Appeal from the Circuit Court of Effingham County. No. 10-L-18 Honorable Kimberly G. Koester & Michael P. Kiley, Judges, presiding.
The opinion of the court was delivered by: Justice Chapman
Rule 23 order filed 2013 IL App (5th) 110546 February 1, 2013; Motion to publish granted
JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Goldenhersh and Stewart concurred in the judgment and opinion.
¶ 1 The plaintiffs, Roy Dean Rogers II and Teresa Rogers, filed a petition under the Dramshop Act (235 ILCS 5/6-21 (West 2008)) after their son was fatally injured in a collision with a drunk driver. Because the defendant's dramshop liability insurance carrier was insolvent, the defendant was represented in this action by the Illinois Insurance Guaranty Fund. Prior to trial, the defendant filed a motion for a summary determination of the extent to which his liability was to be offset by automobile insurance proceeds the plaintiffs had recovered. The defendant asked the court to rule that his liability was to be reduced to the statutory cap under the Dramshop Act and then further reduced by the amounts recovered from other insurance policies. The court denied the motion. The court subsequently granted the defendant's motion to certify the question for interlocutory review pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010). We answer the certified question and affirm the trial court's ruling.
¶ 2 The salient facts are not in dispute. In October 2009, the plaintiffs' son, Roy
Dean Rogers III, sustained fatal injuries when the vehicle he was driving was involved in a head-on collision with a vehicle driven by John E. Winterrowd. Rogers died later the same day. He was 18 years old. According to the allegations of the complaint, Winterrowd was intoxicated after consuming alcohol served to him at Johnny's Bar and Grill, an establishment owned by the defendant, Gani Imeri. The plaintiffs received $26,550 from Winterrowd's liability insurance policy. They also received $80,000 from their own automobile insurance policy ($75,000 under the underinsured motorist provision and $5,000 under a medical coverage provision).
¶ 3 The plaintiffs subsequently filed the instant action under the Dramshop Act
(235 ILCS 5/6-21 (West 2008)). They alleged that Winterrowd was intoxicated as a result of drinking alcoholic beverages at Johnny's Bar and Grill and that his intoxication contributed to the collision. They sought damages for the loss of the decedent's companionship, property damage to the vehicle, medical bills, and the decedent's pain and suffering before he died.
¶ 4 At the time the accident occurred, the defendant maintained a dramshop liability policy with Constitutional Casualty Company. The policy provided a policy limit of $130,338.51, the statutory cap under the Dramshop Act. See 235 ILCS 5/6-21 (West 2008). However, while this matter was pending, Constitutional Casualty Company was declared insolvent and liquidated. Consequently, the Illinois Insurance Guaranty Fund took over the defense of this litigation.
¶ 5 The defendant filed a "motion for summary adjudication of the amount that liability must be reduced under 215 ILCS 5/546." See 735 ILCS 5/2-1005(d) (West 2008) (providing for summary determination of some, but not all, major issues). The defendant argued that his maximum dramshop liability is $130,338.51, the statutory damage cap, and that amount must therefore be reduced by the $106,550 received from other insurance companies under section 546 of the Illinois Insurance Guaranty Fund statute (215 ILCS 5/546(a) (West 2008) (providing that "the Fund's obligation" must be reduced by insurance proceeds received)).
¶ 6 The court denied the defendant's motion, finding that the setoff issue was premature. The court further found that the ruling requested by the defendant would "invade the jury's role as finder of fact." The court noted that, if the jury found in favor of the plaintiffs, the defendant would then have the opportunity to request setoffs or other reductions.
¶ 7 The defendant filed a motion to reconsider that ruling or, in the alternative, to certify a question for appellate review pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010)). The plaintiffs agreed to the request for certification. The court granted the motion and certified the following question for review: "Where the defendant in a dram shop case is being defended by the Illinois Insurance Guaranty Fund after defendant's liability insurer was declared insolvent, and where plaintiff has already made an insurance recovery from plaintiff's underinsured motorist insurer and from the alleged intoxicated person's liability insurer, and where the jury returns a verdict in excess of the defendant's maximum liability under the Dram Shop Act, is the ...