Fears Of "Iguana Litigation" Assuaged: A Remnant Of Illinois Tort Reform Survives
December, 2002
In 1997 the Illinois Supreme Court held unconstitutional the vast majority of the tort reform legislation passed by the then Republican-lead Illinois legislature. Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997). Section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117), which modified the common law rule of joint and several liability, had not been considered in Best. That statute has now been upheld and given real teeth in Unzicker v. Kraft Food Ingredients Corp., 2002 Ill. LEXIS 957 (Ill. Nov. 21, 2002).
The statute provides that any tortfeasor whose percentage of fault for a plaintiff’s injuries is found to be “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” is only severally liable for the plaintiff’s non-medical damages.
The jury in Unzicker attributed 1% of fault to the defendant and 99% to the third-party defendant, the prime-plaintiff’s employer, whom defendant had sued for contribution. The case turned upon the statutory phrase “could have been sued by the plaintiff.” Plaintiffs can sue their employers – but such action is effectively futile because of the Illinois worker’s compensation statute’s exclusivity provision; comp. benefits are the employee’s exclusive remedy.
In Lilly v. Marcal Rope & Rigging, Inc., 682 N.E.2d 481 (Ill. App. 1997), the notoriously liberal Fifth District held a plaintiff’s employer cannot be included in the allocation of fault under the statute because of the immunity - that the employer is not a “third party defendant who could have been sued by the plaintiff.”
In Unzicker the Supreme Court, in a divided opinion, considered and rejected each of the Fifth District’s arguments.
The Fifth District had focused upon the phrase, “subject to liability in tort” which is used in the Illinois contribution statute and which the Supreme Court, in Doyle v. Rhodes, 461 N.E.2d 382 (Ill. 1984), had held applicable to the plaintiff’s employer; Doyle reasoned that an employer is “subject to liability in tort” in the sense that the employer has breached a common law duty of care – notwithstanding the immunity provision of the worker’s compensation statute. The Fifth District reasoned that if the legislature had intended to include the employer in the allocation mix it would have used that phrase which had already been construed by the Supreme Court. The Unzicker court rejected the argument, explaining:
. . . we must reject Lilly’s somewhat fanciful hypothesis of legislative intent. According to Lilly, if the legislature had intended to include employers in the division of fault, it would have used the phrase, “subject to liability in tort” because this court had already construed that phrase as including employers. Thus, according to Lilly, the legislature must have meant something different by using the phrase “could have been sued by the plaintiff.” If, however, the legislature intended to use language that would exclude employers, we believe that it would have simply put in language specifically excluding employers. If, as Lilly contends, the legislature was considering Doyle when it drafted Section 2-1117 and wanted that section to mean something different, it is difficult to believe that the legislature would have chosen a phrase such as “who could have been sued by the plaintiff” instead of excluding employers explicitly.
The Lilly court had also reasoned that the legislature could not have intended to include employers in the mix because construction of the phrase “could have been sued” as encompassing one who is statutorily immune would lead to a ridiculous construction – as any person can be sued, regardless of legal liability. The Unzicker court effectively disposed of that argument:
Further, we disagree with Lilly’s sarcastic conclusion that including an employer who has statutory immunity from tort suits in the division of fault would mean that a plaintiff’s pet iguana could also be included because a person could physically file a paper naming his pet as a defendant in a suit. Such an analysis ignores the first part of the relevant phrase. Section 2-1117 does not include in the division of fault “anyone who could have been sued by the plaintiff.” Rather it includes “any third party defendant who could have been sued by the plaintiff. In other words, the party must already have been brought into the case by a defendant for that party to be included in the division of fault. Unless defendants in tort suits begin filing contribution claims against the plaintiffs’ pets, Lilly’s fears of iguana litigation will never be realized.
The clear legislative intent behind the statute is that minimally responsible defendants should not have to pay entire damage awards. Unzicker effectuates that legislative intent.
James T. Ferrini
jferrini@clausen.com
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