Barnai v. Wal-Mart Stores, Inc.

Citation2021 IL App (1st) 191306,199 N.E.3d 315,459 Ill.Dec. 862
Decision Date30 July 2021
Docket Number1-19-1306
Parties Marilyn BARNAI, as Administrator of the Estate of Frank Barnai, Deceased, Plaintiff, v. WAL-MART STORES, INC.; International Contractors, Inc.; and Nuline Technologies, Inc., Defendants, (Marilyn Barnai, as Administrator of the Estate of Frank Barnai, Deceased, as Assignee of the Contribution Claims of Wal-Mart Stores, Inc., International Contractors, Inc., and Nuline Technologies, Inc., Third-Party Plaintiff-Appellee; Summit Fire Protection Company, Third-Party Defendant-Appellant).
CourtUnited States Appellate Court of Illinois

John J. Piegore, Brian H. Sanchez, and Edric S. Bautista, of Sanchez Daniels & Hoffman, LLP, of Chicago, for appellant.

Martin Healy, Jr. and Kevin T. Veugeler, of Healy Scanlon, and Joan M. Mannix, of Joan M. Mannix, Ltd., both of Chicago, for appellee.

PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Frank Barnai1 sued Wal-Mart Stores, Inc. (Wal-Mart), International Contractors, Inc. (ICI), and Nuline Technologies, Inc. (Nuline), after he was injured while working at a Wal-Mart store construction site. Wal-Mart, ICI, and Nuline, in turn, filed contribution claims against Barnai's employer, Summit Fire Protection Company (Summit), which they then assigned to Barnai as part of a settlement agreement. Following a jury trial, Summit was found 52% liable for plaintiff's injuries. We (1) vacated the circuit court's order finding the settlement was made in good faith, (2) vacated the jury's verdict, and (3) remanded the matter for a new trial and settlement hearing. See Barnai v. Wal-Mart Stores, Inc. , 2017 IL App (1st) 171940, 419 Ill.Dec. 415, 93 N.E.3d 534 ( Barnai II ).

¶ 2 On remand, the circuit court again found the settlement with Wal-Mart, ICI, and Nuline was made in good faith. The cause proceeded to a jury trial on the contribution claims against Summit, after which the jury found Summit 92.5% at fault and ICI 7.5% at fault. Summit again appeals,2 contending that (1) the assignments of contribution actions against Summit to plaintiff are invalid, (2) Nuline's assigned contribution cause of action is time barred, (3) the court erred in finding that the settlement was made in good faith, (4) Summit is entitled to a setoff, and (5) the court erred in excluding Barnai's judicial admissions. We affirm in part, reverse in part, and modify in part the judgment of the circuit court.


¶ 4 This court has detailed the underlying facts of this case in earlier decisions.

Therefore, we will summarize only those facts pertinent to the issues now before us.

¶ 5 On October 16, 2007, Barnai was injured while working for Summit at a Wal-Mart store construction site. Barnai then sued Wal-Mart (the property owner), ICI (the general contractor), and Nuline (the electrical subcontractor). Those defendants answered Barnai's complaint and filed claims against Summit pursuant to the Joint Tortfeasor Contribution Act (Contribution Act) ( 740 ILCS 100/0.01 et seq. (West 2010)). ICI later moved for partial summary judgment against Summit, which the circuit court granted, finding that Summit waived its Kotecki limitation (see Kotecki v. Cyclops Welding Corp. , 146 Ill. 2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023 (1991) ) and ICI was entitled to seek unlimited contribution against Summit based upon Summit's contract with ICI in which Summit agreed to waive the Kotecki limitation and fully indemnify both Wal-Mart and ICI. Barnai eventually settled with Wal-Mart, ICI, and Nuline for $5,073,463.71. Summit did not contribute to the settlement.

¶ 6 Barnai then filed a motion for a good faith finding as to the settlement, which recited the aggregate cash amount of the settlement and that the settling defendants had also assigned their contribution claims against Summit to Barnai. The motion neither included a copy of the settlement agreement nor indicated the allocation of the settlement proceeds among the settling defendants. Despite those omissions, the court entered a good faith finding.

¶ 7 On April 10, 2015, Barnai, as assignee of Nuline, moved to dismiss Nuline's contribution action (the claim that Nuline had assigned to Barnai as part of the settlement agreement). The common law record does not include a copy of Barnai's motion to dismiss Nuline or the court's purported April 10, 2015, order dismissing Nuline with prejudice.3 Only the report of proceedings of the hearing on the motion to dismiss Nuline is included in the record. During the hearing, counsel for Wal-Mart and ICI informed the court that he also represented Nuline and that Nuline's contribution claim against Summit would be "dismissed with prejudice." Summit sought to confirm that Barnai would be "forever barred from bringing an action on behalf of Nuline," and the court responded, "That's what it means" and stated that the order would reflect a dismissal "with prejudice." The circuit court granted the motion. The parties do not dispute that the dismissal was with prejudice.

¶ 8 The case then proceeded to trial on the remaining contribution claims. During the jury instruction conference, Barnai submitted a proposed verdict form labeled "IPI 600.16" that listed only Wal-Mart, ICI, and Summit as possible responsible parties to Barnai's injuries. The court tendered this form to the jury.

¶ 9 After trial, the jury returned a verdict apportioning fault for Barnai's injuries as follows: Wal-Mart 10%, ICI 38%, and Summit 52%. The court entered judgment on the jury's verdict, granted Barnai's motion to convert the contribution verdict to a money judgment, and denied Summit's posttrial motion.

¶ 10 Summit appealed under case No. 1-15-2773. This court heard oral arguments and obtained supplemental briefing as to whether both settling and nonsettling defendants should be included on the verdict form when allocating the pro rata shares of the common liability. Nonetheless, we determined that we lacked jurisdiction and dismissed Summit's appeal as there were pending claims. See Barnai v. Wal-Mart Stores, Inc. , No. 1-15-2773 (2017) (unpublished summary order under Illinois Supreme Court Rule 23(c) ) (Barnai I ). We suggested, however, that the circuit court could cure the jurisdictional defect by entering an order pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), finding no just reason existed to delay appeal of the August 31, 2015, order denying Summit's posttrial motion.4

¶ 11 On July 26, 2017, the circuit court duly entered an order pursuant to Rule 304(a) that there was no just reason to delay enforcement or appeal of the August 31, 2015, order denying Summit's posttrial motion. The cause then returned to this court under appellate No. 1-17-1940 but with the parties standing on the briefs filed in appeal No. 1-15-2773. See Barnai II , 2017 IL App (1st) 171940, ¶ 10, 419 Ill.Dec. 415, 93 N.E.3d 534.

¶ 12 In Barnai II , we held that the court erred by finding the settlement in good faith because the court lacked any information as to the allocation of fault among the settling defendants. Id. ¶ 15. We further held that, pursuant to the Contribution Act, the jury was required to apportion fault to Nuline to correctly determine the relative fault of Wal-Mart, ICI, and Summit. Id. ¶ 16. We thus (1) vacated the circuit court's order entering a good faith finding and remanded the case for a new good faith hearing and (2) remanded the cause for a new trial. Id. ¶ 26.

¶ 13 On August 29, 2018, and following remand, plaintiff filed both a motion for leave to file a third amended complaint and a renewed motion for a good faith finding. The motion to file a third amended complaint sought to substitute Frank's wife Marilyn, the executor of Frank's estate, as plaintiff and to add Nuline's contribution claim (that had been previously assigned to plaintiff) against Summit. This claim was substantially identical to the contribution claims of Wal-Mart and ICI against Summit that had also been assigned to plaintiff. Over Summit's objections that the Nuline claim was time-barred, the circuit court granted plaintiff's motion.

¶ 14 Plaintiff's renewed motion for a good faith finding included a copy of the settlement agreement. The agreement provided that the settlement amount, $5,073,463.71, consisted of the following allocations: $2,598,058.32 (51%) to Wal-Mart, $1,525,405.39 (30%) to ICI, and $950,000 (19%) to Nuline. The agreement further provided that Wal-Mart, ICI, and Nuline were assigning their contribution claims against Summit to plaintiff as further consideration. In addition, the settlement agreement stated that Wal-Mart, ICI, and Nuline were paying "more than their pro rata share[s] of the common liability, which there may be between [Wal-Mart], [ICI], and [Nuline] on the one hand, and [Summit] on the other."

¶ 15 On September 28, 2018, Summit filed its response in opposition to plaintiff's renewed motion for a good faith finding. Summit argued that, since the common liability of Wal-Mart, ICI, and Nuline was $5,073,463.71 plus the value of the assignments, they did not pay more than their own pro rata shares of the common liability and therefore had nothing to assign, rendering the purported assignments void ab initio. In the alternative, Summit argued that if $5,073,463.71 was the common liability of Wal-Mart, ICI, Nuline, and Summit, then any further recovery by the plaintiff would be an improper double recovery. Summit also argued that (1) it was entitled to a setoff for the amounts allocated to Wal-Mart and ICI that Summit's commercial general liability (CGL) insurer had previously paid on their behalf and (2) the $2.6 million and $950,000 allocations to Wal-Mart and Nuline, respectively, were not within a reasonable range of their pro rata shares of the common liability.

¶ 16 With respect to the setoff claim, Summit included a copy of the CGL policy it purchased, which was issued by Interstate Fire and...

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