Truszewski v. Outboard Motor Marine Corp.

THIRD DIVISION
September 24, 1997

No. 1-95-0059)
1-95-1756) consolidated

STANISLAW TRUSZEWSKI,

Plaintiff-Appellee,

v.

OUTBOARD MOTOR MARINE CORP. and LESTER
ENGINEERING CO.,

Defendant-Appellees.
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OUTBOARD MOTOR MARINE CORP. and LESTER
ENGINEERING CO.,

Third-Party Plaintiffs-
Appellees,

v.

MUTUAL MAINTENANCE CO.,

Third-Party Defendant-
Appellant.)
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)Appeal from the
Circuit Court of
Cook County

Honorable
Alfred J. Paul,
Judge Presiding.


JUSTICE LEAVITT delivered the opinion of the court:
Truszewski, who worked for Mutual Maintenance Co. (Mutual),
sued Outboard Motor Marine Corp. (Outboard) and Lester Engineering
Co. (Lester) for damages resulting from an injury to his hand which
occurred while Truszewski cleaned a machine manufactured by Lester
and owned and operated by Outboard. Truszewski received $387,500
in a settlement, $287,500 of which originated with Outboard and
$100,000 of which originated with Lester. As part of a settlement,
Outboard and Lester dismissed with prejudice their contribution
claims against each other. In the remaining contribution action
where Outboard sued Mutual, a jury found Mutual responsible for 40%
of Outboard's liability to Truszewski. The judge ordered Mutual to
pay Outboard $115,000, representing 40% of $287,500. We reverse
and remand.
Mutual claims the trial court erred when it rejected Mutual's
proffered jury verdict form which read:
"We, the jury, apportion responsibility as follows:
Outboard Marine Corporation ____%
Mutual Maintenance Company ____%
Lester Engineering ____%
Total: 100%."
Instead, the court submitted the verdict form suggested by Outboard
which read:
"We, the jury, apportion responsibility as follows:
Outboard Marine Corporation ___%
Mutual Maintenance Company ___%
Total: 100%."
Trial courts have discretion to decide which jury instructions
to deliver. Gaines v. Townsend, 244 Ill. App. 3d 569, 576, 613 N.E.2d 796 (1993). We will grant a new trial only where a party
shows it suffered serious prejudice to its right to a fair trial
due to the court's failure to give a tendered jury instruction.
Gaines, 244 Ill. App. 3d at 576.
Both parties accurately state the axiom "when available, the
Illinois Pattern Jury Instruction [IPI] should be given, unless the
court determines that it does not accurately state the law."
Harnischfeger Corp. v. Gleason Crane Rentals, Inc., 223 Ill. App.
3d 444, 465, 585 N.E.2d 166 (1991). The IPI applicable here is
600.16, which reads:
"Verdict Form - Apportionment of Responsibility -
Contribution Following Settlement:
We, the jury, apportion responsibility as follows:
______________________ __%
name of contribution plaintiff
______________________ __%
name of first contribution defendant
______________________ __%
name of second contribution defendant
______________________ __%
name or describe non-party
TOTAL 100%
If you find that any person or entity was [not negligent] [not
at fault] in a way that proximately caused the injured
person's injury, then you should enter a zero as to that
person or persons."
The "Notes on Use" which follow IPI 600.16 state "*** this verdict
form makes provision for determining the fault attributable to non-
parties. The trial judge, after verdict, will then have to
determine the contribution judgment to be entered." Illinois
Pattern Jury Instructions, Civil, No. 600.16 (3d ed. 1993).
Mutual claims the verdict form selected by the court
unjustifiably deviated from the relevant IPI. Mutual asserts the
instruction utilized did not accurately conform to the law of
contribution embodied in Illinois' Joint Tortfeasor Contribution
Act [the Contribution Act]. 740 ILCS 100/.01-5 (West 1992). The
Contribution Act provides:
"(a) *** where 2 or more persons are subject to
liability in tort arising out of the same injury to
person or property, *** there is a right of contribution
among them, even though judgment has not been entered
against any or all of them.
(b) The right of contribution exists only in favor
of a tortfeasor who has paid more than his pro rata share
of the common liability, and his total recovery is
limited to the amount paid by him in excess of his pro
rata share. No tortfeasor is liable to make contribution
beyond his own pro rata share of the common liability."
740 ILCS 100/2.
Although not defined in the Contribution Act, the terms "pro rata"
and "common liability" are defined in the introduction to the
contribution section of the Illinois Pattern Jury Instructions for
Civil Cases. It reads:
"'Pro rata' as used in [740 ILCS 100/2(b) (1994)]
merely means the percentage share as assessed by the
trier of fact. 'Common liability' [under section 2(b)]
means the total sum of the liability of all persons who
contributed as a cause to the plaintiff's injury, no
matter how small each share of that liability might be."
Illinois Pattern Jury Instructions, Civil, No. 600.00 (3d
ed. 1993), citing Ziarko v. Soo Line Railroad Co., 234
Ill. App. 3d 860, 602 N.E.2d 5 (1992), and Mallaney v.
Dunaway, 178 Ill. App. 3d 827, 831, 533 N.E.2d 1114
(1988).
Our supreme court recognized that the Contribution Act is
concerned with the relative culpabilty of defendants. Doyle v.
Rhodes, 101 Ill. 2d 1, 14, 461 N.E.2d 382 (1984). It provides a
remedy for an entity that has paid more than its pro rata share of
the common liability by allowing it to seek contribution from a
fellow joint tortfeasor who has not paid his pro rata share of the
common liability. 740 ILCS 100/2. The Contribution Act also
establishes a remedy for a joint tortfeasor from whom contribution
is sought. He cannot be made to pay more than his pro rata share
of the common liability. 740 ILCS 100/2. And, one seeking
contribution can only recover the amount he paid in excess of his
pro rata share. Lilly v. Marcal Rope and Rigging, 224 Ill. Dec.
920, 682 N.E.2d 481, 488 (1997).
Mutual specifically alleges the verdict form, by failing to
apportion fault among all three joint tortfeasors, caused Mutual to
pay more than its pro rata share of the common liability in
violation of the Contribution Act. 740 ILCS 100/2. Common
liability here means the total sum of Mutual's, Outboard's and
Lester's liability, no matter how small or how great each share
might be. Illinois Pattern Jury Instructions, Civil, No. 600.00
(3d ed. 1993).
Although no case squarely confronts the question whether
excluding a non-party tortfeasor's fault on a verdict form causes
an unfair determination of a party's pro rata share under the
Contribution Act, Mutual directs us to Gordon Broom's The IDC
Monograph: Instructing the Jury on Contributory Negligence,
Contribution, and Apportionment in the Multiple Joint Tortfeasor
Case, Illinois Defense Counsel Quarterly, Vol. 4, No. 2, pp. ii-
xxiv (1994), which supports its position. The author there asserts
where only two of three parties who contributed to plaintiff's
injury are listed on a verdict form, "the total pro rata fault of
the parties as to each other will equal 100%, [however,] that is
only 100% of the common liability of the parties left in the case,
not 100% of common liability 'of all persons who contributed' to
plaintiff's injury." The IDC Monograph, IDC Quarterly at viii.
And, under Illinois' Contribution Act, a joint tortfeasor can only
be made to contribute his pro rata share of "the total sum of the
liability of all persons who contributed as a cause to the
plaintiff's injury." Illinois Pattern Jury Instructions, Civil,
No. 600.00 (3d ed. 1993).
Outboard claims Harnischfeger, 223 Ill. App. 3d 444, supports
its position that the verdict form used here was proper. In
Harnischfeger, John Clark was injured when the crane he operated
for Keeley & Sons contacted an energized power line. Clark sued
Keeley Brothers Contracting Co., Keeley & Sons, Harnischfeger, H.H.
Hall Construction Company [Hall], Union Electric Company [Union],
and Gleason Crane Rentals, Inc. [Gleason]. Clark settled with
Harnischfeger, Hall and Union. As part of the settlement, Clark's
claims against Gleason were dismissed. Harnischfeger, Hall and
Union, none of which had claims against each other, then tried
their contribution actions together against Gleason. The court
utilized the third-party plaintiffs' suggested verdict forms which
read:
"As between Harnischfeger Corporation and Gleason
Crane Rentals, Inc., we, the jury, apportion damages as
follows:
Harnischfeger Corporation ___%
Gleason Crane Rentals, Inc. ___%
TOTAL 100%

As between H.H. Hall Construction Company and Gleason Crane
Rentals, Inc., we, the jury, apportion damages as follows:
H.H. Hall Construction Company ___%
Gleason Crane Rentals, Inc. ___%
TOTAL 100%

As between Union Electric Company and Gleason Crane Rentals,
Inc., we, the jury, apportion damages as follows:
Union Electric Company ___%
Gleason Crane Rentals, Inc. ___%
TOTAL 100%."

The appellate court held the verdict forms were proper, stating:
"Gleason's claim that the single verdict form would have reduced
its obligation is simply unsupported." Harnischfeger, 223 Ill.
App. 3d at 462.
We find the decision in Harnischfeger distinguishable from the
case sub judice. Harnischfeger did not involve a non-party
tortfeasor and it was tried prior to the 1993 revision of IPI
600.16 to its current form. The former 600.16 did not dictate non-
parties' inclusion, as the current version does. The old section
read:
"600.16 Verdict Form - Apportionment of Responsibility
We, the jury, apportion damages as follows:
____________________ __%
name of party
____________________ __%
name of party
____________________ __%
name of party
TOTAL: 100%."
Illinois Pattern Jury Instructions, Civil, No. 600.16 (August
1986) Supp. pg. 600-38.
More importantly however, we find that decision's logic
fundamentally flawed. Harnischfeger settled by paying the
plaintiff $1,700,000. Hall paid $2,000,000 and Union paid $500,000
to Clark. Based on the aforementioned verdict form, the jury
assessed fault:

Harnischfeger Corp. 50% $850,000
Gleason Crane Rentals, Inc. 50% $850,000
100% $1,700,000

H.H. Hall Construction Co. 5% $100,000
Gleason Crane Rentals, Inc. 95% $1,900,000
100% $2,000,000
Union Electric Co. 10% $50,000
Gleason Crane Rentals, Inc. 90% $450,000
100% $500,000

Based on the verdict form, Gleason ultimately contributed
$3,200,000, or approximately 76.2% of the total amount paid to the
plaintiff.
That result patently violated the Contribution Act which
states that no tortfeasor is liable to make contribution beyond his
pro rata share of the common liability. 740 ILCS 100/2(b).
Although the jury did not calculate Gleason's pro rata share of the
common liability, that share can be algebraically deduced from the
jury's assessments. The IDC Monograph, IDC Quarterly, at xii-xiv.
That article articulately sets forth a mathematical equation which
yields each party's fault percentage:
"The common fault of Harnischfeger (A), H.H. Hall
(B), Union (C) and Gleason (D) equaled 100% of the common
liability. Thus, the first part of the equation for each
defendant's percentage of fault sets up as follows:
A + B + C + D = 100%
Using the jury's calculation of each settling
tortfeasor's fault compared to that of D, the equation
sets up as follows:
A and D were found to have contributed equally to the
injury, i.e. 50%/50%.
A = D.
B's fault compared to D's fault was 5%.
B = 5% and D = 95%
or
B = 1/19D.
C's fault compared to D's fault was 10%.
C = 10% and D = 90%
or
C = 1/9D.
Substituting these new equations for A, B, and C, the
equation for the percentages of fault for A, B, C and
D combined is now:
D + 1/19(D) + 1/9(D) + D = 100%.
The common denominat[or] for the equation is 171,
which converts this equation as follows:
171(D) + 9(D) + 19(D) + 171(D) = 17,100.
D's percentage can now be computed:
370(D) = 17,100.
D = 46.215% [rounded]."
So, Gleason was 46.215% at fault, Hall was 2.43% at fault,
Union was 5.14% at fault and Harnischfeger was 46.215% at fault.
Gleason's pro rata share of the common liability was thus not
76.2%, but rather 46.215%.
The settlement with the plaintiff dictated the universe of
common liability which was $4,200,000. The Contribution Act
mandated Gleason pay no more than its pro rata share of the common
liability, 46.215%. 740 ILCS 100/2. That sum was $1,941,030, not
$3,200,000 which the court mandated Gleason contribute based on the
ill-conceived verdict forms. Harnischfeger, 223 Ill. App. 3d at
462.
Again, the issues in Harnischfeger are distinguishable from
those sub judice. We reject Outboard's suggestion that we adopt
the logic employed in that decision. We use Harnischfeger only to
illustrate the gross inequity an improvidently drawn verdict form
can yield.
Outboard further argues the Contribution Act bars Lester's
inclusion on the verdict form based on the following language:
"The tortfeasor who settles with a claimant [in good
faith] is discharged from all liability for any contribution
to any other tortfeasor." 740 ILCS 100/2(d).
This language does not support Outboard's contention.
The Contribution Act provides a defendant who enters into a
good faith settlement has no further liability. Lester's was a
good faith settlement, and Lester was therefore discharged from
liability for contribution. Accordingly, Lester's presence on the
jury form could not have caused Lester to pay again. A jury's
assessment of Lester's pro rata share of common liability would
serve only to facilitate its assessment of Mutual's pro rata share.
Lester's presence on the verdict form is not only non-
prejudicial to Lester, but also essential to a just resolution of
this third-party dispute. Because a party cannot be forced to pay
more than his pro rata share of the common liability, and because
the common liability here is the sum of Lester's, Mutual's and
Outboard's fault (a percentage that must equal 100), Mutual's pro
rata share of the common liability cannot be fairly assessed
without reference to Lester's pro rata share. 740 ILCS 100/2(b).
In reaching our conclusion, we are aware that no Illinois
court has directly addressed the issue before us today. However,
in a related context, this court held similarly. In Bofman v.
Material Service Corp., 125 Ill. App. 3d 1053, 1063-64, 466 N.E.2d 1064 (1984), the comparative negligence instruction under review
required the jury to consider the negligence of "all other persons"
in computing "total combined negligence." Bofman, 125 Ill. App. 3d
at 1063. We held "consideration of both parties and nonparties to
an action is essential for determining liability commensurate with
degree of total fault." Bofman, 125 Ill. App. 3d at 1064.
In sum, IPI 600.16 called for the inclusion of the non-party
joint tortfeasor, Lester. The court was required to use that
instruction unless it determined IPI 600.16 did not accurately
state the law. Without expounding its rationale, the court
deviated from IPI 600.16. For this reason and those enounced
previously, the trial court erred when it rejected the verdict form
tendered by Mutual and utilized the one submitted by Outboard.
Because that error tainted the fairness of this trial, a new one
should be allowed.
REVERSED AND REMANDED.
Cousins, P.J., and Gordon, J. concur.