United States District Court, N.D. Illinois, Eastern Division
SRIDEVI ACHI individually and as Mother and Next Friend of BHAVANARSI ACHI and INDHRESH ACHI, Plaintiff,
TIA TRANSPORT, INC., JIM SCOTT MILK HAULING, LLC, and DOUGLAS BRITZKE, Defendants.
MEMORANDUM OPINION AND ORDER
Johnson Coleman, United States District Court Judge
plaintiff, Sridevi Achi (Mrs. Achi), is married to
third-party defendant Venkata Gobal Achi (Mr. Achi). Mr. Achi
was driving a car containing Mrs. Achi and their children,
Bhavanarsi and Indhresh Achi. The defendants contend that Mr.
Achi failed to stop at a stop sign and entered the path of
their truck, which collided with the car and caused
substantial injuries to Bhavanarsi and Indhresh. Mrs. Achi
subsequently filed suit against the defendants seeking, in
pertinent part, to recover for the children's medical
expenses pursuant to the Illinois Family Expense Act. The
defendants subsequently filed a third-party complaint against
Mr. Achi, bringing him into this suit. Mrs. Achi now moves
this Court to make a good-faith finding as to the settlement
between herself and Mr. Achi and to strike the
defendant's third affirmative defense, which asserts Mr.
Achi's contributory negligence as a defense to the Family
Expense Act claim. For the reasons set forth herein, the
motion to strike  is granted and the motion for a
good-faith finding  is denied.
to Federal Rule of Civil Procedure 12(f), the court
“may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). Affirmative defenses are
subject to the pleading requirements of the Federal Rules of
Civil Procedure and therefore they must set forth a
“short and plain statement” of the material
elements of the defense asserted and contain sufficient
factual material that, when taken as true, states a defense
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.E.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); Reis
Robotics USA, Inc. v. Concept Indus., Inc., 462
F.Supp.2d 897, 904 (N.D. Ill. 2006) (Castillo, J.).
to strike are not favored and will not be granted unless it
appears to a certainty that plaintiffs would succeed despite
any state of the facts which could be proved in support of
the defense.” Williams v. Jader Fuel Co., 944
F.2d 1388, 1400 (7th Cir. 1991) (internal quotations and
citations omitted). Such motions will only be granted where
they remove unnecessary clutter from the case or where the
affirmative defense is insufficient on the face of the
pleadings. Heller Fin'l, Inc. v. Midwhey Powder Co.,
Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). Even where a
motion to strike is granted, leave to amend the pleadings is
to be freely granted as justice requires. Fed.R.Civ.P. 15(a).
Further, striking an affirmative defense does not necessary
preclude the party from asserting or arguing its substantive
merits later in the case. Palomares v. Second Fed. Sav.
& Loan Ass'n, No. 10-cv-6124, 2011 WL 2111978,
at *2 (N.D. Ill. May 25, 2011) (citing Instituto Nacional
De Comercializacion Agricola (Indeca) v. Cont'l I'll.
Nat'l Bank & Trust Co., 576 F.Supp. 985, 988
(N.D. Ill. 1983) (Shadur, J.)).
Illinois Family Expense Act provides in pertinent part that
“[t]he expenses of the family and of the education of
the children shall be chargeable upon the property of both
husband and wife, or of either of them, in favor of creditors
therefor, and in relation thereto they may be sued jointly or
separately.” 750 ILCS 65/15(a)(1). The responsibility
to pay medical expenses incurred on behalf of a minor child
is thus joint and several, and extends even to noncustodial
parents following a divorce. Proctor Hospital v.
Taylor, 665 N.E.2d 872, 875, 279 Ill.App.3d 624 (1996).
common law, in turn, gives parents a cause of action against
a tortfeasor who, by injuring their child, causes them to
incur medical expenses. Bauer v. Memorial Hospital,
879 N.E.2d 478, 502, 377 Ill.App.3d 895, 992 (2007). Such a
claim is not one for damages as a result of the child's
personal injury, but is instead premised upon the
parents' personal liability for the child's medical
expenses under the Act. Pirrello v. Maryville Academy,
Inc., 19 N.E.3d 1261, 1264, 2014 IL App (1st) 133964.
The cause of action has been recognized to belong to the
parents, and “if the parents are not entitled to
recover, neither is the child.” Id. (citing
Bauer, 879 N.E.2d at 502). Although a child may be
assigned the cause of action, the child must prove that his
parents had a cause of action, and the child is subject to
any defenses that could have been raised against his parents.
Bauer, 879 N.E.2d at 503.
caselaw is clear that when both parents file suit for a
child's medical expenses, their recovery may be reduced
based on their contributory negligence. Id. There is
no case law, however, explicitly holding what should happen
when one parent seeks to recover under the Family Expense Act
and the other parent was contributorily
defendants propose that Mr. Achi is the partial owner of the
claim for medical expenses, and that Mrs. Achi's claim
therefore is subject to reduction for Mr. Achi's
negligence. In essence, the defendants ask this Court to
treat both individual parents as a legal collective for the
purpose of their Family Expense Act claims. This position is
not tenable. Under the Family Expense Act, each spouse
possesses a separate and independent cause of action, and the
liability of a defendant toward one spouse cannot be
adjudicated in the other spouse's action. Seymour v.
Union News Co., 217 F.2d 168, 170-171 (7th Cir. 1954).
This is eminently sensible; otherwise a non-custodial parent
who pays all of a child's medical expenses may be barred
from recovering against a tortfeasor based on the
contributory negligence of the custodial parent (or visa
Family Expense Act provides that parents are jointly and
severally liable for the expenses of their children. And, as
previously noted, common law confers parents with a right to
recover for the medical expenses they expend on behalf of
their child. Bauer, 879 N.E.2d at 502. Most Family
Expense Act actions are likely brought jointly because the
parents jointly pay the medical expenses at issue. A parent,
however, would also be individually entitled to recover for
the medical expenses that they individually incurred on
behalf of their child. In such a circumstance, the recovering
parent would be the individual owner of the Family Expense
Act claim, and the other parent, who did not individually pay
the medical expenses at issue, would not be entitled to bring
such a claim.
Mrs. Achi has alleged that she individually incurred
medical expenses in excess of $75, 000.00 in treating her
children. Assuming, as this Court must at this stage in the
proceedings, that those medical expenses were in fact paid
individually by Mrs. Achi and that they were not jointly paid
by Mr. and Mrs. Achi, any claim to recover those expenses
would belong exclusively to Mrs. Achi. Mr. Achi's
contributory negligence accordingly may not be considered in
assessing Mrs. Achi's right to recover under the Family
Expense Act. Because Mr. Achi's contributory negligence
is not a defense to Mrs. Achi's complaint on the facts
alleged, the defendants' third affirmative defense must
be stricken. The Court notes that this ruling does not
preclude the defendants from raising this issue again should
Mrs. Achi seek to recover for medical expenses that were paid
jointly with Mr. Achi.
plaintiffs separately move this Court to make a good faith
finding, to approve the settlement, and to dismiss the
third-party complaint against Mr. Achi. The Illinois
Contribution Act extinguishes the contribution liability of a
settling tortfeasor who settles in good-faith. 740 ILCS 100;
Johnson v. United Airlines, 784 N.E.2d 812, 818, 203
Ill.2d 121 (Ill. 2003). In order to establish good faith, it
is the initial burden of the settling parties to show the
existence of a legally valid settlement agreement.
Id. The burden then shifts to the non-movant to
prove the absence of good faith by a preponderance of the
evidence. Id. at 820.
determining whether a settlement was executed in good faith,
this Court must remain cognizant of the policies underlying
the Contribution Act, the encouragement of settlements and
the equitable apportionment of damages among tortfeasors.
Id. at 821. Among the factors that the Court may
consider are whether the settlement amount is reasonable and
fair, whether the parties have a close personal relationship,
whether the plaintiff sued the settling party, or whether