Illinois Appellate Court Decides that Contribution Claim Had to Be on Verdict Form

The Illinois Appellate Court found that there was a discrepancy in the meaning of “common liability” in Section 2(b) of the Illinois Joint Tortfeasor Contribution Act. The underlying case was when an Alex Express freightliner crashed into the car of Thomas and Diane Roberts.

The Roberts family claimed $2 million in damages when they sued Alexandria Transportation, Solomakha and Alex Express. The defendants were collectively referred to as “Alex,” which then pursued contribution claims against Edwards-Kamadulski and Safety International, one of its contractors that was working on the highway project where the Roberts were injured.

After a series of settlements, including a deal in which Edwards-Kamadulski paid $50,000 to the Roberts family, the only claim left for trial was Alex’s contribution complaint against Safety International.

Based on the narrow definition of “common liability” provided by Zellers v. Hernandez, 406 Ill.App.3d 124 (2010), plus Ready v. United/Goedecke Services, 232 Ill.2d 369 (2008), Alex argued “that the court should bar Edwards from appearing on the verdict form.”

Disagreeing, Gilbert concluded, “Edwards should appear on the verdict form because they are a contributor to the common liability towards the plaintiffs: Thomas and Diane Roberts.”

Safety argued that Edwards should be on the verdict form so that the jury can fairly apportion fault between the parties contributing to the “common liability” towards the plaintiffs.

The key issue centers on the meaning of “common liability.” Section 2(b) of the Illinois Joint Tortfeasor Contribution Act provides:

“The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own pro rata share of the common liability.” 740 ILCS 100/2(b).

The Illinois Pattern Jury Instructions define the “common liability” as the “total sum of the liability of all persons who contributed as a cause to the plaintiff’s injury, no matter how small each share of that liability might be.” Illinois Pattern Instruction (“IPI”) 600-00 (citing Ziarko v. Soo Line R.R. Co., 234 Ill.App.3d 860 (1992); Mallaney v. Dunaway, 178 Ill.App.3d 827, 831 (1988)).

But another Illinois appellate case gives a second, more narrow definition: “That amount actually paid by the party’s defendant to the injured party pursuant to a good faith settlement in a reasonable amount in exchange for a full release.” Zellers v. Hernandez, 706 Ill.App.3d 124 (2010).

The Illinois Pattern Jury Instructions definition indicates that Edwards is part of a common liability because they are within the category of “all persons who contributed as a cause to the plaintiff’s injury.” See IPI 600.00. But under the Zellers approach, Edwards is not part of the common liability because they are not a party defendant to the injured party: the plaintiffs Thomas and Diane Roberts. Instead, they are a party defendant to Alex by way of a third-party complaint. Alex capitalizes on this discrepancy and argues that the court should bar Edwards from appearing on the verdict form for the reason seen in Zellers.

In this case, even though the Alex defendants, there were three of them, were the ones that contributed to the settlement fund, Edwards is still part of the common liability: They are “a person who may have contributed as a cause to the plaintiff’s injury,” considering they were the contractors at the construction site and they have settled with the plaintiffs for their corresponding injury at that site. In March 2018, the Illinois Supreme Court declined to hear an appeal in the Illinois Appellate Court case of Barnai v. Wal-Mart Stores, Inc., 2017 IL App (1^st) 171940 which effectively means that that case is good law. Accordingly, the court agrees with Safety that Edwards should appear on the verdict form because they are a contributor to the common liability towards the plaintiffs.

Roberts v. Alexandria Transportation Inc., No. 3:14-CV-01063 (May 14, 2018).

Kreisman Law Offices has been handling catastrophic injury lawsuits, premises liability cases, pedestrian accident lawsuits, bicycle accident cases and motorcycle accident cases for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Itasca, Summit, Worth, Harvey, Calumet City, Oak Park, Oak Lawn, Prospect Heights, Morton Grove, Skokie, Lincolnwood, Harwood Heights, Chicago (Austin, Hermosa, Mayfair, Sauganash, North Park, Pulaski Park, Pill Hill, Back of the Yards, Canaryville, Washington Park), Brookfield, Berwyn and Cicero, Ill.