*1 court erred in not the retailer distributor- dismissing seller to section 2—621 of the Code of Civil pursuant Procedure. reasons,
For the we reverse foregoing judgments courts, and circuit remand causes to the circuit court for further con- proceedings sistent with this opinion. reversed;
Judgments causes remanded. (No. 68659. HENRY,
ERICA Friend, her Mother and Next Jane al., JOHN’S HOSPITAL et Henry, v. ST. Appellant, Appellees.
Opinion September 19, 1990. filed Modified rehearing denial November *3 RYAN, J., dissenting. Belleville, Cook,
Bruce of for appellant. N. Hugh of of Chicago, John Pierce & Meyer, Meyer, Graham, of III, of Graham & Springfield, Graham Kendall, of Royster, and Karen L. Heyl, M. Gary Peplow Peoria, for Allen, appellees. Voelker & Stein, & M. of Letvin Letvin David David J. .and curiae Illinois amicus Trial Law- Stein, Chicago, Association. yers McDade, Pretorius, Jr., Mary W.
Murvel Pretorius, Peoria, Johnston, Quinn, Henderson & amicus curiae Illinois Association of Defense Trial Coun- sel. opinion delivered STAMOS
JUSTICE court: during
Plaintiff, severely injured Erica Henry, was *4 administration result of the negligent her birth as a Plain- anesthetic, to her mother. Marcaine, an the drug Dr. Shari St. sued John’s Hospital tiff a Fitzgerald (defendants) in medical action. malpractice Inc., Plaintiff Sterling also sued and Breon Drug, Labo- ratories, Inc. (Sterling-Breon), the manufacturers in the for drug, same action failure to warn properly about the for drug failure contraindicate it the us- age which caused allegedly plaintiff’s injuries. During trial, Sterling-Breon filed a claim defendants, against that Dr. had alleging Fitzgerald neg- administered the ligently drug. circuit court of a Sangamon found as County
matter law that defendants had violated the standard of care and directed a verdict as to issue. On the is causation, sue of returned a jury against verdict defendants and Sterling-Breon, and assessed million $10 compensatory damages. determined that jury rata defendants’ 7%, share these was damages and that Sterling-Breon for was liable 93% com v. (Henry St. John’s Hospital pensatory damages. 159 Ill. App. remittitur, 3d In a trial court reduced the medical-expenses portion of the for award damages and entered compensatory against defendants and $8,511,759. In Sterling-Breon addition, returned a jury Sterling verdict against Breon million in punitive damages. App. $7 561. mother, Plaintiff’s Jane brought separate Henry, on action her own against behalf defendants and Ster ling-Breon in she alleged actions consti tuted an intentional infliction of emotional distress. Af ter the mother’s action was dismissed the pleadings, she appealed. Defendants and Sterling-Breon appealed plaintiff’s verdict. 180 Ill. 3d at both pending,
While were filed a appeals pe tition for of minor approval plaintiff’s settlement agree ment Sterling-Breon with and for good-faith finding to the pursuant (Ill. Contribution Act *5 538 The of the settle through
eh. 301 details pars. 305). are court and opinion ment included the appellate 3d at 562- need not be here. repeated (See App. Nevertheless, this between and agreement plaintiff 63.) of both settlement Sterling-Breon provided monetary her mother’s claims against Sterling and plaintiff’s Breon, but a total cash value which was for current liable much less the amount was Sterling-Breon than specifi plaintiff jury’s agreement on verdict. pay and her intended to parents stated that cally plaintiff against their claims defendants. Ill. 3d (180 App. pursue indemnifi also for the agreement provided at brought cation of for claims Sterling-Breon any for contribution. 180 defendants against Sterling-Breon Ill. 3d at 563. App. in good
The trial found that the settlement was action, faith, Sterling-Breon plaintiff’s dismissed (180 judgment against Sterling-Breon. and vacated the 563.) The then affirmed App. appellate Ill. 3d at Henry, Ill. 159 App. defendants. judgment against 735; at Ill. 3d 563-64. App. 180 at post-judgment proceedings Plaintiff then initiated responded by tendering defendants. Defendants against of the judgment a check the 7% and the trial for, interest, petitioning were liable plus The trial jury court for verdict. entry motion, that defendants holding court denied defendants’ for the entire ver liable severally were jointly settlement, after sum. The court then held that dict mil reduced recovery the amount of had been $3.35 of the for the remainder lion, liable making damages, million compensatory $1.53 $5.51 verdict — inter date, million in interest accrued up $1,359 day. per at a rate that, accruing est after Ill. 3d at 564. App.
Defendants
this
appealed
judgment.
court, the trial
reversing
looked to the
ruling,
language
Act, which
provides
where two or more
are
persons
to tort
subject
the same
person
the same
there is a
injury,
them.
Ill.
among
(180
564;
3d at
Ill.
par. 302(a); see Rakowski v. Lu
cente
Contribution that a provides settlement agreement, made in good faith with one or more persons liable in tort out of arising the same will not injury, dis charge the any remaining joint tortfeasors from liabil ity unless the agreement expressly provides such a It discharge. further states that the settlement will re duce the amount the other tortfeasors owe the amount stated in the settlement, or the contribution ac tually paid, whichever is greater. (180 Ill. 3d App. at 564-65, Ill. citing 1987, Rev. Stat. 70, ch. par. 302(c).) appellate also noted that the Contribution Act expressly provides that a tortfeasor who settles is dis charged from all liability contribution and is not enti tled to recover from any tortfeasor who is still liable (180 Ill. 565, 3d at App. Ill. citing 1987, Rev. Stat. ch. 70, pars. 302(d), (e)), while it maintained that a plaintiff’s to ability recover the full amount of the judgment one or more defendants subject in tort liability for the same injury the same is not person affected by Act. at Ill. 565, Contribution 3d App. citing 70, par.
In its court first stated that analysis, the function of a court is to ascer construing statutes tain and effect to the intent. give legislative statute’s v. Julian Ill. at (180 3d App. citing Dornfeld 104 Ill. 2d then legal analyzed and precursors legislative history Act, that one of main the Act concluding purposes was to tortfeasors spread among joint liability in to the each was for the proportion degree responsible (180 565-67.) Ill. 3d at Us jured party’s damages. App. foundation, this as the Con ing interpreted its the court Act that an who has providing injured party tribution as amount judgment reduced verdict in an finan certain then settles with a tortfeasor who is able to entire has to waive cially satisfy judgment, not cor to enforce any portion negligence to a nonsettlor’s responding percentage tortfeasors, the Contribu nonsettling despite against any an hold all tion Act’s maintaining injured party’s right liable. 180 Ill. jointly severally at 569-70. *7 of its reasoning
The court based much appellate Bartels v. Williston City of 1979), 276 N.W.2d (N.D. at relied on (180 (the 113. 3d 568-69 also App. Ill. Insurance v. Moody Prudential Co. similar case, a Life The Bartels that held 1985), 696 S.W.2d (Ky. 503).) injured and to benefit the liability several exists joint a single settlement and can be waived a with party tortfeasor, party’s limit the injured which serves to joint to the percent tortfeasors recovery any remaining at Ill. 3d (180 App. of to each. negligence attributed age Bartels, 122.) 276 at 569, appellate N.W.2d citing the statutory court found a direct correlation between in Bartels and the Contribution Act, hold cited language that waived and several and ing joint plaintiff the that from defendants was limited to 7% recovery them 180 Ill. 3d App. amount attributed to jury. at 569-70. with the in the
We disagree appellate analysis at is- Despite many case bar and therefore reverse. sues raises on we address the appeal, only need interpretation court’s incorrect the Contribu- appellate tion Act. hold that an does not injured party We waive a enforce and judgment against jointly liable tortfeasor with another severally by settling tortfeasor.
We
find
court has
appellate
misapplied
basic
principles
in the case
statutory interpretation
at
court,
bar. We
this
it
agree
when
stat
interprets
utes, has a
to determine the
duty
intent
the legisla
ture when
enacting
statute
and to en
question
force that
intent. (Faheem-El v. Klincar
(1988),
Ill.
2d
297-98.) However,
the rules of
con
statutory
struction
require us
first
look to the
lan
statutory
itself as
guage
the best indication
intent of the
drafters
(County
Graham, Anderson,
v.
Du Page
White,
Probst
151;
&
Inc.
109 Ill.
(1985),
2d
People
Robinson
(1982),
469, 475),
v.
and where the
intent can
ascertained
be
from the statute’s language, it
will be
effect without
given
to other aids
resorting
construction (Robinson,
542 pro
“Amount of Contribution. The rata share of each in his rel tortfeasor shall be determined accordance with However, required ative no shall culpability. person be seeking an greater contribute to one amount or obligation than rata share unless the of one pro his In that joint more of the tortfeasors is uncollectable. event, remaining unpaid tortfeasors shall share the portions obligation of the in accordance uncollectable added.) with rata Ill. Rev. pro liability.” (Emphasis 1987, 70, par. Stat. ch. legislative
While the analysis correct, Act was aU history surrounding Contribution v. Pollu (See Village Carpentersville it is irrelevant. tion Board Control 463, 469-70.) 135 Ill. 2d (1990), is re of section 3 states that no plain language party rata party’s more than that contribute quired share to of contribu seeking right one contribution. tort tion this statute exists among joint contemplated in feasors, and the parties not between tortfeasors 1987, 70, 302(a), (b).) ch. (See pars. Ill. Rev. Stat. jure. that a Section 4 Act states expressly to recover amount of a judgment the full plaintiff’s the provi defendant not affected any single is 1987, 70, Rev. ch. (Ill. sions of Act. Stat. par. a defendant explain way Sections 2(c) 2(d) only re can several under the Act —a escape liability lease, not to or sue or enforce covenant of that plaintiff gives tortfeasor’s liability, However, further 2(c) faith. section good explains is reduced only tortfeasors remaining cov release or to the extent of amount stated it, enant, greater. or the amount whichever paid (d). 302(c), Ill. Rev. pars. Stat. to
Therefore, statutory we these sections when read v. Comm’n Rights Human Castaneda (see gether deter- Ill. 318 intent must be (legislative *9 statute, mined from entire an just isolated passage)), we find that the plain of the meaning statutory language indicates that the Contribution Act does not affect a common plaintiffs law to collect the full amount of right from tortfeasor judgment any individual who is jointly and severally liable that see plaintiffs injuries. (But 1987, Ill. 110, Rev. Stat. ch. 2—1117 par. the (altering joint and several of liability tortfeasors who are less than 25% for the responsible but statute was not in ef injury; fect when case at injury bar If a occurred).) elects to settle with one party, tortfeasors remaining are still and jointly liable for the severally full amount of less the amount judgment, Thus, settlement. the trial court was correct in holding defendants liable the full amount of the judgment minus the value of the Sterling-Breon settlement agreement.
We also disagree with the court’s appellate characteri zation of the settlement agreement as as a waiver acting of plaintiff’s right to the 93% of the judgment for which Sterling-Breon was liable. As we stated, have already the Contribution Act creates a right contribution among joint of the Act language ex tortfeasors. excludes pressly other any (Ill. Rev. Stat. party. 1987, ch. pars. 302(a), (b), 303 (“where or more persons are subject tort out arising of the same in *** is a there jury right them ***. among right contribution exists only favor of a tort *** ***. shall person be required contrib [N]o feasor ute to one seeking contribution an amount than greater his rata share” (emphasis Also, added)).) section 4 of the Act states explicitly that a plaintiff’s right to fully recover one or more joint tortfeasors is not af fected provisions the Act. (Ill. par. 304.) We therefore find nothing in the lan
guage of the statute to support appellate court’s that a finding plaintiff’s settlement agreement with one jointly as a waiver of tortfeasor acts joint the Contribution enforce a under and severally Act. reliance on the also find that
We Bartels, In Moody Bartels and cases was misplaced. contribu- a section of North Dakota’s interpreted our Con- to section statute, 2(c) which is similar tion aby Act, impliedly repealed as been having tribution which re- statute comparative negligence subsequent as to each verdict to render separate quired accordingly. the damages defendant apportion in the the provision Bartels further stated statute, provided negligence comparative liable, severally remain jointly tortfeasors shall *10 was party of the injured included for the benefit was Bartels, 276 N.W.2d at 121-22. waivable. at from the case
Bartels, however, distinguishable Rev. (Ill. statutes negligence Illinois’ comparative bar. 2-1117, 2-1116, 2-1118) 110, ch. pars. Stat. occurred. injuries plaintiff’s not in effect when were existed in action Therefore, legislative no subsequent Act for us the Contribution interpret this to help State lan Also, the statutory at of the case bar. the purposes Bartels court quoted appellate guage stat negligence comparative Dakota from the North was (See act. ute, not that State’s therefore Bartels, 276 N.W.2d at It was 569; 3d at statutory to use the appellate inappropriate Contri similar to our a statute which nullified language the plain as to contradict in such a way Act bution of our statute. meaning a stat- case concerned Moody fashion,
In a similar negligence, issue of comparative addressed ute which is also distin- Therefore, Moody contribution. rather than at 696 S.W.2d Moody, case at from the bar. guishable Because the Contribution Act focuses on the rights tortfeasors, court should have focused the waiver issue on the actions of defendants, plain tiff. this, Defendants to have appear anticipated because claim that on their to they any attempt part pursue contribution action against Sterling-Breon became futile when plaintiff Sterling-Breon entered into the settle ment agreement, because section of the 2(d) Contribu states, tion Act “The tortfeasor who settles with a *** is discharged claimant from all con liability any to other tribution tortfeasor.” (Ill. par. 302(d).) Defendants argue that allowing choose the effectively percentage liability
she will enforce judgment makes settle post-judgment ments impossible cases with joint tortfeasors. They further claim that plaintiff’s of the Contri interpretation bution Act serves to actually destroy defendants’ right their rata share of pay only pro the judgment, be cause their to seek ability contribution from Sterling Breon was nullified settlement and was com out their control. pletely Thus, defendants impliedly cannot argue be held to have waived right their rata pay only pro share. Defendants, however, mischaracterize their un rights der the Contribution Act. Defendants do not have a have to their limited rata share of Rather, judgment. 2(b) section Act *11 them a gives if more right they contribution than pay rata share of the pro liability. common Section 2(b) also states that no to tortfeasor is liable make contribu tion for more than his rata share. (Ill. 1987, Thus, ch. par. defendants 302(b).) a have only right from recoup the other joint tortfeasors any amount in excess of pay their own pro rata share. contri
However, have waived any right in action in a personal there is a pending bution. When tortfeasors, the contribution joint case involving or third- by asserted counterclaim by claim should be claim action, or else the contribution claim that party v. Ill. 2d 195 (Laue is barred. Leifheit The Laue sepa this rule to designed prevent issues of liability deciding separate rate juries of liability among and the percentages to the plaintiff of lawsuits multiplicity a avoiding the defendants —thus Even though of inconsistent verdicts. and the possibility is being contribution of defendants’ the question trial than in a proceed rather appeal, separate raised applicable. find the waiver principle equally we ing, 5 of the of section The Laue court’s construction a that anytime Act leads us to conclude claim his contribution bring tortfeasor fails joint is thereaf- claim to contribution action, the original Section 5 states: ter a nullity. for contribution A cause of action
“Enforcement. separate a may by be asserted among joint tortfeasors by counterclaim or payment, after action or before (Ill. Rev. Stat. in a action.” complaint pending third-party 70, par. 305.) of section 5 the language The Laue court interpreted be asserted may a claim provides as cover or after payment” action before “separate initiated a has not the injured party where situations ing is a However, pending where there lawsuit. pending in that asserted claim must be action, the contribution Therefore, plain at 196.) (Laue, 105 Ill. 2d action. that, unless mandates language of section 5’s meaning third-party or a counterclaim brings tortfeasor claim action, any original in the for contribution claim thereafter Act the Contribution relief under distinguish- at is factually the case bar Though waived. *12 Laue, able from we find no reason to from that depart decision’s express holding.
Also, must note that has we al appellate settled this issue. The first time this cause came ready court, before that court held that the trial appellate was correct defendants to file a allowing contribution counterclaim. The trial court determined that defendants had leave to file the counter requested claim, which amounted to an amendment of the plead at such ings, a late of the trial to stage allow defendants’ would have the other request prejudiced par ties. It further noted that the counterclaim also amounted defendants’ a raising new issue after all had rested their parties cases. The court ex held that the pressly counterclaim had not been raised in (Henry, fashion. timely 3d at This serves our only support holding that by failing pre serve their contribution in the rights action, original defendants have waived those effectively rights.
Defendants further argue, against requirement must file a contribution claim in the original action order to no preserve more pay than their pro rata share of the judgment, that the trial court’s finding that the settlement agreement was faith was good erroneous. defendants claim Specifically, that this ruling effectively bars them from seeking con- tribution, and serves to only allow Sterling- Breon to on” defendants, “gang up who were not par- ties to the settlement agreement.
Section 2(d) of the Contribution Act indeed does pro vide that a joint tortfeasor who settles will escape liabil for contribution. ity (Ill. par. 302(d).) decide, We need not however, whether a settle ment between a tortfeasor and a plaintiff, entered into after a has determined the amount of each joint rata share pro tortfeasor’s amount, tortfeasor’s paying in one joint results which settlement rata share while cutting less than its substantially remain- to the off that tortfeasor’s settlement under tortfeasors, good-faith ing joint a section dis- 2(d) This is Act. because *13 cannot occur where liability of contribution charge lia- has no contribution tortfeasor not only settling joint the settlement agreement he entered into bility before failure to tortfeasors’ but, nonsettling of the because no claim, can have such liabil- their contribution preserve thereafter. ity in the case already explained,
As we have from to contribution their at failed to preserve bar the con to raise neglected because Sterling-Breon, the original fashion during claim in a timely tribution among joint contribution The doctrine proceeding. v. Reed- Skinner origin (see tortfeasors is equitable Co. Machinery Package Division Prentice (1977), 5 through 2d 12-13; 18 Am. Jur. 1, §§3 not those who vigilant aids the (1985)), “equity Nashville v. Louisville & (Bell rights” sleep v. 135, 146, citing Flannery Co. (1985), R. R. 106 Ill. 2d Flannery (1943), had Defendants 432). Ill. App. inter to their the trial court to alert ample opportunity during point claim at some contribution filing ests the trial that, at the time This means trial. original Sterling agreement, the settlement approved judge to defendants been liable have Breon could not possibly Technically, had been waived. contribution; the right dis be no contribution had Sterling-Breon was determination time the “good-faith” at the charged the settlement finding trial made. not therefore, possi could faith, in good was agreement claim against to defendants’ be bar bly 2— 1987, ch. par. Ill. Rev. Stat. Sterling-Breon. Cf. are responsible than 25% are less who 1117 (tortfeasors arising negli- liable for only severally damages in effect at inflicted statute gently bodily injury; time of plaintiff’s injury).
Defendants also characterize the trial court’s holding them liable for the entire remainder of the judgment sum, rather than for as the de damages 7% termined, as an reallocation improper post-judgment the jury verdict. Defendants on this court’s decision rely Engelke Kerns v. 76 Ill. 2d 167-70. In Kerns, one of three tortfeasors entered into a joint post- loan with the This receipt agreement plaintiff. agreement for the tortfeasor lend provided money for the purpose financing plaintiff’s This loan appeal. was to be back from paid any money recovered from the remaining tortfeasors. The Kerns court held this agreement void as an as improper signment of a personal to a injury judgment who party is liable for the The Kerns court stated this injury. type loan receipt agreement was if proper only made *14 before the multiple tortfeasors is adjudi cated. Defendants see a direct correlation between of Kerns and the type post-judgment manipulation post-judgment agreement entered into here.
We disagree. of loan type agreement that existed in Kerns awas remnant left from the time when contri bution among tortfeasors was joint at com prohibited mon effect, law. In these loan agreements allowed plain tiffs to apportion liability among tortfeasors, the joint the ban on despite However, contribution. at that time this court would as only uphold valid those loan receipt agreements which were entered into before liability was This adjudicated. was done to allow the joint tortfeasors to use the agreement for at trial. impeachment purposes (See Kerns, Skinner, 168-70; 76 Ill. 2d at see also Kerns court also held that a post-judg 2d at ment loan receipt allows a tortfeasor to agreement or indemnification when to contribution
avoid the bar Kerns, 76 Ill. 2d at to it. not entitled to the case at bar. Thus, wholly inapplicable Kerns is are sought protect the Kerns court which rights Skinner, codi- our decision an issue because no longer of allows for a Act, right now the Contribution by fied Polelle & tortfeasors. M. (See among joint is, pro- 671-73 That (1985).) Illinois Tort Law B. Ottley, the Con- machinery tortfeasors employ vided joint Act, inequities can type prevent tribution al- explained As we have the Kerns court decried. which the pro- have failed to follow however, defendants ready, use of Kerns Therefore, defendants’ the Act. cedures of to the use is akin related to contribution issues argue their support position. case of an overturned her did not waive hold that plaintiff we Accordingly, settling against to enforce judgment right tortfeasor, therefore reverse another joint with the judgment court. We affirm the appellate and hold County of Sangamon court of the circuit dur- file a claim for contribution defendants, failing from the to contribution trial, waived ing terms of and, tortfeasors, express under other joint liable severally Act, are jointly the Contribution the amount less of the judgment, the entire amount in settlement. Sterling-Breon paid plaintiff which reversed; Appellate circuit affirmed. RYAN, dissenting: JUSTICE the construc- with wrong terribly something There to contribu- in relation the law have placed tion we the obligation the enhancement tion, permits *15 (St. Dr. Fitzgerald Hospital St. John’s $715,559.07 plaintiff John’s-Fitzgerald) be- maneuvering the unexplained $5,511,759 through I tween and the defendants. drug company plaintiff must, therefore, dissent. found that defendants St. John’s Hospital
and Dr. rata share of com- Fitzgerald’s pro plaintiff’s 7%, which, was interest to the pensatory damages with tender, $715,559.07. However, date of be- amounted cause of settlement with the plaintiff’s drug company defendants, whose rata shares of the compensatory 93%, as found totaled for substan- damages, jury, amount, less than that John’s Hos- tially defendants St. Dr. pital and have now had entered Fitzgerald $5,511,759, Also, them for interest. against because plus the trial court found the settlement to be in faith good under our in Act, as noted the majority opinion, defendants St. John’s and Dr. Fitz- Hospital gerald’s rights against the defendants who had have settled been terminated. first the
Addressing faith of the question good settlement between the and the drug companies, I cannot understand would a claim why plaintiffs settle against defendants, the drug company whose 93% pro rata share of the verdict was million, nearly $8 $3,350,000. later, As noted roughly however, an exami- nation of the structured settlement shed some may light on this. There is no indication that the drug companies were or that insolvent there was reason that the full of the verdict, 93% or verdict, indeed entire could not have been collected from the drug companies.
It that the appears settlement was entered into while the case was on the first pending is, appeal, ap from the peal original verdict. That appeal reported 3d It App. was noted in the appellate the second Ill. opinion (180 appeal" that St. 558) filed to the set John’s-Fitzgerald objections tlement. There is also noted the second appeal the trial court found that the settlement was in good *16 to
faith and that St. John’s-Fitzgerald attempted appeal of from and the good-faith finding plain the dismissal The tiff’s to the pursuant agreement. appellate action as not a final appeal court dismissed that based being stated, court the second order. appellate appeal, that in that that St. John’ s-Fitzgerald argued, appeal, settlement, shifting “the if it allows for a post-judgment faith.” Ill. (180 of is not good App. responsibilities, set in the at This is forth history Ill. 3d at 562-64.) in the second opinion appeal. (180 the settlement. Thus, John’s-Fitzgerald objected St. to court that the settlement was in good trial ruled was taken from that order. The ap faith and appeal an. final as not on a order. being was dismissed based peal against St. trial then entered .agreement on the settlement John’s-Fitzgerald based taken, in which the good-faith second was appeal the on the The case is before us allow was raised. question the appeal appel ance of the for leave petition (It late in the second should be appeal. court’s holding the finding from the of good-faith noted that appeal what are trial which was dismissed came between herein as the first and second appeals.) referred to an In an uncon- opinion, agreement permits my from the scionable, shifting liability of unexplained to the 93% responsible who have been found defendants responsible, who found to be 7% only defendants were less of the cuts off the of contribution and which responsible from the more responsible defendants, is settlement. good-faith not court have
I courts and the appellate fear trial set- of requirement too assessed the good-faith casually one or more several tlements between plaintiffs of a In faith settle- good determining defendants. such all affected parties of the ment, the interests considered, interests just should be a settlement or to the Settle- preferences parties agreement. an ment should not used as instrument agreements be defendant, a nonsettling on” conspiracy “gang up one a substantial thereby shifting part not a to the This is true party agreement. particularly case, where, as this has a determination there been nonsettling defendant much less than culpable the settling defendant and the result settlement shifts the share of major less damages respon- sible In such defendant. a situation as we have in this *17 case, there should be a showing of a valid reason for such a disparate settlement which about such an brings result. inequitable
I that 4 section of the Act acknowledge (Ill. each par. 304) makes defendant, of regardless the as to its rata finding pro share of responsibility, severally liable for the entire ver dict. That is all the more that reason courts care should fully the of protect contribution of the one iswho forced to pay more than its share of the The damages. of purpose contribution is place to the on responsibility the defendant who has the caused so each that damages, tortfeasor pays its rata share based its culpabil ity. The reason for adopting contribution is to permit those who are to compelled more than their pay share recover from those who have not The paid share. net result of the of majority’s construction the Contribu tion Act and of this prior decisions court defeats the very purpose which the of contribution this adoption in State sought accomplish. reason for con adopting tribution can be defeated easily by the loose and casual of settlement handling our agreements courts. of majority’s handling just contribution has resulted in as a situation that inequitable as which existed before adoption principle contribution among tortfeasors. v. Laue relies majority upon Leifheit holding John’s-Fitzgerald
Ill. 2d in St. waived not a counterclaim for any right filing contribution in action. I do not with original agree contribution do this agree conclusion. I also not with majority’s Laue and filed in holding dissenting opinion Laue as the law of I However, accept case. must overruled, it this but the facts of case this State until those in Laue and would I extend differ from of this case. Laue involved in Laue to the facts holding Leifheit and her passen an accident which automobile and her sued were Leifheit injured. passengers gers favor the plain returned verdicts in jury Laue and Leifheit, that she was tiffs, as to found jury but comparative negligence purposes. 33V3% negligent suit Leifheit for brought separate against Laue then he paid had damages in Leifheit’s vehicle. the other passengers Here, parties are all In our case the facts different. are are damages sought parties-defend- whom against case, determination as and the made the ants this each defendant should damages pay to the percentage in Laue. contribution. That was not case by way *18 to the defendant as There, Leifheit had been her had damages the in car. No passengers claims of her had been no deter- and there against assessed been of her she was mination as to the claims passengers sought to be liti- responsible. question in any way for in Laue was whether Leifheit was responsible gated and, so, if what was the injuries of her any passengers’ pur- of her contribution responsibility percentage in determined our have been already Those facts poses. isdo John’s-Fitzgerald trying All that St. case. amount of defendants the the drug company collect from the jury for which over and above 7% the judgment found St. John’ I s-Fitzgerald responsible. would not ex- holding Laue to these facts. tend the in
Also, the fact that St. John’s-Fitzgerald did not file a timely counterclaim for against contribution drug defendants is of no company significance. The drug defendants had company filed a counterclaim St. against It John’s-Fitzgerald. was therefore for the necessary pro rata to determine the jury of all of the culpability in defendants the same manner as if St. John’s-Fitz- gerald had filed a counterclaim for contribution against the drug company defendants. relative culpability all defendants was litigated determined in the same manner as it would have been had the trial St. permitted John’s-Fitzgerald to file a counter- claim for contribution when it was tendered at the close of the evidence. Thus, there is no reason to apply holding Laue to the facts of this case. attempted fashion the remedy
of “waiver” to give St. John’s-Fitzgerald relief from the inequities that have arisen Laue application and the finding good faith as to the settlement agree- ment. I fear that a finding plaintiff has waived her claim against St. John’s-Fitzgerald amount in ex- cess of 7% of the compensatory damages result may the plaintiff’s, or at least some plaintiff in a future case to which the waiver doctrine is applied, recovering less than the verdict. I would prefer hold, as indicated above, that the settlement was not faith good that the of Laue holding does not prevent filing contribution action, and remand this case to the trial court to entertain the claim of St. John’s- Fitzgerald, which to file at attempted close of the evidence.
I stated above that the structured settlement may light shed some on the reason for plaintiff’s willingness to settle with drug defendants for what company ap-
pears to be less than those defendants’ substantially share brief, compensatory damages. plaintiff’s court, this hints that defendants used drug company the established law as as a means leverage” “negotiating St. getting revenge^against because John’s-Fitzgerald of certain the defendants that devel- animosity among insists, brief, the trial. oped during Plaintiff in her settlement,” she not work “did this but that a codefend- ant “who took of their in tort” was advantage partner for the settlement. Plaintiff insists she was responsible a stakeholder with no merely interest who paid. The structured settlement sheet con- computation tained in the brief reflects guaranteed payout $7,908,084, close drug amount of the com- very pany defendants’ 93% share dam- compensatory life ages. over payout plaintiff’s expectancy $44,361,056. shown to be The cost is shown to mil- be $3 settlement, lion. use of the structured is as- By plaintiff sured of from the receiving drug company rata share of the compensatory those defendants’ damages. The life will far exceed both expectancy payout awarded compensatory punitive damages by Since the settlement cost million virtue jury. only $3 law, of the several of our contribution liability aspect can collect million more from the other over $5 re- defendants, effect, thereby, enhancing plaintiff’s million covery jury. about above awarded $5 settlement, In I can- view of the effect of the structured of innocence or the accept plaintiff’s protestations assertion that the settlement was all the drug company defendants’ idea. herein,
For I from the reasons stated dissent holding majority.