Split Over Who Should Be On The Verdict Form

Over the past few years or so, Illinois courts at both the state and federal level have debated the issue of whether settled parties should be on the verdict form used by the jury to apportion fault.  The deviate stems from divergent interpretations of section 2-1117 of the Code of Civil Procedure.  A recent flurry cases from the 1st District Appellate Court epitomizes the debate.

On March 6, two justices of the 1st District found that section 2-1117 does not require that settled parties be included on the verdict from, Yoder v. Ferguson, 2008 WL 623778 at 34-5.  In so finding, the majority departed from a decision by another division of the 1st District issued last summer (and currently on appeal before the Illinois Supreme Court) that reached the opposite result, Ready v. United/Goedecke Services Inc., 367 Ill.App.3d 272, 278-79 (2006).

The day before the Yoder decision was announced, another division of the 1st District found that section 2-1117 required that a person who had settled with an injured party before any lawsuit was commenced be included on the verdict form even through the person was never sued by anyone or otherwise made a party to the case,  Heupel v. Jenkins, 2008 WL 615932 at 6-8 (March 5).  The Heupel court’s holding appears to be in direct conflict with that announced by another division of the 1st District the day before.

The 1st District in Jones v. DHR Cambridge Homes, 2008 WL 598440 at 9-10 (March 4), found that the trial court properly refused to use a verdict form that included a party who was “never a party in [the] case.”

The Jones court quoted Unzicker v. Kraft Food Ingredients Corp., 203 Ill.2d 64, 78 (2002), which said, “Section 2-1117 does not include in the division of fault ‘anyone who could have been sued by the plaintiff.’  Rather, it includes ‘any third-party defendant who could have been sued by the plaintiff.’  In other words, the party must already have been brought into the case by a defendant for that party to be included in the division of fault.”

All told, at least 10 appellate court jurists believe that settled parties should be on the fault apportionment verdict form (with three of those justices believing that a person who settles with an injured party pre-suit should be on that form regardless of whether that person is ever made a party to any lawsuit) (see Heupel; Ready’ Skaggs v. Senior Services of Central Illinois Inc., 355 Ill.App.3d 1120, 1129 (2005); and Yoder (Neville, P.J., dissenting)), and at least eight do not (see Yoder; Blake v. Hy Ho Restaurant Inc., 273 Ill.App.3d 372, 376 (1995); and Freislinger v. Emro Propane Co., 99 F.3d 1412, 1419 (7th Cir. 1996)).

The problem: as Justice Michael J. Murphy noted in his majority opinion in Yoder, “section 2-1117 lacks absolute clarity and public policy may be supported by a decision either way.”

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

“Except as provided in Section 2-1118, 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 hubbub lies with the phrase “defendants sued by the plaintiff.”

Defendants argue the phrase encompasses any person or entity that was ever sued at any time.

Plaintiffs contend that parties who settle in good faith and are dismissed from the litigation are no longer “defendants” and, thus, cannot be considered “defendants sued by the plaintiff” when the jury is asked to apportion fault.

The language of the statute, however, does not seem to support or refute either side’s reading.

Both sides also attempt to capture the moral high ground by arguing that one or more public policies will be undermined if the other side’s interpretation is adopted.  Defendants contend that their interpretation is correct because it furthers the goal of not having minimally responsible parties pay a disproportionate share of the judgment.

To find otherwise, they say, will allow the plaintiff to gerrymander a judgment by settling with more culpable/less wealthy parties, leaving the less culpable/deep-pocketed parties in the case. 

Plaintiffs, on the other hand, cite the policy of encouraging settlement.  If a plaintiff is forced to choose 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.  In Yoder, this dilemma was characterized as a “Hobson’s choice.”

Even if the plaintiff opts to settle, there are numerous logistical issues that would arise – who has the burden of proof to show that the settled party was or was not liable, the settled party’s conduct was a proximate cause of the injury, etc. – the answers to which could implicate serious constitutional questions.

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 reduction in the percentage of fault that the jury could possible attribute to it.

For a detailed example of this “double benefit,”  see Justice Thomas E. Hoffman’s special concurrence in Ready.

Like the “plain language” arguments made by the parties, it is hard to objectively say which of these competing policies is more compelling or more in-tune with the intent of the legislature.

In Yoder, the majority found that it could not resolve the issue of whether settled parties should be included on the verdict form by looking to the language of section 201117 or weighing these competing policy arguments.

The Yoder decision states, “It is obvious from the split of authority on this issue, and the detailed observation of divergent scenarios highlighted by Presiding Justice Hoffman’s special concurrence in Ready, that section 2-1117 lacks absolute clarity and public policy may be supported by a decision either way.”

Instead, the court resorted to canons of statutory construction, legal fictions that allow a court to rule in the face of statutory language and legislative history that is unclear and less than helpful.  For further explanation, see Reed Dickerson, The Interpretation and Application of Statutes 249 (1975). 

Specifically, the court relied upon the canon that says when a legislature amends a statute, it is presumed to know of the prior judicial interpretations of that statute.  See Bruso v. Alexian Brothers Hospital, 178 Ill.2d 445, 4589 (1997).  If the legislature does not change the statutory language that had been the subject of those prior judicial interpretations, it is presumed to have agreed with those interpretations.  Sort of the if-it-ain’t-broke-don’t-fix-it canon of statutory interpretation.

The Yoder court noted that in 2003 the General Assembly amended section 2-1117 by inserting a clause prohibiting the inclusion of the plaintiff’s employer on the fault allocation verdict form.  This amendment nullified the Supreme Court’s holding in Unzicker that the employer should be included on that verdict form based upon the “third party who could have been sued by the plaintiff” language of the statue.

Prior to that 2003 amendment, however, both the 4th District and the 7th U.S. Circuit Court of Appeals had found that settled parties were not to be included on the verdict form because they were not “defendants sued by the plaintiff.”  See Blake and Freislinger.  Since the legislature did not address the Blake or Freislinger courts’ interpretation of section 2-1117 in the 2003 amendment, but did alter section 2-1117 to overrule the supreme court’s holding in Unzicker, the Yoder court found that the legislature had approved of Blake’s and Freislinger’s reading of the statute.

By relying upon this canon, the Yoder court avoided having to strain to find meaning in the ambiguous language of section 2-1117 or to make its own Hobson’s choice between competing and compelling policy arguments.  Essentially, the Yoder court looked to the conduct of the legislature, whose artless drafting had been the rood of the problem.  As noted above, the Ready court’s decision is currently pending before the Supreme Court.  Perhaps, that court will have better luck than the appellate court in divining the meaning of the “defendant sued by the plaintiff” phrase.  Or maybe it too will resort to canons of statutory construction.  We will soon find out.