In the last few years, the Illinois Appellate Courts have taken divergent views on whether the fault of the employer can be considered for purposes of a 2-1117 analysis. In a compelling opinion, the Illinois Supreme Court has resolved this issue in Unzicker.2 In Unzicker, the Supreme Court upheld the constitutionality of section 2-1117 and found that a plaintiff’s employer is a party who can be included in the allocation formula of Section 2-1117.3 This article will examine (1) the noteworthy cases leading up to the Unzicker decision; (2) the Unzicker opinions in the Appellate and Supreme Court; (3) the important policy reasons in support of this decision and (4) the future impact on apportionment of fault ensuing from the Unzicker opinion.
II. Applicable Law
The doctrine of apportionment of fault is embodied in Section 2-1117 of the Illinois Code of Civil Procedure. Specifically, Section 2-1117 provides that:
In actions on account of bodily injury or death … based on negligence, product liability … all defendants found liable are jointly and severally liable for plaintiff’s past and future medical and medical related expenses.
Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by plaintiff, and any third party defendant who could have been sued by the plaintiff shall be severally liable for all other damages. Any defendant whose fault, as determined by the trier of fact, is greater than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, any third party defendant who could have been sued by the plaintiff shall be jointly and severally liable for all other damages.4
Recent litigation and appellate practice based on this doctrine have focused on the constitutionality of Section 2-1117 and the interpretation of the phrase: "who could have been sued by the plaintiff."
III. The Courts’ Interpretation of Section
Much of the recent litigation concerning this section has been centered on the interpretation of the phrase: "who could have been sued by the plaintiff." The Fifth District adopted a literal interpretation of section 2-1117 and found that the phrase "who could have been sued by the plaintiff" only included the "defendant"5 and any "third party defendant."6
In Blake,7 the plaintiff filed a wrongful death suit on behalf of her husband, Jack Blake, against the defendant restaurants, alleging that plaintiff was killed by methane gas fumes while removing grease deposits from the city sewer line. The restaurants filed third-party contribution actions against the city employer. Prior to trial, the City of Belleville settled with the plaintiff and moved to dismiss the third-party claims. The Fifth District Appellate Court affirmed the circuit court’s dismissal of the third-party actions and held that the fault of the settled third-party defendant employer could not be presented to the jury for purposes of determining the fault of the remaining defendants under section 2-1117. In reaching this conclusion, the Fifth District relied on a literal interpretation of the statutory language, and ruled that section 2-1117 only included the fault of the "defendant" or a "third-party defendant" for purposes of the "25%" rule.8 Since the employer by virtue of the settlement was no longer a "defendant" or a "third party defendant," the remaining defendants had no right to insist on a section 2-1117 apportionment of fault.9
Again, in Lilly10, the Fifth District evoked a literal interpretation of section 2-1117 to deny an allocation of the fault for the plaintiff’s employer. Unlike in Blake, the employer in Lilly had not settled prior to trial, but the Fifth District still refused to apply the allocation provisions of section 2-1117 based on its interpretation that the plaintiff’s employer is not a party who could have been sued by the plaintiff.
In Lilly, the plaintiff brought a negligence and strict liability action against the defendant companies to recover for injuries he sustained when one of the locomotive’s cables failed. The companies filed a third-party action against the employer for contribution. Following trial, the plaintiff obtained a judgment of $1,200,005 against the defendant. The jury apportioned 90% of the fault to the plaintiff’s employer and only 10% of the fault against the defendant. The defendant argued unsuccessfully that it should only be held liable for 10% of the plaintiff’s nonmedical damages. The trial court refused to reduce the judgment against the defendant and the defendant appealed.
The Appellate Court affirmed and held that it was consistent with section 2-1117 to hold a party whose fault is found to be a proximate cause of the injury, but less than 25 % at fault, jointly and severally liable for the entire injury.11 In this situation, the only necessary requirement to hold the defendant jointly and severally liable is that the defendant’s fault was a proximate cause of the plaintiff’s injury. If this requirement is met then, according to Lilly, that defendant can be held entirely responsible for the plaintiff’s damages.
The Fifth District further noted in Lilly, that section 5(a) of the Workers’ Compensation Act provides no common law or statutory right to recover damages from the employer for injuries sustained by an employee other than the compensation provided therein.12 Applying this interpretation to section 2-1117, the Fifth District held that the plaintiff’s employer was not a party who could have been sued by the plaintiff.13
This literal interpretation caused harsh results on minimally liable defendants. As a result of this literal interpretation, the defendants found themselves in situations in which they would be responsible for more then the lion’s share of damages in cases involving immune co-defendants. It seemed to be contrary to the act’s provision and also to public policy to interpret section 2-1117 in such a manner. These concerns were soon addressed by the Fourth District Appellate Court in Unzicker.14
B. Unzicker v. Kraft Food Ingredients Corp.
1. Appellate Court Decision:
The Fourth District disagreed with the Lilly Court’s interpretation of section 2-1117 and for the first time held that an employer’s fault must be allocated for purposes of the 25 percent rule.15 In Unzicker, the plaintiff, an employee of Nogle & Black, was injured while he was installing stainless steel piping at Kraft’s plant in Champaign, Illinois. At the time of the accident, the plaintiff was working on a "manlift" welding flanges to a pipe. A forklift owned by Kraft and operated by a Nogle employee collided with the "manlift," causing the plaintiff’s fall and subsequent injuries. The plaintiff and his wife brought an action against Kraft alleging violations of the Structural Work Act and negligence.
The jury found against the plaintiffs on the Structural Work Act claim and in favor of the plaintiffs on the negligence theory and awarded the plaintiffs $879,400 in total damages, $788,000 of which were nonmedical and $91,400 of which were medical. The jury apportioned 1% of the fault to Kraft and 99% to Nogle. The trial court applied section 2-1117 and held Kraft only severally liable for 1% of the nonmedical damages.
Kraft and Nogle were jointly and severally liable for plaintiffs’ past and future medical expenses of $91,400. Kraft was severally liable for 1% of the nonmedical damages of $7,880. On Kraft’s third party complaint, Nogle was liable to Kraft for $90,486 in contribution which represented 99% of the medical damages.
In reaching its decision, the Fourth District relied, in part, on the Illinois Supreme Court’s ruling in Doyle v. Rhodes.16 In Doyle, the Supreme Court considered whether employers who were immune from suit under the Workers’ Compensation Act were liable for contribution under the Contribution Act. The Supreme Court, in finding that the Contribution Act was applicable, held that employers are parties who are "subject to liability in tort."17 The Fourth District then extended this rationale to section 2-1117 and found that if employers can be "subject to liability in tort" for purposes of the Contribution Act, then employers can qualify as "any third party who could have been sued by the plaintiff" for purposes of section 2-1117.18
2. The Supreme Court Opinion:
The Illinois Supreme Court noted the disagreement among the districts and granted plaintiffs’ petition for leave to appeal to resolve questions regarding both the interpretation and constitutionality of section 2-1117. In its November 2002 opinion, the Supreme Court affirmed the Fourth District’s interpretation of section 2-1117 and upheld the constitutionality of proportionate liability provisions of section 2-1117.19
In order to determine the legislative intent of 2-1117, the court looked at the language of the statute and applied the principles of statutory construction. The court overruled Lilly’s strict interpretation of section 2-1117 and found that the legislative intent behind section 2-1117 was that minimally responsible defendants should not have to pay entire damage awards.20 The court noted that the legislature set the line of minimal responsibility at less then 25% and, in doing so, the legislature looked to those people in the suit: the plaintiff, the defendants sued by the plaintiff and any third-party defendants who could have been sued by the plaintiff. According to the court, this broad wording shows that the legislature intended the division of responsibility to include those people in the suit who might have been responsible for the plaintiff’s injuries and ignoring the party found to be 99% responsible for the plaintiffs’ injuries and requiring the party found 1% to pay all of the nonmedical damages would not be in accord with the clear legislative intent.21
The Supreme Court further found that based on its decision in Doyle, the Workers’ Compensation Act is an affirmative defense that may be waived if not asserted by the employer and, until this affirmative defense is asserted, the employer will be "subject to liability in tort" for purposes of the Contribution Act.22 The court agreed with the Fourth District’s extension of this principle to section 2-1117 and held that a plaintiff’s employer who is a third-party defendant is a party who "could have been sued by the plaintiff."23
C. Constitutionality of Section 2-1117
The Illinois Supreme Court rejected the plaintiffs’ challenges to the constitutionality of the section 2-1117. These challenges stem, in part, from the court’s prior holding in Best v. Taylor Machine Works. 24 In Best, the court declared the 1995 amendment to section 2-1117 unconstitutional as violative of the special legislation clause.25 The 1995 amendment to section 2-1117 involved the complete abolition of joint and several liability in favor of several liability. More specifically, the 1995 amendment provided that "… a defendant is severally liable only and is liable only for that proportion of recoverable economic and noneconomic damages, if any, that the amount of that defendant’s fault, if any bears to the aggregate amount of fault of all other tortfeasors…"26
In Unzicker, the Illinois Supreme Court distinguished Best and found that section 2-1117 only modified the common law rule with respect to payment of nonmedical damages by those less then 25% at fault. Since this only amounts to a mere modification of joint and several liability, and not a complete abolishment of the principles of joint and several liability, it is not at odds with any other statutes or in violation of the equal protection clause.
IV. Public Policy Concerns:
The court articulated the policy concerns that have plagued the "deep pocket" defendant. Prior to Unzicker, a "deep pocket" defendant that is only minimally responsible would ultimately be wholly responsible for the plaintiff’s noneconomic damages. This is true not necessarily due to the defendant’s liability, but due to the defendant’s pocketbook and the ease of collecting the amounts due. In its ruling, the Unzicker court incorporated notions of fairness and equity in support of its finding that a plaintiff’s employer is a party "who could have been sued by the plaintiff."
Chief Justice McMorrow wrote a separate opinion specially concurring with the majority. In her concurring opinion, Chief Justice McMorrow noted that "a principal reason for modifying joint and several liability that was discussed during the legislative debates on the bill which resulted in section 2-1117 was that the doctrine of joint and several liability unfairly requires civil defendants to pay for more damages than they cause or for which they are responsible."27 Further, in her concurring opinion, Chief Justice McMorrow quoted the comments made by Representative Greiman regarding the functioning of joint and several liability:28
Joint and several liability … means that if you are one percent negligent, you must pay the entire judgment … We have changed all that. … We have heard from … people all across the state …that we are minimally liable … and we’re stuck for the whole thing. So we have said that there would be a threshold. If you are 25 percent liable, you are so much involved with causing that accident … that you should respond in damages for the entire amount. But if you are less than 25 percent, then you should pay only your share. …29
Moving toward a fairer apportionment concept has been the goal.30
V. Future of Apportionment of Fault
Based on the Illinois Supreme Court’s holding and the comments of Representative Greiman, it is clear that the focus in tort liability is to eliminate the "deep pocket" defendant and truly equate fault with liability. The Supreme Court did not specifically address whether the fault of the settling defendant or dismissed third-party defendant is to be considered by the jury for purposes of the 25 percent rule. Based on the above dicta in Unzicker, it is likely that the courts will be receptive to an interpretation of the statute to permit the jury to consider the fault of all tortfeasors named or unnamed, settled or immune from suit, so long as their negligence contributed as a proximate cause of the plaintiff’s injuries.
VI. Conclusion – More Tort Reform
There remains a trend in tort reform efforts, not only in Illinois but in a majority of states, to move toward complete apportionment of damages, truly equating fault with liability. Full apportionment — satisfying a damages verdict only for the actual percentage of fault — is the only fair answer to the "deep pocket" defendant dilemma, and true apportionment brings a sense of logic and fairness to the litigation process that has historically been absent for defendants. The only question that remains is how far reaching this decision will be. It is likely that the next area be litigated is whether the fault of other immune defendants or settled parties could be allocated. This decision by our Supreme Court adds a few more stitches to the pocket of the deep pocket defendant.
1 Unzicker v. Kraft Food Ingredients Corp., Inc., No. 92838, 2002 WL 31619037 (Ill. Nov. 21, 2002).
2 Unzicker, supra note 1.
3 Unzicker, 2002 WL 31619037, at *7.
4 735 ILCS 5/2-1117 (2000).
5 Blake v. Hy-Ho Restaurant, Inc., 273 Ill. App. 3d 372, 652 N.E.2d 807, 210 Ill. Dec. 5 (5th Dist. 1995).
6 Lilly v. Marcal Rope and Rigging, Inc., 289 Ill. App. 3d 1105, 682 N.E.2d 481, 224 Ill. Dec. 920 (5th Dist. 1997).
7 Blake, 273 Ill. App. 3d at 376.
8 Id. at 375.
10 Lilly, 224 Ill. Dec. at 928.
11 Id. at 928.
12 Id. at 922.
14 Unzicker v. Kraft Food Ingredients, Corp., Inc., 325 Ill. App. 3d 587, 758 N.E.2d 474, 259 Ill. Dec. 351 (4th Dist. 2001).
15 Unzicker, 259 Ill. Dec. at 356.
16 Doyle v. Rhodes, 101 Ill. 2d 1, 461 N.E.2d 382, 77 Ill. Dec. 759 (1984).
17 Unzicker, 2002 WL 31619037, at *5 (quoting Doyle, 101 Ill. 2d at 10-11).
18 Unzicker, 259 Ill. Dec. at 356.
19 Unzicker, 2002 WL 31619037, at *7.
22 Doyle, 101 Ill. 2d at 10-11.
23 Unzicker, 2002 WL 31619037, at *7.
24 Best v. Taylor Mach. Works, 179 Ill. 2d 367, 689 N.E.2d 1057, 228 Ill. Dec. 636 (1997).
25 Best, 179 Ill. 2d at 429.
26 735 ILCS 5/2-1117 (2000).
27 Unzicker, 2002 WL 31619037, at *18 (McMorrow, J., specially concurring).
28 Id. at *19 (McMorrow, J., specially concurring).
29 84th Ill. Gen. Assembly, House Proceedings, June 30, 1986, at 8-9 (statements of Rep. Greiman).
30 Alan J. Brinkmeier, Damages: Apportionment Among Joint Tortfeasors, DCBA Brief, October 1997.
Alan J. Brinkmeier is a principal of Merlo, Kanosky & Brinkmeier, Ltd., Chicago. His practice is concentrated in Complex Litigation and Appellate Practice. He graduated in 1976 from Elmhurst College and in 1984 from DePaul University College of Law. He lives in Elmhurst with his wife and two daughters, serves as Trustee for Elmhurst College and is Commissioner for the Elmhurst Planning and Zoning Commission.
Connie S. Avgerinos is an associate of Merlo, Kanosky & Brinkmeier, Ltd., Chicago. She is a 1987 graduate of Purdue University and a1990 graduate of Indiana University Law School. She is licensed to practice in Illinois and Indiana.