, an individual, Defendants.

Counsel:  [*1] For Celedonio Bautista, an individual, Plaintiff: Boris Treyzon, LEAD ATTORNEY, Abir Cohen Treyzon Salo, LLP, Los Angeles, CA; Derek S. Chaiken, LEAD ATTORNEY, Treyzon & Associates-Los Angeles, Los Angeles, CA; Federico Castelan Sayre, LEAD ATTORNEY, Treyzon & Associates-Santa Ana, Santa Ana, CA; Marie E. Drake, LEAD ATTORNEY, Drake Law Firm, P.C., Golden, CO.

For MVT Services, LLC, a Limited Liability Company doing business as Mesilla Valley Transportion Inc., Thomas M. Estrada, an individual, Defendants: Daniel James Bristol, Paul Trafton Yarbrough, Hall & Evans, LLC-Denver, Denver, CO.

Judges: Nina Y. Wang, United States Magistrate Judge.

Opinion by: Nina Y. Wang

Opinion

 

 

 

ORDER ON MOTIONS TO EXCLUDE EXPERT

Magistrate Judge Nina Y. Wang

This matter is before the court on three pretrial motions:

(1) Defendants’ Motion to Exclude Expert Testimony of Robert Bess, M.D., Regarding Future Medical Treatment (“Motion to Exclude Dr. Bess”) [#99, filed July 18, 2017];

(2) Defendants’ Motion to Exclude or Limit Expert testimony of Ann Stodola, P.E. (“Motion to Exclude Ms. Stodola”) [#100, filed July 18, 2017]; and

(3) Defendants’ Motion to Exclude or Limit Expert Testimony of Roger Allen (“Motion to Exclude Mr. Allen”) [#101, filed [*2]  July 18, 2017].

The Motions are before the undersigned pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated July 22, 2016 [#30]. This court has reviewed the Motions and the associated briefs, the entire docket, and the applicable case law. In addition, the court held an evidentiary hearing on November 15, 2017, at which it considered the foundational issues raised by the Motion to Exclude Ms. Stodola. For the reasons set forth below, this court respectfully GRANTS IN PART and DENIES IN PART the Motion to Exclude Dr. Bess; GRANTS IN PART AND DENIES IN PART the Motion to Exclude Ms. Stodola; and GRANTS IN PART and DENIES IN PART the Motion to Exclude Mr. Allen.

 

BACKGROUND

This case arises from a motor vehicle collision that occurred on January 30, 2014, when a tractor-trailer truck driven by Defendant Thomas M. Estrada (“Defendant Estrada”), and owned by Defendant MVT Services, LLC d/b/a Mesilla Valley Transportation, Inc. (collectively, “MVT”), struck the tractor-trailer truck in which Plaintiff Celedonio Bautista (“Plaintiff” or “Mr. Bautista”) was riding. [#5]. Mr. Bautista contends that Mr. Estrada was traveling at an unsafe speed for the winter conditions and caused the collision. [Id. at [*3]  ¶ 13]. Plaintiff alleges that as a result of the collision, he was thrown from his sleeper bed in the tractor-trailer and has suffered “serious and severe personal injuries, including … [suffering] a massive retracted tear of the rotator cuff which forced [him] to have surgery and will require further surgery in the future due to this collision.” [Id. at ¶¶ 15, 22]. Mr. Bautista originally filed this action in District Court for Boulder County, Colorado on April 6, 2016. [Id. at 1]. Defendants removed the case to the United States District Court on May 12, 2016. [#1].

In his Complaint, Mr. Bautista asserts common law claims for negligence and negligence per se against Defendants and a claim for negligent entrustment against MVT.1 See [#5]. On February 27, 2017, Defendants filed a Motion for Partial Summary Judgment as to the negligent entrustment claim and, on March 7 2017, supplemented the Motion with recently issued authority from the Colorado Supreme Court. See [#82, #83, #85]. The Parties then stipulated to the dismissal of the claim for negligent entrustment, leaving only the claims for negligence and negligence per se against both Defendants. See [#88, #89]. Mr. Bautista seeks both economic [*4]  and non-economic damages, including past and future medical bills and healthcare costs, loss of future earnings, loss of earning capacity, loss of past and future benefits, and loss of household services, as well as for pain and suffering and emotional distress. He also seeks prejudgment and postjudgment interest and costs. [#5 at 8]. The court entered a Final Pretrial Order on May 3, 2017, and a Trial Preparation Order on May 19, 2017. A five day jury trial is set to commence on January 22, 2018. See [#95].

On July 18, 2017, Defendants filed three separate motions to exclude expert testimony offered by three of Plaintiff’s designated experts: Robert Bess, M.D. (“Dr. Bess”), Plaintiff’s retained orthopedic surgeon [#99]; Anne Stodola, P.E. (“Ms. Stodola”), Plaintiff’s retained professional engineer [#100]; and Roger Allen (“Mr. Allen”), Plaintiff’s retained trucking industry expert [#101]. Plaintiff filed responses to each of the respective motions, see [#107, #108, #109], and Defendants filed replies, see [#110, #112, #111]. The court then scheduled an evidentiary hearing on the Motions that occurred on November 27, 2017 [#133] and December 4, 2017 [#138]. At the respective hearings, [*5]  each of the experts testified, but no documentary evidence was admitted. The court took the matters under consideration and now turns to consider each separately.

 

LEGAL STANDARDS

Rule 702 of the Federal Rules of Evidence permits as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

As noted by the Advisory Committee when the Rule was promulgated, “[a]n intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge.” Fed. R. Evid. 702, advisory committee’s note to 1937 rule.

It is well established that trial courts are charged with gatekeeper responsibility of ensuring expert testimony or evidence is admitted only if such is relevant and reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588-89, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). To fulfill that gatekeeper function, [*6]  courts within the Tenth Circuit conduct a two-part inquiry. The court first considers whether the expert’s proffered testimony has a reliable basis in the knowledge and experience of his or her discipline by conducting a preliminary inquiry into the expert’s qualifications and the admissibility of the proffered evidence. In other words, the court asks whether the reasoning or methodology underlying the testimony is valid. Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d 1071, 1082 (D. Colo. 2006) (citing Butler v. A.O. Smith Corp., 400 F.3d 1227, 1232-33 (10th Cir. 2004)). The court then considers whether the proposed testimony is sufficiently relevant to the issues presented to the factfinder.2 See id. The party offering the expert opinion bears the burden of establishing its admissibility, including the foundational requirements, by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); United States v. Crabbe, 556 F. Supp. 2d 1217, 1220 (D. Colo. 2008).

“Generally, the district court should focus on an expert’s methodology rather than the conclusions it generates.” Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003). To that end, courts consider the following non-exhaustive factors in analyzing whether a particular expert opinion meets the requirements of Rule 702, Daubert, and their progeny:

(1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) [*7]  whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique’s operation; and (4) whether the theory has been accepted in the scientific community.

Id. The court’s analysis is opinion-centric, rather than expert-centric. See United States v. Nacchio, 608 F. Supp. 2d 1237, 1251 (D. Colo. 2009).

Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure define the process by which the court must discharge its gatekeeper duties, and the trial court’s discretion in admitting or excluding evidence under Daubert is broad. Dodge, 328 F.3d at 1223. If a party challenges the foundational sufficiency of an expert’s opinion, the court must make factual findings and preferably after an evidentiary hearing. Id.; but cf. United States v. Chapman, 839 F.3d 1232, 1239 (10th Cir. 2016) (“Tenth Circuit case law does not mandate that a hearing be held.”) (citation and quotation marks omitted)). In the even the court holds such a hearing, it should focus on the expert’s principles and methodology, rather than on the conclusions generated or their weight or persuasiveness. Daubert, 509 U.S. at 595; Crabbe, 556 F. Supp. 2d at 1220.

 

ANALYSIS

 

1. Motion to Exclude Dr. Bess

Defendants seek to exclude Dr. Bess from testifying that additional surgeries on Plaintiff’s shoulder (either a second tendon repair or a reverse [*8]  shoulder replacement) are necessary. See [#99]. Defendants assert that Dr. Bess’s opinion regarding future surgeries is dependent on the assessment of Mr. Bautista’s treating physician, Jeffrey Chase, M.D., and that Dr. Chase testified in his deposition that a second tendon repair would not be appropriate. See [id. at 3]. Additionally, Dr. Bess admitted that the need for and appropriateness of a second surgery is “up in the air.” [Id. at 5]. Accordingly, Defendants contend that any opinion of Dr. Bess that Plaintiff will need future surgery is speculative. In Response, Plaintiff argues that Defendants conflate the requirements of Rule 403 and Rule 702, and fail to challenge Dr. Bess’s medical expertise. [#107 at 1-2]. Plaintiff argues that Dr. Bess’s opinions are correct and supported by the independent medical examination and review of Plaintiff’s medical records. [Id. at 4]. In Reply, Defendants urge the court to preclude Dr. Bess’s opinions as “cumulative, unnecessary, and speculative.” [#110].

The court concurs that Defendants failed to challenge Dr. Bess’s qualifications in the Motion to Exclude, and rather stipulated to his qualifications and training during the evidentiary hearing. Additionally, Defendants do not appear [*9]  to contest Dr. Bess’s methodology regarding his independent medical examination or review of medical records of treating physicians. The court thus turns to the issues of whether Dr. Bess’s opinion is based upon reliable facts and data, and whether his opinion regarding future treatment is so speculative that the court must exclude it.

Courts have routinely permitted physicians to render opinions regarding a plaintiff’s future progress, including the need for future treatment. Marland v. Asplundh Tree Expert Co., No. 1:14-CV-40 TS, 2016 U.S. Dist. LEXIS 178979, 2016 WL 7447840, at *2 (D. Utah Dec. 27, 2016); Dominguez v. Lubbock, No. CIV-11-1347-R, 2013 U.S. Dist. LEXIS 157858, 2013 WL 5815730, at *2 (W.D. Okla. Feb. 1, 2013) (collecting cases). During the evidentiary hearing, Dr. Bess testified that he would rely upon Dr. Chase’s assessment of the appropriateness of each surgery because he himself had not visualized the physical status of Mr. Bautista’s shoulder. In addition, he testified that a determination that future surgery was recommended or necessary would be dependent upon an examination that had yet to occur. The unrebutted record demonstrates that Dr. Chase testified that a subsequent tendon repair is not appropriate, and Dr. Bess has repeatedly testified that he would defer to Dr. [*10]  Chase as the treating physician. See [#99-2 at 53:15-23].3 Therefore, while this court finds that Dr. Bess can testify generally as to the possibility of a future reverse shoulder replacement for Mr. Bautista, his own testimony, and that of Dr. Chase, precludes him from testifying that a future tendon repair surgery is a viable option, or that a reverse shoulder replacement surgery is a medical certainty, or even recommended at this time. See Longoria v. Khachatryan, No. 14-CV-70-TLW, 2016 U.S. Dist. LEXIS 136496, 2016 WL 5746221, at *3 (N.D. Okla. Sept. 30, 2016) (finding that expert was qualified to testify generally about future treatment, but that expert’s own report limited his testimony concerning that treatment).

To the extent Defendants contend that Dr. Bess’s testimony is cumulative and unnecessary, this court notes that Plaintiff has listed his treating physician, Dr. Chase, as a may call witness. [#92 at 8]. While not altogether clear to this court whether or how Plaintiff intends to admit evidence of Dr. Chase’s treatment of him, the undersigned cannot predetermine issues of cumulativeness and necessity outside the context of trial.

 

1. Motion to Exclude Ms. Stodola

Reconstruction Opinions. Defendants first move to exclude Ms. Stodola’s accident reconstruction [*11]  opinions, arguing that the opinions are based on flawed conclusions about the location of the vehicles prior to and at the time of the collision, and that they constitute “unreliable speculation that is beyond her area of expertise.” [#100 at 9]. Defendants specifically contend that Ms. Stodola’s conclusion that Plaintiff’s vehicle was located in the right hand lane of Interstate 25 (“I-25”) traveling at a rate of speed of 35 miles per hour is flawed, because she relies on “her subjective interpretation of the police report and Mr. Estrada’s alleged statement to the police.” [#100 at 6]. Ms. Stodola testified during her deposition and at the evidentiary hearing that she lacked physical evidence, due to the heavy snowfall, regarding the point of impact between the two vehicles. See, e.g., [#100-4 at 92:24-93:2, 85:7-15]. However, she also explained during her deposition and at the evidentiary hearing that she had formulated her opinion in reliance on the Colorado State Patrol Traffic Accident Report, which was compiled from the police investigation at the scene of the collision. The Accident Report indicates that Defendants’ vehicle was traveling in the left hand side of the road, and [*12]  Plaintiff’s vehicle was traveling on the right hand side of the road. Ms. Stodola also relied on a translation of Mr. Estrada’s statement, contained in the police report, that he had been “driving approximately 50 miles per hour,” but that the road was downhill “so my truck reached 55 miles per hour…. Suddenly I saw flashing red lights flashing, but I thought they were in the shoulder. At the same time I begun reducing my speed, once I was closer I saw the trailer in the middle of the road and not in the shoulder.” [#100-1 at 8]. The Parties vigorously dispute whether Plaintiff’s vehicle was over the center “skip line,” and which lane each respective vehicle occupied at the point of impact.

As an initial matter, the court finds that Ms. Stodola, who holds a Masters of Science in Mechanical Engineering and has additional training and experience with accident reconstruction, is qualified as a professional engineer to provide technical or specialized knowledge in interpreting the physical findings of the collision so as to assist the jury in understanding the issues before it.4 While Defendants take issue with Ms. Stodola’s failure to “perform calculations” or create a “computerized simulation,” [*13]  this court finds that Ms. Stodola adequately described the methodology she used in examining the police report, the witness statement contained therein, photographs, and relative positions of the vehicles after they came to rest. [#100-1]. Her report and testimony reflect that she relied upon the materials she reviewed and “the application of accepted physics, engineering and reconstruction principles.” [Id. at 11]. I find that her methodology is reliable; indeed, in the context Rule 702, courts within the Tenth Circuit and beyond have accepted the reconstruction of accidents based on the expert’s review of police reports, photographs of the scene, and witness statements. North v. Ford Motor Co., 505 F. Supp. 2d 1113, 1118 (D. Utah 2007); Miles v. Gen. Motors Corp., 262 F.3d 720, 724 (8th Cir. 2001); Paine v. Johnson, No. 06C 3173, 2010 U.S. Dist. LEXIS 17097, 2010 WL 749857 (N.D. Ill. Feb. 25, 2010). And, as the Tenth Circuit has held, the admissibility of an expert’s analysis is not dependent on independent testing or eyewitness accounts, and Defendants’ challenges to the factual basis for the opinions go to the weight, rather than the admissibility, of the opinions. Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 652-54 (10th Cir. 1991).

Ms. Stodola also opined and testified that the rotation and angles of rest and the damage to the various vehicle components reflected in the photographs, as well as aerial imagery taken five months after the collision, support her opinions regarding reconstruction [*14]  of the collision.5 Such opinions regarding the rotation and angles of rest appear susceptible to testing, that is, to the extent Ms. Stodola’s opinions are not borne out by mechanic engineering or math, this court expects that Defendants would have identified any specific scientific flaws. Defendants asserted no such argument in the Motion to Exclude, nor did they raise any such argument with Ms. Stodola during the evidentiary hearing.

It is clear that Defendants do not agree with Ms. Stodola’s assumptions or conclusions, but that dispute is not a proper basis for exclusion under Rule 702. Davies v. City of Lakewood, No. 14-CV-01285-RBJ, 2016 U.S. Dist. LEXIS 18348, 2016 WL 614434, at *10 (D. Colo. Feb. 16, 2016) (noting that disagreement with an expert’s opinion does not mean that the opinion is not “reliable” within the meaning of Rule 702). And, while Rule 702 dictates a common-sense inquiry of whether a juror would be able to understand the evidence without specialized knowledge concerning the subject, United States v. Muldrow, 19 F.3d 1332, 1338 (10th Cir. 1994), it is clear to the court that there is a material dispute as to how or why this collision occurred and that specialized knowledge would be helpful to the jury in its understanding of the evidence presented, particularly considering that the point of impact is undisputedly unknown. [*15]  Finally, the court finds that any risk of prejudice to Defendants may be adequately addressed through vigorous cross-examination and the testimony of Defendants’ own expert. Accordingly, this court concludes that Defendants’ objections to Ms. Stodola’s reconstruction opinions do not preclude their admissibility.

Texas Commercial Drivers’ Handbook. The court now turns to Defendants’ arguments regarding Ms. Stodola’s use of the Texas Commercial Drivers’ Handbook. See [#100 at 10-11]. Ms. Stodola references the Texas Commercial Drivers’ Handbook to offer opinions regarding slippery surfaces and the need to adjust speed to road conditions. See [#100-1 at 10]. At the evidentiary hearing, counsel for Defendants argued that Plaintiff had waived his ability to offer any such opinions because he did not offer additional evidence from Ms. Stodola at that time regarding admissibility. Defense counsel cited no law in support of his argument, and this court finds no basis in either the Rule or the case law interpreting Daubert to suggest that a waiver occurred. Therefore, the court declines to determine the issue on the basis of waiver, and rather turns to consider Defendants’ substantive arguments. [*16]

Defendants argue that the Texas Commercial Drivers’ Handbook is irrelevant and has no probative value. [#100 at 11]. Defendants further contend that any probative value is outweighed by the danger of unfair prejudice. [Id.]. In support of their arguments, Defendants rely upon Sweeting v. Eckhoff, Case No. 2006 CV 5726, 2010 Colo. Dist. LEXIS 134, *2-*3 (Colo. Dist. Ct. Feb. 7, 2010), from the Arapahoe County District Court. Plaintiff responds that “[c]ommercial operation of tractor trailers and tractor doubles” is not knowledge that is common to a lay person juror, and “Defendants have cited no reported authority that would preclude this court from allowing reference to the [Texas Commercial Drivers’ Handbook].” [#108 at 8]. Plaintiff further argues that Ms. Stodola “believes that the [Texas Commercial Drivers’ Handbook] accurately referred to Law when making her conclusion that Mr. Estrada attempted to pass the slower moving vehicle contrary to the instruction in the Texas CDL Handbook.” [Id.].

To recover on a negligence claim, the plaintiff must establish the existence of a legal duty on the part of the defendant, a breach of that duty, causation, and damages. See United Blood Servs. v. Quintana, 827 P.2d 509 (Colo. 1992). “A party may recover under a claim of negligence per se if it is established that [*17]  the defendant violated the statutory standard and the violation was the proximate cause of the injuries sustained.” Lombard v. Colorado Outdoor Educ. Ctr., Inc., 187 P.3d 565, 573 (Colo. 2008). Plaintiff does not dispute that Colorado law imposes no statutory duty on a licensed driver to comply with the Colorado Driver Handbook. Sweeting, 2010 Colo. Dist. LEXIS 134, at *2. Rather, Plaintiff simply asserts that no binding authority precludes Ms. Stodola’s opinion, which is that the handbook accurately reflects the law.

This court is persuaded that it should preclude Ms. Stodola’s conclusions that rely upon the Texas Commercial Drivers’ Handbook; and finds that, to the extent Plaintiff offers Ms. Stodola for opinions regarding the “commercial operation of tractor trailers and tractor doubles,” those opinions fall outside of her area of expertise. See Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir.1991) (observing that an expert must testify “within the reasonable confines of his subject area and cannot render expert opinions on an entirely different field or discipline”). In addition, to the extent Plaintiff seeks to introduce Ms. Stodola’s opinions regarding whether the Texas Commercial Drivers’ Handbook accurately reflects the law applicable to this case, such testimony is not only outside of Ms. Stodola’s area of expertise, but impermissibly encroaches [*18]  on the trial court’s role as the final arbiter of the law and its application and the jury’s role to determine the ultimate issue of liability. See Specht v. Jensen, 853 F.2d 805, 809-10 (10th Cir. 1988) (holding that expert testimony that attempts to define the legal parameters within which the jury must exercise its fact-finding function is improper). As a result, Ms. Stodola’s opinions deriving from the Texas Commercial Drivers’ Handbook are excluded.

Movement by and Injuries to Mr. Bautista. Finally, this court touches briefly upon Ms. Stodola’s opinion that the subsequent injuries suffered by Mr. Bautista were caused by the collision and Mr. Estrada. [#100-1 at 10-11]. Based on defense counsel’s examination of Ms. Stodola at the evidentiary hearing, it appears that Plaintiff is not offering Ms. Stodola’s testimony for the purpose of asserting opinions regarding a biomechanics analysis or his own movement. However, Plaintiff includes no such concession in his Response, which asserts that “[b]y applying mechanical engineering principals [sic] the conditional data and facts collected and provided to Ms. Stodola, she concluded consistent with Fed [sic] R. Evid. 702, that Mr. Bautista’s movement was in response to the impacts to the SBI [*19]  trailers and the travel off the paved road.” [#108 at 6, citing [#100-1 at 11]. Ms. Stodola is not qualified to testify as to biomechanics, and she has not identified what, if any, methodology she employed to conclude that Mr. Bautista’s movement was consistent with the collision, or that Mr. Bautista’s injuries were proximately caused by the collision. To the extent Plaintiff seeks to have Ms. Stodola opine about the cause of his injuries or the consistency of those injuries with the collision, such opinions are excluded as unreliable and speculative.

 

III. Motion to Exclude Mr. Allen

Finally, Plaintiff offers Mr. Allen as an expert in the trucking industry to testify as to his opinions regarding the following: circumstances of the collision, [#101-1 at 3]; MVT’s application of and compliance with the Federal Motor Carrier Safety Regulations, including issues related to the duty status of Mr. Estrada, [id. at 3-44]; Mr. Estrada’s compliance with the Model MDL Manual, [id. at 5-9]; and MVT’s post-accident investigation, [#101-1 at 9-11]. Defendants seek to exclude Mr. Allen’s opinions regarding (1) how the accident occurred; (2) background information concerning and alleged legal obligations of MVT; (3) equipment [*20]  inspections; (4) compliance with the Model Commercial Motor Vehicle Handbook; (5) opinions regarding MVT’s post-accident conduct; and (6) legal conclusions that Mr. Estrada was negligent and caused the accident. [#101 at 2-3].

As an initial matter, this court finds that there are no direct claims asserted against MVT. [#88]. Instead, MVT may be vicariously liable for Mr. Estrada’s negligence or negligence per se. In Ferrer v. Okbamicael, 390 P.3d 836, 2017 CO 14 (Colo. 2017), the Colorado Supreme Court determined that an employer’s admission of vicarious liability for negligence of its employee precluded direct negligence claims against the employer, including claims for negligent entrustment. Id. Despite his argument, Plaintiff cites no authority, and this court is aware of none, to support the proposition that an employer’s actions are probative of whether an employee acted negligently in a particular incident. Therefore, any evidence of MVT’s failure to comply with any standard, including the Federal Motor Carrier Safety Regulations (“FMCSR”), is simply not relevant to the issue of whether Mr. Estrada acted negligently in operating a tractor-trailer that struck the tractor-trailer that Mr. Bautista occupied. In addition, the presentation [*21]  of any such evidence to a jury tasked with weighing negligence and negligence per se claims with respect to Mr. Estrada poses a significant risk of confusing that jury. Plaintiff’s arguments fail to articulate the relevance of these proffered opinions, and his arguments that the court need not mind relevance and prejudice in considering the propriety of Mr. Allen’s opinions are misplaced. See [#109 at 8]. Accordingly, the court precludes Mr. Allen from offering opinions regarding the following: background information concerning and alleged legal obligations of MVT, [#101-1 at 3]; MVT’s post-accident investigation, [id. at 9]; and MVT’s obligation to hire “safe and prudent drivers and train all their drivers in compliance with both State and Federal Regulations,” [id. at 12]. Cf. Asbury v. MNT, Inc., Case No. 120252-KG/RHS, 2014 U.S. Dist. LEXIS 167724, 2014 WL 6674475, *11, *13 (D.N.M. Aug. 6, 2014) (excluding Mr. Allen’s testimony regarding post-accident conduct as unduly prejudicial or irrelevant).

This court similarly finds as irrelevant Mr. Allen’s opinion that Mr. Estrada failed to comply with the FMCSR regarding vehicle inspections. Plaintiff does not claim negligence on the theory that Mr. Estrada failed to comply with a vehicle inspection requirement or that any failure to do [*22]  so contributed to the collision, and Mr. Estrada asserts no defense associated with equipment failure. See [#5, #13, #92]. Instead, as Mr. Allen testified at his deposition, his opinion is that driver error caused the collision. See [#109-1 at 74:21-24]. Again, Plaintiff articulates no explanation as to how Mr. Allen’s opinion regarding vehicle inspections renders a fact of consequence to any claim or defense more or less likely. See Fed. R. Evid. 401. Therefore, the court precludes from trial any opinions regarding the failure to comply with regulations governing vehicle inspections.

The court now turns to Defendants’ objections to Mr. Allen’s opinions about the occurrence of the accident, the cause of the accident, and the fault of Mr. Estrada. While Defendants characterize Mr. Allen’s description of the accident as “accident reconstruction,” [#101 at 6-9], this court finds that Mr. Allen’s descriptions are more properly construed as factual assumptions. See [#101-1 at 3]. As with Ms. Stodola, Mr. Allen can rely on the Colorado State Patrol Accident Report; indeed, it is clear from his report that he is not engaging in a separate reconstruction of the accident, but is quoting from the Accident Report [*23]  itself. See [id.]. Though the Accident Report might otherwise be inadmissible, Mr. Allen may rely upon it as it appears that police reports are routinely used and considered by experts to provide factual background, or even to render opinions regarding causation. Whether Mr. Allen or Ms. Stodola may ultimately testify as to the contents of the Accident Report is a matter reserved for trial. See Fed. R. Evid. 703. Defendants’ objections to Mr. Allen’s opinion regarding how the accident occurred goes to the weight and not the admissibility of the opinion and Defendants’ concerns are properly addressed through cross-examination. See Dodge, 328 F.3d at 1222 (observing that expert opinions must be based on facts which enable them to express a reasonably accurate conclusion, but that there need not be “absolute certainty”).

This court also respectfully rejects Defendants’ objections to Mr. Allen’s reliance of the Model Commercial Drivers’ Manual, so long as Mr. Allen relies on the Manual for indicia of the accepted standards of the trucking industry and not as authority for legal requirements. See [#101 at 13-15; #101 at 5-9]. Such industry standards are relevant to the jury’s assessment of negligence, and this court is persuaded [*24]  that an average layperson does not have common knowledge of the driving standards applicable to commercial truck drivers. However, Mr. Allen is not permitted to testify that the Model Commercial Drivers Manual has been incorporated into law, as such statement is neither accurate nor within his area of expertise.6 See Sweeting, 2010 Colo. Dist. LEXIS 134, at *2; Ashike v. Mullen Crane & Transp., Inc., No. 2:12CV11DAK, 2014 U.S. Dist. LEXIS 101258, 2014 WL 3640735, at *5 (D. Utah July 23, 2014) (precluding Mr. Allen’s testimony on the Utah Trucking Guide when such guide has no application in determining defendant’s liability). Finally, this court finds that Mr. Allen’s experience and qualifications render his opinions regarding Mr. Estrada’s driving sufficiently reliable for the purposes of Rule 702, and Defendants’ criticism go toward weight, rather than admissibility. See Asbury, 2014 U.S. Dist. LEXIS 167724, 2014 WL 6674475, at *7.

 

CONCLUSION

For the reasons set forth herein, IT IS ORDERED that:

(1) Defendants’ Motion to Exclude Expert Testimony of Robert Bess, M.D., Regarding Future Medical Treatment [#99] is GRANTED IN PART and DENIED IN PART;

(2) Defendants’ Motion to Exclude or Limit Expert Testimony of Ann Stodola, P.E. [#100] is GRANTED IN PART and DENIED IN PART; and

(3) Defendants’ Motion to Exclude or Limit Expert Testimony of Roger Allen [#101] is GRANTED [*25]  IN PART and DENIED IN PART.

DATED: December 7, 2017

BY THE COURT:

/s/ Nina Y. Wang

United States Magistrate Judge

 

 

ALLY FINANCIAL INC., Plaintiff-Appellee, v. MICHAEL PIRA, d/b/a/ Michael’s Ultimate Detailing & Design, Inc., Defendant-Appellant.

Prior History:  [**1] Appeal from the Circuit Court of Lake County. No. 15-LM-1132. Honorable Daniel L. Jasica, Judge, Presiding.

Judges: JUSTICE HUTCHINSON delivered the judgment of the court. Presiding Justice Hudson and Justice Spence concurred in the judgment.

Opinion by: HUTCHINSON

Opinion

 

 

JUSTICE HUTCHINSON delivered the judgment of the court.

Presiding Justice Hudson and Justice Spence concurred in the judgment.

[*P1]  Plaintiff, Ally Financial Inc., filed a complaint for replevin against defendant, Michael Pira, doing business as Michael’s Ultimate Detailing & Design, Inc., seeking possession of a 2013 Chevrolet Silverado. Defendant asserted as an affirmative defense that he had a common-law possessory lien, not only for the cost of the work that had been performed on the vehicle, but also for the storage fees that had accrued after the work was completed. The parties filed cross-motions for summary judgment on the sole issue of whether defendant’s lien included the storage fees. The trial court found that defendant’s lien covered only the charges relating to the work that had been performed on the vehicle, and accordingly it ruled in favor of plaintiff. Defendant now appeals. We affirm.

 

[*P2]  I. BACKGROUND

[*P3]  We begin by noting that [**2]  the appellate record contains no reports of proceedings or bystander’s reports. The following facts are therefore derived from the pleadings. Much of our factual recitation is relevant only for jurisdictional purposes.

[*P4]  Plaintiff’s verified complaint for replevin was filed on June 11, 2015. Plaintiff alleged that Robert Siudak had purchased a 2013 Chevrolet Silverado in March 2013. After Siudak executed an installment contract with the dealer, the dealer assigned its interest in the installment contract to plaintiff, and plaintiff perfected its security interest in the vehicle. Plaintiff alleged that Siudak brought the vehicle to defendant’s shop shortly before Siudak filed for bankruptcy, in September 2014. Due to Siudak’s nonpayment, and pursuant to the terms of the installment contract, plaintiff asserted its right to possession of the vehicle. However, defendant refused to relinquish possession, demanding full payment of all storage fees in addition to the cost of the work that had been performed on the vehicle.

[*P5]  Plaintiff asserted that it was not obligated to pay the storage fees and that it had a superior right to possession of the vehicle, which had a fair market value of $33,475. [**3]  Accordingly, plaintiff requested that the trial court enter a judgment granting plaintiff possession of the vehicle, or, in the alternative, an award against defendant in the amount of $33,475. Plaintiff also requested an award for “[r]easonable attorney’s fees, court costs, and for whatever other relief this court deems appropriate.”

[*P6]  Defendant’s answer was accompanied by an affirmative defense. Defendant asserted that he had a common law-possessory lien, for the cost of the work and the storage fees, that took priority over plaintiff’s security interest. In an affidavit, defendant attested that Siudak dropped off the vehicle for detailing and minor repairs on June 9, 2014. The work was completed the next day. The charges for the detailing and the repairs amounted to $658. Defendant called Siudak numerous times and left several voice messages. However, Siudak never returned any of the calls, nor did he ever return to pick up the vehicle. Defendant asserted that, as of October 30, 2015, the storage fees amounted to $27,780, accumulating at a reduced rate of $60 per day (the normal rate was $75 per day).

[*P7]  The parties filed cross-motions for summary judgment. Plaintiff acknowledged that defendant [**4]  was entitled to the cost of the detailing and the repairs, and it averred that it had offered to make such payment. Plaintiff maintained, however, that defendant’s common-law possessory lien did not extend to the storage fees, as the storage did not impart any added value to the vehicle. Defendant, on the other hand, argued that his lien arose by virtue of his contract with Siudak and that he was therefore entitled to the same rights as a common carrier.

[*P8]  On February 4, 2016, the trial court ruled on the cross-motions for summary judgment, entering an order that granted plaintiff’s motion and denied defendant’s motion. The order included a ruling that, “as a matter of law in this case, [defendant’s] common law possessory lien covers repair charges, but not storage charges.” The order also stated that the matter was “continued for further status” to March 3, 2016.

[*P9]  Also on February 4, 2016, the trial court issued an order of replevin directing the Lake County sheriff to take possession of the vehicle and deliver it to plaintiff. However, a handwritten notation stated that execution of the order was stayed through March 3, 2016. Another handwritten notation stated that the order would [**5]  be executed “upon payment of defendant’s common law possessory lien for repair charges.”

[*P10]  The record reflects that the next four court dates took place on March 3, April 14, May 5, and June 2, 2016. Defendant did not appear in court on any of these dates. On each occasion, the trial court entered an order of replevin. None of these orders contained any handwritten notations or conditions of enforcement.

[*P11]  On June 14, 2016, defendant filed a motion for a finding of “friendly contempt.” He stated that he desired to “test the validity” of the underlying order of replevin, and he asserted that there was “no direct precedent” on the issue of whether his common-law possessory lien covered the storage fees. Accordingly, defendant requested that the trial court impose a minimal fine for the purpose of facilitating an interlocutory appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016).

[*P12]  Plaintiff filed a memorandum in opposition to defendant’s friendly-contempt motion, asserting that defendant needed to post a bond if he wanted to retain possession of the vehicle while the replevin action “proceed[ed] to final judgment and during any subsequent appeal.” According to plaintiff, defendant’s friendly-contempt motion was nothing [**6]  more than a procedural ploy aimed at retaining possession of the vehicle without having to post a bond.

[*P13]  On October 6, 2016, the trial court entered an order denying defendant’s friendly contempt motion. The order noted that defendant’s counsel had failed to appear at the hearing that day, as well as the previous hearing, and that the matter was again “continued for status” to November 3, 2016.

[*P14]  The record reflects that plaintiff obtained possession of the vehicle after the denial of defendant’s friendly-contempt motion. (In its appellate brief, plaintiff states that it “recovered the Vehicle on or about October 21, 2016, through its own recovery company and paid Defendant the total cost of repairs in the amount of $681.00.”)

[*P15]  On November 3, 2016, the trial court entered an order prepared by plaintiff’s counsel that stated: “This matter is hereby dismissed, without prejudice and with leave to reinstate, and without costs to either party.”

[*P16]  On December 13, 2016, defendant filed a “motion for the entry of a final and appealable order.” Defendant acknowledged that he had relinquished possession of the vehicle to plaintiff following the denial of his friendly-contempt motion. He argued, however, [**7]  that the order dismissing the case on November 3, 2016, was not final and appealable, because it stated that the case was dismissed “without prejudice and with leave to reinstate.” Defendant therefore requested that the trial court enter an order “dismissing this case with prejudice.” Plaintiff filed a response in opposition, arguing that the trial court lost jurisdiction to alter the order dismissing the case after the passage of 30 days.

[*P17]  On February 23, 2017, the trial court granted defendant’s motion for the entry of a final and appealable order. It entered an order stating in pertinent part: “This matter is dismissed with prejudice nunc pro tunc to November 3, 2016; this court finding that, due to a scrivener’s error, the Nov. 3, 2016, dismissal was entered without prejudice instead of with prejudice.”

[*P18]  Defendant filed a notice of appeal on March 16, 2017. He stated that he was appealing from the order dated February 23, 2017, dismissing plaintiff’s complaint with prejudice, as well as from the order dated February 4, 2016, in favor of plaintiff on the parties’ cross-motions for summary judgment.

 

[*P19]  II. ANALYSIS

[*P20]  The only issue disputed on appeal is whether Illinois law supports defendant’s [**8]  claim of a common-law possessory lien for the storage fees. However, HN1[] before we address that issue, we have an independent duty to consider our jurisdiction. Stoneridge Development Co. v. Essex Insurance Co., 382 Ill. App. 3d 731, 739, 888 N.E.2d 633, 321 Ill. Dec. 114 (2008).

 

[*P21]  A. Jurisdiction

[*P22]  HN2[] The Illinois Constitution confers on the appellate court jurisdiction to hear appeals from all “final judgments” entered by the circuit court. Ill. Const. 1970, art. VI, § 6. A “final judgment” is a “‘determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.'” (Emphasis omitted.) Hernandez v. Pritikin, 2012 IL 113054, ¶47, 981 N.E.2d 981, 367 Ill. Dec. 253 (quoting Flores v. Dugan, 91 Ill. 2d 108, 112, 435 N.E.2d 480, 61 Ill. Dec. 783 (1982)). Thus, “a judgment or order is considered final and appealable if it determines the litigation on the merits such that the only thing remaining is to proceed with execution of [the] judgment.” People v. Shinaul, 2017 IL 120162, ¶ 10. If an order leaves the cause still pending and undecided, it is not final for purposes of appeal. Id. However, HN3[] if an order is final and appealable, “a notice of appeal must be filed within 30 days after the entry of the final judgment appealed from or, if a timely postjudgment motion directed against the judgment is filed, within 30 days after the entry of the order disposing of the last pending postjudgment motion.” Estate of Prather v. Sherman Hospital Systems, 2015 IL App (2d) 140723, ¶45, 393 Ill. Dec. 806, 35 N.E.3d 198; see also Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015).

[*P23]  This case involves [**9]  an appeal from a ruling on cross-motions for summary judgment. HN4[] “When the lower court grants one party’s summary judgment motion as to all issues and denies the other party’s summary judgment motion as to the same issues, the resulting order is final and appealable because it entirely disposes of the litigation.” (Emphasis added.) Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 358, 718 N.E.2d 191, 240 Ill. Dec. 710 (1999).

[*P24]  Here, the only issue raised in the cross-motions for summary judgment was whether defendant had a common-law possessory lien for the storage charges. On February 4, 2016, the trial court entered an order that granted plaintiff’s motion and denied defendant’s motion, including a ruling that, “as a matter of law in this case, [defendant’s] common law possessory lien covers repair charges, but not storage charges.” The trial court continued the matter “for further status” to March 3, 2016, presumably in hopes that defendant would transfer possession of the vehicle to plaintiff without involving the sheriff. That explains why the accompanying replevin order was stayed to March 3, 2016. But this had no bearing on the finality of the underlying judgment, as the trial court was vested with the inherent power to enforce the replevin order. See Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 297, 735 N.E.2d 560, 248 Ill. Dec. 909 (2000); see also Anest v. Bailey, 265 Ill. App. 3d 58, 66, 202 N.E.2d 473, 637 N.E.2d 1209, 202 Ill. Dec. 473 (1994) (“the [**10]  presence of language retaining jurisdiction for purposes of enforcement does not necessarily render an otherwise final and appealable order nonfinal”).

[*P25]  However, given the nature of replevin proceedings, plaintiff might have been entitled to additional relief. HN5[] “Replevin is strictly a statutory proceeding.” Gunn v. Sobucki, 216 Ill. 2d 602, 613, 837 N.E.2d 865, 297 Ill. Dec. 414 (2005); see 735 ILCS 5/19-101 et seq. (West 2014). Relevant here, plaintiff might have been able to recover damages sustained by reason of defendant’s wrongful taking and detention of the vehicle. See 735 ILCS 5/19-120, 19-125 (West 2014). Plaintiff might also have been able to recover costs for expenses incurred by law enforcement officers in executing the replevin order. See 735 ILCS 5/5-126.5 (West 2014).

[*P26]  In its complaint, plaintiff made a request for “[r]easonable attorney’s fees, court costs, and for whatever other relief this court deems appropriate.” We note that nothing in the statutes on replevin expressly authorizes attorney fees for the successful plaintiff in a replevin action. Therefore, plaintiff’s request for attorney fees would not have been viable. See Housing Authority of Champaign County v. Lyles, 395 Ill. App. 3d 1036, 1038, 918 N.E.2d 1276, 335 Ill. Dec. 463 (2009) (observing that HN6[] Illinois follows the “American Rule,” meaning that each party must bear its own attorney fees and costs unless they are expressly authorized by statute or by contractual agreement). [**11]  However, by requesting “court costs” and “whatever other relief” that the trial court deemed appropriate, plaintiff left open the possibility that the trial court could award costs and damages related to the recovery of the vehicle. The upshot is that the order entered on February 4, 2016, did not entirely dispose of the litigation, meaning that it was not final and appealable.

[*P27]  Moving forward, as explained above, the case remained pending in the trial court for nine months following the ruling on the cross-motions for summary judgment. The trial court issued orders of replevin in March, April, May, and June. Defendant did not appear for any of these court dates, nor did he return the vehicle to plaintiff. Rather, he filed a motion for a finding of friendly contempt on June 14, 2016. He then failed to appear in court when his motion was denied on October 6, 2016.

[*P28]  A confusing chain of events was set into motion when defendant finally appeared in court on November 3, 2016, having recently relinquished possession of the vehicle. The parties apparently sought to have the case “dismissed” for purposes of entering a final and appealable order. The trial court entered an order that stated: [**12]  “This matter is hereby dismissed, without prejudice and with leave to reinstate, and without costs to either party.” However, an order stating that a dismissal is “without prejudice” is not final and appealable. D’Attomo v. Baumbeck, 2015 IL App (2d) 140865, ¶23, 394 Ill. Dec. 601, 36 N.E.3d 892.1 This prompted defendant to file a motion on December 13, 2016, “for the entry of a final and appealable order.” Defendant’s motion included a request that the trial court enter an order “dismissing this case with prejudice.” Over plaintiff’s objection, the trial court entered an order granting defendant’s motion on February 23, 2017. The order stated: “This matter is dismissed with prejudice nunc pro tunc to November 3, 2016; this court finding that, due to a scrivener’s error, the Nov. 3, 2016, dismissal was entered without prejudice instead of with prejudice.”

[*P29]  We first note that the final judgment in this case was issued when the trial court “dismissed” the matter with prejudice on February 23, 2017. See Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 502, 687 N.E.2d 871, 227 Ill. Dec. 389 (1997) (HN7[] “A dismissal with prejudice is usually considered a final judgment, including the dismissal of claims in a complaint.”). Because defendant filed his notice of appeal within 30 days, we conclude that we have jurisdiction.

[*P30]  HN8[] Regarding the nunc pro tunc language in the [**13]  final judgment, we note that such an amendment “must be based on some note, memorandum, or other memorial in the court record.” Harreld v. Butler, 2014 IL App (2d) 131065, ¶13, 388 Ill. Dec. 506, 24 N.E.3d 786. Because we have no reports of proceedings or bystander’s reports, we presume that the trial court’s order is in conformity with the law and had a sufficient factual basis. See Webster v. Hartman, 195 Ill. 2d 426, 432, 749 N.E.2d 958, 255 Ill. Dec. 476 (2001). However, the nunc pro tunc language does not operate to deprive us of jurisdiction. Although a nunc pro tunc order relates back to the time of the order it corrects, it does not relate back to the extent that it would be impossible to file a notice of appeal within the time required by supreme court rules. In re Marriage of Breslow, 306 Ill. App. 3d 41, 51, 713 N.E.2d 642, 239 Ill. Dec. 111 (1999) (citing People v. Jones, 104 Ill. 2d 268, 278, 472 N.E.2d 455, 84 Ill. Dec. 495 (1984) (“[t]he effective date of the order by virtue of the nunc pro tunc provisions may have been July 24, 1981, but the date of its entry for purposes of appeal was November 6, 1981”)).

[*P31]  Aside from our jurisdiction, there is another aspect of these orders that warrants discussion. Because of the manner in which the parties went about seeking the entry of a final and appealable order, we are presented with a peculiar procedural posture: defendant is taking this appeal after successfully obtaining a “dismissal” of plaintiff’s complaint with prejudice. This issue has not been [**14]  addressed in the briefs on appeal, and there is no indication that it was addressed in the trial court.

[*P32]  HN9[] Ordinarily, when a defendant obtains a dismissal of a plaintiff’s complaint with prejudice, we are precluded from considering an appeal by the defendant. Argonaut-Midwest Insurance Co. v. E.W. Corrigan Construction Co., 338 Ill. App. 3d 423, 427, 788 N.E.2d 235, 272 Ill. Dec. 931 (2003) (HN10[] “Where a trial court’s judgment is entirely in favor of a party, specific findings of the trial court that may have been adverse to the party, do not give rise to an appeal.”). Thus, taking the order dated February 23, 2017, at face value, defendant is precluded from seeking any relief on appeal.

[*P33]  However, the record here indicates that the parties and the trial court intended not to enter a final judgment in defendant’s favor, but rather to enter a final judgment in plaintiff’s favor, which defendant could then appeal. This is evidenced not only by defendant’s written arguments in the trial court, but also by plaintiff’s memorandum in opposition to defendant’s motion for a friendly-contempt finding. In its memorandum, plaintiff argued that defendant was attempting to avoid posting a bond and to retain possession of the vehicle while the replevin action “proceed[ed] to final judgment and during any [**15]  subsequent appeal.”

[*P34]  Thus, although the order dated February 23, 2017, formally declared a dismissal of plaintiff’s complaint, it was substantively an order declaring that all matters had been finally  adjudicated. We will treat it accordingly. See Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d 485, 494, 916 N.E.2d 22, 333 Ill. Dec. 903 (2009) (HN11[] “Orders must be construed in a reasonable manner so as to give effect to the apparent intention of the trial court.”).

[*P35]  Before addressing the merits of this appeal, we comment that this case had clearly come to a close when the parties appeared on November 3, 2016. The trial court had denied defendant’s motion for a friendly-contempt finding, plaintiff had recovered the vehicle, and there was no award of costs or damages related to the recovery. Under these circumstances, all that was needed for purposes of finality was an order indicating that the trial court had finally disposed of all issues as to the parties. See Brentine v. DaimlerChrysler Corp., 356 Ill. App. 3d 760, 765, 826 N.E.2d 1057, 292 Ill. Dec. 621 (2005) (HN12[] “Once the trial court enters a judgment disposing of all the issues as to all the parties, such an order becomes final and appealable, and a party has 30 days either to file a notice of appeal or a postjudgment motion.”). By instead seeking to achieve finality through a dismissal, the parties unnecessarily complicated the [**16]  parameters of our review. If these circumstances should arise in the future, it would be wise to seek the entry of a final and appealable order that leaves the plaintiff’s complaint formally intact.

 

[*P36]  B. Common-Law Possessory Lien

[*P37]  Defendant contends that the trial court erred in ruling on the parties’ cross-motions for summary judgment, maintaining that his common-law possessory lien applied not only to the charges for the work that had been performed on the vehicle, but also to the storage fees that accrued thereafter. For the following reasons, we disagree.

[*P38]  HN13[] Summary judgment is proper only where the pleadings, depositions, admissions, and affidavits on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). HN14[] When the parties file cross-motions for summary judgment, they agree that there is no issue as to any material fact and that only questions of law are presented. City of Oakbrook Terrace v. Suburban Bank & Trust Co., 364 Ill. App. 3d 506, 510, 845 N.E.2d 1000, 301 Ill. Dec. 135 (2006). However, a court may still determine the existence of a factual issue sufficient to preclude the entry of summary judgment. HN15[] We review de novo the propriety of an order granting summary judgment. Id.

[*P39]  Our supreme court has observed [**17]  that HN16[] Illinois recognizes the validity of the common-law possessory lien, known in certain instances as the “artisan’s possessory lien.” National Bank of Joliet v. Bergeron Cadillac, Inc., 66 Ill. 2d 140, 143, 361 N.E.2d 1116, 5 Ill. Dec. 588 (1977). Like this case, Bergeron Cadillac involved a secured creditor’s action for replevin seeking possession of a vehicle that had been left at a repair shop. The court held that the defendant’s common-law possessory lien for the cost of the vehicle repairs took priority over the plaintiff’s earlier perfected security interest. In so holding, the court rejected the plaintiff’s contention that our legislature intended for the common law possessory lien to be superseded by statutes that created liens in favor of repairmen with respect to personal property. Id. at 143-44. This holding was based on the then-applicable section 9-310 of the Uniform Commercial Code, which provided as follows:

“When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.” Ill. Rev. Stat. 1973, [**18]  ch. 26, ¶ 9-310.

[*P40]  Section 9-310 has since been supplanted and codified as section 9-333 of the Uniform Commercial Code. It provides as follows:

“(a) ‘possessory lien.’ In this Section, ‘possessory lien’ means an interest, other than a security interest or an agricultural lien:

(1) which secures payment or performance of an obligation for services or materials furnished with respect to goods by a person in the ordinary course of the person’s business;

(2) which is created by statute or rule of law in favor of the person; and

(3) whose effectiveness depends on the person’s possession of the goods.

(b) Priority of possessory lien. A possessory lien on goods has priority over a security interest in the goods unless the lien is created by a statute that expressly provides otherwise.” 810 ILCS 5/9-333 (West 2016).

[*P41]  Here, there is no dispute as to whether defendant’s common-law possessory lien takes priority over plaintiff’s secured interest in the vehicle. As the pertinent language of section 9­333 tracks that of its predecessor, our supreme court’s holding in Bergeron Cadillac remains applicable. However, there is scarce Illinois case law discussing the extent of a common-law possessory lien. As a result, the parties have focused their arguments [**19]  primarily on two cases: Navistar Financial Corp. v. Allen’s Corner Garage & Towing Service, Inc., 153 Ill. App. 3d 574, 505 N.E.2d 1321, 106 Ill. Dec. 530 (1987), and Country Mutual Insurance Co. v. Styck’s Body Shop, Inc., 396 Ill. App. 3d 241, 918 N.E.2d 1195, 335 Ill. Dec. 382 (2009). We will discuss Navistar and Styck’s Body Shop in turn.

[*P42]  In Navistar, this court observed that HN17[] common-law possessory liens are “fundamentally consensual in nature and can be created only by agreement, by some fixed rule of law, or by usage of trade or commerce.” Navistar, 153 Ill. App. 3d at 576. The common-law possessory lien has no provision for forfeiture and sale; rather, it is limited to the right to possession of the chattel until the charges have been paid. Id. Such a lien is available to two categories of persons: (1) artisans who impart added value to the property; and (2) common carriers who are bound by law to accept and carry the goods. Id. at 576-77 (citing George v. Walton, 36 Ohio Law Abs. 306, 43 N.E.2d 515, 517 (Ohio Ct. App. 1942)).

[*P43]  The defendant in Navistar towed a truck-trailer unit to its garage after removing it from a ditch on the side of a highway. Shortly thereafter, the plaintiff, a secured creditor, contacted the defendant and claimed the right to possession of the truck, due to the owner’s default on his purchase loan agreement. However, the defendant refused to release the truck until all towing and storage charges were paid for the entire truck-trailer unit. This led the plaintiff to file a complaint for replevin seeking possession of the truck. [**20]  The trial court found that the defendant had established a common-law possessory lien for the towing charges related to the truck, but not for the storage fees. Id. at 575-76.

[*P44]  On appeal, this court affirmed the trial court’s ruling. We first held that, although the defendant qualified as a common carrier, it did not qualify as an artisan, as the “mere towing of a vehicle from one place to another does not add anything to the ‘intrinsic value’ of the vehicle towed.” Id. at 577 (citing West Allis Industrial Loan Co. v. Stark, 197 Wis. 363, 222 N.W. 310, 311 (Wis. 1928)). Turning to the issue of the storage fees, we noted cases where common carriers were awarded common-law liens for storage fees after sustaining “some inconvenience or expense by storing the property until the receiver was ready to remove it.” Id. at 578 (citing Shumacher v. Chicago & Northwestern Ry. Co., 207 Ill. 199, 207-08, 69 N.E. 825 (1904), and Gregg v. Illinois Central R.R. Co., 147 Ill. 550, 562-63, 35 N.E. 343 (1893)). However, because the defendant had “retained and stored the truck for no reason other than to be able to insist on its lien rights,” we held that it was not entitled to a common-law possessory lien for the storage fees. Id. at 579.

[*P45]  Here, defendant relies on Navistar for the proposition that his common-law possessory lien covered the storage fees because he sustained an “inconvenience and expense” by storing the vehicle in conjunction with his services that imparted added value to [**21]  the vehicle. We disagree. HN18[] We said nothing in Navistar to indicate that artisans—or those who impart added value to the property—are entitled to a common-law possessory lien for storage fees. Rather, we concluded that common carriers might be entitled to a common-law possessory lien for storage fees unless they retain the goods in question solely for the purpose of preserving lien rights. Id. at 578. In so holding, we cited cases that highlighted the unique functions and responsibilities of common carriers. See Schumacher, 207 Ill. at 207-08 (“When a railroad company delivering freight at its point of destination has no warehouse at that point suitable for the storage of bulk freight in car load lots, and the property is of such character that the cars in which it is transported furnish a proper and safe place for the same, so that it is not liable to damage or deterioration arising from heat or cold or the elements, there would seem to be no reason for requiring the transporting company to seek a warehouse of another, and add the cost of removal to the cost of storage, when said freight may properly be held in storage in the cars in which the same was carried; and after notice to the consignee, and a reasonable time to remove [**22]  the same, reasonable storage charges may be collected therefor, and the freight held for the payment thereof.”); Gregg, 147 Ill. at 560 (“The railroad company was not required to keep the corn in its cars on track indefinitely; and although the consignee was in default, in not receiving the freight after reasonable time and opportunity had been afforded in which to take it, the carrier could not abandon it, but was required to exercise ordinary and reasonable care for its preservation, as warehouseman.”).

[*P46]  Defendant recognizes our distinction in Navistar between artisans and common carriers, but he asserts that he took on the role of a common carrier after Siudak abandoned the vehicle at his shop. Again, we disagree. In Illinois, a common carrier is “‘one who undertakes for the public to transport from place to place such persons or the goods of such persons as choose to employ him for hire.'” Browne v. SCR Medical Transportation Services, Inc., 356 Ill. App. 3d 642, 646, 826 N.E.2d 1030, 292 Ill. Dec. 594 (2005) (quoting Illinois Highway Transportation Co. v. Hantel, 323 Ill. App. 364, 374, 55 N.E.2d 710 (1944)). Additionally, a common carrier must hold itself out to provide its services to the general public. Holland Motor Express, Inc. v. Illinois Commerce Comm’n, 165 Ill. App. 3d 703, 714, 520 N.E.2d 682, 117 Ill. Dec. 331 (1987).

[*P47]  Here, there is no evidence that defendant held himself out as one who undertook to transport persons or goods. Therefore, pursuant to Navistar, defendant is entitled only to the common-law lien rights of [**23]  an artisan. The weight of authority from other jurisdictions makes it clear that an artisan’s common-law possessory lien does not extend to storage fees, but rather applies only to “reasonable charges” for the work that imparted the added value. See, e.g., Mack Motor Truck Corp. v. Wolfe, 303 S.W.2d 697, 702 (Mo. Ct. App. 1957) (observing the “great weight of authority” holding that an artisan has no common law lien for storage fees); Yellow Manufacturing Acceptance Corp. v. Bristol, 193 Ore. 24, 236 P.2d 939, 946 (Or. 1951) (“At common law, artisans, tradesmen, mechanics, and laborers, who received property for the purpose of mending, repairing, and improving its condition for hire, had a possessory lien on such property until the reasonable charges and expenses thereon were paid.”); Flesher v. Handler, 303 Mass. 482, 21 N.E.2d 975, 976 (Mass. 1939) (“Although carriers and warehousemen have liens for storage, recognized at common law, in general liens upon chattels at common law were given only for services that improved them.”); Robinson Brothers Motor Co. v. Knight, 154 Tenn. 631, 288 S.W. 725, 725 (Tenn. 1926) (“The common-law lien of an artisan employed to bestow labor upon an article is merely a right to detain the article until his reasonable charges for the work are paid.”); A.G. Graben Motor Co. v. Brown Garage Co., 197 Iowa 453, 195 N.W. 752, 753 (Iowa 1923) (“Liens for repairs were allowed at common law upon the theory that an additional value was imported thereto. Preservation of automobiles by storage is quite different from value added by the skill of the artisan [**24]  in making repairs thereon.”).

[*P48]  We are likewise not persuaded by defendant’s reliance on Styck’s Body Shop. The plaintiff in that case, an insurance company, had an ongoing agreement with the defendant, a body shop, for the towing and storage of damaged vehicles that were insured by the plaintiff. Styck’s Body Shop, 396 Ill. App. 3d at 241. The defendant charged $20 per day for vehicle storage, which the parties agreed was the industry standard. At some point, the defendant also began charging a $50 processing fee for each vehicle. A dispute over the storage and processing fees led the plaintiff to file a complaint for replevin seeking the return of 24 vehicles. Id. at 243. The defendant asserted affirmative defenses based on: (1) the Labor and Storage Lien Act (770 ILCS 45/1 et seq. (West 2000)); (2) the Labor and Storage Lien (Small Amount) Act (770 ILCS 50/1 et seq. (West 2000)); (3) section 4-203 of the Illinois Vehicle Code (625 ILCS 5/4-203 (West 2000)); and (4) “common law artisan’s liens.” Styck’s Body Shop, 396 Ill. App. 3d at 244. The trial court granted the plaintiff’s motion for partial summary judgment, ruling that the defendant had no claim for storage charges after the date that the plaintiff had demanded possession of the vehicles and tendered payment of the uncontested charges. Id. at 244-45. The appellate court then affirmed the trial court’s [**25]  ruling, holding in pertinent part: HN19[] “[A]fter the owner of property (other than real property) demands the return of that property from a bailee, the bailee is not allowed both (1) to continue to retain possession of the property pursuant to a lien on the property and (2) [to] charge storage fees for holding the property for the period of time after the demand was made.” Id. at 247 (citing Weiland Tool & Manufacturing Co. v. Whitney, 44 Ill. 2d 105, 118, 251 N.E.2d 242 (1969)).

[*P49]  Here, defendant argues that Styck’s Body Shop “expressly recognizes a common law possessory lien for storage charges.” This argument is misguided. To begin, the basis for the award of storage fees in Styck’s Body Shop is unclear. As noted, in addition to asserting a common-law lien, the defendant in that case also raised affirmative defenses based on certain statutory liens. Id. at 244. Moreover, the defendant filed a counterclaim that was not based on any liens, but rather sought to recover civil damages on the basis that the storage fees were contemplated in the parties’ original bailment agreement. Id. at 256 (Steigmann, J., specially concurring in part and dissenting in part). The counterclaim is noteworthy, as the defendant argued on appeal that the trial court had improperly limited its award of storage fees based on a statutory [**26]  lien limitation, “because its counterclaim was a separate claim to recover damages outside of the lien statute.” Id. at 249. This indicates that, contrary to defendant’s argument in this case, the storage fees in Styck’s Body Shop were not awarded as part of a common-law possessory lien.

[*P50]  However, even if the storage fees in Styck’s Body Shop were awarded as part of a common-law possessory lien, we see no conflict with our holding in Navistar. Although Styck’s Body Shop made no mention of the distinction between artisans and common carriers, it is clear that the defendant in that case was appropriately classified as a common carrier. The defendant was “engaged in the business of vehicle collision repair and towing,” but the parties had a continuing agreement only for the hookup, removal, towing, and storage of damaged vehicles. Id. at 243. Because none of these services imparted any added value to the damaged vehicles, the defendant could not have been considered an artisan. See Navistar, 153 Ill. App. 3d at 577; see also Kalio Universal, Inc. v. B. A. M. Inc., 95 N.J. Super. 393, 231 A.2d 376, 379 (N. J. Super. Ct. App. Div. 1967) (“To establish a common law lien, an artisan must prove that the chattel was bailed to him, that he expended his skill and labor in the improvement of the chattel, that he conferred upon it an additional value, that [**27]  he had the expressed or implied consent of the owner to do the work, and that he was employed for the purpose of rendering the service.”). Thus, pursuant to this court’s holding in Navistar, if the defendant in Styck’s Body Shop had a common-law possessory lien based on its status as a common carrier, then its lien would have covered the storage fees up to the point that the defendant began storing the vehicles for the sole purpose of preserving its lien rights. Navistar, 153 Ill. App. 3d at 578.

[*P51]  For all of these reasons, we reject defendant’s argument that he is entitled to a common-law possessory lien for the storage fees pursuant to the holding in Styck’s Body Shop. That brings us to defendant’s final argument, which is based on his agreement with Siudak.

[*P52]  Defendant points to a copy of a document in the record, purportedly signed by Siudak, that appears to be an estimate for the cost of detailing and repairs. A statement in small print at the bottom of the document reads as follows:

“Daily storage fee after repair work has been completed and customer has been notified. No charges shall accrue or be due and payable for a period of 3 working days from date of notification.”

Defendant also directs us to a picture of [**28]  a sign on its premises that reads:

“Any Vehicle, Water Craft or Trailer NOT PICKED UP WITHIN Ten (10) days of Completion of Service will be charged a Storage Fee of $75 per day Applied to Original Work Order and Unit will NOT be Released until BALANCE IS PAID IN FULL”

Defendant argues that, based on this evidence, his common-law possessory lien for the storage fees arises out of the “contract” that he formed with Siudak. Although plaintiff has not addressed this argument, we nonetheless find that it has no merit.

[*P53]  Defendant’s argument is premised on our observation in Navistar that common-law possessory liens “are fundamentally consensual in nature and can be created only by agreement, by some fixed rule of law, or by usage of trade or commerce.” Id. at 576; see also Associates Financial Services Co. v. O’Dell, 491 Pa. 1, 417 A.2d 604, 606 (Pa. 1980) (“Possessory liens are fundamentally consensual in nature, arising from an agreement, either express or implied, between the owner of the goods and the artisan who renders services for those goods.”). However, HN20[] the fact that common-law possessory liens are fundamentally consensual does not mean that an artisan may use such a lien as a method of enforcing a contractual obligation for storage fees. Accord Lewis v. Gray, 109 Me. 128, 83 A. 1, 2 (Me. 1912) (holding that “a person who [**29]  is not a warehouseman, nor in the business of storing goods, but who permits the property of another to remain on his premises, under an agreement that storage is to be paid, has no lien therefor at common law”). Rather, as we have explained, the artisan’s common-law lien covers only “reasonable charges” for the work that imparted the added value to the goods in question. See supra ¶ 47. This holds true regardless of whether the owner and the artisan contract for the storage of the goods following the completion of the artisan’s work.

 

[*P54]  III. CONCLUSION

[*P55]  For the reasons stated, we affirm the Lake County circuit court’s rulings on the parties’ cross-motions for summary judgment.

[*P56]  Affirmed.