Lilly v. Marcal Rope & Rigging, Inc.
Annotate this Case
NO. 5-96-0153
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
DAVID LILLY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 90-L-719
)
MARCAL ROPE AND RIGGING, INC., )
)
Defendant and Third-Party Plaintiff-)
Appellant, )
)
v. )
)
GRANITE CITY STEEL CORPORATION, ) Honorable
) A. A. Matoesian,
Third-Party Defendant. ) Judge, presiding.
_________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
This personal injury case arises from the use of an American
Hoist locomotive crane on December 18, 1989. The plaintiff, David
Lilly, an employee at Granite City Steel, claimed that when one of
the crane's pendant cables failed, he was severely injured. Lilly
sued Marcal Rope and Rigging (Marcal) and Bethlehem Steel on both
negligence and product liability theories. Lilly dismissed his
cause of action against Bethlehem Steel at trial. Marcal filed a
third-party complaint against Granite City Steel for contribution.
The jury returned a verdict in Lilly's favor for $1,200,005. On
the contribution action, the jury attributed 90% of the fault to
Granite City Steel and 10% of the fault to Marcal.
Marcal raises two points on appeal. We will first address an
issue of first impression: is a plaintiff's employer a "third
party defendant who could have been sued by the plaintiff" under
the provisions of the joint liability law, section 2-1117 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-1117 (West 1994))?
The second issue is whether the evidence supported the jury's
verdict on the negligence and product liability counts.
Marcal asks that we reduce the judgment because section 2-1117
makes it severally liable since on the contribution action the jury
found it only 10% responsible for Lilly's injuries. Lilly
contends, however, that the jury's finding that Marcal was 10%
responsible on the contribution action does not entitle Marcal to
relief from joint liability because Granite City Steel was not "a
third party defendant who could have been sued by the plaintiff"
under the terms of section 2-1117. Therefore, Lilly contends, the
jury's attribution of 90% of the fault to Granite City Steel under
the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS
100/2 (West 1996)) cannot be used to bring Marcal's responsibility
below the 25% level contemplated by section 2-1117. The question
which must be answered is whether Lilly's employer is included in
the phrase "any third party defendant who could have been sued by
the plaintiff" in the joint liability provision.
The pertinent portion of the first statute to be considered,
section 2-1117 of the Code, the joint liability law, is:
"Any defendant whose fault *** is less than 25% of the total
fault attributable to the plaintiff, the defendants sued by
the plaintiff, and any third party defendant who could have
been sued by the plaintiff, shall be severally liable for all
other damages." (Emphasis added.) 735 ILCS 5/2-1117 (West 1994).
The second statute involved is the exclusivity provision of
the Workers' Compensation Act, section 5(a), which provides:
"No common law or statutory right to recover damages from
the employer *** for injury or death sustained by any employee
other than the compensation herein provided, is available to
any employee who is covered by the provisions of this Act
***." (Emphasis added.) 820 ILCS 305/5(a) (West 1996).
If we were to examine only these two statutes and the cases
which have uniformly barred recipients of workers' compensation
benefits from bringing a direct action against their employers
because of the exclusive-remedy language of section 5(a) (Wells v.
Enloe, 282 Ill. App. 3d 586, 669 N.E.2d 368 (1996); Laird v. Baxter
Health Care Corp., 272 Ill. App. 3d 280, 650 N.E.2d 215 (1994)), we
would conclude that the employer is clearly not a "third party
defendant who could have been sued by the plaintiff." However,
Marcal contends that a third statute, the Contribution Act, and the
supreme court's interpretation of it in Doyle v. Rhodes, 101 Ill. 2d 1, 461 N.E.2d 382 (1984), require the employer to be included
within those "third party defendants who could have been sued by
the plaintiff" under section 2-1117.
The relevant portion of the Contribution Act provides:
"Right of Contribution. (a) where two or more persons are
subject to liability in tort arising out of the same injury,
there is a right of contribution among them." (Emphasis
added.) 740 ILCS 100/2 (West 1996).
Marcal contends that since Doyle held that employers are
within the class of those "subject to liability in tort" under the
Contribution Act, it must follow that employers are within the
class of those "who could have been sued by the plaintiff" under
section 2-1117. We disagree with this contention for several
reasons.
First, when the legislature passed section 2-1117, it did not
use the phrase "subject to liability in tort." If the legislature
had wanted to achieve the same result in section 2-1117 that it had
provided for in the Contribution Act (and that the supreme court
had specifically recognized in Doyle), it would have used the same
language. When statutes are enacted after judicial opinions are
published, it must be presumed that the legislature acted with
knowledge of the prevailing case law. People v. Hickman, 163 Ill. 2d 250, 262, 644 N.E.2d 1147, 1153 (1994). Therefore, the
defendant's attempt to extend Doyle to the language of section 2-
1117 is less than persuasive.
The presumption of legislative knowledge of judicial opinions
is of particular importance in this area both because of the
multitude of Illinois Supreme Court cases that have recognized that
section 5(a) prohibits suits by employees against employers and
because of the language used in these cases:
"Section 5(a) bars a common law action by an employee against
his employer for injuries received in the course of his
employment and it also bars a statutory action against his
employer for his wrongful death." (Emphasis added.) Gannon
v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 13 Ill. 2d 460, 150 N.E.2d 141, 143 (1958).
Although the above quote is from 1958, similar language can be
found in Illinois Supreme Court cases for the last 40 years.
Ramsey v. Morrison, 175 Ill. 2d 218, 676 N.E.2d 1304 (1997); Page
v. Hibbard, 119 Ill. 2d 41, 518 N.E.2d 69 (1987); Chmelik v. Vana,
31 Ill. 2d 272, 201 N.E.2d 434 (1964); O'Brien v. Rautenbush, 10 Ill. 2d 167, 139 N.E.2d 222 (1956).
The point that is made by these cases is that it is not just
Doyle that the legislature is presumed to be aware of; it is also
the other cases, all of which had held that an employer is not one
who "could have been sued by the plaintiff." If the legislature
had intended to include employers within the class of those who
could have been sued by the plaintiff for purposes of the joint
liability law, it clearly would have used the one phrase that would
have insured their inclusion: "subject to liability in tort." The
legislature's use of a different phrase, a phrase which has never
been held to allow employers to be sued by injured employees,
supports our conclusion that the legislature did not intend to
include employers in that class in the joint liability law.
The second reason for our conclusion is found in a close
reading of Doyle. We begin by examining the actual question that
Doyle decided, which was not whether injured employees can sue
their employers, but, in the language of Doyle:
"whether the immunity of an employer from an action at law by
an injured employee provided by sections 5(a) and 11 of the
Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, pars.
138.5(a), 138.11) also bars an action for contribution against
the employer by a third party ***." (Emphasis added.) Doyle,
101 Ill. 2d at 4, 461 N.E.2d at 383-84.
Two things should be noted from the supreme court's statement
of the issue it was addressing in Doyle. First, and most
important, it was not addressing the question of whether an
employee could maintain a direct action against his or her
employer; it was addressing the question of whether a third-party
defendant could maintain a contribution action against the
employer. Second, in the first emphasized portion of the question
it was going to resolve, the supreme court recognized the inability
of employees to bring actions against their employers.
The supreme court's statement of the issue before it in Doyle
is not the only part of the opinion that indicates that the court
was examining the meaning of "subject to liability in tort" only in
the context of contribution actions. First, the statement of the
issue is repeated by the court just after its description of the
procedural background of the case:
"We address first the third-party defendant's contention
that its statutory immunity under sections 5(a) and 11 of the
Workers' Compensation Act from tort actions by its employees
also immunizes it from this claim under the Contribution Act."
Doyle, 101 Ill. 2d at 6, 461 N.E.2d at 384.
In addition, in rejecting the holding of Lake Motor Freight,
Inc. v. Randy Trucking, Inc., 118 Ill. App. 3d 626, 455 N.E.2d 222
(1983), Doyle recognized a distinction between contribution
statutes that required joint liability or actual liability on a
tort theory and the Illinois Contribution Act, which "requires only
that the parties be `subject to liability in tort arising out of
the same injury.'" Doyle, 101 Ill. 2d at 12, 461 N.E.2d at 387.
Further, although Doyle discusses an employee's theoretical
ability to file a claim against his or her employer, it is clear
from Doyle's concluding language on this point that the supreme
court was focusing on the ability of third-party defendants to
maintain actions against the employer under the Contribution Act:
"[W]e conclude that the Contribution Act focuses, as it was
intended to do, on the culpability of the parties rather than
on the precise legal means by which the plaintiff is
ultimately able to make each defendant compensate him for his
loss." (Emphasis added.) Doyle, 101 Ill. 2d at 14, 461 N.E.2d at 388.
Indeed, the emphasized language in the last quote suggests the
supreme court's recognition that there may well be different
factors to consider between the Contribution Act's concern over the
relative culpability of defendants and the plaintiff's ability to
collect from among those defendants.
Finally, the actual holding of Doyle is in no way a
recognition that injured workers can sue their employers:
"Consequently, we hold that, under the Contribution Act, the
employer's immunity from a suit in tort by its employee as
plaintiff is not a bar to a claim for contribution against it
by a defendant held liable to such a plaintiff." (Emphasis
added.) Doyle, 101 Ill. 2d at 14, 461 N.E.2d at 388.
Instead, Doyle, in its actual holding:
(1) limited its interpretation of "subject to liability
in tort" to the Contribution Act, and
(2) as the emphasized language establishes, specifically
recognized that an employer was immune from suit in tort by
its employees.
As indicated earlier, the conclusion and the actual holding of
Doyle are important for another reason: they, at least implicitly,
recognize that there may be different concerns that are to be
addressed depending upon whether the legislature is concerned with
contribution among joint tortfeasors or the allocation of
responsibility among defendants against whom the plaintiff has
obtained a judgment.
In examining that question, we must remember that, although
the joint liability law and the Contribution Act share some
elements, they are concerned with two different issues and two
different time frames.
The joint liability law is a limitation on the plaintiff's
ability to recover from defendants, each of whom has been found to
be the proximate cause of plaintiff's injuries and is therefore
responsible for all the damages done to the plaintiff. The joint
liability law, however, provides a limitation on the amount the
plaintiff can recover from defendants whose comparative culpability
to one another is less than 25% of the total culpability. The
significant time frame of the joint liability law is after the
judgment and before collection by the plaintiff. The significant
time for the Contribution Act is after collection by the plaintiff.
If the plaintiff always collected from the defendants in
accordance with the jury's assessment of their respective
culpabilities under the Contribution Act, it would never come into
play; it is only when the plaintiff collects the judgment in a
manner inconsistent with the jury's determination of responsibility
under the Contribution Act that any action under it is necessary.
Under the common law, defendants who were jointly and
severally liable were each responsible for all the damages
sustained by a plaintiff. Of course, this did not mean that the
plaintiff could recover the full measure of damages from each
defendant; such a procedure was barred by restrictions against
double recovery. It did mean, however, that in a case involving
three jointly liable defendants, a plaintiff could recover 50% of
the damages from each of two of the defendants or 33 % of the
damages from each of the three defendants or 100% of the damages
from only one of the defendants. This ability of the plaintiff to
pick and choose was not inequitable when viewed as between the
plaintiff and the defendants because, after all, each of the liable
defendants had been found to be a sufficient cause of the
plaintiff's injury to be responsible for 100% of the plaintiff's
loss. W. Prosser, Torts 52, at 347 (5th ed. 1984); see also Coney
v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 454 N.E.2d 197 (1983).
The real inequity that occurred when the plaintiff chose to
collect 100% of the damages from only one of the defendants was not
an inequity between the plaintiff and that defendant. The inequity
arose because that defendant was unable to recover in an
appropriate manner from the other defendants whose conduct was more
culpable than his when the conduct of the defendants was compared.
This inability of defendants to recover from one another led to the
supreme court's decision in Skinner v. Reed-Prentice Division
Package Machinery Co., 70 Ill. 2d 1, 374 N.E.2d 437 (1977).
In pre-Skinner days, if a plaintiff obtained a judgment for
$100,000 against three defendants, A, B, and C, and decided to
collect it all from defendant A, defendant A had no right to seek
contribution from either B or C. Defendant A might, depending on
the circumstances, be able to maintain an indemnification action
against either B or C, or perhaps both of them, but Skinner
recognized that indemnification was a crude tool at best because it
was an all-or-nothing proposition. Either A recovered from B
and/or C all of the judgment it had paid to the plaintiff or A
recovered nothing. Since the relative culpabilities of the
multiple defendants were rarely so clearly delineated,
indemnification was not really a satisfactory tool. Skinner
recognized the unsatisfactory state of the law, recognized that
defendants should be allowed to recover from one another based upon
their culpability, and allowed contribution to occur. The
Contribution Act codified Skinner and is concerned with defendants'
rights vis-a-vis other defendants.
As Doyle held, this ability of defendants to recover from one
another in amounts proportionate to their relative culpabilities
includes the ability to recover from the employer, who, under
Doyle, is "subject to liability in tort" within the meaning of the
Contribution Act. Obviously, the supreme court has determined that
a relatively expansive reading of "subject to liability in tort"
was necessary to allow defendants to equitably adjust their
relative culpabilities depending upon the collection choices of the
plaintiff. The expansive reading of Doyle was later curtailed by
Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 585 N.E.2d 1023
(1991), which limited the responsibility of the employer in such
actions to the amount of its workers' compensation lien.
Is a similar expansive reading needed to achieve the purposes
of section 2-1117, the joint liability law? Obviously, the statute
restricts a plaintiff's common law rights, and thus it should be
strictly construed. Summers v. Summers, 40 Ill. 2d 338, 342, 239 N.E.2d 795, 798 (1968); see also American Ambassador Casualty Co.
v. City of Chicago, 205 Ill. App. 3d 879, 563 N.E.2d 882 (1990).
Under the 1986 version of section 2-1117, which applies to this
case, the plaintiff was no longer able to collect 100% of the
nonmedical portions of a judgment from any defendant unless that
defendant's fault was more than 25% of the total fault of certain
enumerated parties who were involved in producing the injury.
The question that must be answered is, Whose fault is to be
counted in determining whether any particular defendant's fault
exceeds 25% of the total? Obviously, the defendants sued by the
plaintiff would be included, and the statute says that. The
legislature has also determined that the plaintiff's fault should
be included: "the total fault attributable to the plaintiff,
defendants sued by the plaintiff, and ***." (Emphasis added.) 735
ILCS 5/2-1117 (West 1994).
What about the third category that the legislature included
and that is obviously the focus of this appeal: "any third party
defendant who could have been sued by the plaintiff"? Did the
legislature intend to include the plaintiff's employer within that
description? As has been indicated earlier, the failure of the
legislature to use the phrase "subject to liability in tort" from
the Contribution Act, a phrase which had already been construed to
include the employer, strongly suggests that it did not. When the
failure to use the "subject to liability in tort" language is
coupled with the section 5(a) language of the Workers' Compensation
Act and the strong and the repeated pronouncements of the supreme
court that employees are not allowed to sue their employers because
of section 5(a), this strong suggestion becomes almost a certainty.
In addition to the background of the Contribution Act, Doyle,
section 5(a), and the multitude of cases under section 5(a), there
is a third basis for our decision: the words of the statute itself
suggest that the employer should not be included. If, as the
defendant contends, the legislature meant to include the employer
(and anyone else who might be immune to suit), even though that
employer or that spouse or the United States of America would be
immediately successful on a section 2-619 motion to dismiss because
of the appropriate immunity, then we must conclude that the
legislature was speaking of theoretical actions. "Could have been
sued" in that context is reduced to meaning "Could plaintiff
physically file a piece of paper naming a party as a defendant?"
Certainly, a plaintiff can physically do that. A plaintiff can
name anyone as a defendant--himself, his wife, his pet iguana, his
State, his God, or his employer. And all are immune from his suit.
Should we conclude that the legislature meant such a ridiculous
result?
Our answer to the question is suggested by the question
itself, but that is not the only basis for the answer. In
addition, it must be remembered that, in the same tort reform
package that contained the restriction on joint liability, there
was also a provision which penalized any party who filed a pleading
which was not:
"after reasonable inquiry *** well grounded in fact and
warranted by existing law or good faith argument for the
extension, modification, or reversal of existing law ***."
Ill. Rev. Stat. 1986 Supp., ch. 110, par. 2-611.
The only basis that could support even a theoretical claim
against plaintiff's employer was the supreme court's dicta in Doyle
which interpreted the Contribution Act. Therefore, it is
significant to note that the same Contribution Act provides:
"Rights of plaintiff unaffected. A plaintiff's right to
recover the full amount of his judgment from any one or more
defendants *** is not affected by the provisions of this Act."
(Emphasis added.) 740 ILCS 100/4 (West 1994).
Our fourth and final reason for our conclusion is found in
this early legislative statement that the Contribution Act should
not affect plaintiffs' rights to recover the full amount of the
damages. The statement is a recognition of the differences between
the concepts behind the two statutes, a recognition that has also
been described by legal commentators:
"All of these statements reflect a fundamental confusion
between each defendant's individual full responsibility for
the damages that she tortiously caused and the comparative
responsibility percentages that are obtained by comparing the
defendants' individual full responsibilities for the injury.
Neither defendant in either of these situations was merely
`50% negligent' or `50% responsible.' Such statements make as
much sense as saying that someone is `50% pregnant.'" Nor did
either defendant's negligence cause or occasion only 50% of
the plaintiff's injury. Rather, each defendant was 100%
negligent, each defendant's negligence was an actual and
proximate cause of 100% of the injury, and each defendant
therefore is fully responsible for the entire injury. Only
when we compare their individual full responsibilities, and
assume that they were equally negligent, does it make sense to
say that each defendant, when compared to the other, bears 50%
of the total comparative responsibility for the injury."
(Emphasis added.) R. Wright, The Logic and Fairness of Joint
and Several Liability, 23 Memphis St. U.L. Rev. 45, 56 (1992)
(Wright).
As the legislature realized when it passed the Contribution
Act, and as Professor Wright cogently points out, the Contribution
Act is concerned with sorting out the relative rights of multiple
defendants after the plaintiff has collected from among those
defendants who are each fully responsible for all of his damages.
To illustrate this point, Professor Wright uses as an example two
defendants, each of whom put enough poison into the plaintiff's
coffee to kill her. Clearly, each defendant's conduct would be
sufficient by itself to cause plaintiff's death, and the plaintiff
would be entitled to collect 100% of the damages from either
defendant. Professor Wright then modifies his hypothetical to
highlight the different interests involved in contribution claims.
"Assume in the coffee drinker hypothetical that the first
defendant deliberately put enough poison in the coffee cup to
kill the coffee drinker, while the second negligently put the
same amount in, so that the first defendant's comparative
responsibility might be set at 90% and the second defendant's
at 10%. Can it really be that the first defendant, despite
deliberately putting sufficient poison in the cup to kill the
coffee drinker regardless of what the second defendant did, as
a matter of logic or justice is only `90% responsible' for the
coffee drinker's death and thus should receive only 90% of the
specified criminal punishment for murder (e.g., a 90% capital
punishment) and be liable in tort for only 90% of the damages
caused to the coffee drinker's survivors or estate? Can it
really be that the second defendant, despite negligently
putting enough poison in the cup to kill the coffee drinker
regardless of what the first defendant did, is only `10%
responsible' for the coffee drinker's death and thus is only
liable for 10% of the damages caused to the coffee drinker's
survivors or estate, even if for some reason no damages can be
obtained from the first defendant?
* * *
The tortfeasor who initially pays the plaintiff has an
equitable restitutionary (unjust enrichment) claim against the
other tortfeasors for contribution or indemnity based on their
comparative responsibility for the injury. If she cannot
obtain contribution from another tortfeasor because he is
immune, insolvent or otherwise unavailable, this does not mean
that she is being held liable for more than she tortiously
caused, for more than she is responsible, for the other's
tortious actions, or for his portion of the damages. Whether
or not she can obtain contribution, she is individually fully
liable to the plaintiff for all the damages that were the
actual and proximate result of her tortious behavior. Her
paying for all these damages fulfills her own responsibility
to the plaintiff; it is not a shifting to her of the
unavailable tortfeasor's responsibility. If one of the
tortfeasors ends up paying all or a disproportionate share of
the damages due to the immunity, insolvency, or unavailability
of another tortfeasor, an unfair result unquestionably has
occurred. But the unfairness exists only in the context of
the first tortfeasor's equitable restitutionary claim against
the other tortfeasor for contribution, which is secondary to
the plaintiff's prior and independent corrective justice claim
against each tortfeasor, who is individually fully responsible
for the plaintiff's injury.
A plaintiff necessarily faces the risk that any
particular tortfeasor from whom he attempts to recover his
damages may be immune, insolvent, or otherwise unavailable.
The immunity or insolvency of one tortfeasor, however, does
not, as the critics of joint and several liability sometimes
argue, provide any reason or justification for limiting the
plaintiff's right to obtain full recovery from a different
solvent and available tortfeasor, who is individually fully
responsible for the plaintiff's injury. Indeed, such a
limitation would be an unjustified shifting of the unavailable
tortfeasor's formal or `de facto' immunity to the available
tortfeasor, who has no such immunity." (Emphasis added.)
Wright, 23 Memphis St. U.L. Rev. at 60-62.
The individual responsibility of concurrent actors for the
entire injury has also been recognized by the supreme court. In
Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 121-22, 454 N.E.2d 197, 205 (1983), the court stated:
"A concurrent tortfeasor is liable for the whole of an
indivisible injury when his negligence is a proximate cause of
that damage. In many instances, the negligence of a
concurrent tortfeasor may be sufficient by itself to cause the
entire loss. The mere fact that it may be possible to assign
some percentage figure to the relative culpability of one
negligent defendant as compared to another does not in any way
suggest that each defendant's negligence is not a proximate
cause of the entire indivisible injury."
Just as the Contribution Act does not come into play until the
plaintiff has collected more than a pro rata share from a
defendant, so, too, the joint liability law does not come into play
until a plaintiff has obtained a judgment against a defendant.
Therefore, in order to determine whether "any third party defendant
who could have been sued by the plaintiff" should include the
plaintiff's employer, the relevant inquiry is not whether there is
a theoretical or philosophical possibility of suing the employer at
the outset, but whether the plaintiff could obtain a judgment
against an employer. The judgment is the relevant time of inquiry
under the joint liability law. Could a plaintiff obtain a
judgment? If the employer did not raise the exclusivity provisions
of section 5(a), presumably he could. If the plaintiff did obtain
such a judgment, then it would be fair to allow that judgment, and
the jury's assessment of the employer's culpability, to be included
in the section 2-1117 equation of allocation. If, however, it was
not the plaintiff but a third-party plaintiff who obtained the
judgment, as will universally be the case in the real world, then
the allocation provisions of section 2-1117 should not include the
plaintiff's employer.
Is this result unfair to the defendant? If the employer's
conduct is not considered for purposes of the allocation of
responsibility under section 2-1117, or if a settling defendant's
conduct is not considered, or if any immune defendant's conduct is
not considered, what is the practical effect? Taking the settling
defendant's conduct first, it is clear that the remaining
defendants' rights under section 2-1117 have not been abridged.
The argument that the nonsettling defendants are entitled to keep
the settling defendants in the case so as to hopefully reduce their
own percentage of allocation of responsibility below the 25% level
of section 2-1117 has been rejected. Snoddy v. Teepak, Inc., 198
Ill. App. 3d 966, 556 N.E.2d 682 (1990); cf. Lannom v. Kosco, 158 Ill. 2d 535, 634 N.E.2d 1097 (1994). As Snoddy indicates, the
nonsettling defendants' responsibility is reduced by the amount
already paid by the settling defendant. In fact, as Blake v. Hy Ho
Restaurant, Inc., 273 Ill. App. 3d 372, 375, 652 N.E.2d 807, 810
(1995), points out:
"[A]ppellants' argument that their respective liability should
be reduced by the pro rata share of the dismissed defendant's
liability is misdirected and erroneous. If such were the
case, a nonsettling defendant would receive a double benefit.
First, any judgment amount entered in favor of a plaintiff
would be reduced to reflect the partial settlement. Then,
potentially, the nonsettling defendants would reap an
additional benefit if found less than 25% at fault because the
judgment having once been reduced to reflect the settlement
could be subject to less than full satisfaction under the
terms of section 2-1117."
Turning to defendants who are immune from suit, such as the
plaintiff's employer, the State of Illinois, and others, what is
the practical effect of eliminating them from the allocation
equation? First, as we indicated earlier, if for some unfathomable
reason an immune defendant does not raise its immunity and is
subjected to a judgment, then the allocation provisions of section
2-1117 would properly include that defendant's fault in the
equation. This result would be fair to all parties because as the
plaintiff is able to collect whatever portion of the judgment was
attributable to the immune defendant, so also should that immune
defendant's conduct be considered under section 2-1117's allocation
of fault. But if the immune defendant asserts its immunity, or if
the plaintiff does not file against the immune defendant because he
or she is obeying the dictates of the supreme court rule which
prohibits such unmeritorious filings (155 Ill. 2d R. 137), then the
immune defendant will never be subject to any collection procedure
by the plaintiff and its conduct should not play any part in the
allocation equation of section 2-1117.
This result is not unfair to the defendant in this case
because both the original defendant, Marcal, and the employer and
third-party defendant, Granite City Steel, are each responsible for
100% of the plaintiff's injury. The conduct of each was a
proximate cause of one indivisible injury, just as the negligent
dispenser of poison and the intentional dispenser of poison were
each fully responsible for the coffee drinker's death. The fact
that the relative culpability of the defendants vis-a-vis one
another was calculated at 90%/10% under the Contribution Act does
not change the responsibility of each to the plaintiff. The fact
that Marcal cannot recover the full amount of its contribution
claim from Granite City Steel is the result of Kotecki, not the
result of the language of section 2-1117.
For all the foregoing reasons, we hold that, for purposes of
section 2-1117, an employer is not a "third party defendant who
could have been sued by the plaintiff." Therefore, Marcal's
percentage of responsibility under section 2-1117 is not below 25%,
and it is jointly liable for all damages to plaintiff.
Nonpublishable material under Supreme Court Rule 23 omitted.
Since we have concluded that, for purposes of section 2-1117,
an employer is not a "third party defendant who could have been
sued by the plaintiff" and that the evidence supports the jury's
verdict, we affirm the decision of the trial court.
Affirmed.
KUEHN, P.J., and GOLDENHERSH, J., concur.
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