Appeal from the Circuit Court of Cook County. No. 99 L 5484 Honorable Michael Hogan, Judge Presiding
The opinion of the court was delivered by: Justice O'brien
American Augers, Inc., appeals the dismissal of its third-party complaint against Cee-Jay Contractors, Inc. seeking contribution. We reverse and remand.
Plaintiff, Donna Stickler, filed a wrongful death and survival action against defendant, American Augers, Inc. (Augers), the manufacturer of an auger that tipped over and crushed plaintiff's decedent, Harry D. Stickler. Plaintiff subsequently amended her complaint adding three other defendants, the Village of Schaumburg, Blackmore Construction, Inc. (Blackmore), and Pavia-Marting & Company (Pavia), all of which had some supervisory authority over the construction project where decedent's fatal accident occurred (collectively, the construction defendants). Augers and the construction defendants filed third-party complaints for contribution against the decedent's employer, Cee-Jay Contractors, Inc. (Cee-Jay). During discovery, plaintiff negotiated a settlement with the construction defendants and Cee-Jay wherein plaintiff would release her claims against the settling parties in exchange for Cee-Jay's waiver of its workers' compensation lien of $149,143.91 *fn1 and a combined, structured payment of $550,000. The agreement did not state a specific setoff amount for the non-settling defendant, Augers. The settlement was contingent upon a finding by the trial court that it was in good faith within the meaning of section 2(c) of the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/2(c) (West 1996)).
Augers objected to the settlement, arguing it was in bad faith because it would dismiss all three of the construction defendants in exchange for payment by their common insurer, CNA, of what Cee-Jay was already obligated to pay plaintiff under the Workers' Compensation Act and because it would deprive Augers of its right to obtain contribution from those defendants for an amount commensurate with their liability. Following a hearing, the trial court found the settlement had been made in good faith and allowed Augers, as the non-settling party, a setoff equal to the $699,143.91 in compensation actually received.
Augers appealed the trial court's finding that the settlement agreement was in good faith and its calculation of the setoff. After Augers initiated its appeal, Cee-Jay presented the workers' compensation portion of the settlement agreement to the Industrial Commission for its review and approval. The Industrial Commission, which was not advised that the settlement agreement was under review in this court, approved the settlement on October 23, 1997.
We reviewed the trial court's finding under the abuse of discretion standard, taking into consideration the entire record, including Cee-Jay's petition for a good faith-finding, which contained a detailed explanation of the settlement terms; Auger's response to the petition; the relevant hearing transcripts; the evidence presented to the trial court including the then-undisputed estimate as to Cee-Jay's long-term workers' compensation liability, the result of the Occupational Safety and Health Agency's investigation into the cause of the accident; and the practical impact of a good-faith finding upon the remaining defendant. We stated, "[t]he trial court should not equate the validity of the settlement as between the plaintiff and the settling defendant with whether the settlement was in good faith for purposes of the Contribution Act" (Stickler v. American Augers, Inc., 303 Ill. App. 3d 689, 693, 708 N.E.2d 403, 406 (1999)), and found that the trial court erred in finding that the settlement was made in good faith. We reversed the trial court's good-faith finding and its calculation of the setoff and remanded for further proceedings.
The proceedings, findings and orders of the Industrial Commission were not part of the record although the Industrial Commission "Settlement Contract Lump Sum Petition and Order" was attached to a brief.
Cee-Jay did not file a petition for rehearing or a petition for leave to appeal to the supreme court.
Following remand, Cee-Jay filed a motion to dismiss Augers' third-party complaint on the same basis rejected by us, claiming that because the Industrial Commission had approved the settlement our opinion should be ignored. The trial court granted Cee-Jay's motion.
Augers filed a motion for reconsideration and damages pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137) and a motion seeking apportionment and setoff pursuant to our opinion. The trial court denied Augers' motion to reconsider, but granted its motion for apportionment and set-off in the amount of $299,143.91-the same amount we rejected in our earlier opinion. Augers appealed, contending (1) that the trial court erred in dismissing Augers' third-party complaint against Cee-Jay based upon Cee-Jay's settlement with plaintiff, (2) that even assuming dismissal of Augers' third-party complaint against Cee-Jay was not erroneous, the trial court erred in refusing to grant Augers a setoff conforming with our opinion, and (3) that Augers is entitled to recover its costs and fees from Cee-Jay for the instant and prior appeals.
First, the dismissal. On appeal, Augers argues that our earlier opinion is the law of the case and that the trial court erred in dismissing Augers' third-party complaint against Cee-Jay and refusing to grant Augers a setoff in accord with our opinion. Plaintiff and Cee-Jay counter that our earlier opinion is not the law of the case and, thus, was not binding on the trial court because the issue in the present case is different from that decided in the previous appeal. Alternatively, plaintiff and Cee-Jay argue that we should reconsider our previous decision, which they call "palpably erroneous."
"The rule of the law of the case is a rule of practice, based on sound policy that, where an issue is once litigated and decided, that should be the end of the matter and the unreserved decision of a question of law or fact made during the course of litigation settles that question for all subsequent stages of the suit." Continental Insurance Co. v. Skidmore, Owings & Merrill, 271 Ill. App. 3d 692, 696-97 (1995). Thus, issues raised on appeal are binding and control on remand unless the facts presented are so ...