Unzicker v. Kraft Food Ingredients Corp.

Decision Date21 November 2002
Docket NumberNo. 92838.,92838.
Citation783 N.E.2d 1024,270 Ill.Dec. 724,203 Ill.2d 64
PartiesMarlin UNZICKER et al., Appellants, v. KRAFT FOOD INGREDIENTS CORPORATION, Appellee.
CourtIllinois Supreme Court

Gerald P. Rodeen, of Dilks, Rodeen & Gibson, Ltd., Paxton, Reino Lanto, Jr., Rantoul, for appellants.

Stephen L. Corn, John L. Barger, of Craig & Craig, Mattoon, for appellee.

Justice THOMAS delivered the opinion of the court:

At issue in this appeal are several questions regarding both the interpretation and constitutionality of section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1994)), which modified the common law rule of joint and several liability. Pursuant to section 2-1117, any tortfeasor whose percentage of fault for a plaintiff's injuries is found to be "less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff is only severally liable for the plaintiff's nonmedical damages. 735 ILCS 5/2-1117 (West 1994). In this case, plaintiffs, Marlin and Theresa Unzicker, argue that the trial court erred in applying section 2-1117, which resulted in a judgment that defendant Kraft Food Ingredients Corporation (Kraft) was liable for only 1% of Marlin's nonmedical damages. Plaintiffs assert that Marlin's employer, third-party defendant Nogle & Black Mechanical, Inc. (Nogle), whom a jury found to be 99% responsible for Marlin's injuries, should not have been included in the division of fault. Plaintiffs contend that an employer who is protected from suit by the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2000)) is not a party who "could have been sued" by the plaintiff. Additionally, plaintiffs contend that section 2-1117 is unconstitutional and that the trial court erred in failing to answer the jurors' questions and to give a certain jury instruction.

BACKGROUND

The essential facts are undisputed. Marlin was injured on July 20, 1991, while he was installing stainless steel piping at Kraft's plant in Champaign. Marlin and another Nogle employee, Mike Mills, were standing on a "manlift" and welding flanges to a pipe. Marlin's foreman, Mike Law, attempted to deliver some equipment to him by bringing it in the basket of a forklift that was owned by Kraft and operated by another Nogle employee. The forklift collided with the manlift, causing Marlin and Mills to fall.

Marlin applied for and received workers' compensation benefits. Additionally, Marlin and his wife, Theresa, sued Kraft, alleging negligence and violations of the Structural Work Act (740 ILCS 150/0.01 through 9 (West 1992), repealed by Pub. Act 89-2, § 5, eff. February 14, 1995). Kraft filed a third-party complaint for contribution against Nogle.

The jury found against plaintiffs on the Structural Work Act claim, but in their favor on the negligence counts. The jury awarded plaintiffs $879,400 in total damages, $788,000 of which were nonmedical and $91,400 of which were medical. The jury apportioned 1% of the fault to Kraft and 99% to Nogle.

The trial court applied section 2-1117, which modified the common law rule of joint and several liability. At common law, a plaintiff could recover compensation for the full amount of his injury from any defendant responsible for the injury. Best v. Taylor Machine Works, 179 Ill.2d 367, 423, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997). Section 2-1117 modified this rule as follows:

"Except as provided in Section 2-1118, in actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiff's past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff, shall be severally liable for all other damages. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff, shall be jointly and severally, liable for all other damages." 735 ILCS 5/2-1117 (West 1994).1

The trial court's application of this section and the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 2000)) rendered the verdict somewhat of a loss for plaintiffs because Kraft was severally liable for only 1% of the nonmedical damages, and Nogle was liable only for contribution in an amount equal to its workers' compensation liability (Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155, 164-65, 166 Ill.Dec. 1, 585 N.E.2d 1023 (1991)). Thus, the trial court entered judgment on the jury's verdict as follows. Kraft and Nogle were jointly and severally liable for Marlin's past and future medical expenses of $91,400. Kraft was severally liable for 1% of the nonmedical damages ($7,880). On Kraft's third-party complaint, Nogle was liable to Kraft for $90,486 in contribution, which represented 99% of the medical damages.

Plaintiffs filed a post-trial motion in which they argued that the trial court erred in applying section 2-1117. Plaintiffs' argument was based on the Fifth District of the Appellate Court's opinion in Lilly v. Marcal Rope & Rigging, Inc., 289 Ill.App.3d 1105, 224 Ill.Dec. 920, 682 N.E.2d 481 (1997), in which the court held that a plaintiff's employer should not be included in an allocation of fault under section 2-1117 because an employer, who is immune from suit under the Worker's Compensation Act, is not a "third party defendant who could have been sued by the plaintiff." The trial court denied the post-trial motion and found that plaintiffs had waived their argument that section 2-1117 should not apply. Kraft had initially raised the application of section 2-1117 as an affirmative defense in an amendment to its answer to the complaint. The trial court ruled that plaintiffs had waived their argument about section 2-1117 by failing to move to strike the answer. The trial court noted, however, that it would have been bound to follow Lilly if the issue had not been waived.

Plaintiffs appealed, and the Fourth District affirmed. 325 Ill.App.3d 587, 259 Ill. Dec. 351, 758 N.E.2d 474. The Fourth District disagreed with the trial court's conclusion that the section 2-1117 issue had been waived and held that section 2-1117 does not have to be raised as an affirmative defense. Rather, because that section operates to allocate damages according to the jury's verdict, issues relating to it can be raised in motions filed after the verdict's entry. 325 Ill.App.3d at 592, 259 Ill.Dec. 351, 758 N.E.2d 474. On the underlying issue, however, the Fourth District disagreed with Lilly and held that an employer can be included within the phrase "any third party defendant who could have been sued by the plaintiff." The court relied on Doyle v. Rhodes, 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382 (1984), in which this court held that employers are subject to the Contribution Act, which applies where "[two] or more persons are subject to liability in tort arising out of the same injury." See 740 ILCS 100/2(a) (West 2000). In Doyle, this court explained that the exclusive remedy provision of the Workers' Compensation Act (820 ILCS 305/5(a) (West 2000)) is in the nature of an affirmative defense that is waived if not asserted. Until the defense is asserted, the employer is subject to liability in tort. Doyle, 101 Ill.2d at 10-11, 77 Ill.Dec. 759, 461 N.E.2d 382. Therefore, the Fourth District concluded, if the phrase "subject to liability in tort" in the Contribution Act can include a plaintiff's employer, the phrase "any third party defendant who could have been sued by the plaintiff in section 2-1117 can also include a plaintiff's employer. 325 Ill.App.3d at 593, 259 Ill.Dec. 351, 758 N.E.2d 474. We granted plaintiffs' petition for leave to appeal to resolve this conflict in the appellate court.

ANALYSIS
I. Motions to Strike

Before discussing the merits of the appeal, we address two motions that we ordered taken with the case. Kraft moved to strike part of plaintiffs' petition for leave to appeal and part of their opening brief. Kraft objected to plaintiffs raising issues that they did not raise in the appellate court. In the appellate court, plaintiffs raised only whether employers can be included in a section 2-1117 division of fault and whether the trial court erred in refusing to answer the jury's questions. In Garza v. Navistar International Transportation Corp., 172 Ill.2d 373, 383, 217 Ill.Dec. 260, 666 N.E.2d 1198 (1996), we held that issues that the appellant fails to raise in the appellate court are waived for purposes of our review. See also Hammond v. North American Asbestos Corp., 97 Ill.2d 195, 209-10, 73 Ill.Dec. 350, 454 N.E.2d 210 (1983).

Here, however, we choose not to apply waiver. Waiver is a limitation on the parties and not on the court. Committee for Educational Rights v. Edgar, 174 Ill.2d 1, 11, 220 Ill.Dec. 166, 672 N.E.2d 1178. The issues plaintiffs raise regarding section 2-1117 are purely legal questions that have been fully briefed. We believe that the public interest favors considering the issues now, and thus we will not apply waiver. See Committee for Educational Rights,174 Ill.2d at 12,220 Ill.Dec. 166,672 N.E.2d 1178. Accordingly, the motions to strike portions of the petition for leave to appeal and the plaintiffs' brief are denied.

II. Interpretation of Section 2-1117

Our first inquiry is one of statutory construction. Plaintiffs argue that the appellate court erred in holding that a plaintiff's employer can be considered a "third party defendant who could...

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