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12/09/94 DENISE LEE DAVIS v. STATES DRYWALL AND

December 9, 1994

DENISE LEE DAVIS, PLAINTIFF,
v.
STATES DRYWALL AND PAINTING, PORTRAIT HOMES-CHICAGO, PORTRAIT HOMES-CHICAGO, INC., AND L.I.C.-2, INC., A JOINT VENTURE, L.I.C.-2, INDIVIDUALLY, AND PASQUINELLI CONSTRUCTION CO., DEFENDANTS; (PORTRAIT HOMES-CHICAGO, INC., AND L.I.C.-2, INC., A JOINT VENTURE, L.I.C.-2, INDIVIDUALLY, AND PASQUINELLI CONSTRUCTION CO., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLEES, STATES DRYWALL AND PAINTING, DEFENDANT AND COUNTERDEFENDANT-APPELLANT.)



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ALLEN A. FREEMAN, JUDGE PRESIDING.

The Honorable Justice McNAMARA delivered the opinion of the court: Egan, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

This case concerns the contribution claims which remain after the joint settlement of a personal injury action. The principal issue is whether Illinois' Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, par. 59.90 et seq.) had been preempted by the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq. (1988)).

On September 22, 1987, Denise Lee Davis filed a complaint against Portrait Homes-Chicago, a joint venture between Portrait Homes-Chicago, Inc. and L.I.C.-2, Inc.; Portrait Homes-Chicago, Inc., individually; L.I.C.-2, Inc., individually, (collectively referred to as Portrait Homes) and States Drywall & Painting. On January 17, 1989, Portrait Homes filed a counterclaim for contribution against States Drywall. Davis subsequently filed a first amended complaint at law, adding Pasquinelli Construction Company as a defendant. She later filed a second amended complaint, adding various Pasquinelli enterprises as defendants. In her single-count complaint, Davis alleged violations of the Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, par. 59.90 et seq.) against all defendants. On March 31, 1992, States Drywall filed a counterclaim for contribution against Portrait Homes, while on December 2, 1992, Pasquinelli filed a counterclaim for contribution against States Drywall.

On January 6, 1993, the case proceeded to a jury trial. Davis testified that on March 18, 1987, she was working as a drywall taper finisher at a residential construction project in Lake Zurich, Illinois. On that date, she sustained injuries to her right ankle when she fell approximately four feet through an opening in the floor that had been covered with a piece of drywall. The incident occurred in acloset at one of the new homes under construction. Throughout the trial, Portrait Homes was referred to as the developer, while Pasquinelli was referred to as the owner. Portrait Homes had a contract with States Drywall to provide drywall services. States Drywall in turn retained D & G Drywall, of which Davis was a principal, to perform taping work.

On January 11, a recess was taken for the purpose of conducting settlement discussions. The parties met in chambers, outside the presence of the jury. Although a settlement agreement had not yet been signed, counsel for Pasquinelli represented to the court that Portrait Homes and Pasquinelli jointly offered Davis $650,000 in settlement of her entire case which she accepted in exchange for the release of the defendants in the case, including States Drywall. Counsel further represented that funding for the offer was provided by the Northbrook Insurance Company, the insurance carrier for both Portrait Homes and Pasquinelli. He stated that although the offer was being made solely on behalf of the Northbrook insureds, since it was unfunded by States Drywall or its carrier, it was made with the intention that a release would be obtained for all defendants so that pursuant to the Joint Tortfeasor Contribution Act (Ill. Rev. Stat. 1991, ch. 70, par. 300 et seq.) further proceedings could be had regarding the allocation of responsibility. Pasquinelli then asked the trial court for a finding that the joint settlement was made in good faith, a prerequisite to proceeding under the Contribution Act. States Drywall objected to the request on the basis that there had been no representation to the court as to the allocation of the settlement amount between the two settling defendants. Counsel for Pasquinelli countered that he was unsure whether it was necessary to present evidence of the allocation, while counsel for Portrait Homes did not think it mattered how the settlement was split.

The trial court ruled that the settlement of $650,000 was reasonable and made in good faith. The court entered an order pursuant to the settlement agreement between Davis and Portrait Homes and Pasquinelli, dismissing with prejudice Davis' action as to all defendants, including States Drywall, without costs to any party.

The trial judge informed the jury that Davis' case against defendants had been dismissed because it had been settled. He further stated that all that remained for purposes of the trial were Portrait Homes and Pasquinelli's counterclaims for contribution against States Drywall.

At the close of the contribution plaintiffs' cases in chief, States Drywall moved for a directed verdict on several grounds. The two grounds relevant to this appeal are as follows: (1) that Illinois' Structural Work Act had been preempted by the Federal Occupational Safety and Health Act of 1970; and (2) that the contribution plaintiffs had not presented a prima facie case for contribution, having failed to produce sufficient evidence as to the allocation of the joint settlement between them. The trial court denied States Drywall's motion for a directed verdict.

Thereafter, during the jury instruction conference after the parties had rested their cases, counsel for Pasquinelli, on behalf of both contribution plaintiffs, informed the trial court that they now agreed with States Drywall that in order to establish a prima facie case of contribution, they were obligated to allocate the settlement amount between them. The contribution plaintiffs then asked the court to reopen their cases for the purpose of placing on the record their allocation of the settlement and the circumstances surrounding the allocation. Overruling States Drywall's objection, the trial court allowed the contribution plaintiffs to reopen their cases.

Counsel for Pasquinelli informed the court that he had obtained an agreement from Davis' counsel allowing contribution plaintiffs to allocate the settlement amount any way they saw fit. Counsel for Pasquinelli further stated that the allocation agreed upon was 50% or $325,000 as to both Portrait Homes and Pasquinelli. Over States Drywall's objection, the court found that the allocation was complete and reasonable under the circumstances. The trial court informed the parties that the question of good faith and the amount of the settlement would not go to the jury.

On that same date, the jury returned a verdict apportioning fault as follows: Portrait Homes, 38%; Pasquinelli, 34%; and States Drywall, 28%. The trial court entered judgment in favor of Portrait Homes and Pasquinelli and against States Drywall in the amounts of $78,000 and $104,000, respectively, on their claims for contribution. The court denied States Drywall's post-trial motions, and States Drywall appeals.

On appeal, States Drywall contends that the Federal Occupational Safety and Health Act of 1970 (hereinafter OSHA) preempts Illinois' Structural Work Act where OSHA's section 653(b)(4), the employer/employee savings clause, has no application to the Structural Work Act such that no cause of action exists against it; and that, in the alternative, if such an action does exist, the trial court committed reversible error when it denied States Drywall's motion for a directed verdict at the close of plaintiffs' cases in chief, where they failed to state a prima facie case for contribution; and that the court abused its discretion when it allowed them to reopen their cases to supply the essential elements they had refused to introduce into evidence earlier.

States Drywall first contends that OSHA has preempted the Structural Work Act. Such preemption, it maintains, is predicated upon congressional intent, the U.S. Supreme Court's interpretation of OSHA in Gade v. National Solid Wastes Management Ass'n (1992), 505 U.S. , 120 L. Ed. 2d 73, 112 S. Ct. 2374, and the inapplicability of OSHA's employer/employee savings clause. 29 U.S.C. § 653(b)(4) (1988).

States Drywall asserts that in enacting OSHA, Congress demonstrated its intent to regulate all aspects of occupational safety and health issues, thus precluding State regulation of such issues and effectively preempting the Structural Work Act. Recognizing, however, that Congress established an explicit framework in OSHA allowing for the state regulation of occupational safety and health issues in certain limited situations, States Drywall argues that because it is undisputed that OSHA regulations ...


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