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06/09/97 JAMES FOSTER v. RAO KANURI

June 9, 1997

JAMES FOSTER, ADM'R OF THE ESTATE OF PATRICE FOSTER, DECEASED, PLAINTIFF-APPELLANT,
v.
RAO KANURI, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Jerome Lerner, Judge Presiding.

Released for Publication July 21, 1997.

The Honorable Justice Braden *fn1 delivered the opinion of the court. Campbell, P.j., and Buckley, J., concur.

The opinion of the court was delivered by: Braden

The Honorable Justice BRADEN *fn1 delivered the opinion of the court:

Plaintiff, James Foster, administrator of the estate of Patrice Foster, deceased, appeals from a January 24, 1994, order awarding defendant, Rao Kanuri, M.D., a setoff in the amount of $2,750,000 against a judgment entered against defendant in an earlier proceeding. Plaintiff argues that (1) the setoff formula used by the trial court on remand is inconsistent with this court's prior opinion in Foster v. Kanuri, 241 Ill. App. 3d 677, 608 N.E.2d 8, 180 Ill. Dec. 886 (1992); (2) that the wrongful death claims of the surviving spouse and minor son should have been treated as two separate and distinct claims for setoff purposes; and (3) that the apportionment adopted by the parties for allocating the pretrial settlements should have been used in determining the setoffs.

The facts relevant to the appeal are as follows. Decedent, Patricia Foster, died after undergoing a dilation and curettage procedure at Humana Hospital. She was survived by her minor son, Daniel, and husband, James Foster. James Foster commenced a medical malpractice action against multiple defendants: Joseph Ptasinki (Ptasinski); Northwest Physicians for Women, S.C. (Northwest Physicians); Humana Hospital; and defendant-appellant, Rao Kanuri, M.D.

Humana Hospital settled the claims against it prior to trial for $750,000. The trial court entered a good-faith finding in the settlement. Plaintiff then filed a motion for distribution of settlement proceeds. The trial court approved the settlement, finding that James Foster and Daniel Foster were decedent's surviving spouse and next of kin and that their percentages of dependency were 60% and 40%, respectively. Ptasinski and Northwest Physicians also settled claims against them for $2 million. The trial court approved these settlements, also finding James Foster's percentage of dependency to be 60% and Daniel Foster's to be 40%.

The aforementioned pretrial settlements totalled $2,750,000, of which $1,100,000 was awarded to Daniel Foster and $1,650,000 was awarded to James Foster. None of the pretrial settlement was distributed to the estate of Patrice Foster.

The remaining defendant, Dr. Kanuri, proceeded to trial, after which the jury returned a verdict in favor of plaintiff and against defendant in the amount of $2,925,000. The jury verdict was to be distributed as follows: (1) $2,100,000 to Daniel Foster for loss of society on the wrongful death claim; (2) $250,000 to James Foster for the loss of society on the wrongful death claim; and (3) $575,000 to the estate of Patrice Foster on the pain and suffering claim.

Defendant filed a post-trial motion requesting a setoff of the entire $2,750,000 in settlement proceeds against the total jury verdict, so that only $175,000 would remain due and owing to plaintiff. The trial court rejected defendant's argument and entered an order granting plaintiff's cross-motion for a setoff of $1 million against Daniel Foster's jury verdict and $575,000 against the estate's jury verdict, requiring defendant to pay $1,575,000 to plaintiff.

Defendant appealed this order in Foster v. Kanuri, 241 Ill. App. 3d 677, 608 N.E.2d 8, 180 Ill. Dec. 886 (1992), where the sole issue presented to this court was whether defendant was entitled to set off the full pretrial settlement amounts paid to plaintiff by other, dismissed defendants, against the jury's total verdict against him. On appeal, this court reversed the trial court's determination as to the setoffs and remanded the case to the trial court with instruction to reconsider the settlement agreements and the jury verdict in light of the wrongful death and survival claims involved. In reaching its decision, this court held that the express provisions and plain language of the Joint Tortfeasor Contribution Act (Contribution Act) (Ill. Rev. Stat. 1989, ch. 70, par. 302(c)) entitled defendant to have settlement proceeds paid by the other defendants set off against the jury verdict. This court further instructed the trial court to apportion the setoff of the jury verdict against the pretrial settlements in light of the method espoused in Murphy v. Martin Oil Co., 56 Ill. 2d 423, 308 N.E.2d 583 (1974), and reiterated in Fountas v. Breed, 118 Ill. App. 3d 669, 455 N.E.2d 200, 74 Ill. Dec. 170 (1983).

On remand, the trial court granted defendant a setoff against the judgment entered on the jury's verdict of $2,925,000 in the amount of $2,750,000 for pretrial settlement funds received by the plaintiff from other settling defendants prior to trial. The trial court specified that the amount due and owing plaintiff from defendant should be reduced to the net sum of $175,000 plus $345.20 in interest. Plaintiff appeals from this order.

On appeal, plaintiff contends that the setoff approach adopted by the trial court on remand is inconsistent with this court's prior opinion. Specifically, plaintiff argues that the setoff approach deprived the minor child, Daniel Foster, of nearly $875,000 of the $2,100,000 wrongful death recovery awarded to him by the jury by offsetting against his recovery, not only his share of the pretrial settlements, but also that of his father, James Foster. Defendant, on the other hand, argues that the earlier decision in Foster established the law of the case and this court is bound by its holding and the judgment of the circuit court entered on remand. Defendant argues that the issue on appeal is improper in that plaintiff is attempting to use a second appeal to ask this court to reconsider its earlier decision.

Under Illinois law, the earlier decision in Foster established the law of the case, and this court is bound by its holding in the aforementioned case and the judgment of the circuit court entered on remand. PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 312, 427 N.E.2d 563, 573, 56 Ill. Dec. 368 (1981). When an appellate court reverses and remands the cause with a specific mandate, the only proper issue on a second appeal is whether the trial court's order is in accord with the mandate. Anundson v. City of Chicago, 15 Ill. App. 3d 1032, 1037, 305 N.E.2d 376, 381 (1973). Ordinarily, a party seeking review of an appellate decision in an Illinois court has two options, neither of which includes a second appeal. The party may ...


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