Berard v. Eagle Air Helicopter Inc.

• Decision Date: 14 February 1994
• Docket Number: No. 3-93-0482,3-93-0482
• Citation: 195 Ill.Dec. 913,257 Ill.App.3d 778,629 N.E.2d 221
• Parties: , 195 Ill.Dec. 913 Karen BERARD, Individually and as Mother and Next Friend of Michael A. Berard, and Katherine R. Berard, Minors, and as Administrator of the Estate of Michael E. Berard, deceased, Plaintiffs and Counter-defendants-Appellees v. EAGLE AIR HELICOPTER INC., an Illinois Corporation, AVCO Corporation, a Corporation, Weldon Tool Company, a Corporation, Defendants (JoAnne Berard, Individually and as Administrator of the Estate of Ronald Berard, deceased, Plaintiffs; McDonnell Douglas Helicopter Company, a Delaware Corporation, Individually, and as Successor of Hughes Helicopter Company, and Schweizer Aircraft Company, a New York Corporation, Defendants and Counter-plaintiffs-Appellants).
• Court: United States Appellate Court of Illinois

Page 221

629 N.E.2d 221

257 Ill.App.3d 778, 195 Ill.Dec. 913

Karen BERARD, Individually and as Mother and Next Friend of Michael A. Berard, and Katherine R. Berard, Minors, and as Administrator of the Estate of Michael E. Berard, deceased Plaintiffs and Counter-defendants-Appellees v. EAGLE AIR HELICOPTER INC., an Illinois Corporation, AVCO Corporation, a Corporation, Weldon Tool Company, a Corporation, Defendants (JoAnne Berard, Individually and as Administrator of the Estate of Ronald Berard, deceased Plaintiffs; McDonnell Douglas Helicopter Company, a Delaware Corporation, Individually, and as Successor of Hughes Helicopter Company, and Schweizer Aircraft Company, a New York Corporation, Defendants and Counter-plaintiffs-Appellants).

No. 3-93-0482.

Appellate Court of Illinois Third District.

Feb. 14, 1994.

Charles H. Cole (argued), S. Patrick McKey (argued), Cole, Grasso, Fencl & Skinner, Ltd., Chicago, for McDonnell Douglas Helicopter, Schweizer Aircraft Corp.

Michael Block (argued), Elizabeth A. Klukas, Block, Krockey, Cernugel & Cowgill, P.C., Joliet, for JoAnne Berard, Ron Berard, Karen Berard.

Justice LYTTON delivered the opinion of the court:

On August 2, 1988, Michael Berard was piloting a helicopter near Braceville with his father Ronald Berard as a passenger. The helicopter crashed killing both Michael and Ronald. Michael was survived by his wife, Karen Berard, and two children; Karen was appointed special administrator of Michael's estate. Ronald was survived by his wife, JoAnne Berard, and one child; JoAnne was appointed special administrator of Ronald's estate. Karen and JoAnne jointly filed an eight-count complaint in Will County Circuit Court naming five defendants. Two of the defendants, McDonnell Douglas Helicopter Company (MDHC) and Schweizer Aircraft Company (SAC), filed a counterclaim for contribution against Karen as administrator of Michael's estate for Michael's alleged negligent operation of the helicopter.

After a trial on the issues, the jury returned a verdict of $2,000,000 on behalf of Karen but found, on defendants' counterclaim, that Michael was 50% contributorily negligent in his own death and in the death of Ronald Berard. The trial court entered judgment on the verdict in favor of Karen against MDHC and SAC in the amount of $1,000,000, which was later reduced by agreement to $965,000. A verdict was also returned in favor of JoAnne against MDHC and SAC in the amount of $520,000, reduced by agreement to $460,750.

The issue presented in this appeal arose when MDHC and SAC requested that 1/2 of the $460,750 paid to JoAnne, or $230,375, be setoff against the $965,000 judgment entered on behalf of Karen. Karen refused the request.

After some negotiations, Karen, MDHC and SAC entered into a partial release and satisfaction in which Karen was paid $700,000. MDHC and SAC then presented Karen with a second release, indicating that the $700,000 represented a full and final satisfaction of the judgment. Karen refused to execute the second release.

MDHC and SAC moved for a satisfaction of judgment pursuant to section 12-183 of the Civil Practice Act. (735 ILCS 5/12-183 (West 1992).) The trial court denied the motion and MDHC and SAC appealed. We affirm.

This appeal, apparently for the first time, places two statutes, the Joint Tortfeasor Contribution Act (Contribution Act), 740 ILCS 100/0.01, et seq. (West 1992), and the Wrongful Death Act, 740 ILCS 180/0.01 et seq. (West 1992), at odds with one another. The question we must answer is whether the Wrongful Death Act prevents a defendant from proceeding under the Contribution Act for a setoff against the surviving spouse's and next of kin's wrongful death award where the decedent was contributorily negligent in causing the death of another.

Illinois courts have held that the sole requirement for application of the Contribution Act is that the plaintiff's claim must be premised upon the same injury or occurrence under which the contribution action arises. (Higginbottom v. Pillsbury Co. (1992), 232 Ill.App.3d 240, 246, 173 Ill.Dec. 219, 596 N.E.2d 843, appeal denied 146 Ill.2d 627, 176 Ill.Dec. 798, 602 N.E.2d 452.) Tortfeasors need not be joint in the strict sense (that their acts are simultaneous or that they act in concert) in order for the Contribution Act to apply. (Yanan v. Ewing (1990), 205 Ill.App.3d 96, 99, 150 Ill.Dec. 440, 562 N.E.2d 1243.) The effect of the Contribution Act, when applicable, is that a settlement between one tortfeasor and the plaintiff will result in an equal reduction, or setoff, in the amount of any judgment entered against a nonsettling tortfeasor. Yanan, 205 Ill.App.3d at 99, 150 Ill.Dec. 440, 562 N.E.2d 1243, citing Ill.Rev.Stat.1987, ch. 70, par 302(c) (now codified at 740 ILCS 100/2(c) (West 1992)).

MDHC and SAC argue that because JoAnne's claim for injuries arose out of the same accident with the same defendants in which Karen was a defendant in the counterclaim, Karen should be liable for contribution because the jury found Karen's decedent was 50% contributorily negligent in causing JoAnne's...