TERRY E. READY, Special Adm‘r of the Estate of Michael P. Ready, Deceased, Appellant, v. UNITED/GOEDECKE SERVICES, INC., et al. (United/Goedecke Services, Inc., Appellee).
No. 103474
Supreme Court of Illinois
November 25, 2008
Modified on denial of rehearing March 23, 2009
232 Ill. 2d 369
Appellate court judgment reversed;
circuit court judgment affirmed.
TERRY E. READY, Special Adm‘r of the Estate of Michael P. Ready, Deceased, Appellant, v. UNITED/ GOEDECKE SERVICES, INC., et al. (United/ Goedecke Services, Inc., Appellee).
Opinion filed November 25, 2008.—Modified on denial of rehearing March 23, 2009.
John W. Patton, Jr., of Patton & Ryan, and Edward M. Kay, Barbara I. Michaelides, Paul V. Esposito and Tor
Bruce R. Pfaff, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
David H. Levitt, of Hinshaw & Culbertson LLP, of Chicago, for amicus curiae Illinois Association of Defense Trial Counsel.
Glen E. Amundsen and Michael Resis, of SmithAmundsen LLC, of Chicago, for amici curiae Illinois Chambers of Commerce et al.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald and Justice Burke concurred in the judgment and opinion.
Justice Kilbride specially concurred, with opinion.
Justice Garman dissented, with opinion, joined by Justice Karmeier.
Justice Thomas took no part in the decision.
OPINION
In 2003, following a jury trial, the circuit court of Cook County entered judgment in favor of plaintiff Terry Ready in a wrongful-death action stemming from the death of her husband, Michael, in a workplace accident. The appellate court affirmed in part and reversed in part and remanded for a new trial, directing that fault for the accident be reapportioned. 367 Ill. App. 3d 272. We allowed plaintiff‘s petition for leave to appeal.
BACKGROUND
In December 1999, a pipe-refitting project was under
On December 23, 1999, a United employee was supervising the lifting of wooden trusses. Another United employee was rigging the trusses for lifting, using a single sling. Ready was standing beneath the rigging so that he could give hand signals to the operator of the tugger that was being used to lift the trusses. The tugger was owned by Midwest and was being operated by a Midwest employee. Eight trusses were lifted without incident. As the ninth truss was being lifted, it slipped out of the sling, falling eight floors to the ground level where it struck and killed Ready.
Ready was survived by his wife, Terry, and two children. The wrongful-death suit brought by Terry, as administrator of Ready‘s estate, named two defendants: United and BMW. Both defendants filed third-party complaints against Midwest pursuant to the
The case proceeded to trial with United as the sole defendant. The jury found United liable for negligence and awarded damages of $14.23 million. Based on
On appeal, United argued that the trial court erred by failing to include the settling defendants on the verdict form so that the jury could determine their share of fault, if any, for the fatal accident. If the jury had been asked to consider their relative fault, United argued, its share of fault might have been set at less than 25% and, under
The appellate court affirmed in part and reversed in part and remanded the cause for a new trial as to liability only. 367 Ill. App. 3d 272. The appellate court concluded that, under
We permitted the Illinois Trial Lawyers Association, the Illinois Association of Defense Trial Counsel, and the Illinois Chamber of Commerce to file amicus curiae briefs.
ANALYSIS
The central issue in this appeal is whether settled tortfeasors are “defendants sued by the plaintiff” within the meaning of
United argues, in addition, that the appellate court erred in affirming the amount of the damages award.
“Joint Liability. 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% 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% 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.”
Ill. Rev. Stat. 1987, ch. 110, par. 2-1117 .
In construing the meaning of a statute, our primary objective is to ascertain and give effect to the intent of the legislature. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). The best evidence of the legislature‘s intent is the language of the statute, which must be given its plain and ordinary meaning. Hadley v. Illinois Department of Corrections, 224 Ill. 2d 365, 371 (2007); Paris v. Feder, 179 Ill. 2d 173, 177 (1997). However, if the language of a statute is ambiguous, courts may look to tools of interpretation to ascertain the meaning of a provision. Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 511 (2007); DeLuna, 223 Ill. 2d at 59. The construction of a statute is a question of law, which we review de novo. Wade, 226 Ill. 2d at 510-11; DeLuna, 223 Ill. 2d at 59.
The first sentence of
The relevant phrase, for purposes of our analysis, is “defendants sued by the plaintiff.” The question is whether settling defendants such as BMW and Midwest are “defendants sued by the plaintiff” within the meaning of
Plaintiff takes the opposite view, arguing that the plain meaning of
Initially, we reject the parties’ simultaneous claims that Lannom supports their opposite viewpoints. Even
More important, we disagree with both plaintiff and United that
The phrase “defendants sued by the plaintiff” is not defined in the statute. The standard dictionary definition of “sue” includes “to seek justice or right from (a person) by legal process: bring an action against: prosecute judicially,” as well as “to proceed with (a legal action) and follow up to proper termination : gain by legal process.” Webster‘s Third New International Dictionary 2284 (2002). The first of these definitions appears to correspond with United‘s view that any defendant who was sued by the plaintiff is included within the scope of
Nor is this matter clarified by an examination of the
We disagree with the dissent that the phrase “defendants sued by the plaintiff” unambiguously includes settling defendants such as BMW and Midwest. We note that, in establishing this alleged “plain meaning,” the dissent, in addition to citing multiple dictionary definitions, engages in a rather complex discussion of grammatical principles, particularly those relating to participial verb forms. 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.
Our determination that
Though the difference in appellate court interpretations of
Where a statute is ambiguous, “courts may look to tools of interpretation to ascertain the meaning of a
Also applicable in this case is the rule that an amendment to a statute creates a presumption that the amendment was intended to change the law. People v. Hicks, 119 Ill. 2d 29, 34 (1987). Plaintiff cites this principle in arguing that the amendments included in
“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.’ [Citation.] Absent substantial considerations to the contrary, ‘an amendatory change in the language of a statute creates a presumption that it was intended to change the law as it theretofore existed.‘” Hicks, 119 Ill. 2d at 34.
In Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), this court held
United responds that the 1995 amendments are irrelevant to the interpretation of
In contending that the 1995 amendments are relevant to the analysis, plaintiff does not argue that they are legally effective. Instead, plaintiff simply cites the amendments as record evidence that is indicative of the original intent of the 1986 statute. We agree with plaintiff that the 1995 amendments are a compelling indication that settling defendants were not meant to be included in the apportionment of fault under the 1986 statute.
Based on the well-established principles set forth above regarding (1) the legislature‘s failure to amend a statute following a judicial construction and (2) the amendment of a statute to add a new provision, we conclude that
Although not necessary, additional support for this conclusion is found in statements made by Illinois Senator John Cullerton during floor debate on
On March 20, 2007, during the discussion of
Notwithstanding the foregoing, United argues various policy reasons in support of its interpretation of
In sum, we disagree with the appellate court‘s holding that, under
We next consider United‘s claim that the appellate court erred in affirming the amount of the damages
The remaining issue before us is whether the appellate court erred in concluding that United forfeited the right to challenge the damages amount. The appellate court held that United forfeited this issue by mentioning the damage award only in the “Concluding Remarks” section of its brief, without presenting it as a separate issue for review. Specifically, the appellate court noted, United failed to set forth in its brief “specific reasons or argument as to why the damage award was excessive or unreasonable” and failed to “specifically argue that the damage award was improper.” 367 Ill. App. 3d at 280. The appellate court pointed to
Before this court, United argues that the appellate court erred by applying the doctrine of procedural default. A review of the appellate court‘s application of the doctrine would necessarily require that we examine the briefs filed in the appellate court. However, United has failed to utilize
We affirm the judgment of the appellate court upholding the amount of the damages award.
In its petition for rehearing, United argues that this court, in light of its resolution of the
CONCLUSION
We affirm the appellate court‘s upholding of the damages award, but reverse the remainder of the judgment of the appellate court. We hold that
Appellate court judgment affirmed in part and reversed in part; cause remanded with directions.
JUSTICE THOMAS took no part in the consideration or decision of this case.
While I agree with the plurality‘s determination that the meaning of the phrase “defendants sued by the plaintiff” is unclear, I disagree with its conclusion that an examination of the statute as a whole fails to clarify that meaning. Therefore, I respectfully concur in the plurality opinion.
As this court recently noted in People v. Perry, 224 Ill. 2d 312, 323 (2007):
“The principles guiding our analysis are well established. Our primary objective is to ascertain and give effect to legislative intent, the surest and most reliable indicator of which is the statutory language itself, given its plain and ordinary meaning.”
See also Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). Nonetheless, “‘[w]e do not view words and phrases in isolation but consider them in light of other relevant provisions of the statute.‘” People v. Beachem, 229 Ill. 2d 237, 243 (2008), quoting People v. Campa, 217 Ill. 2d 243, 252-53 (2005). See also Town & Country Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 117 (2007). Here, an examination of the statute as a whole aids in the construction of the critical statutory phrase.
The first sentence of
“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.” (Emphasis added.)
Ill. Rev. Stat. 1987, ch. 110, par. 2-1117 .
In this sentence, the legislature limits the statute‘s scope to specific categories of tort actions. Only those “defendants found liable” “in” the specified actions are implicated. (Emphasis added.)
The reach of the second and third sentences of
A comparison of words used in all three sentences in
“Any defendant whose fault, as determined by the trier of fact, is less than 25% 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% 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.”
Ill. Rev. Stat. 1987, ch. 110, par. 2-1117 .
A comparison with the first sentence reveals that the legislature repeats the word “defendants” throughout the provision. Nothing in the statute indicates that the legislature intended the word “defendants” to have a different meaning in the second and third sentences than it has in the first sentence. Accordingly, the language chosen by the legislature in all three sentences appears to include in the allocation of fault for liability purposes
This interpretation also comports with the ordinary meaning of the word “defendant.” In Webster‘s Third New International Dictionary, a “defendant” is defined as “a person required to make answer in an action or suit in law or equity or in a criminal action.” (Emphasis added.) Webster‘s Third New International Dictionary 591 (1981).3 Under this definition, a “defendant” must answer and defend against claims made in a legal action and must, therefore, be a party in the lawsuit. Thus, under this definition, the need for opposition “in an action or suit in law or equity” establishes the adversarial nature of the relationship required between the plaintiff and any defendant in the action who is included in the apportionment of fault. This same adversarial relationship is expressly required by the first sentence of
Additionally, construction of
Notably, the legislature chose to limit the allocation
This conclusion is consistent with our statements in Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64 (2002), even though that case is not directly on point. In Unzicker, this court determined that the language of section 2—1117 demonstrated the legislature‘s intent to determine tort liability by dividing responsibility among “those people in the suit *** who might have been responsible for the plaintiff‘s injuries.” (Emphasis added.) Unzicker, 203 Ill. 2d at 78-79, 80.
Although Unzicker was superseded by statute, the 2003 amendments did not affect the statutory language at issue in this case, and Unzicker is still applicable to the 1986 version of section 2—1117. The statutory analysis in Unzicker is instructive here. In Unzicker, we noted that in enacting the 1986 version of section
As this court recognized in Unzicker, in apportioning responsibility under section 2—1117, “the legislature looked to those people in the suit.” (Emphasis added.) Unzicker, 203 Ill. 2d at 78. Unzicker explained that “the party must already have been brought into the case by a defendant for that party to be included in the division of fault.” Unzicker, 203 Ill. 2d at 78. Our decision in Unzicker, therefore, is consistent with the plurality‘s current, de novo, interpretation of section 2—1117, holding that the legislature intended to divide responsibility only among those parties in the suit, not among those that have been dismissed. For the reasons stated, I specially concur in the plurality‘s decision.
JUSTICE GARMAN, dissenting:
The plurality concludes that the phrase “defendants sued by the plaintiff” in section 2—1117 of the Code of Civil Procedure (
PLAIN MEANING
The plurality begins its analysis by noting that the phrase “is not defined in the statute.” 232 Ill. 2d at 377. The lack of a statutory definition could be seen as an indication of the legislature‘s belief that the words it chose were so clear that they did not require further definition or that a standard legal dictionary would reveal
As the plurality notes, a statutory term is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more different senses. 232 Ill. 2d at 377, citing Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 511 (2007). Although there is no reason to suppose that the legislature intended the word “sued” to carry any meaning other than the plain and simple definition found in the standard legal dictionary, the plurality finds ambiguity in two alternate usages given in a general usage dictionary. 232 Ill. 2d at 377.
While it is not inappropriate to utilize a general usage dictionary to determine the meaning of a statutory term, even if that term may also be found in a legal dictionary (see, e.g., People v. Beachem, 229 Ill. 2d 237, 245-46 (2008) (finding use of the undefined statutory term “custody” to be ambiguous because the broad definition found in the legal dictionary was not clarified by the equally broad definition found in a general usage dictionary)), the plurality overlooks the requirement that a term will be found to be ambiguous only if the two asserted meanings are themselves reasonable. In re J.W., 204 Ill. 2d 50, 85 (2003).
As United points out, the legislature‘s choice of the word “sued,” as opposed to some other form of the verb, renders only one of the two usages reasonable. The plurality dismisses the verb‘s tense without discussion (232 Ill. 2d at 377).
It is well established that the tense of a verb used in a statute is an element of plain meaning. In re Gwynne P., 215 Ill. 2d 340, 357-58 (2005) (concluding that the verb phrase in the statute is in the present perfect tense). See also Ingalls Shipbuilding, Inc. v. Director, Office of Workers’ Compensation Programs, Department of Labor, 519 U.S. 248, 255, 136 L. Ed. 2d 736, 746, 117 S. Ct. 796, 801 (1997) (“the use of the present tense” of the verb “enter” in the statutory phrase “‘If the person entitled to compensation enters into a settlement‘” agreement in
The dictionary entry for the word “sue” is immediately followed by the words “sued; sued; suing; sues.” Webster‘s Third New International Dictionary 2284 (2002). According to the dictionary‘s explanatory notes, the principal parts of each verb are listed in the following order: “the past, the past participle, the present participle, and the present 3d singular.” The example is given of the entry for the verb “tie,” which contains the principal parts “tied tied tying ties.” Webster‘s Third New International Dictionary 15a (2002). Thus, in Ingalls Shipbuilding, the Supreme Court found plain meaning based on the drafters’ use of the word “enters,” the present third person singular form of the verb “enter.” Ingalls Shipbuilding, 519 U.S. at 255.
“Sue,” like “tie,” is a regular verb, that is, one whose past tense and past participle forms are created by the addition of “d” or “ed.” Webster‘s Third New International Dictionary 15a (2002). “Sued” is both the past tense and the past participle of the verb “sue,” just as “tied” is both the past tense and the past participle of “tie.”
Participles, like the verbs from which they are derived, have not only tense, but voice. “The voice of a verb shows whether the subject of the verb has performed the action (active voice), or has received the action (passive voice).” M. Shertzer, The Elements of Grammar 26 (1986). The active voice participles of the verb “sue” are “suing” in the present tense and “having sued” in the past tense. Thus in the active voice, present tense: “The plaintiffs suing the corporation are former employees.” And in the active voice, past tense: “The plaintiffs, having sued their employer, abandoned their workers’ compensation claims.”
The passive voice participles are “being sued” in the present tense, “sued” in the past tense, and “having been sued” in the present perfect tense. In the passive voice, present tense: “The defendants being sued are the hospital, the physician, and the nurse.” In the passive voice, present perfect tense: “The defendants, having been sued, tendered the matter to their insurance carrier.”
The phrase used in section 2—1117—“defendants sued by the plaintiff“—is in the passive voice, past tense. Because it is in the past tense, it clearly refers to all defendants against whom the plaintiff filed suit. If the legislature had intended this provision to apply to only those defendants remaining in the lawsuit at the time of trial, it would have used the present tense of the participle.
Indeed, the phrase “defendants sued by the plaintiff” employs a common and popularly understood construction consisting of a plural noun, a past participle, the preposition “by,” and a singular noun, as in “films directed by George Lucas,” a phrase that clearly includes not only the film he is currently working on, but all of his previous movies. The phrase “players coached by Lovie Smith” includes not only the current roster of Chicago Bears players, but those he coached before coming to Chicago. Yet, the plurality willfully ignores the basic rules of grammar and popularly understood meaning to conclude that “defendants sued by the plaintiff” means only those defendants who remain in the case at the time the verdict is rendered. However, even if all three defendants in the present case had settled and it had never gone to trial, all three would still be “defendants sued by the plaintiff.”
In sum, the plain meaning of the statutory language, which is—after all—the best indicator of legislative intent (Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000)), is consistent with the simple definition found in Black‘s Law Dictionary and the first of the two usages described in Webster‘s. United,
The second usage found in Webster‘s, “to proceed with (a legal action) and follow up to proper termination” (Webster‘s Third New International Dictionary 2284 (2002)), is not a reasonable reading of the phrase in the context of section 2—1117. In this sense, not even United was a “defendant sued by the plaintiff” until after the trial court entered judgment on the jury‘s verdict. It would be absurd to read the term “sued” to refer only to those defendants against whom judgment has been entered when the statute as a whole is designed to operate during trial. See Michigan Avenue National Bank, 191 Ill. 2d at 503-04 (all provisions of a statute are to be viewed as a whole; words and phrases are not to be viewed in isolation, but must be interpreted in light of other relevant provisions of the statute).
Because the phrase “defendants sued by the plaintiff” in the context of section 2—1117 is reasonably capable of only one meaning, it is unambiguous and our responsibility is to give effect to the intent of the legislature.
CONSTRUCTION OF THE STATUTE
Having found section 2—1117 ambiguous, the plurality employs two canons of statutory construction to determine its meaning. First, the plurality applies the canon that where the legislature amends the statute after it has been judicially construed, it may be presumed that the legislature acquiesces in the court‘s construction. 232 Ill. 2d at 380. Second, the plurality applies the canon that an amendment to a statute may be presumed to be intended to change the law. 232 Ill. 2d at 380.
Although I believe that no construction is necessary
The plurality applies these two canons in reverse chronological order. I believe that it is simpler to apply them in historical sequence. Thus, I begin at the beginning.
The operative language “defendants sued by the plaintiff” was enacted in 1986. Pub. Act 84—1431, art. 5, § 1, eff. November 26, 1986. In 1994, this court discussed section 2—1117 of the Code in its decision in Lannom v. Kosco, 158 Ill. 2d 535 (1994). I agree with the plurality that Lannom did not interpret the statutory language at issue (232 Ill. 2d at 377) and, therefore, does not provide any guidance in this case. In 1995, the appellate court decided Blake v. Hy Ho Restaurant, Inc., 273 Ill. App. 3d 372 (1995) (settling defendants are not to be included in the apportionment of fault under section 2—1117).
The next significant event in the history of section 2—1117 was its amendment as part of Public Act 89—7, commonly referred to as the Tort Reform Act of 1995. Under this amendment, fault was to be apportioned among the defendant being held liable at trial and “all other tortfeasors, as defined in Section 2—1116, whose fault was a proximate cause” of the injury or death. Section 2—1116 defined “tortfeasor” as “any person, excluding the injured person, whose fault is a proximate cause of the death, bodily injury to person, or physical damage to property for which recovery is sought, regardless of whether that person is the plaintiff‘s employer, regardless of whether that person is joined as party to the action, and regardless of whether that person may have settled with the plaintiff.” Pub. Act 89—7, eff. March 9, 1995 (subsequently held unconstitutional in its entirety in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997)).
The plurality, however, relies on an incomplete statement of the canon of construction dealing with subsequent amendments. As recently as 2004, this court has stated that an ” ‘amendment of an unambiguous statute indicates a purpose to change the law, while no such purpose is indicated by the mere fact of an amendment of an ambiguous provision.‘” Williams v. Staples, 208 Ill. 2d 480, 496 (2004), quoting O‘Connor v. A&P Enterprises, 81 Ill. 2d 260, 271 (1980). This canon reflects the commonsense notion that if a statute is ambiguous, a subsequent amendment will clarify the statute rather than change the law by replacing the intent of the enacting legislature with the intent of the amending legislature.
This places the plurality in a “Catch-22.” If, as the plurality asserts, the phrase “defendants sued by the plaintiff” is ambiguous, the 1995 amendment cannot be used to reveal a presumed intent to change the law. Their reliance on this canon is, therefore, entirely misplaced. In my opinion, the phrase is unambiguous and, therefore, it is inappropriate to utilize this or any other canon of construction.
This court again considered the meaning and application of section 2—1117 in Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64 (2002), a case not mentioned in the plurality opinion. The plaintiff worked
At the time the injury occurred, section 2—1117 provided that for purposes of determining whether defendant would be held jointly and severally liable, his fault was to be compared to the fault of “the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff.”
This court did not specifically state in Unzicker whether it found the phrase to be ambiguous. It did, however, agree with the appellate court‘s interpretation, including the conclusion that the “clear legislative intent in section 2—1117 was that minimally responsible defendants should not be responsible for entire judgments.” Unzicker, 203 Ill. 2d at 77, citing Unzicker v. Kraft Food Ingredients Corp., 325 Ill. App. 3d 587, 593 (2001). In addition, this court noted that reading the phrase “third party defendants who could have been sued by the plaintiff” to include employers who were immune from further liability under the Workers’ Compensation Act was consistent with the existing body of law holding that immunity under the Workers’ Compensation Act is “in the nature of an affirmative defense that must be raised in the trial court if the plaintiff brings a suit.” Unzicker, 203 Ill. 2d at 77. This court further noted that if “the legislature intended to use language that would
The plurality does not mention Unzicker, yet it is relevant to the 2003 amendment to section 2—1117 that added the phrase “except the plaintiff‘s employer.” See Pub. Act 93—12, § 5, eff. June 4, 2003. In assessing the significance of this amendment, the plurality ignores the legislature‘s clear intent to supersede this court‘s decision in Unzicker in favor of employing the canon of construction that when the legislature chooses not to amend a statute after a judicial construction, it is presumed to acquiesce in the court‘s statement of the legislative intent. 232 Ill. 2d at 380 (citing Wakulich v. Mraz, 203 Ill. 2d 223, 233 (2003), and Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 457-59 (1997)).
The plurality overstates the power of the canon. Because the canon is a tool of construction and not a rule of law, the court may rely upon the canon to presume legislative intent to acquiesce if circumstances warrant, but it goes too far to say that such intent “is presumed” (see Perry, 224 Ill. 2d at 331). The basis for applying the presumption is very weak where, as here, the legislature was clearly acting for a specific purpose, that is, to supersede this court‘s holding in Unzicker, which involved a different portion of the statute than is at issue in the present case.
The plurality nevertheless finds that the legislature implicitly acquiesced in the appellate court‘s holding in Blake because it failed to address Blake‘s holding at that time. 232 Ill. 2d at 380. I have several concerns about the manner in which the plurality applies this canon of construction.
First, while it is true that we have utilized this canon in the past, we have done so in the context of deeming the legislature to be aware of and, thus, acquiescing in
In the present case, however, the plurality is applying the canon to presume that when the legislature acted for the specific purpose of rejecting this court‘s holding in Unzicker, it is to be presumed that it was aware of and acquiesced in the appellate court‘s holding eight years previously in Blake, a case that was not even cited in our Unzicker decision because it construed an entirely different phrase in the same statute. The plurality provides no legislative history of the enactment of the 2003 amendment to support the suggestion that the legislature was actually aware of Blake. It is certain, however, that it was actually aware of Unzicker. The canon, which is not a rule of law, but merely a tool that may be employed when it is likely to reveal legislative intent, is less than helpful in this situation.
In my opinion, the canon is much stronger when applied to previous decisions of this court than when ap-
We then went on to address the defendant‘s various arguments, including the argument that the 1987 amendment to the provision evinced legislative acquiescence to the appellate court‘s decision in Passmore v. Walther Memorial Hospital, 152 Ill. App. 3d 554 (1987). Before doing so, however, we noted that “where the language of a statute plainly reveals its intent, there is no need for this court to look further” and that in applying the plain language of a statute, it is not this court‘s function to search for any subtle or not readily apparent intention of the legislature. Bruso, 178 Ill. 2d at 455. In the end, we rejected the defendant‘s argument that the canon of construction favored its position, stating that when it enacted the 1987 amendment, the “legislature chose not to alter” the provision at issue and that there was “simply no indication that the 1987 amendment was intended to have any effect” on the meaning of the provision at issue. (Emphasis in original.) Bruso, 178 Ill. 2d at 458.
Thus, our discussion of the canon in Bruso was dictum, because it was not necessary to the resolution of the case once we determined that the meaning of the provision was plain. We did not “apply[] this principle to prior judicial construction by [the] appellate court.” 232 Ill. 2d at 380, citing Bruso, 178 Ill. App. 3d at 457-59. Bruso, therefore, provides no authority for employing the
Second, the plurality overlooks the importance of the decision of the appellate court in Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111 (2000), which was decided five years after Blake and three years prior to the 2003 amendment. The plaintiff maintenance worker at a bank was injured when the lift he was riding from the basement level to the sidewalk level of the building suddenly fell. He sued the beneficiary of the trust that held title to the building (WS Partners), the company hired by the Village of Oak Park to conduct regular inspections of lifts in the village (EIS), the individual inspector (Jacobitz), and the company hired by the building owner to maintain the lift (Reliance). Reliance filed a third-party claim for contribution against the plaintiff‘s employer, who was the tenant of the building at the time of the accident. Jacobitz, EIS, and the employer reached settlements with the plaintiff. Lombardo, 315 Ill. App. 3d at 114. The case proceeded to trial against the two non-settling plaintiffs, WS and Reliance. The jury assessed total damages of $940,000 and attributed fault as follows: 50% to WS, 25% to the employer, 5% to EIS, 20% to the plaintiff, and none to Reliance. Following reductions for the amounts of the settlements, the trial court entered judgment against WS for $604,178.87. Lombardo, 315 Ill. App. 3d at 118. Both WS and the plaintiff appealed. The appellate court reversed the judgment and remanded for a new trial based on WS‘s argument that the jury was exposed to a highly prejudicial document not admitted into evidence. Lombardo, 315 Ill. App. 3d at 122. Because the issue would arise again on remand, the appellate court addressed the plaintiff‘s argument, citing
The appellate court reached a conclusion somewhat different than Blake. The Lombardo court concluded that the settling defendants were properly listed on the verdict form because the “inclusion of nonparties and settling defendants on the verdict form helps protect the plaintiff‘s right to an appropriate attribution of his own fault, as well as protecting the defendants’ interests in their right to contribution.” Lombardo, 315 Ill. App. 3d at 125. Further, “[e]ven though the court should include the [employer] and other settling defendants on the verdict form, it should consider the fault of only those parties specified in section 2—1117 for purposes of determining joint liability.” Lombardo, 315 Ill. App. 3d at 125.
So, if the 2003 amendment evinces the legislature‘s intent to acquiesce in the prior judicial construction of the statute, on what basis does the plurality presume acquiescence with the 1995 decision in Blake rather than the 2000 decision in Lombardo?
Third, the plurality cites the appellate court‘s decision in Yoder v. Ferguson, 381 Ill. App. 3d 353 (2008), as support for employing this canon. According to the plurality, the Yoder court “accept[ed] [the] argument, based on Bruso, that [the] legislature‘s failure to alter [the] relevant language of section 2—1117 in 2003 created the presumption that [the] legislature agreed with [the] 1995 interpretation of statute in Blake.” 232 Ill. 2d at 380, citing Yoder, 381 Ill. App. 3d at 377-78. Reliance on Yoder is mere bootstrapping. Yoder invoked the acquiescence canon, citing Bruso, as authority for following Blake. Yet this court did not apply the canon in Bruso and, as noted above, Bruso provides no authority for applying the canon in these circumstances, where the
Fourth, the application of this canon of construction reveals the importance of making a careful determination of the threshold question of ambiguity. If the statutory language is truly ambiguous, then the acquiescence canon has a certain logic, especially if the judicial interpretation that is deemed to have been acquiesced to is a decision of the highest court in the jurisdiction. If, however, the statutory language is not ambiguous, the application of this and other canons of construction may obscure, rather than reveal, the intent of the enacting legislature. See K. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950) (opining that for every canon that supports a particular reading of a statute, there is a counter-canon that would support the opposite reading). In my opinion, we are most vulnerable to a legitimate accusation of “legislating from the bench” when we find ambiguity where there is none.
Yet even if I were to agree with the plurality that the phrase is ambiguous, I would have to take exception to reliance on the statements of Senator Cullerton as “additional support” for its conclusion. 232 Ill. 2d at 382. The senator‘s “informative” comments do not correspond to any recognized tool of statutory interpretation.
While we do employ legislative history as a tool of statutory construction when necessary, we must look to the committee reports, floor debates, and other legislative materials surrounding the original enactment for guidance as to the intent of the enacting legislature. A
In addition, the senator‘s comments are not a matter of which this court may take judicial notice. Illinois Department of Healthcare & Family Services v. Warner, 227 Ill. 2d 223, 240 (2008), quoting People v. Davis, 65 Ill. 2d 157, 161 (1976), quoting E. Cleary, McCormick on Evidence § 330, at 763 (2d ed. 1972) (“[M]atters susceptible of judicial notice include facts ‘capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy’ “).
Finally, the plurality mentions Senate Bill 1296, which was sponsored by Senator Cullerton and would have codified the result reached by the Blake court, but fails to mention House Bill 1894, which was filed two weeks later and would have entirely abrogated the doctrine of joint and several liability. Both of these bills remain pending in the House Rules Committee. I have no opinion on the merits of these two proposed pieces of legislation or on the likelihood that either will become law. I am convinced, however, that current legislative proceedings have no relevance to our interpretation of existing statutory law.
CONCLUSION
Allocating fault among the plaintiff and all defendants sued by the plaintiff is not only required by the plain language of section 2—1117, it is entirely consistent with the legislative goal of protecting minimally responsible tortfeasors from excessive liability. Unzicker, 203 Ill. 2d at 78. The result reached by the plurality is inimical to these goals for at least three reasons.
Second, the plurality‘s reading invites future plaintiffs to reject reasonable settlement offers from minimally responsible defendants with “deep pockets” in an effort to keep such defendants in the case until judgment. Under the plurality‘s reading of section 2—1117, such a minimally responsible defendant will not be allowed to present evidence of other defendants’ shares of fault or to have the jury apportion fault among all of the parties “who might have been responsible for the plaintiff‘s injuries.” Unzicker, 203 Ill. 2d at 79. A defendant who is a mere 1% at fault for an injury will be liable for the entire amount of the judgment, less the amount of the settlements with more culpable defendants. Although such a result would fully compensate the injured plaintiff,
Third, under the plurality‘s holding, a defendant‘s share of liability will be determined only if that defendant has not reached a good-faith settlement with the plaintiff at the time judgment is entered. 232 Ill. 2d at 385. Such a rule is unworkable in practice because it is not uncommon for one of several defendants to reach a settlement with the plaintiff during trial, or even while the jury is deliberating. Under the plurality‘s rule, if there are three defendants in the case when the trial commences, but one settles during trial, after evidence of that defendant‘s fault has been introduced, must the trial start over? What if another defendant settles during jury deliberations, after the jury has been instructed on the allocation of fault? Must a mistrial be declared?
In sum, the plain language employed in section 2—1117 reflects the balance struck by the legislature between the potentially competing goals of full compensation to injured plaintiffs and fair imposition of liability upon defendants. In negligence and product liability actions involving personal injury or death or physical damage to property, a defendant will be jointly and severally liable only if his fault is determined to be 25% or more of the total fault. When attributing total fault, the trier of fact is to consider the fault of “the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff.”
I would hold that the phrase “defendants sued by the plaintiff” in section 2—1117 unambiguously refers to all three defendants sued by plaintiff and I would, therefore, affirm the judgment of the appellate court.
JUSTICE KARMEIER joins in this dissent.