Rogers v. Imeri

• Citation: 376 Ill.Dec. 457,999 N.E.2d 340,2013 IL 115860
• Decision Date: 21 November 2013
• Docket Number: No. 115860.,115860.
• Parties: Roy Dean ROGERS II, et al., Appellees, v. Gani IMERI, Indiv. and d/b/a Johnny's Bar and Grill, Appellant.
• Court: Supreme Court of Illinois

2013 IL 115860
999 N.E.2d 340
376 Ill.Dec. 457

Roy Dean ROGERS II, et al., Appellees,
v.
Gani IMERI, Indiv. and d/b/a Johnny's Bar and Grill, Appellant.

No. 115860.

Supreme Court of Illinois.

Nov. 21, 2013

Appellate court judgment reversed.

Cause remanded.

[999 N.E.2d 341]

Hugh C. Griffin, of Hall, Prangle & Schoonveld, LLC, of Chicago, and Jon R. Shelton, of Shelton & Madrid, LLC, of St. Louis, Missouri, for appellant.

Christopher A. Koester, of Taylor Law Offices, P.C., of Effingham, for appellees.

Cochran, Cherry, Givens, Smith & Montgomery, L.L.C., of Chicago (John K. Kennedy, of counsel), for amicus curiae Illinois Trial Lawyers Association.
OPINION
Justice THEIS delivered the judgment of the court, with opinion.

¶ 1 The sole issue in this appeal is whether, in a Dramshop Act case where a bar owner is defended by the Illinois Insurance Guaranty Fund (the Fund), the reduction for “other insurance” recoveries under section 546(a) of the Illinois Insurance Code (hereinafter, the Guaranty Fund statute) (215 ILCS 5/546(a) (West 2012)) applies against the jury's verdict or against the bar owner's maximum statutory liability. The trial court decided that the issue was premature because the plaintiffs, Roy and Theresa Rogers, had not obtained a verdict against the defendant, Gani Imeri. But the trial court certified a question to the appellate court pursuant to Supreme Court Rule 308(a). Ill. S.Ct. R. 308(a) (eff. Feb. 26, 2010). The appellate court held that the reduction should be applied against the jury's verdict. 2013 IL App (5th) 110546, 369 Ill.Dec. 76, 985 N.E.2d 1062.

¶ 2 For the reasons that follow, we reverse and remand for further proceedings.

¶ 3 BACKGROUND

¶ 4 In 2009, a vehicle driven by 18–year–old Roy Dean Rogers III and a vehicle driven by 60–year–old John Winterrowd were involved in a head-on collision on a rural highway in Effingham County. Winterrowd was intoxicated, and Rogers was not. Rogers died in the accident. His

[999 N.E.2d 342]

parents received $26,550 from Winterrowd's automobile liability insurer and $80,000 from their own automobile liability insurer—a total of $106,550. They subsequently filed a six-count complaint under the Dramshop Act against Imeri, the owner of the bar where Winterrowd was drinking, seeking recovery for their son's personal injury and their loss of society.

¶ 5 At the time the accident occurred, Imeri 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 generally 235 ILCS 5/6–21(a) (West 2012). While this case was pending, Imeri's insurer was declared insolvent and liquidated, and the Fund assumed his defense.

¶ 6 Imeri filed a “motion for summary adjudication of the amount that liability must be reduced” under section 546(a). In that motion, Imeri sought a ruling that his maximum liability was $23,788.51, which represented the difference between the statutory cap on dramshop liability and the other insurance proceeds. The Rogerses responded that the setoff for other insurance proceeds should come after the jury's verdict. The trial court denied Imeri's motion as premature, commenting that such a ruling would “invade the jury's role as finder of fact.” The court noted that, if the jury should find in favor of the Rogerses, Imeri would have an opportunity to request setoffs.

¶ 7 Imeri filed a motion to reconsider that ruling or, in the alternative, to certify a question under Rule 308(a). The Rogerses agreed to the request for certification. The trial 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 reduction for ‘other insurance’ recoveries set forth in Section 546(a) of the Illinois Insurance Guaranty Fund Act applied against the jury's verdict or against the defendant's maximum dram shop liability?”

¶ 8 The appellate court held that the section 546(a) reduction should be applied against the jury's verdict. 2013 IL App (5th) 110546, ¶ 23, 369 Ill.Dec. 76, 985 N.E.2d 1062. The court noted that while the Fund acts as a substitute for an insolvent insurer, it is not a separate source of recovery. Id. ¶ 13. Thus, “unless specific limitations in the Guaranty Fund statute are applicable, the Guaranty Fund's obligation is determined by the Dramshop Act.” Id. The appellate court, however, did not look to the Dramshop Act to determine the extent of that obligation, but rather to emphasize the provision of a jury trial on damages without regard to the statutory limit. Id. ¶ 14. The court then discussed Kurth v. Amee, Inc., 3 Ill.App.3d 506, 278 N.E.2d 162 (1972), a dramshop case that did not involve the Fund, which outlined a three-step procedure for setoffs in such cases: “First, the jury determines the total damages sustained. The jury's award is then offset by other recoveries. Finally, if the remainder is above the statutory limit, it is reduced to that limit.” 2013 IL App (5th) 110546, ¶ 15, 369 Ill.Dec. 76, 985 N.E.2d 1062. The court disagreed that a different procedure should apply simply because the Fund was involved, and distinguished

[999 N.E.2d 343]

Roth v. Illinois Insurance Guaranty Fund, 366 Ill.App.3d 787, 304 Ill.Dec. 39, 852 N.E.2d 289 (2006), because it was not a Dramshop Act case. 2013 IL App (5th) 110546, ¶ 20, 369 Ill.Dec. 76, 985 N.E.2d 1062. In closing the court noted:

“[W]hether the Guaranty Fund is obligated to pay the statutory maximum in a dramshop case depends on the facts of the case. If the jury returns a verdict of $500,000 in the instant case, that...