An auto body shop plaintiff sued an insurance company for tortious interference and consumer fraud.
The plaintiff in Knebel Autobody Center, Inc. v. Country Mutual Insurance Co., 2017 IL App (4th) 160379-U, claimed the defendant insurer intentionally prepared low-ball estimates to drive its policy holders and plaintiff’s potential customers to lower cost (“cut-rate”) competing body shops. As a result, plaintiff claimed it lost a sizeable chunk of business. The trial court granted the insurer’s motion for summary judgment and motion to bar plaintiff’s damages expert.
Reasons: The proverbial “put up or shut up” litigation moment, summary judgment is a drastic means of disposing of a lawsuit. The party moving for summary judgment has the initial burden of production and ultimate burden of persuasion. A defendant moving for summary judgment can satisfy its burden of production either by (1) showing that some element of plaintiff’s cause of action must be resolved in defendant’s favor or (2) by demonstrating that plaintiff cannot produce evidence necessary to support plaintiff’s cause of action. Once the defendant meets its burden of production, the burden shifts to the plaintiff who must then present a factual basis that arguably entitles it to a favorable judgment.
Under Illinois law, a consumer fraud plaintiff must prove damages and a tortious interference plaintiff must show that it lost specific customers as a result of a defendant’s purposeful interference.
Here, since the plaintiff failed to offer any evidence of lost customers stemming from the insurer’s acts, it failed to offer enough damages evidence to survive summary judgment on either its consumer fraud or tortious interference claims.
The court also affirmed the trial court’s barring the plaintiff’s damages expert.
In Illinois, expert testimony is admissible if the offered expert is qualified by knowledge, skill, training, or education and the testimony will assist the judge or jury in understanding the evidence.
Expert testimony is proper only where the subject matter is so arcane that only a person with skill or experience in a given area is able to form an opinion. However, “basic math” is common knowledge and does not require expert testimony.
Illinois Evidence Rules 702 and 703 codify the expert witness admissibility standards. Rule 702 provides that if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
Rule 703 states that an expert’s opinion may be based on data perceived by or made known to the expert at or before the hearing. If the data is of a type reasonably relied upon by experts in a particular field, the underlying data supplied to the expert doesn’t have to be admissible in evidence.
Here, the plaintiff’s expert merely compared plaintiff’s loss of business from year to year and opined that the defendant’s conduct caused the drop in business. Rejecting this testimony, the court noted that anyone, not just an expert, can calculate a plaintiff’s annual lost revenues. Moreover, the plaintiff’s expert failed to account for other factors (i.e. demographic shifts, competing shops in the area, etc.) that may have contributed to plaintiff’s business losses. As a result, the appeals court found the trial court properly barred plaintiff’s damages expert. (¶¶ 32-33)
The case underscores the proposition that a tortious interference plaintiff must demonstrate a specific customer(s) stopped doing business with a plaintiff as a direct result of a defendant’s purposeful conduct. A consumer fraud plaintiff also must prove actual damages resulting from a defendant’s deceptive act.
Another case lesson is that a trial court has wide discretion to allow or refuse expert testimony. Expert testimony is not needed or allowed for simple math calculations. If all a damages expert is going to do is compare a company’s earnings from one year to the next, the court will likely strike the expert’s testimony as unnecessary to assist the judge or jury in deciding a case.