An Issue of First Impression: Illinois Appellate Court Holds That the Amendment to Illinois Code of Civil Procedure § 2-1117 Cannot Be Retroactively Applied
December, 2004
The Illinois Appellate Court, First District holds in case of first impression that the June 4, 2003 amendment to Illinois’ joint and several liability statute (735 ILCS 5/2-1117) cannot be retroactively applied. Carollo v. Al Warren Oil Co., Inc., et. al, 2004 WL 2715547. (Ill. App. Nov. 24, 2004).
Facts
Plaintiff worked for Premier Fuel & Cartage, Inc. for whom he drove a tanker truck to and from McCormick Place and from which he refueled small vehicles. Plaintiff drove and refueled smaller vehicles from tanker truck A-2, which, in 1993, Premier had purchased as a used tanker from defendants Al Warren Oil Co., Inc., and Altom Transport, Inc.
On May 13, 1998, plaintiff was injured in an explosion at work. Plaintiff was refueling A-2 from a larger tanker truck, A-3, also owned by Premier and which it had purchased as a used tanker from defendants. Plaintiff was loading gasoline into A-2 from A-3 through A-2’s top hatch (as opposed to loading through valves at the bottom of the tanker) when a ball of fire knocked plaintiff off A-2 to the ground, severely burning plaintiff.
On April 28, 1999 plaintiff filed his initial complaint (followed by an amended complaint in 2002) alleging both strict products liability and negligence against defendants, essentially for defendants’ alleged failure to install safety devices on A-2 and A-3. Defendants brought a third-party action against Premier for contribution alleging Premier’s failure to properly train plaintiff in refueling procedures. On the eve of trial defendants dismissed Premier from the lawsuit pursuant to a settlement agreement. Plaintiff tried his negligence claim against defendants. On October 2, 2002 the jury returned its verdict awarding plaintiff damages and allocating fault as follows:
Plaintiff: 15%
Warren: 15%
Altom: 18%
Premier: 52%
Analysis
At the time of plaintiff’s injury, the jury’s verdict and the trial court’s entry of judgment, § 2-1117 of the Code of Civil Procedure provided as follows:
[I]n actions on account of bodily injury or death or physical damage to property based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiff’s past and future medical and medically 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 the 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 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff, shall be jointly and severally liable for all other damages.
Therefore, § 2-1117 makes a defendant-tortfeasor only severally liable for plaintiff’s non-economic damages (i.e. pain and suffering) when its percentage of fault for plaintiff’s injuries is less than 25% of the total fault - - as both Warren and Altom were here.
On November 21, 2002, the Illinois Supreme Court decided Unzicker v. Kraft Food Ingredients, Corp., 203 Ill. 2d 64 (2002), which held that plaintiff’s employer should be “considered in the division of fault under section 2-1117” because the plaintiff’s employer is a “third party defendant who could have been sued by the plaintiff.” The Unzicker court concluded that “[t]he clear legislative intent behind section 2-1117 is that minimally responsible defendants should not have to pay entire damage awards. The legislature set the line of minimal responsibility at less than 25%.”
The Carollo trial court thereafter entered judgment pursuant to Unzicker determining that both Altom and Warren were each only severally liable for their respective proportionate share of plaintiff’s non-economic damages, and jointly and severally liable for his medical expenses. Plaintiff appealed, contending that Premier should not have been included in the allocation of fault, and filed his initial appellate brief on April 10, 2003.
In response to Unzicker, the newly elected Illinois legislature amended section 2-1117 by specifically providing that a “plaintiff’s employer” should not be considered in the allocation of total fault (i.e. “any third party defendant except the plaintiff’s employer . . . .”). Pub. Act No. 93-0010. The amendment provided that the Act “takes effect upon becoming law,” which was June 4, 2003. The Carollo appellate court held: “This statutory amendment is a substantive [and not a procedural] change. We agree with the defendants, for the reasons stated in their brief and their sur-reply brief, that this statutory amendment is not retroactive and does not apply to the instant case. Thus, the trial court correctly included Premier in allocating fault for the purposes of section 2-1117, making defendants Warren and Altom each only severally liable for their proportionate share of plaintiff’s nonmedical damages.”
Plaintiff is currently petitioning the Illinois Supreme Court for review.
Learning Point:
The inclusion of plaintiff’s employer on the verdict form can mean the difference between a defendant being jointly and severally responsible for an entire judgment on non-economic damages and only severally responsible for its proportionate share of non-economic damages. Therefore, in all cases where the cause of action accrued (usually a tort cause of action accrues when plaintiff suffers injury) prior to the effective date of the amendment to 2-1117 (June 4, 2003) defense counsel should tender a verdict form including plaintiff’s employer in the allocation of total fault for purposes of 2-1117.
Editor’s Note: CM appellate attorneys Jim Ferrini and Ann Chalstrom briefed this case before the Illinois Appellate Court, and Ann Chalstrom presented oral argument.
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