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Civil Litigation FLASHPOINTS September 2021

Valerie A. Davenport, Katten Muchin Rosenman LLP, Chicago
312-902-5403 | E-mail Valerie Davenport

Illinois Supreme Court: Collectability of Settled Tortfeasor Obligation Under Joint Tortfeasor Contribution Act §3

In Roberts v. Alexandria Transportation, Inc., 2021 IL 126249, ¶¶1 – 2, the Illinois Supreme Court answered a certified question from the United States Court of Appeals for the Seventh Circuit, clarifying that under §3 of the Illinois Joint Tortfeasor Contribution Act, 740 ILCS 100/0.01, et seq., the obligation of a tortfeasor who has already settled is not considered “uncollectable” within the meaning of §3. See 740 ILCS 100/3. Section 3 states that in situations of joint liability, a tortfeasor’s pro rata share shall be based on their relative culpability and that “no person shall be required to contribute to one seeking contribution an amount greater than his pro rata share.” Id. Importantly, however, there is an exception when the obligation of one or more of the tortfeasors is “uncollectable.” Id. In that case, “the remaining tortfeasors shall share the unpaid portions of the uncollectable obligation in accordance with their pro rata liability.” Id. In Roberts, the Illinois Supreme Court held that the obligations of tortfeasors who have already settled do not trigger this exception.

Background

In 2013, plaintiff Thomas Roberts was rear-ended by a tractor-trailer in a construction zone in Madison County, Illinois, and suffered injuries resulting in $500,000 of medical bills. 2021 IL 126249 at ¶¶4 – 5. He and his wife sued Alexandre Solomakha (the driver), Alexandria Transportation, Inc., and Alex Express, LLC (collectively “Alex parties”), for negligence under Illinois law. 2021 IL 126249 at ¶¶5 – 6. The suit was filed in the United States District Court for the Southern District of Illinois based on diversity jurisdiction. 2021 IL 126249 at ¶6.

In 2014, the Alex parties filed a third-party contribution claim against Edwards-Kamalduski, LLC (E-K), the general contractor for the road construction, and Safety International, LLC, the subcontractor E-K had retained to manage part of the construction site’s worker safety program. 2021 IL 126249 at ¶7. The contribution claim alleged that E-K and Safety failed to maintain a safe construction site. Id. In 2017, the plaintiffs settled with E-K for a total of $50,000, and both parties filed a joint motion asking for a finding that the settlement was in good faith pursuant to the Contribution Act. 2021 IL 126249 at ¶8. See 740 ILCS 100/2(c), 100/2(d). The Alex parties objected to this, arguing that the settlement did not reflect E-K’s relative fault. Id. However, the district court found that the settlement was in good faith and dismissed E-K from the Alex parties’ contribution claim with prejudice. 2021 IL 126249 at ¶9. Later that year, the Alex parties settled with the plaintiffs for $1.85 million, which released the claims against Safety as well. The Alex parties paid the plaintiffs the collective tort liability of both themselves and Safety, leaving only the third-party contribution claim against Safety to be litigated. Id.

At the trial for the third-party contribution claim in 2019, the district court, interpreting the Contribution Act, determined that “any share of liability that the jury would assign to E-K should not be reallocated between the Alex Parties and Safety on a pro rata basis.” 2021 IL 126249 at ¶11. Safety would be required to pay only what the jury determined was their portion, leaving the Alex parties to pay E-K’s entire share and their own share. Id. The jury determined that the Alex parties were 15 percent at fault, Safety was 10 percent at fault, and E-K was 75 percent at fault. 2021 IL 126249 at ¶12. E-K and the Alex parties’ respective settlements totaled $1.9 million, which was the common liability. 2021 IL 126249 at ¶13. Accordingly, the district court ordered Safety to pay only its 10 percent pro rata share of the common liability: $190,000. 2021 IL 126249 at ¶13. The district court denied the Alex parties’ posttrial motion to amend the judgment, in which the Alex parties asked the court to revisit the reallocation issue. 2021 IL 126249 at ¶14. The Alex parties chose to appeal. Id. The court of appeals found no cases resolving the issue of reallocation, so they asked the Illinois Supreme Court, pursuant to Illinois Supreme Court Rule 20, to answer the question of “whether the obligation of a settling party is uncollectable pursuant to the Illinois Joint Tortfeasor Contribution Act.” 2021 IL 126249 at ¶18.

The Illinois Supreme Court’s Analysis

Chief Justice Anne M. Burke wrote the majority opinion. Justices Garman, Theis, and Overstreet concurred in the judgment and opinion. The Illinois Supreme Court clarified at the beginning of their analysis that the certified question presented a narrow issue. The original plaintiffs had no interest in the claim, and there were no contentions that E-K’s settlement was not in good faith. 2021 IL 126249 at ¶¶22 – 23. The only disagreement was over “the correct allocation of [the Alex Parties’ and Safety’s] pro rata shares of the common liability.” 2021 IL 126249 at ¶24. The Alex parties contended that in a good-faith settlement, a tortfeasor “is discharged from all liability for any contribution to any other tortfeasor.” Id., quoting 740 ILCS 100/2(d). Therefore, they considered an obligation like E-K’s as “uncollectable” in future contribution actions. 2021 IL 126249 at ¶24. This would mean that E-K’s 75-percent liability should have been reallocated on a pro rata basis between the Alex parties and Safety. Safety argued the opposite. 2021 IL 126249 at ¶25. The court reviewed the certified question de novo and based on principles of statutory interpretation. 2021 IL 126249 at ¶¶28 – 29.

1. Statutory Overview

The court began by considering the nature and purpose of the statute by reviewing the historical backdrop of the Contribution Act. 2021 IL 126249 at ¶31. Prior to 1977, Illinois followed the common-law rule of joint and several liability in which multiple tortfeasors could have caused an injury but one of them could be liable for the entire injury. 2021 IL 126249 at ¶33. That tortfeasor did not have the ability to seek contribution. Id., citing Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill.2d 1, 374 N.E.2d 437, 440 – 441, 15 Ill.Dec. 829 (1977) (collecting cases). The rationale behind this rule was that a wrongdoer does not have the right to seek relief from his or her own wrongdoing through the courts, but it resulted in harsh and unequal consequences for defendants. 2021 IL 126249 at ¶33. In 1977, the court abolished this prohibition and allowed contribution claims in which injuries were apportioned among tortfeasors based on their percentage of fault. Skinner, supra, 374 N.E.2d at 442 – 443. Two years later, the legislature codified this decision in the Contribution Act. 2021 IL 126249 at ¶35.

2. Plain Language of the Statute

The court then looked to the plain language of the statute. The court rejected the Alex parties’ argument that when a settling party is “discharged from all liability for any contribution to any other tortfeasor” ([emphasis added] 740 ILCS 100/2(d)), that party’s contribution obligation should be legally uncollectable. 2021 IL 126249 at ¶¶37, 39. The court reasoned that §2’s use of “discharge” refers to the effect the settlement has on the respective tortfeasors while §3’s exception is addressing the nature of the obligation, which is its collectability. 2021 IL 126249 at ¶39. The court instead argued that §3 equates the term “uncollectable” with an obligation being “unpaid.” 2021 IL 126249 at ¶37, citing 740 ILCS 100/3. Because settlements have been paid, or collected, they fall squarely outside that definition of uncollectable. The court found this interpretation to be in line with the general view among courts on uncollectability, citing Gregor v. Clark, 560 N.W.2d 744, 745 (Minn.App. 1997).

3. Legislative History and Related Statutory Language

The court noted that because the plain language of the statute is clear, it is not necessary to rely on legislative history. 2021 IL 126249 at ¶44. Nevertheless, the court observed that the legislative history does not conflict with their understanding of the plain language. Id. They dismissed the Alex parties’ argument that because the legislature amended the draft of §3 from saying “insolvent” to saying “uncollectable” that this must mean that uncollectable should have a broader meaning than just referring to insolvency. 2021 IL 126249 at ¶46. The court instead looked to their own previous interpretations of statutory references to collectability, all of which characterized it in terms of insolvency or immunity. 2021 IL 126249 at ¶47 (collecting cases). Further, the court declined to engage in the Alex parties’ argument that related statutory provisions support a broader interpretation of uncollectability in §3. 2021 IL 126249 at ¶50. Because the court found a lack of ambiguity in §3, they held that there was no reason to consider the wording of related provisions. 2021 IL 126249 at ¶51.

4. Public Policy: Equitable Apportionment of Damages

The court found their holding to be consistent with the public policy behind the Contribution Act, which the court has consistently recognized as “(1) the encouragement of settlements and (2) the equitable apportionment of damages among tortfeasors.” 2021 IL 126249 at ¶54. The Contribution Act supports equitable apportionment by creating the right of contribution if a tortfeasor pays more than their pro rata share. The Contribution Act supports settlement through releasing a settling tortfeasor from any contribution liability to nonsettling tortfeasors. Id. The court reasoned that, in this case, Safety’s contribution of $190,000 in damages vindicated the Contribution Act’s public policy of equity in the apportionment of damages, also noting that Safety had no input on the amount of the Alex parties’ settlement. 2021 IL 126249 at ¶¶55 – 56. Thus, the court found their decision to be the fairest. However, the court made no comment on how their decision and reasoning contributed to the encouragement of future settlements.

Justice Carter’s Dissent

Justice Carter dissented from the majority and was joined by Justice Michael J. Burke. Justice Carter disagreed with the majority for four reasons. First, he noted that statutory provisions cannot be viewed in isolation, thus making it improper to discount the language of §2(d). 2021 IL 126249 at ¶71, citing Rushton v. Department of Corrections, 2019 IL 124552, ¶14, 160 N.E.3d 929, 442 Ill.Dec. 749. He reasoned that the majority’s interpretation of §3 contradicted §2(d) and potentially undermined the legislature’s goal of encouraging settlements. 2021 IL 126249 at ¶62. Justice Carter explained that §2(d) provides absolute immunity to settling tortfeasors and argued that the majority ignored §2(d) by claiming it was a separate topic. 2021 IL 126249 at ¶¶69 – 70. Second, Justice Carter found that the majority’s reliance on the general view that settling tortfeasor’s obligations were not uncollectable as stated by a Minnesota court was improper. 2021 IL 126249 at ¶72. The Minnesota court was interpreting a different statute and said nothing regarding the Illinois statute. Id. Third, Justice Carter argued that the majority ignored the legislative history. When drafting §3, the legislature specifically removed the word “insolvent” and replaced it with “uncollectable,” leading Justice Carter to conclude that the legislature could not have intended §3 to refer only to insolvent parties. 2021 IL 126249 at ¶73. Fourth, Justice Carter believed that the fairness of the situation was subjective, pointing out that Safety had an avenue to shield itself from contribution liability by settling with the plaintiffs. 2021 IL 126249 at ¶¶74 – 75. Further, he noted that it was arguably unfair to diminish the Alex parties’ contribution claim against a nonsettling tortfeasor and that perhaps, because Safety chose not to settle, the majority’s opinion allowed Safety to unfairly benefit from the Alex parties’ settlement. 2021 IL 126249 at ¶76. Finally, he concluded that it was inappropriate for the court to decide what was most equitable when the legislature had provided absolute immunity to settling tortfeasors for contribution claims. 2021 IL 126249 at ¶77. For these reasons, Justice Carter opined that the majority’s decision would “likely require the General Assembly to revisit the Contribution Act.” Id.

Effects of the Case

As Justice Carter pointed out, the court’s decision was based mainly on upholding the legislature’s goal of equitable apportionment of damages among tortfeasors rather than the legislature’s goal of encouraging settlements. Because the majority’s decision diminishes the benefits of other parties settling once one party has already settled, the tortfeasors remaining in litigation may be less willing to give up their right to a trial. Therefore, there may be fewer settlements in general in these multi-tortfeasor litigations in the coming years.

If the legislature feels as strongly as Justice Carter regarding the importance of encouraging settlements, they may need to revise and clarify the wording in §3 as he suggested. Perhaps in the future, the statute will be amended to clarify that the exception to a tortfeasor owing no more than their pro rata share includes when there are obligations that are uncollectable or previously discharged.


Jason G. Schutte, Koepke & Hiltabrand, P.C., Springfield
217-726-8646 | E-mail Jason Schutte

Intrusion into Dog’s Secure Environment Provides Provocation Defense Under Animal Control Act

The appellate court provided an excellent discussion of provocation under §16 of the Illinois Animal Control Act, 510 ILCS 5/1, et seq., in affirming a defense verdict in a dog-bite personal injury claim in Claffey v. Huntley, 2021 IL App (1st) 191938.

Facts of Case

The plaintiff filed suit against the defendants, seeking recovery under the Illinois Animal Control Act. The plaintiff appealed the defense verdict from the jury trial. 2021 IL App (1st) 191938 at ¶3.

The plaintiff was a mail carrier for the United States Post Office at the time of the bite. He was bitten on his right hand as he was delivering mail to the defendants’ home. He was aware that the defendants had two dogs and heard one barking on the day of the bite. The door to the defendants’ home had a mail slot in it, with an outer and inner flap. The plaintiff reached into the slot to push open the inner flap to prevent the flap from damaging the mail he was delivering. The plaintiff was bitten by one of the defendants’ dogs on his right hand as he pushed mail into the slot. Id.

The plaintiff testified that the defendants’ dogs would sometimes become excited when he delivered mail to the home. He would bundle the defendants’ mail and place it between their screen door and front door when he knew the dogs were present. He also testified that he could insert mail inside the slot without placing his hand inside the house to hold the inner flap open and had done so in the past. 2021 IL App (1st) 191938 at ¶5.

Provocation of the dog was a major issue at trial. The trial court denied the plaintiff’s motion for directed verdict, which argued there was no evidence of provocation. The jurors were instructed on the definition of “provocation” and subsequently returned a verdict for the defendants. 2021 IL App (1st) 191938 at ¶¶8 – 10.

Appellate Court Analysis

For the plaintiff to recover under the Animal Control Act, he had to prove

  1. injury caused by the defendants’ dog,

  2. lack of provocation of the dog,

  3. that he was conducting himself in a peaceable manner, and

  4. that he was in a place where he had the legal right to be. 2021 IL App (1st) 191938 at ¶15.

The plaintiff argued that placing his hand inside the mail slot could not be considered provocation as a matter of law. 2021 IL App (1st) 191938 at ¶16. The Act itself does not define “provocation.” 2021 IL App (1st) 191938 at ¶19. The focus of provocation findings is from the dog’s perspective. 2021 IL App (1st) 191938 at ¶27.

The court in Claffey noted that the plaintiff had breached an enclosure by reaching through the mail slot. Claffey would have been protected from the dogs and not come into contact with them had he not reached through the slot. Further, the court found it pertinent that the interior flap was spring loaded, requiring Claffey to take the deliberate action of pushing it open and reaching into the house. 2021 IL App (1st) 191938 at ¶20. Claffey’s actions were not mere external stimuli to the dogs; rather, his actions introduced stimulus into the dogs’ separate environment that exposed him to their reaction. 2021 IL App (1st) 191938 at ¶21.

The Claffey court analogized the facts of this case to a situation in which a person is bitten when reaching into a fence or enclosure when he or she knows or should know that a dog may be confined to therein. The Claffey court noted that numerous courts have found that such action barred recovery from resulting injuries in such cases. 2021 IL App (1st) 191938 at ¶22.

A reasonable jury could find that a normal dog would perceive a hand entering its enclosed environment to be an intrusion and react by biting. Hence, a reasonable jury could find that the dog in this case was provoked. 2021 IL App (1st) 191938 at ¶27.

The court further recognized that the plaintiff’s fault in causing the provocation was a relevant consideration. The plaintiff’s actions undermined measures that provided protection to him from the subject animals, i.e., the door. 2021 IL App (1st) 191938 at ¶26. Further, the legislative intent behind §16 of the Act, which provides the avenue for recovery, is to protect people who may have no way of avoiding or knowing the dangers posed by the animal. Id.

Perhaps the most interesting discussion from this case is the court’s description of the actions of the owner and dog prior to the plaintiff opening the mail slot: “the Huntleys secured their dog against contact with outsiders by keeping it inside their home. ‘Securing dogs . . . is what is expected of a dog owner — it protects the dogs and it protects the public.’ . . . But by breaching that security, Claffey encroached on the dog’s isolated environment and exposed himself to risk of harm.” [Citation omitted.] 2021 IL App (1st) 191938 at ¶27. In essence, Claffey had to go to the dog in order to be bitten. Id.

Practical Effect of Case

This case helps clarify the concept of provocation of an animal under the Act: provocation is broader than simply beating or taunting an animal. Rather, it encompasses a full evaluation of the facts underlying an injury caused by an animal. Relevant facts include the location of the dog, the location of the plaintiff, the plaintiff’s knowledge of the risk posed by the animal, the plaintiff’s actions resulting in the injury (specifically exposing themselves to the animal), and the proportionality of the animal’s response to the stimulus giving rise to the provocation defense.

Generally, whether provocation exists will be a question of fact for the jury. Attorneys and claims adjusters should pay special attention to the underlying facts of the case, including those described in the preceding paragraph, to determine whether a provocation defense exists and the viability of any such defense at trial. If a jury is convinced that provocation occurred, then a verdict in favor of the defense may be the result.

For more information about civil litigation, see CAUSES OF ACTION: INSURANCE LITIGATION (IICLE®, 2021). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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