A Legislative Assault Upon the Surviving Remnant of Illinois Tort Reform
April, 2003
The 2002, Volume 4, edition of this column applauded Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 783 N.E.2d 1024, which construed 735 ILCS5/2-1117 to permit the jury to consider the fault of plaintiff’s employer in determining whether the defendant’s fault is less than 25% of total fault, thereby limiting his liability for plaintiff’s non-medical damages, to several and not joint liability. The court reasoned that plaintiff’s employer is one who “could have been sued by the plaintiff” within the purview of the statute and thus one whose fault should be considered -- notwithstanding the worker’s compensation statute’s exclusivity provision which limits the employer to employee liability to worker’s compensation.
The newly elected democratic legislature has reacted posthaste, amending the statute to preclude the jury’s consideration of the employer’s fault in calculating the total fault against which the defendant’s negligence must be measured. The statute as amended provides:
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 except the plaintiff’s employer, shall be severally liable for all other damages.
The Defense Research Institute has suggested to its membership that the amendment may be impermissible special legislation and thus unconstitutional. The reasoning is that it unfairly benefits employees who are injured because of work conditions. They benefit because the employer’s fault is not considered as part of the total fault against which a defendant’s fault will be measured.
Frankly, that approach is perilous. The suggested attack could result in a judicial declaration that the entire statute -- and not just its recent amendment -- is unconstitutional.
The viable approach, I believe, is to argue that the statutory amendment will not be retroactively applied to existing claims.
Foremost, statutes will not usually be construed to apply retroactively absent a clear legislative intent. The amendment to 735 ILCS 5/2-1117 does not clearly express an intent that the amendment be retroactively applied. Also the statute, pre-amendment, specifically provided that it would apply only to causes of action post-dating its enactment. Arguably the amendment is subsumed within the statute and the stated intent of prospective coverage applies to its components.
Additionally, the Illinois “statute on statutes” (5 ILCS 70/4) prohibits retroactive application if such will vitiate vested rights. The rights and liabilities of tortfeasors are theoretically vested at the time of the occurrence. That analysis is particularly apropos where, as in a case I now have pending before the Illinois Appellate Court, the defendant’s liability has already been judicially determined to be limited because of Unzicker. In that case we successfully obtained a substantial reduction in damages: the insured’s liability as determined by the jury was more than halved post-judgment because the jury found that the plaintiff’s employer bore most of the fault. Certainly the statutory amendment should not adversely impact a case where the liability of the tortfeasor has been judicially determined and thus vested.
Back to CM Report of Recent Decisions (2003v2) 2003 Volume 2 Table of Contents
