Clausen Miller Helps Develop Illinois Law On Contribution And The Kotecki Cap

At least in Illinois, joint and several liability is a fact of life in personal injury cases. A defendant found at least 25% at fault can be forced to pay a plaintiff’s entire judgment, even though multiple tortfeasors were involved. It’s worse where medical payments are concerned. A defendant only 1% at fault may need to foot the entire bill. Bitter pills are hard enough to swallow. This one can be mighty expensive, too.

Through the Contribution Act, Illinois law has softened the harsh effects of joint and several liability to an extent. A defendant paying more than its proportionate share of liability as assessed by a jury may obtain contribution from co-defendants based on their proportionate shares. But things get sticky when a defendant seeks contribution from an employer paying workers’ compensation benefits to the injured plaintiff. In Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), the Illinois Supreme Court held that an employer’s contribution share is based on the employer’s workers’ compensation liability, not on its proportionate share.

Left unresolved in Kotecki was the meaning of the phrase “workers’ compensation liability.” Does it cover an employer’s contribution liability only to the date of the jury award, or does it also cover an employer’s future liability for compensation? Fairness to all defendants would require that it cover both past and future liability. After all, an employer has workers’ compensation liability for all future medical expenses that an employee incurs. Contribution should include those future liabilities, no different than when a jury awards a plaintiff damages for his future losses and expenses.

For years we’ve been fighting the good fight on this issue, and in Dempe v. Met. Pier & Exp. Auth., 2018 IL App (1st) 172357-U, we made progress. After finding against our client GES, a jury found that GES was entitled to 75% contribution from plaintiff’s employer Coastal. After paying over $25 million to the injured plaintiff, GES sought contribution. GES offered evidence that Coastal’s past and future workers’ compensation liability was over $20 million. Coastal did not dispute the computation. Instead, it argued that its liability should be limited to its past payments of compensation liability—about $5.7 million. The trial court rejected Coastal’s argument, and so did the Appellate Court. It found that Coastal’s contribution liability covered both past and future workers’ compensation liability.

Because it is unpublished, Dempe may not be cited as precedent in future cases. Despite this limitation, Dempe is a good-news order in which an Appellate Court has recognized a non-employer’s right to the full measure of contribution from an employer. And the Dempe result can be duplicated by pulling from an Illinois Supreme Court case in which we had been involved—Bayer v. Panduit Corp., 2016 IL 119553. There, the Court recognized that an employer’s liability for workers’ compensation continues even after an injured plaintiff recovers from a defendant. The Bayer ruling can provide the conceptual basis for future rulings like Dempe, since if workers’ compensation liability continues, contribution liability should cover both past and future workers compensation liability. It’s the winning argument we made in our appellate brief that carried the day in Dempe.

Progress sometimes comes in smaller steps. It’s progress all the same.