Apportionment Changes after Illinois Supreme Court’s Decision
Introduction
The Illinois Supreme Court’s recent decision in Ready v. United/Goedeke Services, Inc. will have a far reaching impact on the way juries are instructed on apportionment between Defendants, allowing a plaintiff to circumvent the primary purpose of the Illinois Joint Liability Act (“the Act”). This will change the way multi-defendant cases must be evaluated and litigated.
Pre-Ready Apportionment in Illinois
The purpose of the Act was to prevent minimally culpable defendants from incurring responsibility for the full amount of a plaintiff’s damages. Under the Act, where a defendant is less than 25% at fault, that defendant is only severally liable (liable only for his share) for all non-medically related damages, including pain and suffering, loss of a normal life, etc. A defendant found to be 25% or more at fault is jointly and severally liable for all damages. Thus, a plaintiff may pursue recovery of 100% of the damages from any defendant found to be 25% or more at fault for the injury.
The burden then rested with the defendant to utilize the Joint Tortfeasor Contribution Act to apportion liability for and payment of damages among all tortfeasors. All defendants and third party defendants, including those who had settled out, were included on the jury verdict form, enabling the jury to apportion fault among all tortfeasors.
The Ready Decisions
In Ready, the wife of a worker who was killed in a construction accident filed suit against the general contractor, a sub-contractor and the site owner. The general contractor and the site owner settled prior to trial and trial proceeded against the sub-contractor as the sole defendant. Prior to trial, motions in limine were granted precluding the defendant from presenting evidence of the actions of the settling defendants and from naming the settling parties on the jury verdict form to apportion fault.
The jury awarded $14 million to the plaintiff. Pursuant to the Act, the trial court offset the decedent’s comparative negligence (35%) and the settlement amounts paid by the other two defendants, resulting in damage liability of $8 million. Defendant appealed, arguing that the trial court erred in not placing the settling defendants on the verdict form to permit the jury to apportion fault among all tortfeasors.
The Illinois Appellate Court reversed, holding that fault should have been assessed to all defendants, including the settling defendants; that, for the purpose of apportioning fault, evidence relating to the settling defendants’ actions was relevant and admissible; and that the trial court erred in precluding the defendant from placing the settling defendants on the verdict form.
Plaintiff appealed to the Illinois Supreme Court, which reversed the Appellate Court. The Court held that the language contained in the Act, “Defendant sued by the Plaintiff,” was ambiguous. The Court held that settling defendants were not “defendants sued by the plaintiff,” and therefore were not to be considered in the apportionment of fault by the jury. Thus, settling defendants are now not to be included on the verdict form for purposes of determining fault between tortfeasors.
Post-Ready Confusion Continues
This decision has caused a re-writing of the Illinois Pattern Jury Instructions that favors Plaintiffs in two ways. First, the instruction still allows settling defendants to be named in the consideration of a plaintiff’s comparative fault. Second, the instructions on use indicate that settling co-defendants are to be “disregarded” for purposes of determining a defendant’s comparative fault. Under this scheme, a plaintiff gets the benefit of having settling parties named for the jury to consider whether the plaintiff is greater or less than 50% at fault, but the defendant does not have the same benefit when the jury considers whether the defendant is less than 25% at fault.
Case Management Implications After Ready
Ready essentially dismantles the Act and dramatically increases the litigation burden for defendants. The Act’s intention – to prevent large recoveries from minimally culpable parties – has been eviscerated by the Supreme Court’s decision and resulting jury instruction confusion. There now exists incentives for plaintiffs to sue minimally culpable parties with high policy limits, refuse to settle with those defendants and instead settle with more culpable parties carrying less coverage. As a result, settling defendants are now largely unreachable for apportionment of fault, leaving plaintiffs free to seek 100% of damages from remaining, sufficiently insured defendants. There is no longer a functioning statutory safety net. Small proportionate liability now equates with high level exposure, reducing the incentive to vindicate a lack of liability at trial.
As a result, remaining, minimally culpable defendants are left with less attractive trial strategy options. These include defending the case on the basis that they were not, in fact, negligent; utilizing the “empty chair” or sole proximate cause defense by claiming that the conduct of others was the entire cause of injury; and/or counterclaiming plaintiff for contributory negligence/ comparative fault.
This article was prepared with the assistance of Amy M. Paulsen, paralegal.
Originally published in the Spring 2010 edition of Quinn Quarterly.