Seventh Circuit Certifies Illinois Contribution Act Issue to Illinois Supreme Court: Preserve Your Record
On August 5, 2020, the Seventh Circuit issued its decision in Roberts v. Alexandria Transp., (Nos. 19-2414, 2395, 8/5/20), certifying to the Illinois Supreme Court a heretofore unanswered question arising under the Illinois Contribution Act.
Plaintiff Roberts was driving a truck through a construction zone. A flagger abruptly turned a flag from slow to stop. Roberts slammed on his brakes and was hit from behind by a driver working for the Alex Parties. Roberts sued the Alex Parties, and the Alex Parties sued EK (the general contractor) and Safety (a sub EK retained to manage the site worker safety program) for contribution. Roberts settled with EK for 50K, and EK was dismissed from the suit. Roberts also settled with the Alex Parties for a confidential sum, and that settlement released claims against Safety as well.
The Alex Parties continued their contribution claim against Safety. The trial court determined that the Alex parties, EK and Safety all had to be on the verdict form so that the jury could properly apportion fault. The trial court also determined however that any fault of EK would not be redistributed between the Alex Parties and Safety. Rather, Safety would just owe Alex its own share of fault and the Alex Parties would have to be liable for EK’s share along with its own.
At the end of the trial, the jury determined fault as follows: 10% Safety; 15% The Alex Parties; 75% EK.
The Alex Parties appealed and Safety cross-appealed that it owed no duty to plaintiff, but the Seventh Circuit gave Safety’s appeal short shrift and basically rejected it.
The importance of the case concerned the issue as framed by the Seventh Circuit as follows: “[W]hether the obligation of a settling party is uncollectable pursuant to the Illinois Joint Tortfeasor Contribution Act, 740 ILCS 100/3 (2019).” If EK’s share was deemed “uncollectable”, then under section 2b of the Contribution Act, EK’s fault would be apportioned between the Alex Parties and Safety according their respective shares of fault under section 2b:
“However, no person shall be required to contribute to one seeking contribution an amount greater than his pro rata share unless the obligation of one or more of the joint tortfeasors is uncollectable. In that event, the remaining tortfeasors shall share the unpaid portions of the uncollectable obligation in accordance with their pro rata liability.”
The Seventh Circuit could find no law specifically addressing this issue and therefore certified the issue to the Illinois Supreme Court for decision.
MAKE SURE YOUR RECORD IS PRESERVED:
We’ve always advised our friends in the industry about the wisdom of using appellate counsel to help preserve and posture a case for appeal, and this recent decision by the Seventh Circuit makes those preservation issues even more critical. Whether you are prosecuting a contribution case right now or defending against one…or even if you are in the initial stages, you want to make sure you are making the right arguments and asking for the right jury verdict forms depending upon which way the Illinois Supreme Court rules on the issue certified. Appellate counsel can help you and your trial counsel with those preservation points at any trial.