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Lowe v. Norfolk & Western Ry. Co.

OPINION FILED APRIL 19, 1984.

RICHARD G. LOWE ET AL., PLAINTIFFS-APPELLEES,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, DEFENDANT-APPELLANT (GENERAL AMERICAN TRANSPORTATION CORPORATION ET AL., DEFENDANTS-APPELLEES; MONSANTO COMPANY, DEFENDANT-APPELLEE AND THIRD-PARTY PLAINTIFF,

v.

WILLAMETTE-WESTERN CORPORATION, THIRD-PARTY DEFENDANT).



Appeal from the Circuit Court of Madison County; the Hon. Charles Chapman, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal from a judgment order of the circuit court of Madison County arises out of an event which occurred on the night of January 10, 1979, at Sturgeon, Missouri. At about 11:15 p.m. on that occasion a tank car being transported by the defendant, Norfolk and Western Railway Company (N&W), left the rails and was punctured by its own running gear. It contained a cargo of a chemical substance, liquid in form, manufactured by the defendant, Monsanto Company (Monsanto). This cargo was described in general terms as orthochlorophenol crude. It leaked from the tank car at the site of the derailment and continued to do so after the tanker was removed to the Moberly, Missouri, yards of the N&W where it was cleaned and repaired.

The plaintiffs in the instant suit, 47 in number, were employees of the N&W who worked at or about the spill site or on the tanker in the yards at Moberly. They alleged various physical ailments arising from exposure to the chemical cargo. Each of the cases involved charges of negligence under the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (1976)) and the Safety Appliance Act (45 U.S.C. § 1 et seq. (1976)) against N&W. Plaintiffs also sued General American Transportation Company, the manufacturer of the tanker, under a products liability theory; Dresser Industries, Inc., the manufacturer of a portion of the running gear of the tanker, under a products liability theory; and Monsanto Company, the manufacturer of the chemical, for negligence, wilful and wanton misconduct, and under a products liability theory. As the suits progressed, the defendants all filed counterclaims, cross-claims, and third-party claims against each other, seeking indemnity and contribution.

The trial court consolidated all 47 suits for trial. Prior to trial (events which will be more fully discussed hereinafter), the defendants General American Transportation Company (GATX), Dresser Industries, Inc. (Dresser), and Monsanto were dismissed together with N&W's counterclaims against them, and the cases were submitted to the jury on N&W's violations of the FELA. One case of the 47, plaintiff Little, proceeded on simple negligence in addition to the FELA count.

The jury returned verdicts in favor of all plaintiffs and against the N&W. The amounts ranged from $1,950,000 to $300,000. The total was $57,965,000. Judgment was entered on the verdicts by the trial court, N&W's post-trial motion was denied, and this appeal followed. N&W, as appellant, appeals all of the individual judgments, as well as the dismissal of its counterclaims against the other defendants. We have taken two motions with the case: (1) motion of Dresser to dismiss N&W's appeal against it, and (2) motion of Monsanto to supplement the instant record with certain extracts from the record of kindred litigation now pending in the circuit court of Madison County. Both motions are now denied for reasons which will be explicated below.

As might be anticipated in a case of this nature, a variety of issues have been raised on appeal. We have concluded that there are errors of law of sufficient gravity to mandate a new trial. This being so, certain consequences follow: (1) No necessity exists for a detailed explication of the facts and the evidence presented, nor to pass judgment on the sufficiency of that evidence; (2) many issues raised here will become moot on retrial; and (3) only if the retrial takes place in Illinois will much of what we have to say become the law of the case, since we cannot, and do not purport to, bind the courts> of a sister State.

Of all the issues raised we deem four to be of prime importance. We regard each as being of equal importance to its fellows, but will discuss them in the following order: (1) the trial court's denial of N&W's forum non conveniens motion; (2) the dismissal of N&W's counterclaims against GATX, Dresser, and Monsanto; (3) the consolidation of the 47 cases; and (4) the trial court's dismissal and substitution of jurors. The remaining issues, which are principally of an evidentiary or procedural nature, will be dealt with more summarily. Factual matters, as needed for a more complete comprehension of the issues, will be discussed in connection with the individual issues.

FORUM NON CONVENIENS

The rules governing this doctrine have recently been stated and restated at length by the supreme court, so no good purpose would be served by reiteration here. (See Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill.2d 359, 456 N.E.2d 98; Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73, 457 N.E.2d 417.) In our opinion the factors by which a defendant's motion to dismiss for forum non conveniens should be judged weigh heavily in favor of N&W in this case.

As its name implies, the doctrine's fundamental premise is that of convenience: convenience of the parties, convenience of the witnesses, convenience of the court and jurors and convenience of those who must bear the expenses of maintaining the judicial system, the taxpayers. The plaintiffs' choice of a forum is no longer accorded the weight which it formerly possessed. When the plaintiffs' home forum is chosen, it is reasonable to presume that the choice is convenient, but when the plaintiffs choose a foreign forum, the choice is entitled to less deference. (Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L.Ed.2d 419, 102 S.Ct. 252; Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 444 N.E.2d 157.) When plaintiffs pursue the foreign forum in the face of a motion to dismiss, they take a calculated risk of reversal. Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111, 427 N.E.2d 111.

• 1 In the instant case, all 47 plaintiffs were residents of central Missouri. Ninety-nine witnesses testified at trial either in person or by deposition. Of these 77 were residents of Missouri, the great majority of them from the central part of the State. Ten witnesses were from Illinois; of these six were from the Chicago area, one from Decatur, and three from the Madison County area. Eleven witnesses came from other States: Virginia, Louisiana, Florida, North Carolina, Kentucky, Kansas, Texas, and New York.

All of the Chicago area witnesses were plaintiffs' experts; there is no reason to assume that they would not go wherever plaintiffs desired; furthermore, their presence in the forum is not entitled to consideration in determining convenience. Any contrary rule would permit plaintiffs to employ experts located in inconvenient fora and thus circumvent the rule. (Norman v. Norfolk & Western Ry. Co. (1974), 228 Pa. Super. 319, 330, 323 A.2d 850, 855-56; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111, 124, 427 N.E.2d 111, 118.) Of the four remaining witnesses who lived in Illinois, one was an investigator for plaintiffs' attorney, one was an employee of Monsanto, and two were employees of N&W. None of them added anything of great significance to the record, which is in excess of 16,000 pages.

It is apparent that the convenience of the great majority of the witnesses would have been better served by a trial in central Missouri; the Illinois experts would have gone anywhere; the locale of the trial would have been a matter of no great consequence to the witnesses from other States.

Apart from the residence in the Madison County area of three witnesses and of plaintiffs' attorney, the only other connection with Madison County was the possible passage of the tanker through the county. It was loaded at Monsanto's plant in St. Clair County and delivered to N&W's yard in St. Louis, Missouri, by Terminal Railroad Association of St. Louis. N&W at no time had possession of the tanker in Illinois; it is therefore manifest that any possible tortious conduct on its part must have occurred in Missouri.

In Wieser the supreme court listed several factors to be considered in such cases:

"There is no justification for imposing the burden of this litigation upon the judicial system of Illinois and of St. Clair County. If Illinois had any connection with the litigation such as the residence of the plaintiff, or the principal place of business of the defendant, or the situs of the accident, or of the decedent's employment, it would have had an interest in providing a forum in which to resolve the dispute." Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill.2d 359, 371-72, 456 N.E.2d 98, 104.

To apply these criteria to the instant case is to answer the question with clarity. None of the plaintiffs were residents of Illinois; N&W's principal place of business was Roanoke, Virginia; the situs of the accident was Sturgeon, Missouri; the plaintiffs' employments were either at Sturgeon or Moberly, Missouri. Not even a gossamer thread binds this case to Illinois.

Moreover, we are persuaded that N&W suffered prejudice in being forced to trial in Madison County. One of its principal defenses was that the conditions of ill-being of the plaintiffs, if any, existed long before the derailment and clean-up. To establish the defense the testimony of plaintiffs' local physicians concerning their prior medical history was needed. Since the plaintiffs and their physicians were residents of central Missouri, N&W's recourse had to be to depositions of the physicians rather than live testimony. The supreme court has held that depositions are an inadequate substitute for live testimony. Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 374, 444 N.E.2d 157, 161.

Plaintiffs make the assertion in their brief:

"[If these cases would have been tried in Missouri] [t]he railroad still would have utilized depositions of the doctors from central Missouri because no experienced trial lawyer with any common sense subpoenas a physician and requires him to involuntary come into court because of the potential adverse reaction of the witness assuming, of course, that the witness was unwilling in the first place."

However, they cite no authority nor any empirical studies attesting to the accuracy of the statement. It is generally accepted by the bench and bar that it is difficult to get physicians to court, but it is by no means impossible. N&W should have had the opportunity to attempt to present live medical testimony rather than the sing-song reading of dry depositions.

Plaintiffs in their brief have also raised several points of a technical nature relating to the N&W's forum motion. First, they claim that supporting materials to the motion were inadequate.

The initial forum motions were made by Monsanto and Dresser. N&W was granted permission to join in them. Later, N&W filed a number of motions of its own; however, none was verified, and all were denied. Still later, N&W filed renewal forum motions in substantially the same form, but verified. The record contains no indication as to whether these motions were ever ruled upon by the trial court. Finally, in February 1982, before trial began on March 15, 1982, N&W filed a motion to reconsider the prior forum motions. In this motion N&W relied almost exclusively on the supreme court's decision in Espinosa, and incorporated by reference certain discovery answers theretofore made by it. This motion was denied.

Plaintiffs rely on two earlier cases (Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill.2d 144, 152 N.E.2d 385, and McKinney v. Hougland Towing Co. (1969), 109 Ill. App.2d 99, 248 N.E.2d 322) for the proposition that a forum motion must be supported by a factually adequate affidavit which should state the content of the testimony of potential witnesses residing in distant fora and should contain a commitment on the part of the defendant to call such witnesses.

In our opinion these authorities have been superseded by later case law. In Piper Aircraft the Supreme Court rejected similar contentions. A recent opinion of this court (Petersen v. Chicago & North Western Transportation Co. (1983), 117 Ill. App.3d 163, 453 N.E.2d 27) held that an affidavit which specifically referred to witnesses and named a treating physician was sufficient.

In the instant case, while the motions are no models of clarity, we believe that they are sufficient under Petersen. The motion to reconsider refers to sworn documentary evidence, and the plethora of depositions in the file at the time of the motion makes clear that the persons named would be called as witnesses. All of the relevant facts were either before the trial court, or accessible to it.

Significantly, no objection by plaintiffs was raised at trial to the form of the motion last filed. In Pence v. Village of Rantoul (1973), 12 Ill. App.3d 446, 298 N.E.2d 775, the court held that vague objections at trial to a motion for summary judgment, which was equally vague, would not sustain more specific objections on appeal. If vague objections at trial are insufficient on appeal, so much more so are no objections at all.

Plaintiffs also argue the fact that prior to trial N&W filed a petition for mandamus and a petition for leave to appeal in the supreme court concerning the forum non conveniens rulings of the trial court; both petitions were denied by that court. From this, and relying on Espinosa, plaintiffs maintain that the subject has been foreclosed. We do not agree.

The supreme court was careful in Espinosa to limit a denial of a petition for mandamus in that case to its facts. The court said, "While our denial is ordinarily meaningless in a consideration of an alleged error on appeal, it is not totally irrelevant here * * *." (Emphasis added.) (Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill.2d 111, 125, 427 N.E.2d 111, 118.) The basis of the court's ruling was the failure to present figures on court congestion to the trial judge; such is not the situation in the instant case; figures were presented.

• 2 Even though after this case was tried the Supreme Court Rule on interlocutory appeals by permission (87 Ill.2d R. 306(a)(1)(ii)) was amended to include denial of forum motions, it still remains the legal reality that the denial of a petition for an extraordinary writ, or the denial of a petition for interlocutory review, means only that a majority of the upper court could not be mustered in favor of the petition. It is not an exotic form of res judicata.

• 3 In summary, it is our opinion that all of the factors to be considered in a forum motion favor the defendant N&W in this case. It is also our opinion that N&W suffered prejudice by the denial of its forum motions in being deprived of subpoena power, and hence live testimony, over the plaintiffs' local physicians. It follows that it was an abuse of discretion by the trial court to deny the motions, and we believe that the abuse constituted reversible error.

It remains to be decided what to do under the circumstances. We have elected to follow Wieser. Therefore, part of our judgment order will be that the judgments of the circuit court of Madison County are reversed and the cause will be remanded to that court with directions to allow the forum non conveniens motions of the defendant N&W and to dismiss the cause; subject, however, to the following conditions: (1) if plaintiffs elect to refile this suit within one year of the final disposition of this case in an appropriate forum, presumably central Missouri, N&W will accept service of process from that court, and (2) if the statute of limitations has run in the appropriate forum, N&W will waive that defense. If N&W shall refuse to abide such conditions, then the cause will be remanded to the circuit court of Madison County for a new trial in accordance with the views set forth hereinafter.

We are aware that if this suit is refiled in another jurisdiction, we have no authority, nor inclination, to dictate to that court how it should be tried. Therefore, what follows will apply only in the event of a retrial within this jurisdiction.

DISMISSAL OF COUNTERCLAIMS

As has been indicated, during the progress of this litigation N&W filed counterclaims for contribution and indemnity against GATX, Monsanto, and Dresser. The latter also filed counterclaims against N&W and against each other. Monsanto also filed a third-party complaint against Willamette-Western Corporation, the organization which conducted the clean-up operations at Sturgeon. On the opening day of trial, March 15, 1982, counsel for plaintiffs appeared in court and represented that settlement had been made with GATX, Monsanto, and Dresser as follows: Monsanto — $3,500,000; Dresser — $2,175,000; GATX — $1,325,000. A covenant not to sue between plaintiffs and Monsanto appears in the record; no such covenants appear as to the other counterdefendants; however, in view of the size of the record, we shall assume that some such document was executed by them.

After the settlements were announced, all counterdefendants moved to dismiss with prejudice N&W's counterclaims against them, and to dismiss without prejudice their counterclaims against N&W and each other. The representation was that the dismissals were sought under the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.). Monsanto also moved to dismiss without prejudice its third-party complaint against Willamette-Western Corporation.

N&W's counsel professed surprise, stating to the court that as late as 6 p.m. the prior evening all defendants were working on an agreement to apportion any judgment which might be entered in favor of the plaintiffs and that one of the conditions of the agreement was that no defendant would enter into a settlement with the plaintiffs. He described the railroad's position as that of being "sandbagged." The trial court allowed the motions to dismiss, commenting, "I think the paramount thing here is the purpose of that contribution statute."

• 4 The first matter occupying our attention is the motion of Dresser to dismiss N&W's appeal as against it. We have taken that motion with the case. Dresser makes four points in support of the motion:

1. Upon dismissal of the N&W counterclaim the trial court lost jurisdiction and Dresser ceased to be a party to the suit. No authority is cited for this proposition, and it ignores certain fundamental principles. This is a case involving multiple claims and multiple parties. Jurisdiction remains in the trial court until all issues are settled. (Whitley v. Lutheran Hospital (1979), 73 Ill. App.3d 763, 392 N.E.2d 729.) The chief exception to the rule is a partial appeal under Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)) wherein a portion of the case may be appealed under the conditions described in the Rule. The Rule itself provides that any judgment which adjudicates fewer than all the claims of fewer than all the rights and liabilities of all the parties is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, or liabilities. The dismissal of the counterclaim was only a partial judgment and no finding was sought under the Rule. The trial court retained jurisdiction of Dresser.

2. N&W failed to appeal the dismissal. For the reasons just set forth, it could not in the absence of a finding by the trial court under Rule 304(a). The record shows that just such a finding was sought and denied by the trial court. Dresser further argues that Rule 304(a) should not apply because it is a procedural rule and cannot curtail a substantive statute, viz., the Contribution Act. The argument is without merit. All procedural rules necessarily categorize and channel substance. It is the essence of the law. A further argument is that the settlement was made in good faith and hence operated to make the order final. Good faith is a requirement under the Contribution Act, but the Act has nothing to do with the appealability of orders.

3. Dresser argues that N&W failed to file its notice of appeal within 30 days after the entry of the judgments. The argument ignores Supreme Court Rule 303(a) (87 Ill.2d R. 303(a)) which tolls the appeal time until after disposition of a timely post-trial motion. The record shows that N&W filed a timely post-trial motion and appealed within 30 days of its denial.

4. N&W failed to ask post-trial relief against Dresser. Dresser points to section 2-1202(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1202(e)) which provides that a party who does not ask for a new trial in his post-trial motion waives such right. The argument contorts the language of N&W's post-trial motion. In it the railroad sought "new and separate trials as to each of the 47 plaintiffs." By necessary implication a new trial will involve all parties. In addition, N&W specifically complained in its post-trial motion as to the dismissal of its counterclaims against the other defendants. If the railroad never had a trial on its counterclaims in the first place, it escapes us how it can seek a new trial on the same matter. N&W's post-trial motion was sufficiently specific to cover this point.

For all the foregoing reasons, Dresser's motion to dismiss the appeal as to it is denied.

We turn next to the merits of the dismissal of N&W's counterclaims. For better understanding of our disposition of these, a brief description of their allegations and structure is in order. There were six counts in all, two against each of the other defendants; each count was premised upon contribution and implied indemnity; one series of counts, viz., I, III, and VI alleged a theory of strict liability; the other series, viz., II, IV, and V, alleged a theory of negligence. For our purposes it will be convenient to break these down into a discussion of (1) contribution on theories of negligence and strict liability; and (2) implied indemnity on theories of negligence and strict liability.

• 5 All of the counterdefendants argue with varying degrees of vehemence that the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.) has abolished implied indemnity. (There is no claim of contractual indemnity in this case.) We do not agree. Implied indemnity no longer holds the premier status which it had prior to the supreme court's decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 374 N.E.2d 437, and its codification in the Contribution Among Joint Tortfeasors Act. However, it still holds its place in particular situations, especially in the area of strict liability. The supreme court in Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 624, 210 N.E.2d 182, 188, said:

"Dean Prosser in the chapter of his book covering joint tort-feasors (Prosser, Law of Torts, chap. 8. 3d ed. (1964),) points out, `There is an important distinction between contribution, which distributes the loss among the tort-feasors by requiring each to pay his proportionate share, and indemnity, which shifts the entire loss from one tort feasor who has been compelled to pay it to the shoulders of another who should bear it instead. * * *'"

• 6 As to the contribution claims of N&W, we are of the opinion that the trial court properly dismissed these.

Section 2(c) of the Contribution Among Joint Tortfeasors Act provides:

"When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater." (Ill. Rev. Stat. 1981, ch. 70, par. 302(c).)

The parties are in agreement that the dismissal was made under section 2(d) of the Act (Ill. Rev. Stat. 1981, ch. 70, par. 302(d)) and that the good faith provision of section 2(c) is the triggering device. N&W argues that there was a lack of good faith as evidenced by (1) the ratio of the settlements to the verdict; (2) the tactical advantage gained by plaintiffs in removing Monsanto from the case; and (3) the failure of the settlements to account for the relative degree of fault of the parties.

The ratio test found root in some California decisions. The California statute is parallel to the Illinois statute in its good faith language. At one time the California courts> viewed the good faith requirement as a protection against unreasonably low settlements. It was enunciated in River Garden Farms, Inc. v. Superior Court (1972), 26 Cal.App.3d 986, 996, 103 Cal.Rptr. 498, 505, where the court said that "[a]lthough many kinds of collusive injury are possible, the most obvious and frequent is that created by an unreasonably cheap settlement. * * * The price of a settlement is the prime badge of its good or bad faith." One Illinois court has indicated that the ratio of the settlement to the final award of damages is one measure of good faith. LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App.3d 729, 442 N.E.2d 1367.

More recent California authorities have abandoned the ratio test of River Garden Farms. (See Stambaugh v. Superior Court (1976), 62 Cal.App.3d 231, 132 Cal.Rptr. 843; Dompeling v. Superior Court (1981), 117 Cal.App.3d 798, 173 Cal.Rptr. 38; Kohn v. Superior Court (1983), 142 Cal.App.3d 323, 191 Cal. Rptr. 78.) The rule in that jurisdiction now appears to be that a settlement will be considered in good faith when no tortious or wrongful conduct on the part of the settling defendant has been shown. A settlement of less than 1.3% of the alleged damages has been upheld. Wysong & Miles Co. v. Western Industrial Movers (1983), 143 Cal.App.3d 278, 191 Cal.Rptr. 671.

We believe that this is the sounder approach. The ratio test necessarily relies upon hindsight. It is virtually impossible to use an unknown factor, i.e., the jury's verdict, to test good faith prior to trial.

There are two policies to be served by the Contribution Among Joint Tortfeasors Act: (1) the encouragement of settlements, and (2) the equitable sharing of damages. Under the River Garden Farms approach, equitable sharing took precedent; the later authorities have placed settlement in the priority position. The Uniform Contribution Among Tortfeasors Act is in many respects parallel to the Illinois Contribution Among Joint Tortfeasors Act. We find the history of the Uniform Act and the Commissioners' Comments thereto instructive.

The 1939 version of the Uniform Act provided for release of a settling defendant if the settlement agreement provided that the plaintiff's damages were to be reduced "to the extent of the pro rata share of the released tort-feasor." This was a distinct emphasis on equitable sharing. The Uniform Act was amended in 1959 to eliminate the reduction clause and the release was conditioned only on good faith. The Commissioners' Comments concluded that "[i]t seems more important not to discourage settlements than to make an attempt of doubtful effectiveness to prevent discrimination by plaintiffs, or collusion in the suit. Accordingly the subsection provides that the release in good faith discharges the tortfeasor outright from all liability for contribution." 12 Uniform Laws Annotated, Commissioners Comments 100 (1975).

We are of the opinion that the ratio of the settlements in the instant case to the ultimate verdicts does not demonstrate bad faith.

N&W's next argument is that by settling with Monsanto plaintiffs gained a tactical advantage, thereby showing lack of good faith. The same argument is not pursued against Dresser and GATX. As stated in its brief, N&W claims that plaintiffs pursued their cases against the carrier of the chemical rather than its manufacturer, thereby gaining the advantage of eliminating the testimony of many Monsanto employees who had a superior knowledge of the toxicity of the chemical and were thus better able to refute the claims of plaintiffs' experts. We do not agree and know of no principle of law which says that one tortfeasor is entitled to the benefit of the witnesses of another.

N&W cites Commercial Union Insurance Co. v. Ford Motor Co. (9th Cir. 1981), 640 F.2d 210. In that case the plaintiff sued Ford Motor and one of its dealers for personal injuries. Ford Motor was dismissed, and a large judgment was obtained against the dealer. The dealer's insurer sought indemnity against Ford Motor, but the trial court dismissed the action under the California contribution statute. The court of appeals reversed, holding that the removal of the "deep-pocket" defendant deprived the remaining defendant of the advantage of the experts and skilled counsel which Ford Motor could afford to employ.

While not conceding that Commercial Union represents good law, we find it distinguishable. It relied in great part on River Garden Farms, which, as we have noted, is no longer followed in California. More significantly, Ford Motor paid nothing for its dismissal — it became a nudum pactum. In the instant case, Monsanto paid $3.5 million.

N&W's next good faith argument is that the trial court failed to take into consideration the relative culpability of the parties. It arrives at this conclusion from a reading of Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886, and Skinner. As with the ratio argument, we know of no way in which relative culpability could be ascertained prior to evidence being taken. Furthermore, neither Alvis nor Skinner touches upon the question of the effect of a settlement; the former established comparative negligence and the latter abolished the rule of no-contribution.

With no evidence of tortious or wrongful conduct, it does not appear that the settlements were lacking in good faith.

N&W makes a final argument that the trial court should have held a hearing on the matter of good faith. We note at the outset that the Illinois Contribution Act makes no provision for such a hearing. Some California authorities indicated in an oblique manner that a hearing ...


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