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SIXTH DIVISION

September 14, 2001

No. 1-99-3651

JUSTICE O'BRIEN delivered the opinion of the court:

American Augers, Inc., appeals the dismissal of its third-party complaint against Cee-JayContractors, Inc. seeking contribution. We reverse and remand.

Plaintiff, Donna Stickler, filed a wrongful death and survival action against defendant, AmericanAugers, Inc. (Augers), the manufacturer of an auger that tipped over and crushed plaintiff's decedent,Harry D. Stickler. Plaintiff subsequently amended her complaint adding three other defendants, theVillage of Schaumburg, Blackmore Construction, Inc. (Blackmore), and Pavia-Marting & Company(Pavia), all of which had some supervisory authority over the construction project where decedent's fatalaccident occurred (collectively, the construction defendants). Augers and the construction defendantsfiled third-party complaints for contribution against the decedent's employer, Cee-Jay Contractors, Inc.(Cee-Jay). During discovery, plaintiff negotiated a settlement with the construction defendants and Cee-Jay wherein plaintiff would release her claims against the settling parties in exchange for Cee-Jay's waiverof its workers' compensation lien of $149,143.91⁽¹⁾ and a combined, structured payment of $550,000. Theagreement did not state a specific setoff amount for the nonsettling defendant, Augers. The settlementwas contingent upon a finding by the trial court that it was in good faith within the meaning of section2(c) of the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/2(c) (West 1996)).

Augers objected to the settlement, arguing it was in bad faith because it would dismiss all threeof the construction defendants in exchange for payment by their common insurer, CNA, of what Cee-Jaywas already obligated to pay plaintiff under the Workers' Compensation Act and because it woulddeprive Augers of its right to obtain contribution from those defendants for an amount commensuratewith their liability. Following a hearing, the trial court found the settlement had been made in goodfaith and allowed Augers, as the nonsettling party, a setoff equal to the $699,143.91 in compensationactually received.

Augers appealed the trial court's finding that the settlement agreement was in good faith and itscalculation of the setoff. After Augers initiated its appeal, Cee-Jay presented the workers' compensationportion of the settlement agreement to the Industrial Commission for its review and approval. TheIndustrial Commission, which was not advised that the settlement agreement was under review in thiscourt, approved the settlement on October 23, 1997.

We reviewed the trial court's finding under the abuse of discretion standard, taking intoconsideration the entire record, including Cee-Jay's petition for a good faith-finding, which containeda detailed explanation of the settlement terms; Auger's response to the petition; the relevant hearingtranscripts; the evidence presented to the trial court including the then-undisputed estimate as to Cee-Jay's long-term workers' compensation liability, the result of the Occupational Safety and HealthAgency's investigation into the cause of the accident; and the practical impact of a good-faith findingupon the remaining defendant. We stated, "[t]he trial court should not equate the validity of thesettlement as between the plaintiff and the settling defendant with whether the settlement was in goodfaith for purposes of the Contribution Act" (Stickler v. American Augers, Inc., 303 Ill. App. 3d 689, 693,708 N.E.2d 403, 406 (1999)), and found that the trial court erred in finding that the settlement was madein good faith. We reversed the trial court's good-faith finding and its calculation of the setoff andremanded for further proceedings.

The proceedings, findings and orders of the Industrial Commission were not part of the record although the Industrial Commission "Settlement Contract Lump Sum Petition and Order" was attachedto a brief.

Cee-Jay did not file a petition for rehearing or a petition for leave to appeal to the supreme court.

Following remand, Cee-Jay filed a motion to dismiss Augers' third-party complaint on the samebasis rejected by us, claiming that because the Industrial Commission had approved the settlement ouropinion should be ignored. The trial court granted Cee-Jay's motion.

Augers filed a motion for reconsideration and damages pursuant to Supreme Court Rule 137(155 Ill. 2d R. 137) and a motion seeking apportionment and setoff pursuant to our opinion. The trialcourt denied Augers' motion to reconsider, but granted its motion for apportionment and set-off in theamount of $299,143.91--the same amount we rejected in our earlier opinion. Augers appealed,contending (1) that the trial court erred in dismissing Augers' third-party complaint against Cee-Jaybased upon Cee-Jay's settlement with plaintiff, (2) that even assuming dismissal of Augers' third-partycomplaint against Cee-Jay was not erroneous, the trial court erred in refusing to grant Augers a setoffconforming with our opinion, and (3) that Augers is entitled to recover its costs and fees from Cee-Jayfor the instant and prior appeals.

First, the dismissal. On appeal, Augers argues that our earlier opinion is the law of the case andthat the trial court erred in dismissing Augers' third-party complaint against Cee-Jay and refusing togrant Augers a setoff in accord with our opinion. Plaintiff and Cee-Jay counter that our earlier opinionis not the law of the case and, thus, was not binding on the trial court because the issue in the presentcase is different from that decided in the previous appeal. Alternatively, plaintiff and Cee-Jay argue thatwe should reconsider our previous decision, which they call "palpably erroneous."

"The rule of the law of the case is a rule of practice, based on sound policy that, where an issueis once litigated and decided, that should be the end of the matter and the unreserved decision of aquestion of law or fact made during the course of litigation settles that question for all subsequent stagesof the suit." Continental Insurance Co. v. Skidmore, Owings & Merrill, 271 Ill. App. 3d 692, 696-97(1995). Thus, issues raised on appeal are binding and control on remand unless the facts presented areso different as to necessitate a different interpretation. Bilut v. Northwestern University, 296 Ill. App.3d 42, 692 1327, 1331 (1998).

The issue presented and decided in the previous appeal was whether the trial court abused itsdiscretion in determining that the settlement agreement was made in good faith within the meaning ofsection 2(c) of Joint Tortfeasor Contribution Act (740 ILCS 100/2(c) (West 1996)). In ruling on thisissue, the trial court and this court had before them Cee-Jay's petition for a good-faith finding, whichcontained a detailed explanation of the settlement terms; Augers' response to the petition; the relevanthearing transcripts; the evidence presented to the trial court including the then-undisputed estimate asto Cee-Jay's long-term workers' compensation liability, the result of the Occupational Safety and HealthAgency's investigation into the cause of the accident; and the practical impact of a good-faith findingupon the remaining defendant. The issue presented in the instant appeal is whether the trial courtabused its discretion in determining that the settlement agreement was made in good faith within themeaning of section 2(c) of the Joint Tortfeasor Contribution Act (740 ILCS 100/2(c) (West 1996)). Inruling on this issue, the trial court had before it the same information as before plus the IndustrialCommission's approval of workers' compensation portion of the settlement agreement. Thus, the onlydistinction between the issue and facts presented in the previous appeal, and the issue and facts presentedin the instant appeal, is the Industrial Commission's intervening approval of the settlement agreement. This distinction makes no difference to the good-faith analysis.

The role of the Industrial Commission differs from the role of a trial judge evaluating whethera settlement was made in good faith within the meaning of section 2(c) of the Joint TortfeasorContribution Act. The Industrial Commission is not vested with authority to make a good-faith finding. The Illinois Administrative Code outlines the role of the Industrial Commission in reviewing proposedsettlement agreements. 50 Ill. Adm. Code ch. II, pt. 7070 (2001). Section 7070.10(b)(2) provides thatin cases involving a claim for death benefits, the petitioner shall file a written explanation of how thedependents of the decedent will be supported following the "approval of the appropriateness" of thesettlement. Further, section 7070.20(b) provides that "[i]n all cases, but particularly those involvingeither minor Petitioners or minor beneficiaries, the Commission reserves the right to elicit evidenceconcerning the use to which the proceeds of the settlement are to be put." 50 Ill. Adm. Code