Foster v. Kanuri

                                                             First Division
                                                               June 9, 1997








No. 1--94--0658

JAMES FOSTER, Adm'r of the Estate       )    Appeal from the
of Patrice Foster, Deceased,            )    Circuit Court of
                                        )    Cook County.
          Plaintiff-Appellant,          )
                                        )
     v.                                 )
                                        )    
RAO KANURI,                             )    Honorable
                                        )    Jerome Lerner,
          Defendant-Appellee.           )    Judge Presiding.


     JUSTICE BRADEN delivered the opinion of the court:
     Plaintiff, James Foster, administrator of the estate of
Patrice Foster, deceased, appeals from a January 24, 1994, order
awarding defendant, Rao Kanuri, M.D., a setoff in the amount of
$2,750,000 against a judgment entered against defendant in an
earlier proceeding.  Plaintiff argues that (1) the setoff formula
used by the trial court on remand is inconsistent with this
court's prior opinion in Foster v. Kanuri, 241 Ill. App. 3d 677,
608 N.E.2d 8 (1992); (2) that the wrongful death claims of the
surviving spouse and minor son should have been treated as two
separate and distinct claims for setoff purposes; and (3) that
the apportionment adopted by the parties for allocating the
pretrial settlements should have been used in determining the
setoffs.  
     The facts relevant to the appeal are as follows.  Decedent,
Patricia Foster, died after undergoing a dilation and curettage
procedure at Humana Hospital.  She was survived by her minor son,
Daniel, and husband, James Foster.  James Foster commenced a
medical malpractice action against multiple defendants: Joseph
Ptasinki (Ptasinski); Northwest Physicians for Women, S.C.
(Northwest Physicians); Humana Hospital; and defendant-appellant,
Rao Kanuri, M.D.
     Humana Hospital settled the claims against it prior to trial
for $750,000.  The trial court entered a good-faith finding in
the settlement.  Plaintiff then filed a motion for distribution
of settlement proceeds.  The trial court approved the settlement,
finding that James Foster and Daniel Foster were decedent's
surviving spouse and next of kin and that their percentages of
dependency were 60% and 40%, respectively.  Ptasinski and
Northwest Physicians also settled claims against them for $2
million.  The trial court approved these settlements, also
finding James Foster's percentage of dependency to be 60% and
Daniel Foster's to be 40%.
     The aforementioned pretrial settlements totalled $2,750,000,
of which $1,100,000 was awarded to Daniel Foster and $1,650,000
was awarded to James Foster.  None of the pretrial settlement was
distributed to the estate of Patrice Foster.
     The remaining defendant, Dr. Kanuri, proceeded to trial,
after which the jury returned a verdict in favor of plaintiff and
against defendant in the amount of $2,925,000.  The jury verdict
was to be distributed as follows:  (1) $2,100,000 to Daniel
Foster for loss of society on the wrongful death claim; (2)
$250,000 to James Foster for the loss of society on the wrongful
death claim; and (3) $575,000 to the estate of Patrice Foster on
the pain and suffering claim.  
     Defendant filed a post-trial motion requesting a setoff of
the entire $2,750,000 in settlement proceeds against the total
jury verdict, so that only $175,000 would remain due and owing to
plaintiff.  The trial court rejected defendant's argument and
entered an order granting plaintiff's cross-motion for a setoff
of $1 million against Daniel Foster's jury verdict and $575,000
against the estate's jury verdict, requiring defendant to pay
$1,575,000 to plaintiff.  
     Defendant appealed this order in Foster v. Kanuri, 241 Ill.
App. 3d 677, 608 N.E.2d 8 (1992), where the sole issue presented
to this court was whether defendant was entitled to set off the
full pretrial settlement amounts paid to plaintiff by other,
dismissed defendants, against the jury's total verdict against
him.  On appeal, this court reversed the trial court's
determination as to the setoffs and remanded the case to the
trial court with instruction to reconsider the settlement
agreements and the jury verdict in light of the wrongful death
and survival claims involved.  In reaching its decision, this
court held that the express provisions and plain language of the
Joint Tortfeasor Contribution Act (Contribution Act) (Ill. Rev.
Stat. 1989, ch. 70, par. 302(c)) entitled defendant to have
settlement proceeds paid by the other defendants set off against
the jury verdict.  This court further instructed the trial court
to apportion the setoff of the jury verdict against the pretrial
settlements in light of the method espoused in Murphy v. Martin
Oil Co., 56 Ill. 2d 423, 308 N.E.2d 583 (1974), and reiterated in
Fountas v. Breed, 118 Ill. App. 3d 669, 445 N.E.2d 200 (1983).
     On remand, the trial court granted defendant a setoff
against the judgment entered on the jury's verdict of $2,925,000
in the amount of $2,750,000 for pretrial settlement funds
received by the plaintiff from other settling defendants prior to
trial.  The trial court specified that the amount due and owing
plaintiff from defendant should be reduced to the net sum of
$175,000 plus $345.20 in interest.  Plaintiff appeals from this
order.
     On appeal, plaintiff contends that the setoff approach
adopted by the trial court on remand is inconsistent with this
court's prior opinion.  Specifically, plaintiff argues that the
setoff approach deprived the minor child, Daniel Foster, of
nearly $875,000 of the $2,100,000 wrongful death recovery awarded
to him by the jury by offsetting against his recovery, not only
his share of the pretrial settlements, but also that of his
father, James Foster.  Defendant, on the other hand, argues that
the earlier decision in Foster established the law of the case
and this court is bound by its holding and the judgment of the
circuit court entered on remand.  Defendant argues that the issue
on appeal is improper in that plaintiff is attempting to use a
second appeal to ask this court to reconsider its earlier
decision.   
     Under Illinois law, the earlier decision in Foster
established the law of the case, and this court is bound by its
holding in the aforementioned case and the judgment of the
circuit court entered on remand.  PSL Realty Co. v. Granite
Investment Co., 86 Ill. 2d 291, 312, 427 N.E.2d 563, 573 (1981). 
When an appellate court reverses and remands the cause with a
specific mandate, the only proper issue on a second appeal is
whether the trial court's order is in accord with the mandate. 
Anundson v. City of Chicago, 15 Ill. App. 3d 1032, 1037, 305 N.E.2d 376, 381 (1973).  Ordinarily, a party seeking review of an
appellate decision in an Illinois court has two options, neither
of which includes a second appeal.  The party may either file a
petition for rehearing or petition for leave to appeal to the
Illinois Supreme Court.  Krentz v. Johnson 59 Ill. App. 3d 791,
792, 376 N.E.2d 70, 71 (1978).  
     We note that there are two exceptions to the doctrine of the
law of the case.  Martin v. Federal Life Insurance Co., 164 Ill.
App. 3d 820, 824, 518 N.E.2d 306, 309 (1987).  The first
exception is when a higher reviewing court, subsequent to the
lower reviewing court's decision, makes a contrary ruling on the
same issue.   Martin, 164 Ill. App. 3d at 824, 518 N.E.2d  at 309. 
The second exception allows the reviewing court to depart from
the doctrine of the law of the case if the court finds that its
prior decision was palpably erroneous.  Stallman v. Youngquist,
152 Ill. App. 3d 683, 689, 504 N.E.2d 920, 923 (1987).
     Here, plaintiff does not dispute the law of the case
doctrine.  He does, however, contend that the trial court's
judgment was not in accord with this court's mandate in Foster
and that the holding by the Illinois Supreme Court in Pasquale v.
Speed Products Engineering, 166 Ill. 2d 337, 654 N.E.2d 1365
(1995), categorically rejected the "lump sum" setoff approach
applied by trial court on remand in the case at bar.  Plaintiff
argues that the Illinois Supreme Court's holding in Pasquale
constitutes a contrary ruling on the same issue by a higher
reviewing court, subsequent to this court's ruling in Foster,
and, therefore, constitutes an exception to the doctrine of the
law of the case.   Plaintiff contends that the holding in
Pasquale categorically rejects the "lump sum" setoff approach
and, therefore, is contrary to the holding on the same issue in
Foster.  We disagree.  
     The holding in Pasquale is not contrary to the holding in
Foster.  In Pasquale, the Illinois Supreme Court concluded that,
under the circumstances of that case, the wrongful death claim
brought by the plaintiff representative for the benefit of the
surviving kin was a separate claim from that brought for the
benefit of the surviving spouse.  Pasquale, 166 Ill. 2d  at 366,
654 N.E.2d  at 1380.  Under these circumstances the Pasquale court
concluded that a wrongful-death claim that is barred as untimely
where brought for an adult beneficiary, but tolled where brought
for a minor beneficiary, is a separate and distinct claim from
that brought solely for the adult.  Pasquale, 166 Ill. 2d  at 366,
654 N.E.2d  at 1380.  The Pasquale court concluded that the claim
for the benefit of the minor beneficiary was substantially
separate and distinct from the claim asserted by the surviving
spouse.  Pasquale, 166 Ill. 2d  at 366, 654 N.E.2d  at 1380.  The
court stated that a setoff is inappropriate where sought to be
applied against a recovery for injuries "separate and distinct"
from those for which the plaintiff was already compensated
through settlement.  Pasquale, 166 Ill. 2d  at 370, 654 N.E.2d  at
1382.  The Pasquale court, however, noted that it was clear that
the entire amount of a settlement that compensated for a single
indivisible injury could be set off against a recovery based on
that injury, notwithstanding the plaintiff's assertion of two
distinct theories of recovery.  Pasquale, 166 Ill. 2d  at 369-70,
N.E.2d at 1382.  
     In Foster, the court made an express finding that the case
involved a claim under the Wrongful Death Act (Ill. Rev. Stat.
1991, ch. 70, par. 1) and another under the survival statute
(Ill. Rev. Stat. 1991, ch. 70, par. 2).  Under these
circumstances, the Foster court held that the express provisions
and plain language of the Contribution Act (Ill. Rev. Stat. 1991,
ch. 70, par. 2) entitled defendant to have the aforementioned
settlement proceeds set off against the jury's verdict.
     Here, we find that the express provisions and plain language
of the Contribution Act (Ill. Rev. Stat. 1991, ch. 70, par. 2),
entitle defendant to have the pretrial settlement proceeds, paid
by the other defendants set off against the jury's verdict. 
However, defendant is only entitled to a lump sum set-off of said
settlement against the jury verdicts in favor of Daniel and James
Foster for the loss of society under the Wrongful Death Act.  The
settlement proceeds allocated to Daniel and James Foster's
respective claims under that act may not be set off against the
$575,000 verdict awarded to the estate of Patrice Foster on the
estate's seperate claim for pain and suffering.  A claim under
the survival statute is that of the deceased which arose during
his life and survived his death and is separate and distinct from
an action for wrongful death.  Fountas v. Breed, 118 Ill. App. 3d
669, 455 N.E.2d 200 (1983).   
     As stated in Foster, the trial court must set off the
settlement funds received by Daniel and James Foster for loss of
society under the Wrongful Death Act against the judgment entered
in their favor, even if their judgment is reduced to zero.  Our
supreme court has found that where a full set off is denied, the
plaintiff receives double recovery for the same injury, which is
precluded under Illinois law.  NgUyen v. Tilwalli, 144 Ill. App.
3d 968, 495 N.E.2d 630 (1986).  
     On remand in the case at bar, the trial court erroneously
granted defendant a $2,750,000 "lump sum" setoff against the
judgment entered on the total jury verdict of $2,925,000, in
consideration for pretrial settlement funds received by the
plaintiff from other settling defendants prior to trial.  Here,
the total $2,750,000 pretrial settlement received by Daniel and
James Foster should have been set off against the jury's
$2,350,000 verdict on Daniel and James Foster's respective
wrongful death claims.  Such setoff should have been made without
regard to how pretrial settlements were apportioned.  This setoff
would result in an enforceable judgment against defendant equal
to the $575,000 verdict rendered on plaintiff's claim for pain
and suffering under the Survival Act.
     For the aforementioned reasons, we reverse and remand the
judgment of the circuit court of Cook County with respect to its
finding on the issue of damages for an order consistent with this
opinion.   
     Reversed and remanded for further proceedings.
     CAMPBELL, P.J., and BUCKLEY, J., concur.