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May 2, 1994


Appeal from the Circuit Court of Lake County. No. 90-L-1013. Honorable William D. Block, Judge, Presiding.

PECCARELLI, Doyle, Colwell

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Plaintiff Robert Good brought a personal injury action under the Structural Work Act (740 ILCS 150/9 (West 1992)) against defendant, Blount Construction Company of Blount, Inc. (Blount), for injuries suffered by Good when the concrete formwork upon which he was working collapsed. Plaintiff Doreen Good brought an action against Blount for loss of consortium. Blount filed a third-party complaint for contribution against Good's employer, Ceco Corporation (Ceco), which the trial court severed from the underlying action prior to trial. Following trial, the jury found in favor of plaintiffs, awarding Good $3,190,000 in damages, and awarding his wife, Doreen, $50,000. The trial court entered judgment on the jury's verdict. Blount's post-trial motion for judgment notwithstanding the verdict, for a new trial, or for remittitur of the verdicts was denied.

Blount appeals, contending that it was entitled to a new trial because: (1) the trial court erred in granting plaintiffs' summary judgment motion on Blount's defense of sole proximate cause; (2) the trial court erred in denying Blount's motion to amend its answer to paragraph 5 of plaintiffs' fifth amended complaint; (3) the trial court erred in granting Ceco's motion for a good-faith finding as to its settlement with plaintiffs and in dismissing Blount's third-party complaint against Ceco; (4) the trial court erred in severing Blount's third-party action from the original action; (5) the trial court erred in allowing testimony regarding prior OSHA (Occupational Safety and Health Administration) inspections; (6) the jury's verdict was against the manifest weight of the evidence; and (7) the verdict was excessive and the result of passion or prejudice. Our Disposition, however, obviates the need to consider the last three issues.

On December 13, 1989, Blount, a general contractor, was engaged in the construction of a project known as the Environmental Improvements, Patient and NHCU Building, Phase I, Veterans' Administration Medical Center in North Chicago (the V.A. project). Robert Good, a carpenter and foreman for Ceco, was working on the project. On the morning of the incident in question Good was advised by Russ Romine, Blount's field superintendent, that Good had the use of Blount's tower crane for about an hour until it would be needed for a concrete pour at 8 a.m. Good and his crew would form plywood decks for the concrete. Good needed to get all his materials upon the decking prior to 8 a.m. Shortly after 8 a.m., Good, who was standing on top of the concrete formwork, directed the crane operator, Mark Rasmussen, to land the last load, a bundle of 4 by 4s, on the formwork. As Good unhooked the load from the crane, the formwork collapsed. Good fell about 12 or 13 feet, landing on the ground and sustaining multiple fractures and dislocations of the left knee and the right ankle. As a result, Good underwent numerous surgeries and at the time of trial in August 1992 still used a cane to ambulate.

James Holcomb was working for Blount on the date of the accident as general carpenter foreman. At trial Holcomb testified that he had been involved in the erection and construction of concrete formwork for many years. Holcomb stated that he had observed the collapse of the formwork on December 13 because he had gone over to talk to Good regarding whether Good could use another carpenter for whom Holcomb had no work. Good told Holcomb he would be down after he got a load of 4 by 4s landed and unhooked from the crane. Holcomb recounted that he waited approximately 10 minutes.

Holcomb testified that he is familiar with the bracing used in the erection of concrete forms and that, generally, X-bracing is used. Holcomb used a model to show the stage of erection of the formwork during the time Holcomb watched Good work. No X-bracing was shown.

Holcomb said he saw Good land a load of 4 by 4s on the formwork, unhook the crane, and start to walk to safety. The formwork started to give, lumber snapped, and the formwork collapsed. Holcomb stated that he observed Russ Romine approximately 75 feet from the scene of the accident and that Romine had been at that location for about 10 minutes.

Raymond Beukeme, a carpenter specializing in the building of concrete decks or formwork, was working for Ceco on the V.A. project on December 13, 1989, and specifically on the erection of the formwork in question. Beukeme looked at the model, as previously set up by Holcomb, and testified that it depicted the formwork at the time Good landed the load on it. Beukeme then used the model to show how formwork should be built using X-bracing. Beukeme explained that the purpose of the X-bracing is to hold up the formwork and to prevent it from tipping over.

Beukeme related that he saw the collapse of the formwork on December 13. At the time, it was not completely X-braced. Beukeme and the other carpenter involved in erecting the formwork had put up half X's on three sides of the form and were just putting up the one-half X on the fourth side when it collapsed. Beukeme recalled that Good had just unhooked the load of 4 by 4s when the formwork started wiggling. Good told everyone to get out from under the form. Beukeme saw Good run across the top of the formwork towards another existing deck, but he missed and fell to the ground.

Beukeme had worked for Blount nearly one year prior to the accident. When asked if the lumber had been placed by the crane on partially braced concrete formwork on other occasions, Beukeme responded that it occurred frequently, probably every week. A load would be landed before the formwork was one-half completed or tightened up. Beukeme stated that on these occasions Blount personnel were in the area. According to Beukeme, Romine or Doug Scott were "always around somewhere." Also, a "safety guy," whose name Beukeme could not recall, was always walking around.

Beukeme recalled that on the morning of the accident Romine told Good about one-half hour before the collapse of the formwork that he had the crane only until it was needed for pouring concrete in another spot. Beukeme acknowledged that it was not unusual to experience time constraints on the job.

William Culhane, a carpenter, was also involved in erecting concrete formwork at the V.A. project. Culhane stated that he was familiar with the bracing used with formwork, but he did not recall how much bracing was on the form at the time it collapsed. Culhane said that when concrete forms are completed, usually all four sides are X-braced.

Prior to December 13, 1989, Culhane had observed instances where materials or men were placed on partially erected concrete forms. Sometimes, there would be only one brace on a couple of the sides. Culhane said that this occurred when the individuals erecting the formwork were in a hurry. Culhane recounted that he and Beukeme were in a hurry on December 13 because they were going to lose the use of the crane at 8:30 a.m. for a concrete pour. According to Culhane, Beukeme and he had put X-bracing on the formwork and thought it was ready to land a load. Culhane stated that there was nothing unusual about the method of construction of the formwork on December 13 except that they were in a little more of a hurry. When the load was landed, stringer or horizontal beams at the top broke, the whole formwork shifted, and the platform collapsed.

Culhane recalled that Romine was around the formwork "all the time." Other foremen for Blount also inspected the concrete formwork. Culhane could not recall if he saw Romine at 7 a.m. on December 13. Culhane acknowledged that the formwork did not exist at 7 a.m. Culhane did recall that he saw Romine within a minute or so after the accident.

Mark Rasmussen, a crane operator for 20 years, was working for Blount on December 13, 1989, and using a tower crane. Romine was Rasmussen's supervisor although the witness did not report to anyone. People on the ground would communicate with Rasmussen by two-way radio. On the date of the accident, Rasmussen was told to work with Good until the concrete arrived and to rush because the concrete was on its way.

Rasmussen acknowledged that he had the authority to stop working if he observed an unsafe construction practice in conjunction with his operation of the crane but that he did not observe any such practice on December 13. Rasmussen related that he saw the collapse of the formwork. Good had unhooked the load and was waving Rasmussen off. Within seconds, the floor collapsed. Rasmussen said that he was familiar with the erection and construction of concrete formwork and the process of X-bracing. After the accident, Rasmussen looked at the collapsed formwork. According to Rasmussen, the formwork was not completely braced; sections were missing.

Rasmussen acknowledged that he did not decide where to land a load and that he did not know the weight-bearing capabilities of a partially erected formwork prior to putting a load on it. Rasmussen could not recall whether the load which he landed prior to the collapse was the first and only load placed on that particular portion of the formwork.

John Zervic testified that, as Blount's staff engineer on the V.A. project, he made certain that the work of the subcontractors complied with the plans and specifications for the project. Zervic also was the safety engineer. He conducted jobsite safety meetings and inspected the site daily for conformance to OSHA and company regulations. Zervic acknowledged that he was familiar with the construction of concrete formwork and could apply OSHA regulations to the erection and construction of it.

Zervic was asked about other Blount supervisors. He stated that Ron Gardener was the project manager; he supervised the entire project and everybody involved. Doug Scott was the project superintendent; he made certain that the subcontractors were on the site when scheduled and that they did what they were contracted to do. Russ Romine was the area superintendent and was responsible for the erection of concrete formwork and the placement of concrete. According to Zervic, quality control and safety were the responsibilities of all of Blount's supervisors and engineers. If a safety problem occurred that needed correcting, Zervic was told about it. Zervic related that Blount had the authority to stop work if an unsafe construction practice was being utilized.

Zervic recounted that he became aware of Good's accident about 5 or 10 minutes after it happened. Zervic proceeded to the accident site to investigate the incident. He spoke with individuals at the site and looked at the area where the accident occurred. Based on the information he gathered at the scene, his own observations, and his knowledge about the construction of concrete formwork, Zervic opined that the structure had collapsed because it had not been braced properly.

Zervic acknowledged that the instant occurrence did not constitute the first time he had notice of the fact that formwork was not being braced properly. During an inspection of the jobsite conducted by OSHA on October 3, 1989, the subject of bracing arose. At the time of the inspection the OSHA inspectors pointed out areas on an existing formwork which were not properly braced. The formwork was cross-braced but not in each direction as it should be when landing concrete on the platform.

Zervic acknowledged that the OSHA inspectors raised other safety concerns regarding the concrete formwork besides bracing. They mentioned the quality of the posts being used and load calculations. Zervic recalled that after the inspection he prepared a memo regarding the inspection and placed it in Blount's file. He believed he informed both Romine and Scott of the inspection.

On cross-examination, Zervic acknowledged that the concrete formwork observed by OSHA was in a substantially more advanced degree of construction, or completion, than was the formwork involved in the December 13 accident. Zervic also acknowledged that in erecting formwork a portion of it is erected and then some bracing put on it. As the work progresses, more bracing is used as needed. Zervic knew of no OSHA regulations stating how much and where bracing should be placed during the construction of formwork. He agreed that OSHA regulations apply to the erection and construction of concrete formwork and that it was apparent that the regulations were violated when the formwork collapsed. When asked if formwork should be completely braced, Zervic responded negatively and said that it should be braced to support the particular load on it.

On the date of the accident, Russ Romine was the field superintendent for Blount. He coordinated and oversaw all of the work and was responsible for inspecting work as it progressed. Romine testified that construction was going on at about eight separate sites at the same time. Romine had two area superintendents who worked under him, but the area in which the formwork collapsed was primarily his responsibility. As part of coordinating the work, Romine stated that, usually, he had meetings every morning with various personnel, primarily to schedule use of the tower crane. On the morning of the accident, Romine spoke with Good about using the crane. Good had one hour to use the crane.

Romine recalled that it was his job to roam the jobsite and that he had just pulled up in his truck at the site in question when the formwork collapsed. Romine stated that "it wasn't formwork per se, because the formwork--all it was was a shoring that had been erected to that point." Romine inspected the scene of the collapse. He could not determine whether the form was completely braced because the diagonal bracing was "pretty splintered up" after it collapsed. It was Romine's personal opinion that the formwork was not sufficiently braced; otherwise, it would never have collapsed. Romine thought the formwork was diagonally braced one way and not the other.

Romine testified that, as field superintendent, he had the authority to direct or initiate safety practices to be used on the jobsite. He also had the authority to make certain that OSHA regulations and procedures were utilized in the construction and erection of concrete formwork. Romine stated that he did not know that questions were raised regarding the sufficiency of the bracing used in conjunction with the concrete forms as a result of the OSHA inspection on October 3, 1989. Romine said that he thought the OSHA visit was just an ordinary OSHA inspection. Romine agreed that the OSHA regulation pertaining to the bracing of formwork and lateral loads applied to formwork as it should exist when concrete is being poured. Romine stated that no concrete was being poured at the time of the collapse and, therefore, the regulation did not apply to formwork in the stage of erection of the instant formwork.

On cross-examination, Romine stated that he would inspect Ceco's work prior to a concrete pour to make certain it was sufficiently shored. On the day of the accident, no partial formwork existed at 7 a.m. when Romine spoke with Good regarding the use of the crane. After speaking with Good, Romine left to inspect other portions of the jobsite. Romine recalled that he had completed his rounds and was returning to check on Ceco's progress when the collapse of the formwork occurred. Romine acknowledged that if he had arrived at the site a few minutes earlier, he would have stopped the load from being landed because the structure was unsafe. Romine recounted that he yelled at Good, who tried to get to a deck that was already secured, but Good did not make it.

Ronald Gardener was the project manager for Blount at the time of the accident. As such, he was responsible for Blount's operations on the project. According to Gardener, Blount was responsible for safety and making certain that subcontractors followed OSHA regulations. Any Blount employee had the authority to stop work, including the erection and construction of concrete formwork, if he observed an unsafe construction practice being utilized. Gardener testified that he did not recall being made aware of any problems related to proper bracing of concrete formwork nor did he recall Zervic's memo regarding this matter. Gardener also did not recall the October 1989 OSHA inspection which raised questions regarding the adequacy of the bracing and did not know whether the questions pertained to the conditions of formwork prior to a concrete pour or under erection. The witness only recalled that OSHA visited the jobsite several times.

Gardener stated that Romine, with the help of Doug Scott, project superintendent, scheduled the use of the tower crane. It was Romine's responsibility to make certain that personnel on the job had a sufficient amount of time to work with the crane, but, according to Gardener, concrete work had priority over all other work. Gardener acknowledged, on cross-examination, that the concrete work could not be accomplished unless the formwork was erected.

Gardener recalled that Romine was responsible for the particular building where the collapse occurred. He also had other areas of responsibility. Gardener acknowledged that it was not the custom and practice in the contracting industry to assign one superintendent to watch one subcontractor all the time. Also, a Blount supervisor did not have to be present every time a load was being landed on a formwork.

Dennis Puchalski, a safety supervisor for the Illinois State Toll Highway Authority and a safety consultant in construction litigation, testified as an expert witness on plaintiffs' behalf. Puchalski's background included working as a construction safety inspector for the Department of Labor and as a Federal OSHA compliance officer making inspections of all types of construction sites. He was familiar with the erection and safe use of concrete formwork.

It was Puchalski's opinion, from his review of photographs, depositions, and OSHA and other safety regulations, that the formwork in question was not fully and properly braced. Only single braces existed at the time the load was being landed rather than cross braces which would have kept the formwork from moving laterally. Puchalski stated that, as the structure in question existed, it was not braced to support, safely, all vertical and lateral loads. To sustain his opinion, Puchalski testified regarding specific rules and regulations established by various organizations or institutes, including OSHA, which pertain to the erection and construction of concrete formwork and the imposition of loads thereon, and how these standards applied to the instant case.

Puchalski opined that Blount "could and should have known" that the formwork in question was being erected, that it was not properly braced, and that a load should not have been landed on it. Puchalski stated that he based his opinion on the facts that Blount was the general contractor, that it had various supervisors on the jobsite, that it should not have allowed a rush situation to have occurred in erecting the formwork, and that OSHA inspectors previously expressed concern over the fact that bracing specifications were not indicated on the formwork drawings and that the timber supports being used were substandard.

On cross-examination, Puchalski acknowledged that he did not know in what stage the formwork, inspected by OSHA, existed at the time of the inspection. The court interrupted the examination to point out to the jury that evidence regarding the OSHA violations in October 1989 was only being admitted for the limited purpose of "notice" to the general contractor. The jury was not to consider whether a violation actually occurred.

Puchalski admitted that he did not see any photographs of the partially erected formwork as it existed prior to the collapse, nor did he see photographs of the degree of collapse. Puchalski acknowledged that he formulated his opinion regarding the inadequacy of the formwork without seeing its plan and design. Nevertheless, it was Puchalski's belief, based on the deposition testimony he reviewed, that the plan showed a completed formwork in its ready-to-pour-concrete state. Puchalski agreed that the OSHA regulations pertaining to the proper design of formwork referred to its condition during the placement of concrete and that no concrete was being placed upon the structure at the time of the collapse.

On redirect examination, Puchalski stated that the rules and regulations he referred to in his testimony did not apply only to completed formwork. They also applied to formwork as it existed while being erected and constructed.

Puchalski opined that because the formwork was not fully erected and individuals were underneath erecting it, the crane operator should not have placed the load on the formwork.

Plaintiff Doreen Good testified regarding numerous surgical procedures her husband had endured since the date of the accident and the effects the accident had had on their daily lives. She also testified regarding the difficulties her husband had experienced in ambulating and stated that he walks with the aid of a cane.

Two orthopedic surgeons who had treated Good testified as to the surgeries he had undergone since the accident and as to the pain he had experienced. Their testimony indicated that Good had endured several operations on his right foot and on his left knee, including a total knee replacement, in an attempt to restore the extensive damage done to these areas. Despite these surgeries, Good continued to experience a great deal of pain, limited motion, and symptoms of degenerative arthritis. According to the physicians, Good's disabilities and pain and discomfort were permanent. Both doctors opined that Good would not be able to return to his job as a carpenter because of his functional disabilities.

A third physician, specializing in rehabilitative medicine, testified that Good would be limited to a desk-type or clerical job although the pain he constantly experienced would interfere with his ability to work a 40-hour week. At the present time, the doctor believed Good was not a candidate for employment unless he went through rehabilitation and placement.

Plaintiff Robert Good testified regarding the numerous surgeries he had undergone between the date of the accident on December 13, 1989, and a total knee replacement in January 1992. He also related the pain he suffered prior to and after these surgeries. Good stated that he experiences constant pain in his right ankle and that he has taken pain medication every day since the date of the accident. Good said that he cannot sit for long periods of time because his legs stiffen up and then it hurts when he stands up or walks.

Good testified that he intended to seek some other form of employment rather than carpentry. If that meant he had to obtain his high school diploma, which he did not have, he would be willing to pursue it or any other education, or training, needed for a particular job. At the time of the accident in December 1989 Good was earning $24 per hour as a carpenter. In 1988, he had earned $55,000.

Following deliberations, the jury returned verdicts in favor of the plaintiffs and against Blount. After a subsequent hearing on Ceco's settlement agreement with plaintiffs and the trial court's denial of Blount's post-trial motion, Blount filed this timely appeal.

On appeal, Blount argues that the trial court erred in granting plaintiffs' summary judgment motion on Blount's defense of sole proximate cause. Plaintiffs maintain that Blount has waived this issue by failing to replead the affirmative defense of sole proximate cause in its amended answer to plaintiffs' fifth amended complaint.

Illinois courts have consistently held that a party who files an amended pleading waives any objection to the trial court's ruling on the former pleadings. (Larkin v. Sanelli (1991), 213 Ill. App. 3d 597, 602, 157 Ill. Dec. 681, 572 N.E.2d 1145.) "Answers" constitute "pleadings" and, therefore, references to pleadings are equally applicable to answers. (213 Ill. App. 3d at 602.) Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn. (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 154, 70 Ill. Dec. 251, 449 N.E.2d 125.) However, where the party filing the amended pleading has not manifested an intent to abandon the prior pleading, that pleading may be considered on review. Field Surgical Associates, Ltd. v. Shadab (1978), 59 Ill. App. 3d 991, 994, 17 Ill. Dec. 514, 376 N.E.2d 660.

From the record before us, we believe Blount never demonstrated any intention of abandoning the affirmative defense of sole proximate cause. Even after the court granted plaintiffs' summary judgment motion on Blount's defense of sole proximate cause, Blount continued to try to introduce evidence pertaining to this defense. For example, Blount argued against plaintiffs' subsequent motion in limine to bar all evidence at trial pertaining to the sole proximate cause issue. Also, Blount made several offers of proof during trial to show that Good was the sole proximate cause of his injuries.

Blount's conduct following the summary judgment on the sole proximate cause issue manifested its intent to retain this affirmative defense. The trial court had already granted plaintiffs' summary judgment. It would be a senseless formality to replead its affirmative defense of sole proximate cause in its fifth amended answer. It is apparent from the record that Blount did not abandon this defense. We believe we are not precluded from reviewing the propriety of the court's order granting summary judgment on the sole proximate cause issue.

Summary judgment is proper only when the pleadings, depositions, and affidavits show that no genuine issue of material fact exists and that the moving party is entitled to summary judgment as a matter of law. (Kuwik v. Starmark Star Marketing & Administration, Inc. (1992), 232 Ill. App. 3d 8, 12, 173 Ill. Dec. 543, 597 N.E.2d 251.) The movant's right to summary judgment must be clear and free from doubt before it may be granted. (Duran v. Leslie Oldsmobile, Inc. (1992), 229 Ill. App. 3d 1032, 1038, 171 Ill. Dec. 835, 594 N.E.2d 1355.) To prevent the entry of summary judgment, the nonmoving party need not prove his case at this preliminary stage but must present facts sufficient to support the elements of his claim. (Kuwik, 232 Ill. App. 3d at 12.) If any facts upon which reasonable persons may disagree are identified, or inferences which may be drawn from these facts lead to different Conclusions, the court must deny the motion and direct that resolution of those facts and inferences be made at trial. (Dockery v. Ortiz (1989), 185 Ill. App. 3d 296, 305, 133 Ill. Dec. 389, 541 N.E.2d 226.) An order granting summary judgment will be reversed on appeal if the reviewing court determines that a genuine issue of material fact exists. (Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 843, 137 Ill. Dec. 453, 546 N.E.2d 77.) An issue is "genuine" if there is evidence to support the position of the nonmoving party. (Duran, 229 Ill. App. 3d at 1038.) Here, Blount presented sufficient facts to the court to support its position that Good was the sole proximate cause of his injuries, and, therefore, summary judgment should not have been granted.

In their motion for summary judgment plaintiffs asserted that the deposition testimony of their expert, Dennis Puchalski, established Good's accident was the fault of Blount. It was Puchalski's opinion that Blount had overall responsibility to see that the platform on which Good was working was safe and properly constructed and that, because of an October 1989 OSHA inspection of the jobsite, Blount knew or could have known that the platform was not properly constructed.

Plaintiffs also stated in their motion that the deposition testimony of Doug Scott, Blount's project superintendent on the construction project in question, established that Blount was aware that platforms identical to the one on which Good was working at the time of his injury had been inadequately braced. Additionally, plaintiffs asserted that Blount admitted in its answer to plaintiffs' fifth amended complaint that it was "in charge of" the work. However, the fact that Blount admitted being in charge of the work was insufficient, alone, to show that it was responsible for Good's injuries, especially in light of the facts that, in its answer, Blount neither admitted that the Structural Work Act applied to it nor admitted that it willfully violated the act.

In its response to plaintiffs' summary judgment motion, Blount pointed out that plaintiffs' expert, Puchalski, was offered as a safety expert and not as a structural engineer. Additionally, Blount referred to that portion of Puchalski's deposition testimony which revealed that his opinions regarding the improper construction of the platform were formulated without viewing the site in question, seeing photographs of the site as it existed immediately prior to Good's accident, or examining any of the materials used on the date of the accident.

Blount also stated in its response that Scott's testimony at his evidence deposition established that he was not qualified to render an opinion as to the adequacy or inadequacy of bracing, that he was not able to determine from his observation of the scene whether the structure was braced properly, and that he believed no one could tell, after the fact, how well the decking had or had not been braced. Furthermore, Scott had stated at an earlier deposition that it was Good's responsibility to oversee any of his employer's, Ceco's, work.

In its response Blount referred to the testimony presented at Good's deposition. Blount stressed that the testimony established that Good had been a journeyman carpenter since 1969, that he was Ceco's foreman and safety man, that he had used the same method of bracing the concrete formwork during his 13 months on the V.A. jobsite as well as during the prior 10 years, that the area where his injury occurred did not exist prior to 7 a.m. on the date of the accident, that he was advised of the concrete pour to begin at 8 a.m. and to get all his materials hoisted prior to that time, and that the collapse occurred shortly after 8 a.m. Additionally, Good testified at his deposition that he was the supervisor for his crew and inspected the bracing done by his crew during that morning. He observed nothing unusual about this particular bracing as opposed to other bracing he had observed on Ceco jobs. Good's testimony further showed that he directed a load of 4 by 4s to be placed on the structure erected that morning, made the decision that the structure was sound enough to support this weight, and then released the crane's hook from the lumber. Shortly thereafter, the structure collapsed.

In light of all this deposition testimony, we believe that there was evidence presented to the court from which inferences in support of both the plaintiffs' and Blount's positions on the sole proximate cause issue could have been drawn. Our review of the entire record reveals that plaintiffs based their opposition to any evidence on the sole proximate cause issue on the fact that Good's contributory or comparative negligence could not be considered in an action brought under the Structural Work Act. (740 ILCS 150/9 (West 1992).) The court, likewise, appears to have relied on this basis in making its summary judgment decision, as depicted by the record on plaintiffs' subsequent motion in limine to keep out any evidence of sole proximate cause and on the record of the post-trial motion hearing.

Blount conceded in its response to plaintiffs' summary judgment motion that neither contributory nor comparative negligence is a defense to a Structural Work Act action. However, these were not the affirmative defenses Blount was advocating. Rather, its defense was that Good's conduct was the sole proximate cause, not a proximate cause, of his injuries.

Here, where Good admitted at his deposition that he was Ceco's foreman, that he had experience in erecting concrete forms, that he was supervising the loading of materials on the day of the incident, that he was the only person in contact with the crane operator, that he directed the operator where to land the load, that he inspected the bracing below him and observed nothing unusual about it, and that he decided the structure was sound enough to support him and sufficiently safe to hold the load, questions of fact existed as to whether Good was the sole proximate cause of his injuries. We conclude that plaintiffs' motion for summary judgment was improperly granted.

Because the court's summary judgment order denied Blount a defense which may have changed the outcome of the trial, we remand the case for a new trial. Despite the Dispositional nature of this decision, we deem it necessary to address several of the other issues raised on appeal.

Blount argues that the trial court erred in denying its motion to amend its unverified answer to paragraph 5 of plaintiffs' fifth amended unverified complaint. In paragraph 5 plaintiffs allege that Blount

"did participate in coordinating the work being done, designated various work methods, maintained and checked the work in progress, participated in the scheduling of the work and inspection of the work and was in charge of the erection and construction of all phases of the project."

In its answer Blount stated that it "admits the allegation contained in paragraph 5." Despite this statement, Blount denies the statement constitutes an admission and maintains that it should have been allowed to amend its unverified answer.

Section 2-616(a) of the Code of Civil Procedure (Code) allows the amendment of pleadings at any time before final judgment on just and reasonable terms. (735 ILCS 5/2-616(a) (West 1992).) The decision to allow the amendment of pleadings lies within the sound discretion of the trial court, and the test for determining whether the court has abused that discretion is whether its decision furthers the ends of Justice. (Lawry's The Prime Rib, Inc. v. Metropolitan Sanitary District of Greater Chicago (1990), 205 Ill. App. 3d 1053, 1058, 150 Ill. Dec. 854, 563 N.E.2d 981.) In making this determination, the court must consider the timeliness of the proposed amendment and whether the opposing party would be surprised or prejudiced by the amendment. Delzell v. Moore (1992), 224 Ill. App. 3d 808, 812, 167 Ill. Dec. 516, 587 N.E.2d 1131.

In its proposed amendment to its answer Blount denied that it was in charge of the work being done by Good at the time of the occurrence and stated that Ceco or Good was in charge. Relying on section 2-616(a) of the Code, Blount asserts that it should have been allowed to amend its answer because plaintiffs could not claim last minute surprise or prejudice by Blount's denial that it was in charge of the work.

Plaintiffs do not argue in their brief that they were surprised or prejudiced by the amendment but only that if Blount had brought its proposed amendment earlier, they could have engaged in further discovery in trial preparation regarding the "in charge of" issue. We find this argument unconvincing since the crux of plaintiffs' case from the very beginning was that Blount was in charge of the erection and construction of the structure in question.

In each of Blount's answers to plaintiffs' four prior complaints Blount denied the allegations of paragraph 5 of the complaint. We believe that Blount's sudden admission of all the allegations of paragraph 5 was the result of inadvertence, especially in light of its answers to certain interrogatories and of its third-party complaint, both of which set forth its position that it was not in charge of the erection and construction of the structure in question.

Nevertheless, at the hearing on Blount's motion to amend paragraph 5 of its answer, Blount did not assert that the admission set forth in paragraph 5 resulted from mistake or inadvertence, nor did it plead mistake or inadvertence in its amended answer. Rather, Blount represented at the hearing that it was not changing its admission that it was in charge of the construction and erection of all phases of the project but merely adding the additional language that it was not in charge of the project being done by Ceco or Good. Blount made no showing as to why it should be allowed to amend its answer. Without such showing, as the court determined, Blount could not deny facts that it had admitted in its prior answer. We conclude that the trial court did not abuse its discretion in denying Blount's motion to amend paragraph 5 of its answer to plaintiffs' fifth amended complaint.

Contrary to Blount's representation, here, the court did not treat the admission as a judicial admission and, rightly so, since Blount's answer was unverified. (Robins v. Lasky (1984), 123 Ill. App. 3d 194, 198, 78 Ill. Dec. 655, 462 N.E.2d 774.) Consequently, the admission was not binding on the pleader, Blount. (123 Ill. App. 3d at 198.) However, an admission in an unverified pleading is an admission against interest, which may be contravened or explained (Chavez v. Watts (1987), 161 Ill. App. 3d 664, 673, 113 Ill. Dec. 337, 515 N.E.2d 146) and which may be used against the pleader for purposes of trial even if the pleading has been superseded by the amended answer thereto and otherwise ceased to be a part of the record. (Lawry's, 205 Ill. App. 3d at 1059.) Thus, even if the court had allowed Blount to amend its answer, plaintiffs still could have used the admission in Blount's prior answer as an evidentiary admission at trial.

Blount next contends that the trial court erred in granting Ceco's motion for a good-faith finding as to its settlement with plaintiffs and, subsequently, dismissing Blount's third-party complaint against Ceco. Blount avers that Ceco's failure to waive its worker's compensation lien evidences that the settlement was unfair. Additionally, Blount asserts that the disparity between the amount of settlement and the jury's damage awards shows that the settlement was not made in good faith.

Illinois public policy favors a peaceful and voluntary resolution of disputes through settlement agreements; any assertion that such an agreement is not valid must be proved by clear and convincing evidence. (Johnson v. Belleville Radiologists, Ltd. (1991), 221 Ill. App. 3d 100, 103, 163 Ill. Dec. 596, 581 N.E.2d 750.) Once the settling parties represent to the court that they have reached a good-faith settlement and its terms are made known to the court, a presumption of validity arises, and the burden of proof on the issue of good faith shifts to the party challenging the good-faith nature of the settlement. (Pritchard v. SwedishAmerican Hospital (1990), 199 Ill. App. 3d 990, 996-97, 146 Ill. Dec. 46, 557 N.E.2d 988.) The invalidity of a settlement agreement is established by a showing that there was no consideration for the settlement (199 Ill. App. 3d at 997) or by demonstrating collusion, fraud, or tortious or wrongful conduct (Snoddy v. Teepak, Inc. (1990), 198 Ill. App. 3d 966, 969, 145 Ill. Dec. 64, 556 N.E.2d 682).

What constitutes a good-faith settlement is left to the discretion of the trial court (Pritchard, 199 Ill. App. 3d at 996) and can be based solely upon the arguments of counsel (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 526, 113 Ill. Dec. 348, 515 N.E.2d 157), as was the case here. In assuming good faith, the court must take into account all the circumstances surrounding the settlement. (Smith v. Texaco, Inc. (1992), 232 Ill. App. 3d 463, 468, 173 Ill. Dec. 776, 597 N.E.2d 750.) The courts have refused to place great emphasis on any single factor as being determinative of good faith. Jachera v. Blake-Lamb Funeral Homes, Inc. (1989), 189 Ill. App. 3d 281, 285, 136 Ill. Dec. 790, 545 N.E.2d 314.

In the instant case, Robert and Doreen Good reached a settlement with Ceco. The settlement was reached two days into trial and several days before the jury reached its verdict. Under the terms of the settlement agreement, plaintiffs, collectively, were to receive $100,000 as well as all the worker's compensation benefits to which Robert Good was entitled. As part of the agreement, Ceco retained its rights to recoup the worker's compensation benefits out of any judgment plaintiffs recovered from Blount.

Relying on Higginbottom v. Pillsbury Co. (1992), 232 Ill. App. 3d 240, 173 Ill. Dec. 219, 596 N.E.2d 843, Blount argues that the consideration for the settlement agreement was not sufficient to evidence good faith. It is Blount's position that Ceco's failure to waive its worker's compensation lien demonstrates that the settlement was not made in good faith.

However, Blount's reliance on Higginbottom is misplaced because, unlike the instant case, the settlement in Higginbottom was not based on any consideration. There, the monies plaintiff received were no greater than the amount of worker's compensation benefits the employer/third-party defendant was obligated to pay the plaintiff. As a result, the employer could recover all the monies extended to the plaintiff by way of its retained lien.

In the case at bar, the settlement agreement provided that Ceco was to pay Robert Good $75,000 and Doreen Good $25,000 in addition to the benefits it was obligated to pay Robert under the Workers' Compensation Act (820 ILCS 305/8 (West 1992)). As Ceco points out, the $100,000 to be paid plaintiffs constituted "fresh monies" over and above any worker's compensation and, therefore, unlike the employer in Higginbottom, Ceco could not recover all of the monies it extended to plaintiffs.

Illinois' courts have held that failure of an employer to waive a worker's compensation lien does not ipso facto render a settlement invalid as having been made in bad faith. (Banks v. R.D. Werner Co. (1990), 201 Ill. App. 3d 762, 771, 147 Ill. Dec. 217, 559 N.E.2d 217; see also Cleveringa v. J.I. Case Co. (1989), 192 Ill. App. 3d 1081, 140 Ill. Dec. 226, 549 N.E.2d 877.) In Banks, the employer settled with two plaintiffs/employees for a total sum of $15,000 in a case with a potential judgment of $300,000 for both plaintiffs. As part of the settlement agreement, the employer did not waive its worker's compensation lien and was entitled to be repaid worker's compensation benefits out of any subsequent recovery for the nonsettling defendants. Despite the employer's failure to waive its worker's compensation lien, the court deemed the agreement was made in good faith because the money over and above the worker's compensation awards constituted consideration for the agreement. Like Banks, we believe the fresh monies plaintiffs received in the instant case constituted net consideration for the agreement.

Blount also argues that the settlement was not in good faith because the $75,000 settlement with Robert Good represents only 2 1/2% of the judgment entered against Blount. In testing a pretrial settlement for good faith, Illinois courts have specifically rejected the "ratio test," which compares the amounts of settlements with verdicts ultimately returned. (Johnson v. Belleville Radiologists, Ltd. (1991), 221 Ill. App. 3d 100, 104, 163 Ill. Dec. 596, 581 N.E.2d 750.) An ensuing jury verdict is not necessarily an accurate measure of good faith in a settlement, nor is the fact that a settlement agreement is advantageous to a party an indicium of bad faith. (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 525, 113 Ill. Dec. 348, 515 N.E.2d 157.) Since damages are often speculative and liability uncertain, the amount of a settlement legitimately may be quite different from a damage award which results from full litigation. Jachera v. Blake-Lamb Funeral Homes, Inc. (1989), 189 Ill. App. 3d 281, 288, 136 Ill. Dec. 790, 545 N.E.2d 314.

The good faith of a settlement is not Judged by the obstacles it creates for the nonsettling tort-feasor. (Cleveringa v. J.I. Case Co. (1989), 192 Ill. App. 3d 1081, 1086, 140 Ill. Dec. 226, 549 N.E.2d 877.) A party either compromises in return for the certainty of a fixed result or gambles that it will obtain a favorable result by submitting the case to a jury. (192 Ill. App. 3d at 1086.) The record of the good-faith hearing, here, reveals that Blount's position at pretrial conferences and in its motions was that it was not willing to settle. By going to trial, therefore, it gambled that it would obtain a more favorable result.

The settlement between plaintiffs and Ceco occurred in the second day of trial, well before the liability and damages issues had been determined. In determining whether the settlement was made in good faith, the court was required, as it stated at the good-faith hearing, to consider factors as they existed at the time the parties entered into the settlement. At the time of the settlement, as commented by the court, the potential existed for plaintiffs to lose. The court pointed out that, at that time, the defense appeared to have the better case, and, therefore, it was beneficial for plaintiffs to take the money offered by Ceco as a "guarantee of something" besides worker's compensation benefits.

Because plaintiffs got a good deal did not establish that the settlement resulted from collusion, fraud, or tortious or wrongful conduct. In fact, the arguments of counsel at the hearing on the settlement agreement proved otherwise. Counsel for Blount stated on the record that he did not believe the settlement was the product of collusion or fraud. Rather, he just thought it constituted an "unfair" settlement. Clearly, more than this is required to prove that a settlement agreement was not made in good faith. We conclude that the trial court, which was actively involved in the pretrial litigation and had a thorough understanding of the facts of the case, did not abuse its discretion in finding that the settlement was made in good faith.

We note that Blount alleges that there were "self-dealings" on the part of Ceco and its worker's compensation insurance carrier because Ceco would collect, under one of its policies, money that the carrier would pay out under another policy issued to Blount. The mere reference to a letter contained in the record, indicating that Ceco had two separate policies with the same insurance carrier, is insufficient to provide this court with a basis for review of Blount's allegation of collusion between Ceco and its insurance carrier. We agree with Ceco that this allegation assumes facts that are not contained in the record and, therefore, cannot be considered on appeal. Skrypek v. Mazzocchi (1992), 227 Ill. App. 3d 1, 4, 169 Ill. Dec. 71, 590 N.E.2d 990.

In its next contention Blount argues that the trial court erred in severing Blount's third-party action against Ceco from the original action. Plaintiffs maintain that their settlement with Ceco during trial, the trial court's good-faith finding after trial with respect to that settlement, and the court's subsequent dismissal of Blount's third-party complaint have rendered the issue of severance moot. We agree.

Questions arising from a trial court's order are moot when, because of developments following the issuance of that order, reversal of the order can have no practical effect on the controversy. (In re Marriage of Holem (1987), 153 Ill. App. 3d 1095, 1098, 106 Ill. Dec. 939, 506 N.E.2d 739.) As Ceco and plaintiffs settled subsequent to the issuance of the severance order, and the court found the settlement to be made in good faith, Ceco was discharged from all liability for any contribution to Blount pursuant to the Joint Tortfeasor Contribution Act. (See 740 ILCS 100/2(d) (West 1992).) Thus, the reversal of the court's severance order could have no practical effect on the controversy between Blount and Ceco because, after the settlement, that controversy no longer existed.

For the reasons stated, the judgment of the circuit court of Lake County denying Blount's motion to amend its answers to paragraph 5 of plaintiffs' fifth amended complaint, granting Ceco's motion for a good-faith finding as to its settlement with plaintiffs and severing Blount's third-party action from the original action is affirmed; the judgment allowing summary judgment in plaintiffs' favor is reversed; and the cause is remanded for a new trial.

Affirmed in part; reversed in part and remanded.

DOYLE and COLWELL, JJ., concur.


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