Illinois Tool Works, Inc. v. Independent Machine Corp.
Case Date: 12/31/2003
Court: 1st District Appellate
Docket No: 1-02-2163 Rel
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FOURTH DIVISION No. 1-02-2163
JUSTICE GREIMAN delivered the opinion of the court: This contribution action was brought by plaintiff Illinois Tool Works, Inc. (ITW), againstdefendant Independent Machine Corp. (IMC) to recover damages allegedly in excess of its prorata share of liability in an underlying lawsuit. After a bench trial, the trial court apportionedresponsibility for the plaintiff's injuries and then entered the judgment from which both the plaintiffand the defendant appeal. For the reasons that follow, we affirm and modify the trial court'sdecision. On May 8, 1998, Armando and Patrizia Lucas (Lucas plaintiffs) filed a four-countcomplaint against ITW and IMC sounding in strict liability and negligence. In that underlyingcomplaint, the Lucas plaintiffs alleged that while Armando Lucas was employed by Tapecoat Co.(Tapecoat), he sustained injuries as a result of an incident that occurred during his operation of a"hot melt coating line," which was manufactured in part by ITW and in part by IMC. On August17, 1998, ITW filed its answer to the Lucases' complaint and denied all material allegations againstit. ITW and IMC then cross-claimed against each other for contribution of all sums that were to beassessed against them individually in excess of their relative proportionate share of fault andequitably attributable to the other. In addition, ITW and IMC both impleaded the employer,Tapecoat, for contribution. On March 1, 2000, Tapecoat filed its answer to ITW's and IMC's complaints forcontribution in which it denied all allegations and, alternatively, asserted that any liability it owed incontribution was capped by the amount of its statutory liability under the Workers' CompensationAct (Act) (820 ILCS 305/1 et seq. (West 2000)) as stated in Kotecki v. Cyclops Welding Corp.,146 Ill. 2d 155 (1991). Just before trial, ITW and Tapecoat -but not IMC- settled with the Lucas plaintiffs. ITWagreed to pay $2 million, and Tapecoat waived the worker's compensation lien it had on the Lucasplaintiffs' claim pursuant to section 5(b) of the Act (820 ILCS 305/5(b) (West 2000)). The value ofthat lien was $234,421.97, which amounted to 10.5% of the total settlement. Thereafter, ITW andTapecoat filed motions for good-faith and settlement findings which indicated that the Lucasplaintiffs had accepted ITW's and Tapecoat's settlement offers. Both motions were granted, andthe Lucas plaintiffs' claims against ITW, IMC and Tapecoat were all dismissed. Accordingly, the only remaining causes of action were ITW's and IMC's cross-claimsagainst each other for contribution, and those claims proceeded to a bench trial. After hearing allof the evidence presented, the trial court apportioned responsibility as follows: "Pro rata share Amount already paid Independent Machine Corporation 30% $ 0 Illinois Tool Works 35% $ 2,000,000 Tapecoat Company 35% $ 234,421.97." After that judgment, ITW argued that the trial court could not find Tapecoat any more than 10.5%at fault, because its liability was capped at that percentage by the supreme court's decision inKotecki. The trial court rejected ITW's argument and entered judgment against ITW for$782,047.69, which represents 35% of the total settlement. The court also entered judgment forcontribution in favor of ITW and against IMC in the amount of $670,326.57. The focus of bothcross-appeals is the amount and proper calculation of the judgment award. The issues presented on appeal involve statutory construction and waiver, and the core factsof this case are not in dispute. "Where there is no dispute as to the material facts and only onereasonable inference can be drawn therefrom, it is a question of law whether the facts provedconstitute waiver." Liberty Mutual Insurance Co. v. Westfield Insurance Co., 301 Ill. App. 3d 49,53 (1998). Similarly, an issue of statutory construction is a question of law, and all questions oflaw are subject to a de novo review. Health Professionals, Ltd. v. Johnson, 339 Ill. App. 3d 1021,1026 (2003). By way of background, the Illinois Joint Tortfeasor Contribution Act (Contribution Act)(740 ILCS 100/1 et seq. (West 2000)) provides in pertinent part: "(a) Except as otherwise provided in this Act, where 2 or more persons aresubject to liability in tort arising out of the same injury to person or property, or thesame wrongful death, there is a right of contribution among them, even thoughjudgment has not been entered against any or all of them. (b) The right of contribution exists only in favor of a tortfeasor who has paidmore than his pro rata share of the common liability, and his total recovery is limitedto the amount paid by him in excess of his pro rata share. No tortfeasor is liable tomake contribution beyond his own pro rata share of the common liability." 740ILCS 100/2(a),(b) (West 2000). And, as the supreme court has noted, the Contribution Act promotes two important policies: "First, the Act encourages the equitable apportionment of damages by allowing for aright of contribution among joint tortfeasors when one tortfeasor pays more than hispro rata share of common liability. (740 ILCS 100/2(b) (West 1992).) The Act alsoensures the equitable apportionment of damages between settling and nonsettlingtortfeasors by providing that the amount that the plaintiff recovers on a claim againstany other nonsettling tortfeasors will be reduced or set off by the amount stated inthe settlement agreement between the plaintiff and the settling tortfeasor or theactual amount paid by the settling tortfeasor in consideration for the release of thesettling tortfeasor from liability, whichever is greater ***. (740 ILCS 100/2(c)(West 1992).) Second, the Act encourages tortfeasors to settle with an injuredplaintiff by providing that a tortfeasor who enters into a good- faith settlementagreement with an injured party is discharged from contribution liability to any othertortfeasor. 740 ILCS 100/2(c), (d) (West 1992)." In re Guardianship of Babb, 162Ill. 2d 153, 171 (1994). We note that calculation of the amount of the contribution is also mandated by statute: "The pro rata share of each tortfeasor shall be determined in accordance with hisrelative culpability. However, no person shall be required to contribute to oneseeking contribution an amount greater than his pro rata share unless the obligationof one or more of the joint tortfeasors is uncollectible. In that event, the remainingtortfeasors shall share the unpaid portions of the uncollectible obligation inaccordance with their pro rata liability." 740 ILCS 100/3 (West 2000). However, while an employer may be subject to contribution, its liability is strictly limited to theamount of its worker's compensation liability. As the court in Kotecki remarked: "Limiting the amount of contribution of an employer to its liability under workers'compensation: 'allows the third party to obtain limited contribution, butsubstantially preserves the employer's interest in not paying morethan workers' compensation liability. While this approach may notallow full contribution recovery to the third party in all cases, it is thesolution we consider most consistent with fairness and the variousstatutory schemes before us.' [Citation.]" Kotecki, 146 Ill. 2d at 165. Consequently, in the present case, the maximum amount that Tapecoat would be responsible forcompensating the Lucas plaintiffs' alleged injuries would be the amount of its statutory worker'scompensation liability, or $234,421.97. At the outset, we remark that we are in agreement with a proposition made by IMC in itsreply brief that Minnesota law is instructive in addressing this issue. In fact, because the supremecourt's decision in Kotecki is based almost entirely on the Minnesota Supreme Court's decision inLambertson v. Cincinnati Corp., 312 Minn. 114, 257 N.W.2d 679 (1977), we find Minnesota lawto be particularly didactic in addressing the interplay between the Contribution Act and theWorkers' Compensation Act. See Schachter, Kotecki v. Cyclops Welding Corp.: A JudicialBalancing Act, 42 DePaul L. Rev. 741, 762 (1992) ("The Illinois Supreme Court based its decisionin Kotecki on the Minnesota Supreme Court's decision in Lambertson v. Cincinnati Corp. Therefore, the foregoing discussion of Lambertson and its progeny lends insight into theKotecki decision"). ITW's main argument on appeal is that because it settled with the Lucas plaintiffs for $2million and was to receive only $670,326.57 from IMC plus the $234,421.97 amount of Tapecoat's statutory worker's compensation liability, ITW then became solely responsible for theamount that was uncollectible from Tapecoat, i.e., the difference between Tapecoat's pro rata shareof responsibility and the amount at which its liability was capped under Kotecki. In other words,ITW argues, the trial court's decision essentially made ITW liable for its pro rata share of$782,047.69 (35% of the common liability) plus the amount that was not collectible from Tapecoatbecause of its liability cap, $547,625.72, for a total of $1,329,673.41, or nearly 60% of thecommon liability. ITW argues that the trial court's judgment award is contrary to both of the stated publicpolicies of the Contribution Act because it forces ITW to pay more than its equitable share of theresponsibility and because such a holding actually discourages settlement in instances where anemployer may be added as a defendant because the employer's liability is capped under Kotecki. And, according to section 3 of the Contribution Act, because the $547,625.72 is uncollectible fromTapecoat, it becomes the responsibility of the remaining tortfeasors who are jointly and severallyliable to share that uncollectible obligation in accordance with their pro rata liability. 740 ILCS100/3 (West 2000). ITW then notes that the supreme court addressed the effect of the Kotecki cap limit indetermining the pro rata share of parties to a contribution action in Claudy v. CommonwealthEdison Co., 169 Ill. 2d 39 (1995). There, the plaintiff brought a wrongful death action against theCity of Chicago and the Commonwealth Edison Company in connection with the death of herhusband, who was electrocuted while removing a tree near power lines. Claudy, 169 Ill. 2d at 40.The City of Chicago filed a contribution action against the plaintiff's decedent's employer, AAATree Service, and plaintiff also filed a workers' compensation claim against the employer. Claudy,169 Ill. 2d at 40. Thereafter, the plaintiff and the City of Chicago agreed that $500,000 constitutedthe amount of damages suffered by the plaintiff and, based upon that figure, settled the wrongfuldeath suit. Claudy, 169 Ill. 2d at 41. Of that settlement amount, the City of Chicago paid theplaintiff $400,000 and assigned to the plaintiff its right to contribution against AAA Tree Service. Claudy, 169 Ill. 2d at 41. In addition, the workers' compensation lien in that matter was$102,876.09. Claudy, 169 Ill. 2d at 41. The circuit court in Claudy then dismissed the contribution action against AAA TreeService, which led to the appeal. Two issues were present before the supreme court: (1) whether athird-party complaint was assignable; and (2) whether there was a viable contribution action for theCity of Chicago to assign to the plaintiff. The supreme court found that it did not have to decidethe propriety of the assignment of the right to contribution because it found that the City ofChicago did not pay in excess of its pro rata share of the common liability: "[W]e observe that the record discloses that in reaching a settlement agreement thecity and plaintiff agreed that $500,000 represented the plaintiff's damages. Thus, itnecessarily follows that $500,000 is the common liability for purposes of theContribution Act. 740 ILCS 100/2(b) (West 1992)." Claudy, 169 Ill. 2d at 43. However, ITW argues that what is most relevant to the case at bar is the supreme court'scalculation of each defendant's pro rata share of responsibility in Claudy: "Had the city paid plaintiff the entire $500,000 common liability and thenpursued its contribution action against the employer, the most the city could havehoped to recover from the employer in its contribution action would be $100,000,the amount of the workers' compensation award. In light of the contributionlimitations of Kotecki, $500,000 less the maximum contribution of $100,000 fromthe employer constitutes the city's effective pro rata share. (Kotecki, 146 Ill. 2d at165.) Of course, $500,000 less the anticipated contribution amount of $100,000equals $400,000, the amount paid by the city to the plaintiff in full settlement ofplaintiff's suit against the city. Insofar as the city did not pay in excess of its effective pro rata share, itnecessarily follows that it had no right to contribution to assign in the first place. (740 ILCS 100/2(b) (West 1992) ('right of contribution exists only in favor of atortfeasor who has paid more than his pro rata share of the common liability').) Because the city had no right to contribution to assign, the purported assignment inthe settlement agreement was void ab initio." Claudy, 169 Ill. 2d 44-45. In a footnote, the supreme court elucidated its reasoning: "If the city had paid plaintiff the whole $500,000 and then soughtcontribution from the employer, it would have been entitled to $100,000, but nomore, so long as the contribution jury determined that the employer was at least20% responsible for plaintiff's injuries, an assumption both plaintiff and the cityshared in their negotiations. Indeed, while the city may ultimately be liable for inexcess of $400,000 under this scenario, under no circumstances would its effectivepro rata share be less than $400,000." Claudy, 169 Ill. 2d at 44 n.1. ITW argues that while the circumstances in Claudy are not precisely similar to the case subjudice, it asserts that the supreme court made it clear than in determining a potential pro rata shareof contribution to the defendant, the Kotecki cap serves to limit the percentage of liability that canbe attributable to the Armando Lucas's employer. In other words, in Claudy, the plaintiff'semployer could never be apportioned a pro rata share of liability in excess of 20% of the $500,000settlement and, therefore, the City of Chicago's $400,000 payment could "under no circumstances"be less than the $400,000 it actually paid the plaintiff. As noted, in the present case, Tapecoat paid the Lucas plaintiffs $234,421.97 in settlement,but the trial court's finding that Tapecoat was 35% responsible required a pro rata share payment of$782,047.69 toward common liability. However, because Tapecoat's liability was capped underKotecki at $234,421.97, $547,625.72 was left as uncollectible. Accordingly, ITW concludes, theremaining uncollectible amount of $547,625.72 should have been apportioned among the remainingjoint tortfeasors, ITW and IMC, to determine what percentage of that uncollectible amount thateach owes. IMC first responds that ITW waived its right to seek reallocation of Tapecoat's allegedlyuncollectible share as well as its right to rely upon section 3 of the Contribution Act because itfailed to seek that relief or cite that section of the statute before the trial court, and argued only thatthe result it sought was dictated by Kotecki. IMC claims that ITW's Kotecki argument wasmisplaced because it failed to recognize the difference between seeking recovery from an employerand simply attributing fault to an employer in an action in which no recovery will ever be soughtagainst the employer. And because the only authorities to which ITW cited involved actionsagainst the employer -e.g., Claudy- they are distinguishable from the present case. Ultimately,IMC asserts that the trial court made a correct ruling based upon the authorities that ITWpresented to it. However, because ITW failed to seek a reallocation of Tapecoat's allegedlyuncollectible share and failed to cite section 3 of the Contribution Act to the trial court, its rights tomake those arguments before this court are waived. As IMC notes, it has long been held that arguments not raised in the trial court areconsidered waived on appeal. Killion v. Meeks, 333 Ill. App. 3d 1188, 1190 (2002). Indeed, othercourts have used the waiver rule to find that a party who cites one statute to the trial court may notcite another statute for the first time on appeal, even where the statutes are part of the samelegislative scheme. See, e.g., Jackson v. Cook County Regional Board of School Trustees, 282 Ill.App. 3d 191, 195-96 (1996) (held that the plaintiffs who relied upon one section of the SchoolCode (105 ILCS 5/7 (West 1992)) were not allowed to cite another section of the School Code(105 ILCS 5/7-2(b) (West 1992)) on appeal). In the present case, IMC argues that the trial court never had an opportunity to consider theapplication of section 3 of the Contribution Act, nor any opportunity to consider whether toreallocate the excess share in accordance with that section, because ITW failed to cite it. Accordingly, IMC asserts that ITW waived reliance on that statute and the right to seekreallocation, and that we should confine our review only to the relief requested and the authoritiespresented to the trial court. In that regard, IMC concludes, because the only authorities ITW citedin support of its arguments were distinguishable cases involving actions brought specifically againstemployers, we should affirm the trial court's decision. Alternatively, IMC asserts that even if we were to find that ITW did not waive thisargument, section 3 of the Contribution Act is inapplicable because Tapecoat's share of theresponsibility is not "uncollectible." In looking to Minnesota case law, IMC argues that it is wellestablished that "the obligation of a settling tortfeasor is not uncollectible." Gregor v. Clark, 560N.W.2d 744, 745 (Minn. App. 1997). In the present case, IMC reiterates that where the value of Tapecoat's lien was $234,421.97(the amount it paid in settlement) and the monetary value of its 35% fault attribution was$782,047.69, the difference remaining is $547,625.72. Under Gregor, however, IMC argues thatthe amount by which the trial court's determination of Tapecoat's fault exceeded the settlement itactually paid does not constitute an "uncollectible" share. Consequently, IMC continues, thereallocation required by section 3 of the Contribution Act is not required in this case because thatstatute is inapplicable. Such a result, IMC notes, would also be mandated under Minnesota law,where Minnesota courts have consistently held that the statutory provision for reallocation ofuncollectible shares does not permit reallocation of an employer's share. See Hahn v. Tri-LineFarmers Co-op, 478 N.W.2d 515, 521-22 (Minn. App. 1991); Bursch v. Beardsley & Piper, 971F.2d 108 (8th Cir. 1992) (applying Minnesota law). We do not think that ITW has waived this issue for appeal. In the trial court, ITWproceeded under section 2 of the Contribution Act seeking the equitable apportionment ofdamages, based on pro rata shares of responsibility, so that it would not have to pay more than itspro rata share of fault. Unquestionably, therefore, it sought a determination of how to equitablyapportion the total amount of responsibility, in light of the fact that the maximum amount ofdamages for which Tapecoat would be responsible was capped by Kotecki and was less than itsdetermined share of responsibility of 35%. On appeal, ITW again argues that the trial court'sdecision essentially made ITW liable for its pro rata share plus the amount that was not collectiblefrom Tapecoat because of its liability cap. It then goes on to assert that section 3 of theContribution Act mandates the remaining tortfeasors who are jointly and severally liable to sharethat uncollectible obligation in accordance with their pro rata liability. Because we think thesearguments advance, in essence, identical theories, we find that ITW has not waived this argumentfor our review. In so holding, we find IMC's citation to Jackson to be inapposite to the facts here. InJackson, plaintiffs brought a petition for the administrative review of a decision of the Cook CountyRegional Board of School Trustees (Regional Board) that denied a petition for the detachment ofterritory from one high school district and annexation to another. Jackson, 282 Ill. App. 3d at 193. In their petition for administrative review, plaintiffs relied on section 7-1 of the School Code andspecifically stated before the Regional Board that they did not wish to proceed under section 7-2bof the School Code. Jackson, 288 Ill. App. 3d at 195-96. After their petition was denied, theyappealed and argued that section 7-2b was the relevant and applicable code section. Jackson, 288Ill. App. 3d at 194. In affirming the trial court's decision, this court found that the plaintiffs had achoice to proceed with their petition under either section 7-1 or section 7-2b, or both. Jackson,288 Ill. App. 3d at 195-96. However, because plaintiffs expressly chose to proceed under section7-1 and made the overt decision not to proceed under section 7-2b, this court found the issue wasnot properly before it. Jackson, 288 Ill. App. 3d at 196. In the present case, the ITW has alwaysproceeded under the theory that section 2 of the Contribution Act prohibits it from beingresponsible for more than its pro rata share of fault, and has always sought a determination as tohow to equitably apportion that total amount. Unlike the situation in Jackson, ITW here is notarguing that a new and different theory should control on appeal. However, even if we were to find that ITW did not raise this argument in the trial court, wenote that waiver is a limitation on the parties, not the courts. See Geise v. Phoenix Co. of Chicago,Inc., 159 Ill. 2d 507, 514 (1994). Thus, in order to obtain a just result and maintain a sound anduniform body of precedent, we decline to waive ITW's argument on appeal. Geise, 159 Ill. 2d at514. In addressing the merits of ITW's appeal, we agree with ITW that the difference betweenthe amount Tapecoat paid in settlement and the monetary value of its 35% fault attribution is,indeed, uncollectible. While independent research has not revealed a case on point in Illinois, wenote that Minnesota has a statutory provision that was enacted to address this very issue. In Drakev. Reile's Transfer & Delivery, Inc., 613 N.W.2d 428 (Minn. App. 2000), the Minnesota Court ofAppeals provided the following recitation as to the different methods a prospective plaintiff mayuse in his or her attempt to collect properly allocated tort proceeds from an underlying judgment: "The district court concluded that respondents were entitled as a matter oflaw to elect a posttrial allocation of the judgment under either Henning v. Wineman,306 N.W.2d 550 (Minn. 1981), or the statutory formula. *** * * * The statutory formula does not require that the district court allocate the tortproceeds between damages recoverable and nonrecoverable under workers'compensation law. Locher v. Gareis, 411 N.W.2d 273, 275 (Minn. App. 1987).Instead, the employee receives one-third of the amount remaining after costs arededucted. Kliniski v. Southdale Manor, Inc., 518 N.W.2d 7, 9 n.2 (Minn. 1994).The employer/insurer is then reimbursed for its subrogation claim less aproportionate share of attorney fees, and the remainder, if any, is paid to theemployee subject to a credit to the employer/insurer for any future benefits payable.Id. The statute's provision for an initial one-third payment to the employeerecognizes that a tort recovery often includes damages that are nonrecoverableunder workers' compensation law; thus, the employee receives this portion of theproceeds free from any subrogation claim by the insurer. Henning, 306 N.W.2d at552. In Henning, the supreme court held that where the employee settles with thethird-party tortfeasor and the settlement includes amounts both recoverable andnonrecoverable under the workers' compensation statutes, the insurer's subrogationrecovery can be calculated in one of two ways, at the employee's option. Id. Theemployee can elect to have the statutory allocation formula applied to the entirerecovery in the manner described above. Alternatively, the employee can petition thedistrict court to allocate the proceeds between recoverable and nonrecoverabledamages, and then have the statutory formula applied only to that part of thesettlement allocable to recoverable damages. Id. An employee who selects the latteroption forfeits the statutory right to receive a one-third share of the settlement. Id.at 552-53." Drake, 613 N.W.2d at 431-32. Because Illinois law offers no similar options to prospective plaintiffs who are suing theiremployers and third parties, the actual Minnesota options themselves are not critical to the issue inthe case at bar. However, the impetus behind the creation of those options is of great relevance;specifically, "that a tort recovery often includes damages that are nonrecoverable under workers'compensation law." Drake, 613 N.W.2d at 431. Accordingly, in granting IMC's entreaty to findMinnesota law persuasive authority, we also recognize that any portion of an employer's prorata share of liability in excess of its Kotecki cap is, indeed, uncollectible from that employer. C.f.Claudy, 169 Ill. 2d 44-45. In this case, therefore, we find that the difference between Tapecoat'sKotecki cap and its pro rata share of liability, $547,625.72, is, indeed, uncollectible. Moreover, we find that IMC's reliance on Gregor is misplaced. While Gregor recited thegeneral proposition that "the obligation of a settling tortfeasor is not uncollectible" (Gregor, 560N.W.2d at 745), it was merely expounding the reasoning behind a Minnesota Supreme Court case,Fredrickson v. Alton M. Johnson Co., 402 N.W.2d 794 (Minn. 1987). In Fredrickson, a third-party defendant entered into a settlement agreement with the plaintiff prior to trial, and whencalculating the allocation of damages, the trial court included that settling defendant in the equationfor determining fault. Fredrickson, 402 N.W.2d at 796. Thereafter, the court reduced the verdictby the percentage of fault, 40%, attributed to the settling defendant. Fredrickson, 402 N.W.2d at796. Unlike the present case, however, because the settling party in Fredrickson was notplaintiff's employer, no Lambertson / Kotecki issues existed. In addition, as noted, the trial courtreduced the jury's verdict by the 40% fault attributed to the settling defendant. In other words, thecourt actually released that portion of the plaintiff's cause of action, thereby reserving the balanceof the plaintiff's cause of action against the nonsettling defendants. In the present case, the totalresponsibility was never diminished by the percentage of fault attributable to ITW and Tapecoat. Instead, the full amount of the common liability remained to be apportioned among the jointly andseverally liable defendants. Accordingly, because the court in Fredrickson was dealing with anentirely dissimilar factual situation, neither Fredrickson nor Gregor is persuasive authority in thepresent case.(1) In its cross-appeal, IMC then asserts that it is entitled to judgment as a matter of lawbecause ITW failed to make a prima facie case because it did not present sufficient evidence as tothe elements of its contribution claim. See Victory Memorial Hospital Ass'n v. Schmidt, Garden &Erickson, 158 Ill. App. 3d 931, 934 (1987) (holding that the prima facie case standard applies to amotion for directed verdict in a contribution case, where, like the present case, the motion is basedon a failure to introduce evidence as to the amount paid by the settling tortfeasor). IMC admitsthat it did not move for judgment as a matter of law at the close of ITW's case under section2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West 2000)). However, it claims thatits assertion "at the close of all the evidence" that ITW had failed to introduce evidence on one ofthe elements of its contribution claim was, in effect, a section 2-1110 motion. For this argument, IMC does not provide a citation to the record as to when, at the close ofthe evidence, it made its de facto section 2-1110 motion. And, in our review of the record, the firsttime at the close of evidence that we see such a contention being made is during IMC's closingargument. There, IMC's counsel stated: "Your Honor, as far as damages are concerned, because this is a contributionaction, there has been no evidence of payment of damages produced in this case tothis court. The jury instruction IPI 600.09 requires that there be evidence ofpayment of damages in order for a party ro seek contribution for their payment. Forthe reasons stated above, Independent Machine Company respectfully asks thiscourt to dismiss ITW's counterclaim for its failure to show evidence of payment inexcess of its pro rata share of damages." The court then allowed IMC's counsel to submit a memorandum of law into evidence suggesting,inter alia, that a party in a contribution action has to show proof of payment as evidence in a case. Section 2-1110 states: "In all cases tried without a jury, defendant may, at the close of plaintiff's case, movefor a finding or judgment in his or her favor. In ruling on the motion the court shallweigh the evidence, considering the credibility of the witnesses and the weight andquality of the evidence. If the ruling on the motion is favorable to the defendant, ajudgment dismissing the action shall be entered. If the ruling on the motion isadverse to the defendant, the defendant may proceed to adduce evidence in supportof his or her defense, in which event the motion is waived." 735 ILCS 5/2-1110(West 2000). In the present case, not only did IMC fail to make its de facto section 2-1110 motion at the close ofthe plaintiff's case (or, for that matter, before closing arguments in its own case), it then put onevidence in support of its defense. In other words, the trial court never had the opportunity toconsider whether ITW had made a prima facie case at the close of its evidence, as that issue onlysurfaced in IMC's closing arguments after it had presented evidence in its defense. Accordingly,even if we could construe IMC's argument as a section 2-1110 motion -which, due to when theissue was raised, we cannot- IMC waived that motion once it presented evidence in its defense. See Falcon v. Thomas, 258 Ill. App. 3d 900, 903 (1994). Because IMC's argument is not properlybefore this court, we affirm the trial court's decision to enter judgment in ITW's favor and againstIMC. In finding the difference between Tapecoat's Kotecki cap and its pro rata share of liability tobe uncollectible, and affirming the trial court's judgment against IMC, our next task is then todetermine how to properly apportion that uncollectible share. To reiterate, section 3 of theContribution Act states that "no person shall be required to contribute to one seeking contributionan amount greater than his pro rata share unless the obligation of one or more of the jointtortfeasors is uncollectible. In that event, the remaining tortfeasors shall share the unpaid portionsof the uncollectible obligation in accordance with their pro rata liability." 740 ILCS 100/3 (West2000). In looking at the plain meaning of that language, we find that ITW's proposed method ofreallocation in this situation is what section 3 of the Contribution Act requires. To determine Tapecoat's actual pro rata share of liability, we divide the amount paid byTapecoat by the total common liability: $234,421.97 (amount paid by Tapecoat) = 10.5% $2,234,421.97 (common liability paid to Lucas plaintiffs) Therefore, the remaining percentage of responsibility after Tapecoat's liability is deducted is89.5%.(2) Then, to properly calculate what percentage of that uncollectible amount each defendantowes, we are to divide each pro rata share of responsibility by the total amount of responsibilityattributable to IMC and ITW, 65%, and then multiply that figure by 89.5% - the remainingpercentage of responsibility after Tapecoat's liability is deducted. Consequently, for IMC, thecalculation is as follows: IMC's pro rata share (30%) = .461 x .895 = 41.3% Total pro rata shares of IMC (30%) + ITW (35%) = 65%
ITW's pro rata share of responsibility would be calculated in the same way: ITW's pro rata share (35%) = .538 x .895 = 48.2% Total pro rata shares of IMC (30%) + ITW (35%) = 65% Ultimately, in recognition that Tapecoat's liability was capped, the pro rata shares ofresponsibility should be readjusted as follows: Pro Rata Share Amount Already Paid Independent Machine Corporation 41.3% $0 Illinois Tool Works 48.2% $2,000,000.00 Tapecoat Company 10.5% $ 234,421.97 ________________________________ 100% $2,234,421.97 Once those percentages have been readjusted, the total common liability of $2,234,421.97 shouldthen be multiplied by IMC's pro rata share of responsibility of 41.3% to arrive at the correctjudgment award of $922,816.28 against IMC and in ITW's favor. In the end, we agree with ITW that this judgment award better promotes the dual policyinterests of the Contribution Act: settlement and the ability to recover the amount of damages thata joint tortfeasor pays in excess of its pro rata share of responsibility. For these reasons and thoseforegoing, we affirm the trial court's judgment against IMC in ITW's favor, but modify the amountof that judgment from $670,326.57 to $922,816.28 due to the effect of the Workers' CompensationAct on the amount of liability the Lucas plaintiffs could recover from Armando Lucas's employerTapecoat. Affirmed as modified. HARTMAN and THEIS, JJ., concur.
1. IMC's citations to Hahn and Bursch are also inapposite. In both cases, the courts heldthat Minnesota law did not permit reallocation of an employers' uncollectible share of a verdict to anegligent employee. Hahn, 478 N.W.2d at 522; Bursch, 971 F.2d at 913. Such a factual situationis not present in the case sub judice. 2. We note that in Fredrickson, the Minnesota Supreme Court upheld the trial court'sdetermination to reduce the jury verdict by the 40% fault attributable to the settling defendant. Fredrickson, 402 N.W.2d at 797. Such a finding could be interpreted to imply that, in the presentcase, we too should reduce the total judgment by the 35% attributable to Tapecoat. However, inFredrickson, the settling defendant entered into an agreement with the plaintiff whereby the partiesagreed that plaintiff "settles and satisfies that percentage of [plaintiff's] total claim for damagesagainst all parties arising out of the accident *** which shall hereafter by further trial or otherdisposition of this or any other action be determined to be the percentage of causal fault or causalresponsibility for which [settling defendant] is found to be liable." Fredrickson, 402 N.W.2d at797. In other words, by entering into that settlement agreement, plaintiff actually released the partof his cause of action for the percentage amount which the settling defendant was ultimately liable,regardless of the actual settlement amount. In the present case, however, no such release wasgiven to Tapecoat. Thus, because Tapecoat could provide only a portion (10.5%) of the amountfor which it was liable (35%), the Lucas plaintiffs' claim against it, while settled, was not entirelysatisfied. And because that remaining portion of Tapecoat's liability is uncollectible, it is to beapportioned among the other defendants pursuant to section 3 of the Contribution Act. |
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