in the interest of judicial 

economy, as such joinder conserves time and allows the courts and litigants to avoid unnecessary 

duplication of effort and expense. Northwest Water Comm’n v. Carlo V. Santucci, Inc., 162 Ill. 

App. 3d 877, 890 (1987). Consolidation is appropriate where two cases: “(1) are of the same 

nature; (2) arise from the same act or event; (3) involve the same or like issues; and (4) depend 

largely on the same evidence.” Edwards v. Addison Fire Protection Dist. Firefighter’s Pension 

Fund, 2013 IL App (2d) 121262, ¶ 41. A trial court has “broad discretion” in determining whether 

consolidation of two cases is proper, and its decision will not be overturned absent an abuse of that 

discretion. Id. A court abuses its discretion where its decision is arbitrary, fanciful, or so 

unreasonable that no reasonable person would agree with it. In re Joseph J., 2020 IL App (1st) 

190305, ¶ 26. 

¶ 13 As a preliminary matter, we note that plaintiffs have arguably waived the issue by failing 

to object to the trial court’s consolidation order. See Klein v. Steel City National Bank, 212 Ill. 

App. 3d 629, 634-35 (the plaintiff waived challenge to the trial court’s sua sponte order to sever 

by failing to object). Even assuming that plaintiffs adequately preserved the issue by moving to 
No. 1-19-0232 

- 6 - 

sever more than one year after the cases were consolidated, we would still affirm the trial court’s 

judgment. 

¶ 14 Plaintiffs do not dispute that their claims involve the same events and evidence as those of 

State Farm but maintain only that consolidation was improper because State Farm’s involvement 

prejudiced their substantial rights. In particular, plaintiffs assert that the trial court “did not engage 

in any meaningful analysis” and “did not weigh the relatively small burdens [of having two trials] 

in this case against the substantial danger of prejudice.” However, as the record is devoid of any 

transcripts from the court’s rulings on the motion to consolidate or on plaintiffs’ subsequent oral 

motion to sever, we cannot conclude that the court failed to consider the appropriate factors. 

Rather, as it is the appellant’s burden to present an adequate record for review, we must construe 

any doubts or deficiencies arising from an incomplete record against plaintiffs. Tebbens v. Levin 

& Conde, 2018 IL App (1st) 170777, ¶ 31. Accordingly, we draw all reasonable inferences in favor 

of the trial court’s orders and presume that they were in conformity with the law and supported by 

a factual basis. Pate v. Wiseman, 2019 IL App (1st) 190449, ¶ 17. Additionally, the court’s 

comments at the hearing on the motion for a new trial, which is the only transcribed hearing in the 

record on appeal, belie plaintiff’s position. Those comments show that the court considered 

plaintiffs’ arguments, but rejected them because it found that the cases were properly consolidated 

and that plaintiffs did not suffer prejudice. 

¶ 15 Moreover, the limited record before us is sufficient to establish that plaintiffs’ arguments 

against consolidation are meritless. As they did in the trial court, plaintiffs contend that 

consolidation was improper because the court instructed the jury, at plaintiffs’ request and in 

accordance with Illinois Pattern Jury Instructions, Civil, No. 3.03, that: 
No. 1-19-0232 

- 7 - 

“Whether a party is insured or not insured has no bearing on any issue that you 

must decide. You must refrain from any inference, speculation, or discussion about 

insurance. 

If you find for the plaintiff, you shall not speculate about or consider any possible 

sources of benefits the plaintiff may have received or might receive. After you have 

returned your verdict, the court will make whatever adjustments are necessary in this 

regard.”

Plaintiffs maintain that they suffered prejudice in light of this instruction because State Farm’s 

involvement “made it impossible for the jury not to discuss insurance,” “created an inference that 

[plaintiffs] had the help of insurance while [Kulig] had no insurance,” and “very likely confused 

the jury.” 

¶ 16 These arguments are based largely on speculation, as there is absolutely no evidence to 

suggest that the jury was confused or that it based its verdict on an assumption that Kulig was 

uninsured. Furthermore, the fact that State Farm’s presence might have drawn the jury’s attention 

to the concept of insurance in some loose sense does not entitle plaintiffs to a new trial. The general 

prohibition against mentioning insurance in a personal injury case is based on the rationale that, 

although irrelevant to the issue of negligence, knowledge that a defendant is insured tends to induce 

the jury to award a larger verdict in the plaintiff’s favor than it otherwise would have. Imparato v. 

Rooney, 95 Ill. 3d 11, 15 (1981). Even in an unconsolidated personal injury case, not every mention 

of insurance is prejudicial. Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13, 41 (2009). Instead, 

“[a] reference to insurance is only prejudicial if it directly indicates that the defendant is insured 

[citation] or if it is the product of conduct by counsel intended to influence or prejudice the jury
No. 1-19-0232 

- 8 - 

[citation].” Neyzelman v. Neyzelman, 273 Ill. App. 3d 511, 515 (1995); see also Seldin v. Babendir, 

325 Ill. App. 1058, 1064 (2001); Twait v. Olson, 104 Ill. App. 3d 191, 196 (1982). 

¶ 17 Here, as plaintiffs concede, there was no reference to Kulig’s insured status. Nor was there 

apparently any mention that plaintiffs were insured. Despite plaintiffs’ arguments, there is nothing 

in the record to suggest that the jury was unable to understand that State Farm was pursuing a 

separate claim based on a similar set of operative facts. Indeed, although none of the trial 

transcripts appear in the record on appeal, the trial court noted that “State Farm never interjected 

themselves in any way into the plaintiffs’ case during the course of this trial.” Under these 

circumstances, plaintiffs were not prejudiced by the consolidation of the cases, and the trial court 

did not abuse its discretion in refusing to sever them. 

¶ 18 B. Post-Accident Photograph 

¶ 19 Plaintiffs next contend that the trial court erred by barring them from introducing a postaccident photograph of Kulig’s vehicle, which they say was relevant to show that Kulig was 

speeding. Specifically, plaintiffs maintain that the court “erred as a matter of law” when it stated 

that the photograph was not relevant without supporting testimony and thus abused its discretion 

by basing its ruling on an erroneous understanding of the law. 

¶ 20 Evidentiary rulings are generally within the sound discretion of the trial court and will not 

be reversed on appeal absent an abuse of the discretion. Hoffman v. Northeast Illinois Regional 

Commuter Railroad Corporation, 2017 IL App (1st) 170537, ¶ 41. An exception to this general 

rule is where the trial court’s exercise of discretion was “frustrated by an erroneous rule of law.” 

People v. Williams, 188 Ill. 2d 365, 369 (1999). In such a case, the court’s ruling is reviewed de 

novo. People v. Gonzalez, 2018 IL App (1st) 155242, ¶ 79. 
No. 1-19-0232 

- 9 - 

¶ 21 Here, plaintiffs, citing Peach, contend that the trial court based its decision on an erroneous 

understanding that expert testimony was required to support a post-accident photograph. However, 

as the court’s initial ruling on the admissibility of the photograph does not appear in the record on 

appeal, we must presume that the ruling was in accordance with the law. See Foutch v. O’Bryant, 

99 Ill. 2d 389, 392 (1984). To the extent that plaintiffs rely on the court’s remarks in denying their 

motion for a new trial, we cannot say that those comments show that the court based its ruling on 

the mistaken belief that expert testimony was required in every case. See People v. Caffey, 205 Ill. 

2d 52, 89 (2001) (declining to invoke the exception to the general rule of deference to the trial 

court where the ruling in question was based “on the specific circumstances of this case and not 

on a broadly applicable rule”). Notably, the record shows that the court considered the photograph 

in light of the specifics of this case, including that the damage to Kulig’s vehicle was the result of 

two separate collisions and that the issue of Kulig’s speed was explored at trial. 

¶ 22 The court’s ruling was not necessarily incongruous with Peach, which did not hold that 

post-accident photographs are always admissible without expert testimony. Rather, Peach, and the 

appellate court cases it cited approvingly, make clear that there is no “rigid rule that photographs 

of the vehicles involved in a collision are always admissible or that expert testimony is always 

necessary for such photographs to be admitted.” Peach, 2019 IL 123156, ¶ 34 (citing Ford v. 

Grizzle, 398 Ill. App. 3d 639, 648 (2010); Fronabarger v. Burns, 385 Ill. App. 3d 560, 564 (2008); 

Jackson v. Seib, 372 Ill. App. 3d 1061, 1071 (2007); and Ferro v. Griffiths, 361 Ill. App. 3d 738, 

743 (2005)). It remains within the sound discretion of the trial court to decide the “essential 

question” of whether a jury would be able to relate the damage depicted in the photographs to a 

fact of consequence without the aid of an expert. Peach, 2019 IL 123156, ¶ 35; Ford, 398 Ill. App. 
No. 1-19-0232 

- 10 - 

3d at 648; Fronabarger, 385 Ill. App. 3d at 564-55; Jackson, 372 Ill. App. 3d at 1070-71; Ferro, 

361 Ill. App. 3d at 743. As we have previously explained, the trial court here considered the 

photograph and the facts of the case and determined that the photograph was not relevant without 

additional testimony. Nothing in the record shows that this was an abuse of discretion. 

¶ 23 Finally, even assuming, arguendo, that the photograph was erroneously excluded, the 

incomplete record prevents us from finding that a new trial is required. “Reversal on appeal is not 

required unless an erroneous evidentiary ruling was substantially prejudicial, and the burden of 

establishing prejudice is on the party seeking reversal.” Shachter v. City of Chicago, 2011 IL App 

(1st) 103582, ¶ 80. An improper evidentiary ruling is harmless if the jury would not have reached 

a different verdict but for the error. Neuhengen v. Global Experience Specialists, Inc., 2018 IL 

App (1st) 160322, ¶ 157. Here, as noted, there is no record of what evidence was presented at trial. 

Consequently, we must resolve any doubt as to the impact of the photograph on the verdict against 

plaintiffs. 

¶ 24 III. CONCLUSION

¶ 25 For the foregoing reasons, the judgment of the trial court is affirmed. 

¶ 26 Affirmed.