• Illinois Supreme Court Holds That Settled Parties Are Not Included in Allocation of Fault
  • December 14, 2009 | Authors: Glen E. Amundsen; Michael Resis
  • Law Firm: SmithAmundsen LLC - Chicago Office
  • On November 25, 2008, in Ready v. United/Goedecke Services, Inc., Docket No. 103474, the Illinois Supreme Court, over a dissent, resolved a conflict among different appellate panels and held that section 2-1117 of the Code of Civil Procedure does not apply to tortfeasors who have settled before judgment. Writing for a plurality, Justice Freeman construed the statutory language "defendants sued by the plaintiff" to be ambiguous, citing the different appellate results and the majority's disagreement with the dissenting opinion. The plurality referred to: (1) the legislature's failure to amend the statute after it was first construed not to apply to settled parties in a Fifth District decision in 1995, and (2) the 1995 tort reform amendments (struck down in Best v. Taylor Machine Works) which had included settling defendants in the apportionment of fault as evidence that section 2-1117, as enacted in 1986, was never intended to include settling tortfeasors in the allocation of fault. The plurality also found support for its conclusion in certain recent remarks made by State Senator Cullerton as cosponsor of Senate Bill 1296, which the General Assembly had not enacted into law. In a special concurrence that supplied a fourth vote to reverse, Justice Kilbride agreed that section 2-1117 was unclear but concluded that the meaning was clear from an examination of the statute as a whole.

    Justice Garman, in a dissent in which Justice Karmeier concurred, would have found the plain meaning of section 2-1117 to be unambiguous based on dictionary definitions of the word "sued" and disagreed with the plurality's reliance on certain tools of statutory construction. The dissent concluded that the result reached by the plurality was contrary to the goals of the legislature in striking a balance between fully compensating injured parties and fair imposition of liability upon tortfeasors.

    As a result of this decision, a minimally responsible defendant may not be allowed to present evidence of the fault of settled parties or other tortfeasors who might have been responsible for the plaintiff's injuries. A defendant who is only 1% at fault would be liable for 100% of the judgment, less the amount of the settlements with the more culpable defendants. Moreover, the result reached may prove unworkable in practice because it is not uncommon for the plaintiff to settle with some defendants during trial or jury deliberations. If a trial starts with three defendants but the plaintiff settles with one during trial after the jury has heard evidence of that party's conduct, must a mistrial be declared and the trial start over? The plurality's holding did not consider the practical implications of its result and the decision is sure to raise as many questions as it has attempted to answer.