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Unzicker v. Kraft Food Ingredients Corp.

October 23, 2001

MARLIN UNZICKER AND THERESA UNZICKER, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
KRAFT FOOD INGREDIENTS CORPORATION, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE AND CROSS-APPELLANT, AND NOGLE & BLACK MECHANICAL, INC., A FOREIGN CORPORATION, THIRD-PARTY DEFENDANT.



Appeal from Circuit Court of Champaign County No. 92L1278 Honorable George S. Miller, John R. DeLaMar Judges Presiding.

The opinion of the court was delivered by: Justice Cook

UNPUBLISHED

Plaintiff, Marlin Unzicker, appeals a judgment finding defendant Kraft Food Ingredients Corporation (Kraft) only severally liable for the judgment in Unzicker's favor. The judgment was entered in accordance with the former version of section 2-1117 of the Civil Practice Law, which provided several liability for defendants whose fault was less than 25% of total fault, including the fault of "any third[-]party defendants who could have been sued by the plaintiff." 735 ILCS 5/2-1117 (West 1994). In September 1996, Judge Miller conducted the trial in the case and the jury had apportioned fault at 1% on the part of Kraft and 99% on the part of third-party defendant, Nogle & Black Mechanical, Inc., Unzicker's employer. In November 1996, Judge Miller entered judgment. We affirm for reasons different than those given by the trial court.

I. BACKGROUND

Unzicker was injured July 20, 1991, while he was installing stainless steel piping in Kraft's Champaign, Illinois, plant. At the time of the accident, Unzicker and another Nogle & Black employee, Mike Mills, were standing on a "manlift" (scissors lift), welding flanges to a pipe. Mike Law, a Nogle & Black foreman, wanted to deliver some equipment to Unzicker. To do that, the Nogle & Black crew used a Kraft forklift, previously made available to Nogle & Black by Kraft. The forklift was operated by a Nogle & Black apprentice, with Law in the forklift's basket. Law was being elevated as the forklift approached the manlift. The forklift struck the manlift and the manlift tipped over, causing Unzicker and Mills to fall.

On October 7, 1992, Unzicker filed suit against Kraft, alleging negligence and violations of the Structural Work Act (740 ILCS 150/0.01 through 9 (West 1992) (repealed by Pub. Act 89-2, §5, eff. February 14, 1995 (1995 Ill. Laws 7))). Kraft filed a third-party complaint against Nogle & Black on September 21, 1993.

The jury returned its verdict on September 18, 1996, finding against Unzicker on the Structural Work Act counts but finding in his favor on the negligence counts. The jury found Unzicker's total damages to be $879,400, with non-medical damages of $788,000. The jury apportioned 1% of the fault to Kraft and 99% to Nogle & Black. If Kraft's liability were limited to 1% of the damages, the verdict was essentially a loss for Unzicker. As an employer, Nogle & Black was liable (for contribution) only to the extent of its workers' compensation liability. Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 165, 585 N.E.2d 1023, 1028 (1991).

On November 5, 1997, Unzicker filed a posttrial motion and his first notice of appeal in this case, appealing the judgment finding Kraft severally liable for only 1% of the verdict, rather than jointly liable for the full amount. Kraft moved to dismiss that appeal, arguing that the case was over, that the last pending posttrial motion was resolved on April 2, 1996, and any notice of appeal should have been filed by May 2, 1996. This court, in a Rule 23 order (166 Ill. 2d R. 23) dated October 30, 1998, disagreed with Kraft, noting that a claim for attorney fees was unresolved until October 6, 1997, when a final written order was entered. Unzicker v. Kraft Food Ingredients Corp., No. 4-97-1019 (October 30, 1998) (unpublished order under Supreme Court Rule 23). Therefore, Unzicker's notice of appeal was timely, as was his November 5, 1997, motion for reconsideration filed in the trial court.

However, this court determined that it could not proceed with the appeal, quoting Rule 303 (155 Ill. 2d R. 303(a)(2)) that "'a notice of appeal filed before the entry of the order disposing of the last pending post[]judgment motion shall have no effect.'" (Emphasis omitted.) Unzicker, slip order at 11 (October 30, 1998. This court then dismissed the appeal, noting that "[t]he 30-day time limit for the filing of an appeal will not begin to run in this case until the trial court rules on the pending posttrial motion." Unzicker, slip order at 12 (October 30, 1998).

On March 31, 1999, the supreme court denied leave to appeal, stating:

"In the exercise of this Court's supervisory authority the Appellate Court, Fourth District, is directed to vacate that portion of its judgment in Unzicker v. Kraft Food Ingredients Corp., case No. 4-97-1019, that remanded with instructions." Unzicker v. Kraft Food Ingredients Corp., 183 Ill. 2d 598, 707 N.E.2d 1235 (1999) (nonprecedential supervisory order).

On May 24, 1999, this court entered an amended order which simply dismissed the appeal. Unzicker v. Kraft Food Ingredients Corp., No. 4- 97-1019 (May 24, 1999) (unpublished order under Supreme Court Rule 23).

When the case returned to the trial court, Kraft argued that Unzicker's November 5, 1997, motion to reconsider could not be considered. Judge DeLaMar rejected that argument and ruled on the motion, denying it. The trial court found that Unzicker had waived any argument that section 2-1117 did not apply to the case, because Unzicker did not move to strike Kraft's answer. Kraft's answer was amended shortly before trial to raise as an affirmative defense the applicability of section 2-1117. Absent waiver, however, the trial court noted that it would be bound to follow Lilly v. Marcal Rope & Rigging, Inc., 289 Ill. App. 3d 1105, 682 N.E.2d 481 (1997), which held that section 2-1117 could not be applied to limit recovery to a third- party defendant who is plaintiff's employer.

Unzicker now appeals, arguing the trial court erred in finding he had waived any objection to section 2-1117, improperly responded to questions by the jury, erroneously refused one of his instructions, and improperly limited his closing argument. Kraft cross-appeals, arguing the trial court had no jurisdiction to consider the motion to reconsider.

II. ANALYSIS

A. Kraft's Arguments Regarding Jurisdiction

Kraft argues in its cross-appeal that, after remand, the trial court was without jurisdiction to consider Unzicker's November 5, 1997, motion to reconsider. Kraft notes that our original order dismissed the appeal and remanded with directions to consider the motion, but the supreme court directed us to vacate that part of our order remanding with directions. Kraft views the supreme court order as a direction that no further proceedings take place on remand. We conclude, however, that the supreme court was merely pointing out that dismissal and remand with directions are mutually exclusive dispositions.

While the case was previously pending before us, Kraft, in the trial court, sought to dismiss Unzicker's motion to reconsider. Unzicker filed no response, and the trial court granted Kraft's motion. The trial court granted Kraft's motion because it concluded that it had no jurisdiction to consider the motion to reconsider, because the case was then on appeal. As noted, we concluded we had no jurisdiction on appeal because of matters ...


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