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Nguyen v. Tilwalli





Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding. PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiff, John Nguyen, appeals from a judgment of the circuit court which set off a $11,000 verdict of the jury for plaintiff in a medical negligence action, tried against one of the defendants therein, against the $15,000 plaintiff had earlier received from other defendants in settlement of his claims against them, thereby reducing plaintiff's recovery of damages on the verdict to zero.

Plaintiff contends the trial court erred in allowing the setoff because (1) the settling co-defendants and the non-settling defendant were concurrent rather than joint tortfeasors and a setoff was thus not authorized under the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.); (2) the settling defendants were not shown to be actual tortfeasors, as is required for a setoff under section 2(c) of the Act; and (3) the setoff amounted to a contribution to a co-tortfeasor contrary to section 2(d) of the Act.

The facts underlying this appeal disclose that while plaintiff was a patient at Glendale Heights Community Hospital in 1982, defendant, Dr. Dhruva Tilwalli, inserted a nasogastric or Blakemore tube through plaintiff's nose during the course of treatment and wrote orders for maintenance of the tube for the nursing staff. While the tube was in place, plaintiff developed a necrosis or tissue death on the side of his nose adjacent to the tube which required surgery to repair.

In May 1983, plaintiff commenced this action against defendants, Dr. Tilwalli, the hospital, nurses Holly Moore, Ann Malayel and Marielle Ramos, and Doctors Gandhi M. Gutta and Y. Pae, to recover damages for the nose injury, alleging defendants were negligent in the insertion and monitoring of the tube, inadequate staff training and procedures, and use of improper equipment. The action was dismissed against defendants Gutta and Pae on other grounds and was also dismissed as to the defendant hospital and nurses when they agreed to pay $15,000 in settlement of plaintiff's claim. The agreement, which was captioned as a release, denied any liability on the part of the settling co-defendants and specifically preserved plaintiff's right of action against the remaining defendant, Dr. Tilwalli.

After trial in March 1985, the jury found Dr. Tilwalli to be negligent and awarded plaintiff $11,000 in damages. In his post-trial motion, this defendant sought a setoff against the verdict in the amount of the $15,000 paid by the other defendants. That relief was granted by the trial court pursuant to section 2(c) of the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1983, ch. 70, par. 302(c)) and plaintiff's damages were reduced to zero. This appeal followed.

• 1 Plaintiff first contends the settling co-defendants and defendant were concurrent tortfeasors rather than joint tortfeasors and, therefore, a setoff was not authorized by the Act. 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. 1983, ch. 70, par. 302(c).)

Plaintiff argues the Act was intended to apply only to joint tortfeasors which he defines as two or more persons who directly produce a single, indivisible injury by their own negligence. (Millburn Mutual Insurance Co. v. Glaze (1980), 86 Ill. App.3d 1055, 1065, 410 N.E.2d 295, appeal denied (1981), 81 Ill.2d 602; Champion v. Knasiak (1974), 25 Ill. App.3d 192, 199, 323 N.E.2d 62.) Plaintiff asserts that the present case involves concurrent tortfeasors, which he defines as two or more parties independently capable of having caused the injury, acting either singly or jointly.

We need not determine whether the various co-defendants were joint or concurrent tortfeasors, as it has been determined that the Contribution Among Joint Tortfeasors Act applies equally to both types. In Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App.3d 914, 444 N.E.2d 504, appeal denied (1983), 94 Ill.2d 553, we stated:

"The Dramshop's further argument that it cannot be considered a `joint tortfeasor' with the negligent motorist does not address the full scope of the contribution statute. Although the act is styled `An Act in relation to contribution among joint tortfeasors,' neither section 302(a) nor the published Legislative History requires that the tortfeasors be joint in the strict sense, that their tortious acts be simultaneous, or that they act in concert, before contribution will lie. The only apparent requirement for contribution between co-tortfeasors is that recovery over be based on the same injury to person or property. Thus, the act permits contribution where co-tortfeasors are concurrent [citations] or successive [citation] as long as the same injury is involved." 111 Ill. App.3d 914, 918, 444 N.E.2d 504.

• 2 Here, there is no question one indivisible injury to plaintiff's nose resulted from the alleged tortfeasors' conduct, and we therefore conclude the trial court did not err in applying the setoff provision of the Act to the jury award in issue.

Plaintiff also argues that section 2(c) of the Act is inapplicable because there was no prior judicial determination that the settling co-defendants were, in fact, tortfeasors and the settlement agreement denied all liability on their part. Plaintiff contends section 2(c) requires proof the settling parties are tortfeasors before a setoff may be allowed.

• 3 We cannot agree with plaintiff's characterization of the requirements of section 2(c). Although the issue has not been directly addressed by Illinois courts, the Act clearly evinces a legislative intent to encourage settlements in tort litigation and promote judicial economy. (Rakowski v. Lucente (1983), 120 Ill. App.3d 715, 719, 458 N.E.2d 947, aff'd (1984), 104 Ill.2d 317, 472 N.E.2d 791; Van Jacobs v. Parikh (1981), 97 Ill. App.3d 610, 612, 422 N.E.2d 979.) A rule limiting application of the Act to admitted or proved tortfeasors would run contrary to this legislative intent, as it would require a full hearing as to the liability of each settling co-defendant before section 2(c) could be applied. Moreover, our courts have routinely approved setoff of jury verdicts from prior settlements, despite the fact that the settling co-defendants were not proved tortfeasors (see Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill.2d 203, 206-10, 412 N.E.2d 518; Dick v. Gursoy (1984), 124 Ill. App.3d 185, 186, 471 N.E.2d 195, appeal denied (1984), 101 Ill.2d 564) in accord with the established policy in Illinois against double recovery by tort plaintiffs. Dial v. City of O'Fallon (1980), 81 Ill.2d 548, 558, 411 N.E.2d 217; Kurth v. Amee, Inc. (1972), 3 Ill. App.3d 506, 510, 278 N.E.2d 162; Meneghin v. Thunander (1962), 36 Ill. App.2d 452, 456-57, 184 N.E.2d 753, appeal denied (1962), 24 Ill.2d 627.

• 4 We conclude that the Contribution Among Joint Tortfeasors Act does not require proof that the settling co-defendants were actual tortfeasors as this would thwart the mandated purposes of the Act and the policy against double recovery. We are supported in this decision by similar rulings in other jurisdictions which have considered the question. (See Rosenbaum v. First American National Bank (Tenn. App. 1985), 690 S.W.2d 873, 879; Degen v. Bayman (1976), 90 S.D. 400, 241 N.W.2d 703, 707; Riexinger v. Ashton Co. (1969), 9 Ariz. App. 406, 409, 453 P.2d ...

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