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Sperl v. Henry

Court of Appeals of Illinois, Third District

December 6, 2017

SUSAN D. SPERL, Individually and as Executor of the Estate of Joseph D. Sperl, Deceased, Plaintiff,
DeAN J. HENRY; TOAD L. DRAGONFLY EXPRESS, INC.; C.H. ROBINSON COMPANY, INC., d/b/a C.H. Robinson Transportation Company, Inc.; C.H. ROBINSON INTERNATIONAL, INC.; PBX, INC., d/b/a Tyson Food Logistics, a Foreign Corporation; TYSON FRESH MEATS, INC., a Foreign Corporation; and MICHAEL R. SMITH, Defendants. WILLIAM TALUC and SKYE TALUC, Plaintiffs,
C.H. ROBINSON COMPANY; C.H. ROBINSON COMPANY, INC.; C.H. ROBINSON WORLDWIDE, INC.; C.H. ROBINSON INTERNATIONAL, INC.; C.H. ROBINSON WORLDWIDE-LTL, INC.; DeAN HENRY, Individually and d/b/a DJ Transport; MICHAEL R. SMITH, Individually and d/b/a Toad L. Dragonfly Express; and LUANN G. WHITENER-BLACK, Deceased, Individually and d/b/a Toad L. Dragonfly Express, Defendants.-ANNETTE SANDERS, Individually and as Administrator of the Estate of Thomas S. Sanders, Deceased, Plaintiff,
C.H. ROBINSON INTERNATIONAL, INC.; C.H. ROBINSON COMPANY; C.H. ROBINSON WORLDWIDE, INC.; C.H. ROBINSON COMPANY, LP; C.H. ROBINSON COMPANY, INC.; C.H. ROBINSON WORLDWIDE FOUNDATION; DeAN J. HENRY; LUANN G. WHITENER-BLACK, Deceased; and MICHAEL R. SMITH, Individually and d/b/a Toad L. Dragonfly Express, Defendants C.H. Robinson Company, C.H. Robinson Worldwide, Inc., C.H. Robinson International, Inc., and C.H. Robinson Worldwide-LTL, Inc., Defendants, Cross-Plaintiffs-Appellees, and Cross-Appellants; Toad L. Dragonfly Express, Inc., Defendant, Cross-Defendant-Appellant and Cross-Appellee.

         Appeal from the Circuit Court of Will County, Nos. 04-L-428, 05-L-812, 09-L-5; the Hon. John Anderson and the Hon. Michael J. Review Powers, Judges, presiding.

          Thomas P. Burke and David M. Lewin, of Querrey & Harrow, Ltd., of Chicago, for appellant. Appeal

          Thomas H. Ryerson, Don R. Sampen, and Mark J. Sobczak, of Clausen Miller, P.C., of Chicago, for appellees.

          Panel PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justice McDade concurred in the judgment and opinion. Justice Schmidt dissented, with opinion.



         ¶ 1 Defendant Toad L. Dragonfly Express, Inc. (Dragonfly), appeals an award of contribution entered against it and in favor of defendant C.H. Robinson Worldwide, Inc., and other related corporate entities (collectively, CHR). After a jury trial, judgments totaling $23, 225, 000 were entered, jointly and severally, against Dragonfly and its owner, Luann G. Whitener-Black (Black) (now deceased), DeAn Henry (Henry), and CHR in three consolidated tort actions stemming from a fatal automobile accident. Henry was the driver of a semi-tractor involved in the accident. Dragonfly is a federally licensed motor carrier that had leased Henry's semi-tractor at the time of the accident, and CHR was the broker of the load Henry was carrying at the time.

         ¶ 2 After CHR fully satisfied the tort judgments (including postjudgment interest), CHR sought contribution from Dragonfly under the Joint Tortfeasor Contribution Act (Act) (740 ILCS 100/0.01 et seq. (West 2014)). The trial court granted CHR contribution against Dragonfly for 50% of the jury's total award in the underlying tort actions, including postjudgment interest. Dragonfly now appeals the trial court's order granting contribution to CHR. Dragonfly argues that CHR is not entitled to contribution from Dragonfly because the Act creates a right of contribution based upon comparative fault and neither CHR nor Dragonfly were at fault in this case. Rather, each party was a blameless principal that was vicariously liable for the fault of the same agent (Henry). Dragonfly also argues that section 2(e) of the Act bars CHR from seeking contribution from Dragonfly because (1) section 2(e) provides that a tortfeasor who settles with a claimant "is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement" (740 ILCS 100/2(e) (West 2014)) and (2) the three plaintiffs each settled with CHR without expressly releasing Dragonfly from liability. In the alternative, Dragonfly argues that, even if CHR was entitled to contribution, the trial court erred in awarding postjudgment interest as part of the contribution award because such interest is not collectable under the Act.

         ¶ 3 CHR argues that the trial court's judgment should be affirmed because Dragonfly admitted both negligence and fault at trial, thereby acknowledging that it was directly liable for its own negligence, not merely vicariously for Henry's negligence. Moreover, CHR maintains that, even if Dragonfly were liable only vicariously, contribution would still be available against Dragonfly under our appellate court's reasoning in Equistar Chemicals, L.P. v. BMW Constructors, Inc., 353 Ill.App.3d 593 (2004).

         ¶ 4 CHR also cross-appeals the trial court's contribution judgment. In its cross-appeal, CHR argues that the trial court should have granted contribution against Dragonfly for 100% of the tort judgments (instead of the 50% awarded by the trial court) because Dragonfly's admissions of fault and governing federal regulations made Dragonfly 100% responsible for the judgments. In the alternative, CHR contends that, because Henry's portion of the common liability is "uncollectable, " section 3 of the Act (740 ILCS 100/3 (West 2014)) required Dragonfly to pay contribution to CHR for Dragonfly's own liability based on fault plus one half of any share of fault attributable to Henry, including applicable postjudgment interest already paid by CHR.

         ¶ 5 FACTS

         ¶ 6 CHR is a logistics company and a federally licensed freight broker that provides a variety of transportation-related services. CHR sells its services to shippers or other customers that need to transport goods and then contracts with licensed motor carriers to transport the goods. In 2004, Jewel Food Stores (Jewel) entered into a delivery contract with CHR under which CHR purchased produce for Jewel, stored it, and then arranged for transportation to Jewel's various grocery stores.

         ¶ 7 At that time, Henry owned her own semi-tractor and leased it to Dragonfly, a federally licensed motor carrier. Dragonfly gave Henry permission to use Dragonfly's carrier authority to book and deliver loads on her own. On March 29, 2004, Henry contacted CHR and agreed to deliver a load of potatoes from Idaho to CHR's warehouse in Bolingbrook, Illinois, where they would be repackaged and then shipped to various Jewel grocery stores.

         ¶ 8 On the morning of April 1, 2004, Henry was driving a tractor-trailer containing CHR's potatoes northbound on Interstate 55 en route to Bolingbrook. As she approached Plainfield, Henry noticed that the vehicles ahead of her were not moving. Henry was unable to stop her truck and ran over several vehicles, causing a multiple-car accident. Joseph Sperl and Thomas Sanders died in the collision, and William Taluc sustained serious injuries.

         ¶ 9 William and Skye Taluc and the estates of Sperl and Sanders sued Henry, Dragonfly, and CHR for wrongful death and personal injuries sustained as a result of Henry's negligence. At trial, Henry admitted negligence and liability, and Dragonfly admitted liability and a "united" negligence with Henry. CHR denied liability and sought contribution from Henry and Dragonfly for any judgment entered against it. The trial court severed CHR's claim for contribution. The principal issue litigated at trial was whether the evidence was sufficient to establish an agency relationship between CHR and Henry, thereby rendering CHR vicariously liable for Henry's negligence under the doctrine of respondeat superior. During the instruction conference, CHR submitted a proposed verdict form that would have asked the jury to allocate fault between Henry, Dragonfly, and CHR under section 2-1117 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1117 (West 2008)). The trial court rejected CHR's proposed verdict form. The jury subsequently found that an agency relationship existed between CHR and Henry and entered verdicts in the three consolidated actions totaling $23, 775, 000, jointly and severally, against Henry, Dragonfly, and CHR. The trial court subsequently reduced these verdicts by $500, 000 in a posttrial order because it found that the plaintiffs had failed to prove conscious pain and suffering of the decedents.

         ¶ 10 CHR appealed. Our appellate court upheld the jury's finding of an agency relationship between Henry and CHR because the evidence established that CHR had controlled the manner of Henry's work performance in the delivery of the loads it brokered and had also controlled the manner of payment. Sperl v. C.H. Robinson Worldwide, Inc., 408 Ill.App.3d 1051, 1056-60 (2011). Our appellate court therefore affirmed the jury's verdicts, as modified, and affirmed the judgment against CHR. Id. at 1060-61.

         ¶ 11 Our appellate court also affirmed the trial court's denial of CHR's proposed verdict form which would have asked the jury to allocate fault between Henry, Dragonfly, and CHR under section 2-1117 of the Code. Id. Our appellate court noted that section 2-1117 applies only if the tortfeasors' liability is capable of being legally apportioned. Id. at 1060. It held that liability could not be apportioned between CHR and Henry because CHR's liability was premised on the doctrine of respondeat superior, not upon any independent act of negligence by CHR. Id. In other words, CHR's liability was entirely derivative of Henry's liability; CHR was liable only because its agent (Henry) had acted negligently and caused harm to the plaintiffs and their decedents. As our appellate court explained:

" 'When an action is brought against a master based on allegedly negligent acts of the servant and no independent wrong is charged on behalf of the master, liability is entirely derivative, being founded upon the doctrine of respondeat superior.' [Citation.] A principal found to be vicariously liable is not found to be at fault but, rather, only liable by application of the doctrine of respondeat superior. [Citation.] In such cases, there is only a basis for indemnity, not for apportionment of damages between the principal and the agent. [Citation.]
*** [T]he finding of an agency relationship between CHR and Henry eliminates the possibility of comparing conduct for purposes of apportioning liability. Henry admitted negligence, and the jury found that she was acting as CHR's agent when the accident occurred. CHR was only found liable by application of the doctrine of respondeat superior. Since CHR's liability is exclusively derivative, it is not entitled to an allocation or comparison of fault under section 2-1117 of the Code." Id.

         ¶ 12 Our appellate court also rejected CHR's argument that the jury should have been instructed to apportion liability between CHR and Dragonfly. Our appellate court found that CHR's argument "ignore[d] the jury's finding of an agency between CHR and Henry." Id. at 1061. It noted that, once an agency relationship was established, "CHR became entirely liable for Henry's negligent conduct, which was the proximate cause of the accident." Id. Accordingly, our appellate court concluded that "Dragonfly's relationship with Henry *** d[id] not reduce CHR's liability for plaintiffs' damages." Id. Our appellate court noted in passing that Dragonfly's relationship with Henry "may" allow CHR to seek contribution from Dragonfly. Our appellate court said nothing further about contribution, presumably because that issue was not raised on appeal. (As noted above, CHR's contribution claim against Dragonfly had been severed by the trial court and had not been decided by the jury at trial.)

         ¶ 13 CHR filed a petition for leave to appeal our appellate court's judgment in the Illinois Supreme Court. On September 28, 2011, our supreme court denied CHR's petition.

         ¶ 14 In October 2011, CHR paid more than $28 million to the three plaintiffs in satisfaction of the judgments entered in favor of each plaintiff, including all of the postjudgment interest that had accrued on those judgments at that time. Specifically, CHR paid $7 million plus interest to plaintiff Susan Sperl, $8.5 million plus interest to plaintiff Annette Sanders, and $7.775 million plus interest to plaintiffs William and Skye Taluc. [1] Each plaintiff subsequently executed and filed a "Satisfaction of Judgement" stating that the plaintiff had "received full satisfaction and payment from [CHR]" for the judgment entered against CHR and in favor of the plaintiff "plus accrued interest at the lawful rate and costs" and directing the clerk of court to "cancel and discharge the judgment as to CHR."[2]

         ¶ 15 Thereafter, upon obtaining leave of the trial court, CHR filed an amended consolidated cross-claim (cross-claim) for contribution against Dragonfly. In count I of CHR's cross-claim, CHR alleged that, because CHR had paid the judgments entered against all three of the defendants and was not at fault, CHR had paid more than its pro rata share of the judgments and was therefore entitled to contribution from Dragonfly under section 2 of the Act. CHR alleged that Dragonfly was negligent in several respects, including its failure to direct, supervise, and control Henry's driving; its failure to adequately train Henry with respect to speed, braking, maintaining a proper lookout, and other aspects of her driving; and its failure to communicate with Henry regularly during the trip. CHR asked the trial court to determine the level of Dragonfly's fault and to award CHR contribution against Dragonfly accordingly, plus interest.

         ¶ 16 In count II of its cross-claim, CHR alleged that Dragonfly, Henry, and CHR were found jointly and severally liable for the full amount of the judgments but that Henry's share was uncollectable. Accordingly, CHR maintained that it was entitled to share with Dragonfly Henry's uncollectable portion pursuant to section 3 of the Act. (740 ILCS 100/3 (West 2010)). CHR asked the trial court to (1) determine the level of Henry's fault and the uncollectable share of her liability based on such fault and (2) award CHR contribution against Dragonfly accordingly, "based on Dragonfly's vicarious liability and equal share of responsibility, including post judgment interest."

         ¶ 17 In count III of its cross-claim, CHR alleged that, to the extent Dragonfly's liability was vicarious, CHR still had a right to contribution under Illinois case law. CHR contended that, unless the court ordered contribution from Dragonfly to CHR, "a serious injustice will occur inasmuch as [CHR] will have paid the entire judgments *** and Dragonfly will have paid nothing, despite the fact that both Dragonfly and [CHR] were found to be equally responsible and liable." CHR asked the trial court to determine whether Dragonfly's liability was vicarious and to award CHR contribution accordingly, plus interest.

         ¶ 18 Dragonfly moved to dismiss CHR's counterclaim. In its motion, Dragonfly argued, inter alia, that CHR had failed to state a claim for contribution under the Act because (1) liability and fault could not be apportioned between CHR and Dragonfly under the Act as both defendants were liable only vicariously by virtue of their employment or agency relationship with Henry and both had acted in concert with Henry, rendering each of them entirely liable for Henry's negligence and for the judgments entered against all the defendants, and (2) CHR had "settled" with each of the plaintiffs without obtaining a release in favor of Dragonfly as required by section 2(e) of the Act (740 ILCS 100/2(e) (West 2012)), thereby precluding CHR from obtaining contribution from Dragonfly.

         ¶ 19 On September 12, 2014, the trial court issued a written order denying Dragonfly's motion to dismiss. In its order, the trial court expressly found that CHR's payment to the plaintiffs "was a satisfaction of the outstanding judgment[s] and not a settlement."

         ¶ 20 CHR asked the trial court to reassemble and reempanel the jury to consider the contribution issues raised in its cross-claim. The trial court denied this request for several reasons, including CHR's failure to object to the dismissal of the jury after the trial and its failure to "adequately bring to [the trial court's] attention the need to keep the jury for consideration of the contribution claim."[3] Thereafter, the parties agreed to submit trial briefs on the contribution issues containing references to the trial record so that the trial court could conduct a bench trial on those issues. The court agreed with the parties' conclusion that a trial on the briefs, using the record and transcripts from the underlying trial, ...

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