Illinois Appellate Court Applies Ready Sole Proximate Cause Defense To Settled Defendant
January, 2010
The Illinois Appellate Court, First District recently published an opinion interpreting and applying Ready v. United/Goedecke Services, Inc. Specifically, how to apply the sole proximate cause defense in regards to a settled defendant. Heupel v. Jenkins, 2009 WL 3762941 (Ill. App. 1st Dist.).
Facts
Plaintiff Katherine Heupel ("Heupel") was walking south bound on a sidewalk approaching the intersection of Wood Lawn Avenue and 55th Street in Chicago, Illinois. Defendant Jenkins was driving west bound on 55th Street. The driver of the second vehicle, Murugeson, was traveling east bound on 55th Street. At the intersection of 55th Street and Wood Lawn, Murugeson stopped in the left-hand turn lane and waited for traffic to clear. At that point, the traffic light for east-west traffic was green. It is unclear when the light changed, but the cars driven by Jenkins and Murugeson collided in the intersection. As a result of the collision, Jenkins' car was spun into the nearby sidewalk, striking Heupel and pinning her against a building. Heupel suffered extensive injury.
Prior to filing suit, Heupel and Murugeson reached a settlement agreement for $100,000.00, the limits of Murugeson's automobile insurance policy. Following trial, a jury returned a verdict in favor of Jenkins and against Heupel. Heupel appealed, arguing that the trial court erred in denying her motion for judgment notwithstanding the verdict, or alternatively for a new trial, claiming that defense counsel's closing argument was improper and prejudicial; that the trial court erred in issuing the long form of Illinois Pattern Jury Instructions, Civil, No. 12.04 (2000); and that the trial court erred by including Murugeson on the jury verdict forms. The Appellate Court affirmed.
Heupel filed a petition for leave to appeal with the Illinois Supreme Court. In the exercise of its supervisory authority, the Illinois Supreme Court directed the First District Appellate Court to vacate its previous judgment in Heupel v. Jenkins, and reconsider it in light of Ready v. United/Goedecke Services, 232 Ill.2d 369 (2009), to determine if a different result was warranted.
Analysis
The Appellate Court reversed and remanded Heupel for new trial. The Appellate Court noted that the central issue regarding including Murugeson on the verdict forms concerned § 2-1117 of the Illinois Code of Civil Procedure. This section provides the following:
Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendant sued by the plaintiff, and any third-party defendant except the plaintiff's employer, shall be severally liable for all other [non-medical] damages. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to plaintiff, the defendants sued by the plaintiff, and any third-party defendant except the plaintiff's employer, shall be jointly and severally liable for all other damages. (735 ILCS 5/2-1117)
In Ready v. United/Goedecke Services, the Illinois Supreme Court held that a good faith settling tortfeasor was not a defendant sued by the plaintiff within the meaning of § 2-1117. The First District determined that the Ready analysis applied to Heupel because the statutory language at issue, i.e., "defendants sued by the Plaintiff," was identical to the language construed by the court in Ready.
In Ready, the plaintiff estate filed suit after Ready was killed when a construction scaffold collapsed while Ready was working at job site. Plaintiff sued the parent company of plaintiff's decedent's employer; the general contractor; and the scaffolding contractor. Plaintiff settled her claims against the employer and the general contractor. A verdict was entered for plaintiff against United, the sole remaining defendant. United filed a third-party contribution claim against plaintiff's decedent's employer ("Midwest") and BMW Constructors, Inc. Plaintiff settled with Midwest and BMW and United did not object. The court ruled pretrial that United would not be allowed to present any evidence at trial regarding the conduct of the settling defendants. The trial court also denied United's motion to include BMW and Midwest on the verdict form. The trial court found United jointly and severally liable for the amount of the verdict remaining after offsets for Ready's comparative negligence and the settlement amounts paid by BMW and Midwest.
United appealed, arguing that the trial court erred by refusing to include the settling defendants on the verdict form in order for the jury to determine their share of fault, if any. The Appellate Court affirmed in part and reversed in part, and remanded for a reapportioning of fault because BMW and Midwest should have been on the verdict form. Plaintiff's petition for leave to appeal was granted by the Illinois Supreme Court.
The issue before the Supreme Court was whether settled tortfeasors are a "defendant sued by the plaintiff" within the meaning of § 2-1117. The Court concluded that settled tortfeasors are not "defendants sued by the plaintiff" and thus, settled tortfeasors should not be listed on a verdict form. The case was then remanded to the First District Appellate Court with an instruction that the Appellate Court rule on United's claim that the jury should have been instructed on sole proximate cause. Before the Appellate Court, United contended that it was deprived of the sole proximate cause defense when the trial court excluded evidence of the conduct of settling defendants Midwest and BMW, and therefore refused United's jury instruction on sole proximate cause. The Appellate Court determined that the trial court abused its discretion by excluding evidence of Midwest and BMW's conduct. The Appellate Court cited Nolan v. Weil-McLain, 233 Ill.2d 416 (2009), and Leondardi v. Loyola University of Chicago, 158 Ill.2d 83 (1995), in support.
In Nolan, plaintiff sued numerous corporations alleging that plaintiff's decedent developed asbestos related disease after being negligently exposed to the defendants' asbestos containing products during his 38 year career. All defendants except Weil-McLain settled prior to trial. The trial court barred Weil-McLain from introducing evidence of plaintiff's decedent's other asbestos exposures. The Illinois Supreme Court reversed, holding that Weil-McLain should have been permitted to present evidence to establish that the conduct of another entity was the sole proximate cause of the plaintiff's decedent's injury. The Court ruled that it was error to exclude such evidence when proximate cause was disputed and the defendant pursued a sole proximate cause defense, following its prior decision in Leondardi.
In Leondardi, plaintiff's decedent suffered irreversible brain damage shortly after giving birth and died several years later. Plaintiff filed suit against the hospital where she received treatment and against several physicians. The plaintiff settled with one defendant prior to trial and this defendant was dismissed from the case. Prior to trial, plaintiff filed a Motion in Limine seeking to bar evidence regarding alleged negligence of any person other than the named defendants. The trial court denied the motion and allowed the non-settling defendants to question witnesses regarding the settling defendant's duties and responsibilities as the decedent's attending physician. The jury returned a verdict for the defendants, and plaintiff appealed, arguing that the denial of her Motion in Limine was erroneous as the defendant's conduct was irrelevant and inadmissible as he was no longer a part of the case. The Illinois Supreme Court determined that the defense theory at trial was that the settling defendant was the sole proximate cause of decedent's injuries, and the remaining defendants denied that they were even partly a proximate cause of decedent's injuries. The Court further stated that "[a]n answer which denies that an injury was the result of or caused by the defendant's conduct is sufficient to permit the defendant in support of his position to present evidence that the injury was the result of another cause."
In Ready, the Appellate Court found that the trial court should not have excluded evidence of Midwest and BMW's conduct, as United's denial of liability was sufficient to permit it to present evidence that Ready's death was the result of another entity's conduct. As such, the trial court erred in preventing United from presenting evidence concerning the actions of Midwest and BMW, as United had denied that it was the sole proximate cause of decedent's injury.
Applying this long history of prior cases to Heupel, the First District noted that Murugeson settled with Heupel prior to the lawsuit being filed. The trial court denied Jenkins' motion to file a third-party contribution action against Murugeson. Therefore, pursuant to Ready, Murugeson was not a "defendant sued by the plaintiff" within the meaning of § 2-1117. In spite of its ruling denying the third-party action, the trial court allowed Murugeson to be included on the verdict form over Heupel's objection. Prior to the decision in Ready, the Appellate Court affirmed the decision in Heupel, but in light of the Ready decision regarding § 2-1117 and settling tortfeasors, the First District reversed and remanded for a new trial.
The First District determined that a new trial was warranted because it was error for the trial court to include Murugeson on the verdict forms and the Appellate Court could not be certain that the jury did not consider the amount of fault attributable to Murugeson. Unlike in Ready, where the trial court did not allow United to present any evidence regarding the conduct of the settling defendants, the jury did hear testimony regarding Murugeson's role in the collision during the Heupel trial. Therefore, the jury would have considered that evidence in light of the instructions and verdict form when reaching its decision. Therefore, as the trial court improperly included Murugeson, a settling tortfeasor, on the verdict form, and it could not be ascertained whether the jury considered Muruguson's role in the accident when reaching its verdict, the case was reversed and remanded for a new trial.
Learning Points:
A. PRESERVE YOUR RECORD
In Volume I of our 2009 CM Report, Clausen Miller Appellate Practice Group attorneys Ed Kay and Paul Esposito wrote on a motion and instructions they devised to obtain an allocation of fault to settling tortfeasors, despite the Illinois Supreme Court's recent decision in Ready v. United/Goedecke Services, Inc. Ed and Paul have prepared a motion that can be used in any case in Illinois to allow introduction of evidence of the fault of settling tortfeasors, as well as instructions that can be used to achieve the purpose of obtaining an allocation of fault to a settling tortfeasor despite the Ready opinion. We recommend that in order to properly protect your record, both that motion and instruction should be made in any case where you seek to obtain an allocation of fault against a settling tortfeasor in order to preserve your 2-1117 rights. Please contact us for a copy of that motion and instruction.
B. MAKE YOUR RECORD FOR A SOLE PROXIMATE CAUSE INSTRUCTION
In order to preserve your rights to obtain a sole proximate cause instruction, defendant should offer as much evidence as possible that the settling defendant was the cause of the accident. The remaining defendant cannot rest on the denial of causation and attach it to the complaint. The remaining defendant must make a substantive showing to justify the trial court providing the sole proximate cause instruction to the jury.
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