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By Steven R. Merican Here are a few recent cases of importance and note - April 2003. Unzicker v. Kraft Food Ingredients Corp., 2002 Ill. Lexis 957, Docket No. 92838 (11/21/02). Under section 2-1117 of the Code of Civil Procedure, the employer’s percentage of fault can be included to assess joint and several liability. Section 2-1117 survives a constitutional challenge. This opinion attempts to clear up issues concerning the application of section 2-1117 of the Code of Civil Procedure and joint and several liability. Marlin Unzicker, an employee of a contractor, was injured while working at Kraft’s facility. Marlin applied for and received workers’ compensation benefits. He also sued Kraft for his injuries. Kraft third-partied Marlin’s employer, which raised the Workers’ Compensation Act as an affirmative defense. The jury returned a verdict for Marlin for nearly $880,000, most of which was for nonmedical damages. The jury assessed 99 percent fault against the employer, only one percent against Kraft. Under section 2-1117, Kraft was only liable only for its one percent of the nonmedical damages. Kraft was jointly liable for the full amount of the medical damages, but got 99 percent contribution from the employer. The employer’s liability was capped by its workers’ compensation payments. As a result, Unzicker was able to collect only a portion of the $880,000. Unzicker made a number of arguments to try to maximize his recovery. All of his argments were rejected by the supreme court. Unzicker argued that his employer’s negligence should not have been included in the apportionment of fault. Unzicker claimed that his employer was protected by the Workers’ Compensation Act, so it could not be a "third party defendant who could have been sued by the plaintiff," as required by section 2-1117. However, the court stated that plaintiff could sue his employer, and that the Worker’s Compensation Act was an affirmative defense that the employer could raise. Therefore, the employer’s negligence was properly included in apportioning liability. Another argument claimed an irreconcilable conflict between section 2-1117 and the Contribution Act. The Contribution Act states that solvent defendants are obliged to pay any portion of a verdict that is uncollectable against another defendant. The court stated there was no conflict with section 2-1117, which denies contribution for nonmedical damages from a tortfeasor who is less than 25 percent at fault. The court stated that the Contribution Act merely clarified that it is not "intended to affect a plaintiff’s right to recover all of his or her damages from any responsible defendant." Therefore, the court ruled, there was no conflict between the statutes. The supreme court also ruled that section 2-1117 was constitutional. Based upon a "rational basis" analysis, the court held that 2-1117 is not special legislation. Nor does 2-1117 violate the separation of powers doctrine: 2-1117 does not constitute a "legislative remittutur." "[Section] 2-1117 merely determines when a defendant can be held liable for the full amount of a jury’s verdict and when a defendant is liable only in an amount equal to his or her percentage of fault. Section 2-1117 does not reduce the amount of the jury’s verdict." Clemons v. Mechanical Devices Co., 2002 Ill. Lexis 953, Docket No. 91306 (11/21/02). Trial court order denying leave to amend the complaint was substantively and effectively final, and therefore an appealable interlocutory order. The first time this case was in the supreme court, the court reversed because the circuit court had admitted evidence on a claim that was not alleged in the complaint. On remand, the circuit court denied plaintiff leave to file an amended complaint. The amendment sought to add the cause of action on which plaintiff originally tried the case, but which had not been alleged prior to the first trial. In denying leave to amend, the circuit ruled that its order involved "a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." (S.C. Rule 308(a).) The circuit also found that there was no just reason to delay enforcement or appeal of the order. (S.C. Rule 304(a).) In a 4-3 opinion, the supreme court ruled that there was appellate jurisdiction over the circuit court’s order denying leave to amend. The court found that "it is clear that the order . . . was substantively and effectively ‘final.’ Although the trial court did not deny plaintiff’s motion ‘with prejudice,’ the court expressly found, under section 2-616(a) . . . that defendant would be prejudiced if plaintiff’s complaint were amended." The court also ruled that the circuit court’s "attempt at Rule 308 certification" and the Rule 304(a) finding "strongly supports the conclusion that the trial court was firm in its conviction about the denial of plaintiff’s motion to amend and wanted the case to proceed to a court of review for a final determination on this matter before the start of trial." In re Mary Ann P., 2002 Ill. Lexis 955, Docket No. 92777 (11/21/02). Mental Health and Developmental Disabilities Code does not permit selective authorization of psychotropic drugs. Respondent was a patient involuntarily admitted at the Elgin Mental Health Center. The State filed a petition for the involuntary administration of psychotropic drugs. The petition, signed by the treating psychiatrist, listed six medications to treat the patient’s psychotic disorder. The jury returned a verdict in favor of the State, and the circuit court authorized the administration of the drugs for a specific time period and within specific dosage ranges. The issue before the supreme court was whether respondent was denied her right to have the jury specify which of the drugs listed in the petition were specifically authorized. The court ruled that the Mental Health Act does not allow "the jury to parse the treatment and choose among the various medications . . . Accordingly, where, as here, the recommended treatment consists of multiple medications — some to be administered in combination, and some to be administered only as needed to counter side effects — it is only this treatment, in its entirety, that may be authorized. In re Storment, 2002 Ill. Lexis 958, Docket No. 92832 (11/21/02). "Legal responsibility," as used in Rule 1.5(g)(2) of the Code of Professional Responsibility, refers only to potential financial responsibility for any malpractice action against the recipient of the referral. Storment’s Missouri license to practice law was suspended, so he referred a Missouri criminal matter to another lawyer. Storment accepted a fee for the referral. A hearing before the Illinois ARDC Hearing Board resulted. Among other things, the Board ruled that it was not improper for Storment to receive a referral fee. The ARDC argued that Storment could not get a referral fee because, as a result of his Missouri suspension, he was not able to assume representation of the client. The ARDC relied upon Rule 1.5(g)(2) of the Code of Professional Responsibility, which states that "the referring lawyer agrees to assume the same legal responsibility for the performance of the services in question as would a partner of the receiving lawyer." The ARDC Administrator took an exception to that ruling. However, the supreme court affirmed the Board’s ruling, and held that Rule 1.5(g)(2) "is concerned with the financial responsibility of the referring lawyer for potential malpractice actions against the receiving lawyer." Thus, it did not matter that Storment was unable to represent the client in Missouri. Storment’s Missouri suspension did not prevent him, at least under the Illinois Code, from receiving a referral fee for the Missouri criminal matter. (However, Storment was suspended for two years for failure to obtain the client’s written consent to a division of fees with another lawyer.) Steve Merican is a sole practitioner in Oak Brook, Illinois. Steve’s practice is concentrated in appeals in state and federal courts. His URL is http://www.illinoislocalcounsel.com. |
