Illinois Appellate Court Reverses Good Faith Finding in Wrongful Death, Joint Tortfeasor Contribution Act Lawsuit

On April 27, 2017, Kevin Hartley was working for his uncle, Tony Hartley, at Hartley’s Painting. Hartley was refinishing the bathtub at an apartment complex in Nashville, Tenn.

While on the job, Kevin was wearing a respirator mask and gloves but was overcome by fumes from the NAPCO White Lighting Low Odor Stripper. He passed out and died the following day at the age of 21.

Wendy Hartley, his mother and special administrator of Kevin’s estate, filed a lawsuit against the North American Polymer Company Ltd. (NAPCO), which sold the product. The lawsuit then added Samax Enterprises Inc. (Samax), the company that manufactured the product. Wendy Hartley set out two causes of action for each of the two defendants. One was in strict product liability and the other was in negligence, alleging that the product was “unreasonably dangerous and toxic, and that defendants did not adequately warn users about the danger and did not adequately test the product to ensure that it was safe for its reasonable anticipated use.”

On June 24, 2018, NAPCO filed a third-party complaint for contribution against Tony Hartley and Hartley’s Painting under the Illinois Joint Tortfeasor Contribution Act, alleging that Hartley’s Painting was negligent for choosing not to properly train or supervise Kevin Hartley in working with the product or provide proper protective equipment.

The plaintiff estate filed a motion for a good faith finding, requesting the court to approve that Hartley’s Painting through its insurer offered $50,000 to settle and extinguish any potential liability, which she (Wendy Hartley) accepted.

Tony Hartley then moved to dismiss the third-party complaint against him based on the settlement, and in the alternative, based on Tennessee law which does not allow third-party contribution under the instant circumstances.

The trial court denied the request for good-faith finding, emphasizing that the Tennessee Occupational Safety and Health Administration (TOSHA) had found Kevin’s respirator, provided by Tony, unsafe for the use in question. In addition, the $50,000 represented only 5% of the available $1 million in liability coverage under Hartley’s Painting’s insurance policy. However, on motion to reconsider, the trial court agreed to a good-faith finding. NAPCO and Samax appealed.

On appeal, these defendants argued that the trial court erred in concluding that the settlement between Wendy Hartley and Tony Hartley was made in good faith. The defendants noted that of the four factors, the settlement amount, the relationship between the parties, and the fact that Tony Hartley was not named as a defendant all weighed towards collusion, and the lack of an attempt to conceal the circumstances that the settlement was “neutral.”

The defendants argued that the trial judge later reconsidered based on the belief that Kevin Hartley, in fact, supplied his own respirator, but that the first, second, and third factor still weighed towards collusion.

The Illinois Appellate Court agreed, noting that whether Tony Hartley provided the respirator, he was found by TOSHA to have committed twelve “serious” safety violations related to Kevin’s death.

The appellate court emphasized that the purpose of the act was to encourage equitable apportionment of damages and that the suggested settlement would result in an inequitable apportionment of damages.

Accordingly, the Illinois Appellate Court reversed the decision of the Circuit Court of Cook County and remanded the case back to the trial court for further proceedings.

Wendy Hartley v. North American Polymer Company, Ltd., et al, 2020 IL App (1^st) 192619 (Dec. 3, 2020).

Kreisman Law Offices has been handling work injury lawsuits, wrongful death cases, catastrophic injury lawsuits and construction injury cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 45 years in and around Chicago, Cook County and its surrounding areas, including LaGrange, Lyons, Stickney, LaGrange Park, North Riverside, Cicero, Aurora, Oak Brook, Hinsdale, Clarendon Hills, Joliet, Glenview, Addison, Elk Grove Village, Mount Prospect, Wilmette, Chicago (Albany Park, Lakeview, Lincoln Park, Lincoln Square, Humboldt Park, Portage Park, Kelvyn Park, Belmont Cragin, Old Irving Park, North Mayfair, Bronzeville, Uptown, Buena Park, Wrigleyville, Roscoe Village, Wrightwood Neighbors, Old Town Triangle, Near North Side, Greek Town, South Shore, Douglas, Kenwood), Berwyn, Broadview, Bellwood, Hillside, River Grove and Elmwood Park, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.