High Court Clarifies who Should be on Verdict Form

In Ready v. United/Goedecke Services, Inc., 2008 WL 5046833 (Ill. Nov. 25, 2008), the state Supreme Court ended years of debate by commentators and Illinois courts at both the state and federal level over whether settled parties should be listed on the verdict form used by the jury to apportion fault.  In a 4-2 decision (Justice Robert R. Thomas recused himself from the case), the majority found that they should not be and affirmed the decision of the circuit court, which omitted the settling defendants from the verdict form and barred the remaining defendants from presenting any evidence at trial regarding the conduct of the settling defendants.

In Ready, the plaintiff’s decedent was killed during a construction project at a power plant.  Though the plant owner, the general contractor, and a subcontractor were named defendants during the course of discovery, the former two settled with the plaintiff in good faith before trial, leaving only the subcontractor to face the music.  The question was whether those two former defendants nevertheless should be included on the jury’s verdict form that allocated fault.  The answer to that question depended upon the court’s interpretation of section 2-1117 of the Code of Civil Procedure.

Before the General Assembly amended it in 2003, Section 2-1117 read as follows:

“Except as provided in Section 2-118, in actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiff’s past and future medical and medically related expenses.  Any defendant whose fault, as determined by the trier of fact, is less than 25 percent of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant, who could have been sued by the plaintiff, shall be severally liable for all other damages.  Any defendant whose fault, as determined by the trier of fact, is 25 percent or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff, shall be jointly and severally liable for all other damages.”  735 ILCS 5/2-1117 (West 1994).  The disputed phrase was “defendants sued by the plaintiff.”

Defendants argue that phrase unambiguously encompasses any person or entity who was ever sued at any time.  See e.g. Yoder v. Ferguson, 381 Ill.App.3d 353, 376-76 (2008); Ready v. United/Goedecke Services, Inc., 367 Ill.App.3d 272, 276 (2006).  They contend their interpretation is correct because it furthers the goal of not having minimally responsible parties pay a disproportionate share of the judgment.  See. E.g., Yoder, 381 Ill.App.3d at 375; Ready, 367 Ill.App.3d at 277-78.

Not surprisingly, plaintiffs also argue that the phrase is unambiguous.  Since parties who settle in good faith and are dismissed from the litigation are no longer “defendants,” they say those parties cannot be characterized as “defendants sued by the plaintiff” when the jury is asked to apportion fault.  See e.g., Yoder, 381 Ill.App.3d at 377-78; Ready, 367 Ill.App.3d at 276.  To support their reading of the statue, plaintiffs cite the policy of encouraging settlement.  If a plaintiff is forced to chose between settling with a party and defending an “empty chair” (i.e., taking on that settled party’s defense in addition to carrying her own burden of proof) or not settle, she will chose the latter.  See Yoder, 381 Ill.App.3d at 378 (characterizing this di9lemma as a “Hobson’s choice”).  Plaintiffs also argue that including settled defendants on the verdict form provides non-settling defendants with a “double benefit” in that the non-settling defendants receive both a set-off for the amount of the settlement and a reduction in the percentage of fault that the jury could possibly attribute to it.  See Ready, 367 Ill.App.3d at 282-84 (Hoffman, J., specifically concurring) (providing a detailed example of this “double benefit”).

Prior to Ready, Illinois courts were split.  Some had found that settled former parties should be on the fault apportionment verdict for.  See Ready, 367 Ill.App.3d at 278-79 (2006); Skaggs v. Senior Services of Central Illinois Inc., 355 Ill.App.3d 1120, 1129 (2005).  Others took a broader approach, believing that even a person who settled with an injured party pre-suit should be listed on that verdict form regardless of whether that person was ever made a party to any lawsuit.  See Heupel v. Jenkins, 379 Ill.App.3d 893, 901-04 (2008); but see Jones v. DHR Cambridge Homes, 381 Ill.App.3d 18, 31-2 (2008) (finding that the trial court properly refused to use a verdict form that included a party who was “never a party in [the] case”).  While still others thought that parties who had settled in good faith should be excluded.  See Yoder, 381 Ill.App.3d at 378079; Blake v. Hy Ho Restaurant Inc., 273 Ill.App.3d 372, 376 (1995); Freislinger v. Emro Propane Co., 99 F. 3d 1412, 1419 (7th Cir. 1996).  In Ready, the majority sided with this latter group.

In reaching its decision, the majority rejected the competing “unambiguous” arguments made by both sides.  Noting that the standard dictionary definitions for the word “sue” supported either side’s reading depending on which definition was used, the majority found that the statute was ambiguous.  The majority also cited the split of authority in the appellate courts and the fact that even the justices themselves disagreed on the same point (citing the special concurrence by Justice Thomas L. Kilbridge and the dissent by Justice Rita B. Garman, to which Justice Lloyd A. Karmeier had joined).  Though the majority noted the dissent’s belief that the phrase was unambiguous, it also noted that the dissent required three pages to explain that belief.  (“The need for such an extended discussion strongly belies the notion that the statute unambiguously speaks in terms that the ordinary person exercising ordinary common sense, can understand.”)

The majority also declined to choose between the parties’ competing policy arguments.  That job, they felt, was “better left to the legislature.”

Instead, having found that the phrase was ambiguous, the majority in Ready relied upon two canons of statutory construction to settle the issue.  First, the court noted that the legislature had amended the statute in 2003 but had not changed the disputed phrase even though the appellate court had previously found that settled parties should not be included on the verdict form (citing Blake, 273 Ill.App.3d at 376).  Citing the canon that states that “where a legislature chooses not to amend a statue after a judicial construction, it is presumed that the legislature has acquiesced in the court’s statement of the legislative intent,”  the majority found that the 2003 General Assembly’s failure to overturn Blake meant that it agreed with that court’s reading of the statute.

Second, the majority noted that the legislature had in the Tort Reform Act of 1995 amended the definition of tortfeasor to include those parties that settled with the plaintiff.  Because the legislature felt it necessary to do so, that meant that the prior version of the statute was never intended to encompass such former parties (citing People v. Hicks, 119 Ill.2d 29, 34 (1987).  ‘it is an elementary rule of statutory construction that ‘[t]he addition of a new provision in a statute by amendment is an indication of the absence of its implied or prior existence.’”)  Once the Tort Reform Act of 1995 was ruled unconstitutional by the Supreme Court in Best v. Taylor Machine Works, 179 Ill.2d 367 (1997), section 2-1117 automatically reverted back to that prior version and its corresponding legislative intent to exclude former parties from the allocation of fault.

The majority was chided by the dissent for relying upon those two canons.  Citing a law review article by Professor Karl Llewellyn, the dissent warned that relying upon canons to interpret an otherwise unambiguous statute “may obscure, rather than reveal the intent of the enacting legislature” and open the court up to “a legitimate accusation of ‘legislating from the bench’” (citing K. Llewellyn, Remarks on the Theory of Appellate Decisions and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950); but see A. Scalia, A Matter Of Interpretation:  Federal Courts and the Law, at 26-7 (1997) (finding that Llewellyn’s criticism of the utilization of canons as a tool to statutory interpretation was overstated  and noting that many of the so=called “contrary canons” cited in that law review article either did not exist or did not “contradict the corresponding canon”)).

Nevertheless, based upon those canons, the majority found that section 2-1117 does not apply to good-faith settling tortfeasors who have been dismissed from the lawsuit.