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Unzicker v. Kraft Food Ingredients Corporation

November 21, 2002

MARLIN UNZICKER ET AL., APPELLANTS,
v.
KRAFT FOOD INGREDIENTS CORPORATION, APPELLEE.



The opinion of the court was delivered by: Justice Thomas

UNPUBLISHED

Docket No. 92838-Agenda 14-May 2002.

At issue in this appeal are several questions regarding both the interpretation and constitutionality of section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1994)), which modified the common law rule of joint and several liability. Pursuant to section 2-1117, any tortfeasor whose percentage of fault for a plaintiff's injuries is found to be "less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff" is only severally liable for the plaintiff's non-medical damages. 735 ILCS 5/2-1117 (West 1994). In this case, plaintiffs, Marlin and Theresa Unzicker, argue that the trial court erred in applying section 2-1117, which resulted in a judgment that defendant Kraft Food Ingredients Corporation (Kraft) was liable for only 1% of Marlin's non-medical damages. Plaintiffs assert that Marlin's employer, third-party defendant Nogle & Black Mechanical, Inc. (Nogle), whom a jury found to be 99% responsible for Marlin's injuries, should not have been included in the division of fault. Plaintiffs contend that an employer who is protected from suit by the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2000)) is not a party who "could have been sued" by the plaintiff. Additionally, plaintiffs contend that section 2-1117 is unconstitutional and that the trial court erred in failing to answer the jurors' questions and to give a certain jury instruction.

BACKGROUND

The essential facts are undisputed. Marlin was injured on July 20, 1991, while he was installing stainless steel piping at Kraft's plant in Champaign. Marlin and another Nogle employee, Mike Mills, were standing on a "manlift" and welding flanges to a pipe. Marlin's foreman, Mike Law, attempted to deliver some equipment to him by bringing it in the basket of a forklift that was owned by Kraft and operated by another Nogle employee. The forklift collided with the manlift, causing Marlin and Mills to fall.

Marlin applied for and received workers' compensation benefits. Additionally, Marlin and his wife, Theresa, sued 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). Kraft filed a third-party complaint for contribution against Nogle.

The jury found against plaintiffs on the Structural Work Act claim, but in their favor on the negligence counts. The jury awarded plaintiffs $879,400 in total damages, $788,000 of which were non-medical and $91,400 of which were medical. The jury apportioned 1% of the fault to Kraft and 99% to Nogle.

The trial court applied section 2-1117, which modified the common law rule of joint and several liability. At common law, a plaintiff could recover compensation for the full amount of his injury from any defendant responsible for the injury. Best v. Taylor Machine Works, 179 Ill. 2d 367, 423 (1997). Section 2-1117 modified this rule as follows:

"Except as provided in Section 2-1118, in actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiff's past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff, shall be severally liable for all other damages. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff, shall be jointly and severally liable for all other damages." 735 ILCS 5/2-1117 (West 1994). *fn1

The trial court's application of this section and the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 2000)) rendered the verdict somewhat of a loss for plaintiffs because Kraft was severally liable for only 1% of the non-medical damages, and Nogle was liable only for contribution in an amount equal to its workers' compensation liability (Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 164-65 (1991)). Thus, the trial court entered judgment on the jury's verdict as follows. Kraft and Nogle were jointly and severally liable for Marlin's past and future medical expenses of $91,400. Kraft was severally liable for 1% of the non-medical damages ($7,880). On Kraft's third-party complaint, Nogle was liable to Kraft for $90,486 in contribution, which represented 99% of the medical damages.

Plaintiffs filed a post-trial motion in which they argued that the trial court erred in applying section 2-1117. Plaintiffs' argument was based on the Fifth District of the Appellate Court's opinion in Lilly v. Marcal Rope & Rigging, Inc., 289 Ill. App. 3d 1105 (1997), in which the court held that a plaintiff's employer should not be included in an allocation of fault under section 2-1117 because an employer, who is immune from suit under the Worker's Compensation Act, is not a "third party defendant who could have been sued by the plaintiff."

The trial court denied the post-trial motion and found that plaintiffs had waived their argument that section 2-1117 should not apply. Kraft had initially raised the application of section 2-1117 as an affirmative defense in an amendment to its answer to the complaint. The trial court ruled that plaintiffs had waived their argument about section 2-1117 by failing to move to strike the answer. The trial court noted, however, that it would have been bound to follow Lilly if the issue had not been waived.

Plaintiffs appealed, and the Fourth District affirmed. 325 Ill. App. 3d 587. The Fourth District disagreed with the trial court's conclusion that the section 2-1117 issue had been waived and held that section 2-1117 does not have to be raised as an affirmative defense. Rather, because that section operates to allocate damages according to the jury's verdict, issues relating to it can be raised in motions filed after the verdict's entry. 325 Ill. App. 3d at 592. On the underlying issue, however, the Fourth District disagreed with Lilly and held that an employer can be included within the phrase "any third party defendant who could have been sued by the plaintiff." The court relied on Doyle v. Rhodes, 101 Ill. 2d 1 (1984), in which this court held that employers are subject to the Contribution Act, which applies where "[two] or more persons are subject to liability in tort arising out of the same injury." See 740 ILCS 100/2(a) (West 2000). In Doyle, this court explained that the exclusive remedy provision of the Workers' Compensation Act (820 ILCS 305/5(a) (West 2000)) is in the nature of an affirmative defense that is waived if not asserted. Until the defense is asserted, the employer is subject to liability in tort. Doyle, 101 Ill. 2d at 10-11. Therefore, the Fourth District concluded, if the phrase "subject to liability in tort" in the Contribution Act can include a plaintiff's employer, the phrase "any third party defendant who could have been sued by the plaintiff" in section 2-1117 can also include a plaintiff's employer. 325 Ill. App. 3d at 593. We granted plaintiffs' petition for leave to appeal to resolve this conflict in the appellate court.

ANALYSIS

I. Motions to Strike

Before discussing the merits of the appeal, we address two motions that we ordered taken with the case. Kraft moved to strike part of plaintiffs' petition for leave to appeal and part of their opening brief. Kraft objected to plaintiffs' raising issues that they did not raise in the appellate court. In the appellate court, plaintiffs raised only whether employers can be included in a section 2-1117 division of fault and whether the trial court erred in refusing to answer the jury's questions. In Garza v. Navistar International Transportation Corp., 172 Ill. 2d 373, 383 (1996), we held that issues that the appellant fails to raise in the appellate court are waived for purposes of our review. See also Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 209-10 (1983).

Here, however, we choose not to apply waiver. Waiver is a limitation on the parties and not on the court. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11 (1996). Moreover, we may consider an issue not raised below if the issue is one of law and is fully briefed and argued by the parties. Committee for Educational Rights, 174 Ill. 2d at 11. The issues plaintiffs raise regarding section 2-1117 are purely legal questions that have been fully briefed. We believe that the public interest favors considering the issues now, and thus we will not apply waiver. See Committee for Educational Rights, 174 Ill. 2d at 12. Accordingly, the motions to strike portions of the petition for leave to appeal and the plaintiffs' brief are denied.

II. Interpretation of Section 2-1117

Our first inquiry is one of statutory construction. Plaintiffs argue that the appellate court erred in holding that a plaintiff's employer can be considered a "third party defendant who could have been sued by the plaintiff" in determining percentages of fault under section 2-1117.

The cardinal rule of statutory construction is to ascertain and give effect to the legislature's true intent. In re D.D., 196 Ill. 2d 405, 418 (2001). When determining legislative intent, our starting point is the statute's language, which is the most reliable indicator of the legislature's objectives in enacting the particular law. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000). When a statute's language is clear and unambiguous, courts may not read in exceptions, limitations, or other conditions. D.D., 196 Ill. 2d at 419. Only when the meaning of the provision cannot be ascertained from its language may a court look beyond the language and resort to aids for construction. Kunkel v. Walton, 179 Ill. 2d 519, 533-34 (1997). Because statutory interpretation presents a question of law, our review is de novo. King v. Industrial Comm'n, 189 Ill. 2d 167, 171 (2000).

Whether a plaintiff's employer can be considered in a section 2-1117 division of fault was first considered in Lilly. In that case, the plaintiff obtained a judgment of $1,200,005 against the defendant. The jury apportioned 90% of the fault to the plaintiff's employer, who was a third-party defendant, and 10% to the defendant. Accordingly, the defendant argued that it should be responsible for only 10% of the plaintiff's non-medical damages. The trial court disagreed and refused to reduce the judgment against the defendant. The Appellate Court, Fifth District, affirmed. Lilly, 298 Ill. App. 3d 1105.

The Fifth District noted that section 5(a) of the Workers' Compensation Act provides that " `[n]o common law or statutory right to recover damages from the employer *** for injury or death sustained by any employee *** other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act.' " (Emphasis omitted.) Lilly, 289 Ill. App. 3d at 1107, quoting 820 ILCS 305/5(a) (West 1996). Thus, according to the Fifth District, a plaintiff's employer is not a party who "could have been sued" by the plaintiff. The defendant in Lilly argued that Doyle mandated the opposite result. In Doyle, this court considered whether employers were liable for contribution under the Contribution Act. The relevant portion of the Contribution Act provided that "where 2 or more persons are subject to liability in tort arising out of the same injury *** there is a right of contribution among them." Ill. Rev. Stat. 1981, ch. 70, par. 302(a), now 740 ILCS 100/2(a) (West 2000). The issue in Doyle was whether employers, who are immune from suit under the Workers' Compensation Act, are liable for contribution given that the Contribution Act applies only to those who are "subject to liability in tort." This court held that the Contribution Act does apply to employers, reasoning as follows:

"The language relied on by the employer is neither unambiguous nor should it be construed in the way the employer seeks to apply it. The Workers' Compensation Act provides employers with a defense against any action that may be asserted against them in tort, but that defense is an affirmative one whose elements-the employment relationship and the nexus between the employment and the injury-must be established by the employer, and which is waived if not asserted by him in the trial court. [Citations.] Thus, the plaintiff may recover a tort judgment against his employer for a work-related injury if the employer fails to raise the defense the Workers' Compensation Act gives him [citation], and on occasion the employer may choose not to raise it in the hope that the plaintiff will be unable to prove negligence to a jury's satisfaction. The potential for tort liability exists until the defense is established. As this court has recently decided in interpreting the phrase of the Contribution Act at issue here, ` "liability" is determined at the time of the injury out of which the right to contribution arises, and not at the time the action for contribution is brought' [citations]. At the time of an injury for which an employer's negligence is partly responsible, the employer is in fact `subject to liability in tort' to his employee, although that liability can be defeated depending on the response he chooses to make to his employee's claim in the event the employee decides to sue in tort." Doyle, 101 Ill. 2d at 10-11.

Lilly distinguished Doyle by noting that in Doyle this court was considering only whether employers were liable for contribution. Lilly, 289 Ill. App. 3d at 1109. The court also noted that the legislature was aware of this court's decision in Doyle when it enacted section 2-1117. Thus, according to Lilly, if the legislature had intended for employers to be covered by section 2-1117, it would have used the phrase "subject to liability in tort" because that phrase had already been construed to include employers. Lilly, 289 Ill. App. 3d at 1108. Further, Lilly held that by using the phrase "could have been sued," the legislature did not mean to include merely theoretical actions. According to Lilly, such a construction could include a plaintiff's wife, his state, his god, or his pet iguana, because a plaintiff could theoretically file a piece of paper naming such persons, animals, or entities as defendants. Lilly concluded that the legislature did not intend "such a ridiculous result." Lilly, 289 Ill. App. 3d at 1113.

In the present case, the Fourth District rejected the Fifth District's interpretation. The Fourth District relied on Doyle, finding that the reasoning this court employed in determining that employers are "subject to liability in tort" would apply equally to a statute referring to "any third-party defendant who could have been sued by the plaintiff." Further, the Fourth District concluded that the clear legislative intent in section 2-1117 was that minimally responsible defendants should not be responsible for entire judgments and that it would make no sense in allocating fault to ignore the tortfeasor 99% at fault. 325 Ill. App. 3d at 593.

We agree with the Fourth District's interpretation. When the legislature enacted section 2-1117, it was aware of our construction of the phrase "subject to liability in tort" in the Contribution Act. We held that employers, despite their immunity provided by the Workers' Compensation Act, are still subject to liability in tort because the protection of the Workers' Compensation Act is in the nature of an affirmative defense that must be raised in the trial court if the plaintiff brings a suit. Doyle, 101 Ill. 2d at 10; see also Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201, 207-08 (1997) (section 5(a) of the Workers' Compensation Act is in the nature of an affirmative defense that may be waived by the employer); Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 514 (1994) (same). In section 2-1117, the legislature referred to a division of fault among the plaintiff, the defendants sued by the plaintiff, and any third-party defendants who could have been sued by the plaintiff. Under our analyses in Doyle, Braye, and Geise, a plaintiff's employer who is a third-party defendant is a party who "could have been sued by the plaintiff."

In coming to this conclusion, we must reject Lilly's somewhat fanciful hypothesis of legislative intent. According to Lilly, if the legislature had intended to include employers in the division of fault, it would have used the phrase "subject to liability in tort" because this court had already construed that phrase as including employers. Thus, according to Lilly, the legislature must have meant something different by using the phrase "could have been sued by the plaintiff." If, however, the legislature intended to use language that would exclude employers, we believe that it would have simply put in language specifically excluding employers. If, as Lilly contends, the legislature was considering Doyle when it drafted section 2-1117 and wanted that section to mean something different, it is difficult to believe that the legislature would have chosen a phrase such as "who could have been sued by the plaintiff" instead of excluding employers explicitly.

Further, we disagree with Lilly's sarcastic conclusion that including an employer who has statutory immunity from tort suits in the division of fault would mean that a plaintiff's pet iguana could also be included because a person could physically file a paper naming his pet as a defendant in a suit. Such an analysis ignores the first part of the relevant statutory phrase. Section 2-1117 does not include in the division of fault "anyone who could have been sued by the plaintiff." Rather, it includes "any third-party defendant who could have been sued by the plaintiff." In other words, the party must already have been brought into the case by a defendant for that party to be included in the division of fault. Unless defendants in tort suits begin filing contribution claims against the plaintiff's pets, Lilly's fears of iguana litigation will never be realized.

The clear legislative intent behind section 2-1117 is that minimally responsible defendants should not have to pay entire damage awards. The legislature set the line of minimal responsibility at less than 25%. In order to apportion responsibility, the legislature looked to those people in the suit: the plaintiff, the defendants sued by the plaintiff, and any third-party defendants who could have been sued by the plaintiff. In our opinion, the broad wording in the statute merely shows that the legislature intended the division of responsibility to include those people in the suit who might have been responsible for the plaintiff's injuries. Here, ignoring the party found to be 99% responsible for the plaintiff's injuries and requiring the party found 1% responsible to pay all of the non-medical damages would not be in accord with the clear legislative intent that minimally responsible defendants should not be liable for entire judgments. The appellate court did not err in holding that Nogle was properly considered in the division of fault.

III. Alleged Conflict with the Joint Tortfeasor Contribution Act

Plaintiffs next argue that section 2-1117 irreconcilably conflicts with sections 3 and 4 of the Contribution Act. These sections provide as follows:

"Amount of Contribution. The pro rata share of each tortfeasor shall be determined in accordance with his relative culpability. However, no person shall be required to contribute to one seeking contribution an amount greater than his pro rata share unless the obligation of one or more of the joint tortfeasors is uncollectable. In that event, the remaining tortfeasors shall share the unpaid portions of the uncollectable obligation in accordance with their pro rata liability.

If equity requires, the collective liability of some as a group shall constitute a single share." 740 ILCS 100/3 (West 2000).

"Rights of Plaintiff Unaffected. A plaintiff's right to recover the full amount of his judgment from any one or more defendants subject to liability in tort for the same injury to person or property, or for wrongful death, is not affected by the provisions of this Act." 740 ILCS 100/4 (West 1994).

According to plaintiffs, these two sections-section 4 explicitly and section 3 implicitly-recognize a plaintiff's right to recover all of his or her damages from any responsible defendant. Section 2-1117, by contrast, eliminates a plaintiff's ability to recover the full amount of his or her non-medical damages from any defendant found to be less than 25% responsible for the plaintiff's injuries.

Where there is an alleged conflict between two statutes, a court has a duty to interpret those statutes in a manner that avoids an inconsistency and gives effect to both statutes, where such an interpretation is reasonably possible. McNamee v. Federated Equipment & Supply Co., 181 Ill. 2d 415, 427 (1998). Here, giving such an interpretation is not difficult because the statutes simply do not conflict. Section 4 of the Contribution Act merely clarifies that nothing in the Contribution Act affects a plaintiff's right to recover the full amount of damages from any one or more defendants. Section 2-1117 is not in the Contribution Act, so its modification of joint and several liability does not conflict with Section 4. Section 3 explains how the amount of contribution is determined and what happens when one or more of the tortfeasors is insolvent. Likewise, this section simply does not conflict with section 2-1117's modification of the rule of joint and several liability for minimally culpable ...


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