Ruling on Liability Promotes Good-Faith Settlements

Sixteen-year-old Mikhail Ozik was in the car with an 19-year-old friend who was driving in subruban Skokie.

The driver, who had been drinking and oing drugs, rear-ended a car at an intersection and left the scene of the accident by speeding, turning left against a red light and crossing a double line to drive in the wrong direction.

The couple in the car that had been rear-ended reported the license-plate number to the Skokie police, who later found the hit-and-rn teens and brought them back to the scene.

The couple reported that the driver appearted to them to be drunk or high on drugs. The officers, though, did not conduct all three field sobriety tests of the teen driver, although Skokie village policy requires them to do so, and one of the tests they conducted was done so incorrected.

The officers issued certain traffice violations but did not issue a reckless-driving citation, which requires a custodial arrest; nor did they issue a DUI charge, which can take up to four hours to process.

The officer stated at trial that he did not cite the criver with certain violations because it would have meant further paperwork, and he was at the end of his shift.

The zero tolerance law in Illinois requires an officer to take a person under age who is suspected of drinking alcohol to the station to conduct a breathalyzer test or to the hospital for a blood or urine test. That driver must then be turned over to a "reasonably sober" part to be taken home.

Here, the officers returned the keys to the driver, who seven minutes later struck a tree, killing Ozik and slighly injuring himself.

The driver settled in good faith with the family’s estate for his $20,000 policy limits, this was over the objections of the other defendants: the Village of Skokie and two of its police officers. The remaining claims proceeded to trial, and the jury returned a verdict of $1.8 million, which was reduced to $1.14 million after finding Ozik 35 percent at fault.

On appeal, the defendants raised several issues of law, one of the more noteworthy being whether the remaining defendants were allowed to apportion liability to the settling defendant - the teen driver - under 735 ILCS 5/2-1117, the law that deals with several liability.

The appellate court held that when a plaintiff settles with a defendant in good faith, that defendant cannot be made part of a later verdict because the defendant is no longer part of the lawsuit. Ozik v. Gramins, 1-00-3280 (1st Dist., decided June 30, 2003).

This issue has been subjct to dispute in the courts. It is not uncommon at trial for defendants to try to add a settling defendant in the jury veredict form, thereby apportioning liability to include a party who has setted in good faith. Despite motions by the plaintiff to exclude such a procedure, the remaning defendants know that it is a way to escape liability by poining to the empty chair because that defendant is not present in the court to defend its actions.

Naturally, the more the defendants can point to that absent defendant as the cause of the injuries, the more likely the percentage of fault would shift away from the remaining parties.

INa well-reasoned opinion, the Ozis court saw through his strategy. Additin a defendant who has settled in good faith not only is unfair ot the settling parties, but it discourages good faith settlement by raising the issue of that party’s liability at trial, when it had already been resolved ty the arlier settlement and dismissal.

Section 2-1117 provides that a defendant is only severally liabile, and not jointly liable, for damages other than the plaintiff’s medical expenses if that defendant’s lever of fault is "less than 25 percent of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third part defendant who could have been sued by the plaintiff. 735 ILCS 5/2-1117 (West 2003).

In Ozik, the plaintiff had propertly re-filed an amended complaint against the remaining defendants, and when those defendants raised a section 2-1117 affirmative defense, the court denied it on plaintiff’s motion to strike, dismissing the settling defendant with prejudice. The Ozik court found that, without evidence of collusion or fraud, a settling defendant ceases to be part of the lawsuit or to be subject to 2-1117.

The Joint Tortfeasor Contribution Act, 740 ILCS 100/0.01 et seq. (West 2003), and public policy favor peaceful and voluntary resolution of claims through settlement agreements, and section 2(d) therein specficcally provides that a settling tortfeasor is to be discharged from all contribution to any other tortfeasor. "Ths policy is promoted by the approval of settlements which represent a fair compromise of the parties’ interexts, even though the dollar amount of the settlement does not accurately represent all of the injuried party’s damages", Alvarez v. Fred Hintze Construction, 247 Ill.App.3d 811, 617 N.E.2d 821 (3d Dist. 1993).

Once a preliminary showing of a good-faith settlement has been made, the burden shifts to the party challenging the settlement to establish that it was not made in good faith. The courts, however, have held that it is not bad faith where the settlement was made to avoid third-party liability for contribution. Id., at 816.

It is clear that Ozik embraced the plain and unambiguous langugage of 2-1117, as many previous courts have done. Such an interpretation allows for the parties to work out their difference - as the legislature intended - and to promote fair and reasonable settlements, which has always been the goal of the courts.