Victim A. v. Song
| Docket Number | 1-20-0826 |
| Decision Date | 30 June 2021 |
| Parties | VICTIM A., Plaintiff-Appellee, v. Chung SONG, M.D., Defendant and Third-Party Plaintiff-Appellant, (Charon Harper, Third-Party Defendant). |
| Court | United States Appellate Court of Illinois |
Stacey A. Cischke, Garrett L. Boehm Jr., and Daniel M. Yukich, of Johnson & Bell, Ltd., of Chicago, for appellant.
Dean J. Caras, of Caras Law Group, P.C., of Chicago, for appellee.
¶ 1 Judgment was entered against Chung Song, M.D., the sole defendant in Victim A's emotional distress action. However, for the next two years, he opposed her efforts to enforce the judgment, contending that he was rendered only severally liable, instead of jointly and severally liable, by a combination of his successful contribution action against a co-tortfeasor, Charon Harper, and the operation of section 2-1117 of the Code of Civil Procedure, which is a statute that modified the common law rule of joint and several liability in "actions on account of bodily injury or death or physical damage to property *** or product liability." 735 ILCS 5/2-1117 (West 2018). The trial court ruled that section 2-1117 was inapplicable because there had been no allegation or testimony of bodily injury, death, or physical damage to property in Victim A's emotional distress case. The court entered a memorandum of judgment that Victim A could use to collect the $300,000 judgment debt from Song but allowed Song to take an interlocutory appeal pursuant to Illinois Supreme Court Rule Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).
¶ 2 Thus, the issue in this interlocutory appeal is whether physician Song is jointly and severally liable to his former patient, Victim A, for the $300,000 judgment entered in her negligence suit against him, after her medical records were photographed and uploaded to social media by one of his other patients, Harper. Harper, who believed her boyfriend was attempting to befriend Victim A through Facebook, publicized that Song had treated Victim A for a gynecological condition. Harper never disclosed how she obtained Victim A's records while she was in Song's medical office, and Song was unaware there was a problem until Victim A confronted him. Victim A sued only Song, not Harper, for negligently allowing the disclosure of her confidential, personal information. In May 2019, a jury awarded her $150,000 for emotional distress and $150,000 for embarrassment and humiliation, and the trial judge entered a $300,000 judgment, plus costs, against the physician.
¶ 3 Pending at the time was Song's separate third-party complaint against Harper for contribution pursuant to the Joint Tortfeasor Contribution Act ( 740 ILCS 100/0.01 et seq. (West 2018)) due to Harper's negligent and intentionally tortious conduct of possessing and disseminating Victim A's medical records. Song alleged that if Victim A prevailed in her action against Song, then he was entitled to receive contribution from Harper based on her relative degree of fault. Harper failed to appear and was found in default in November 2018. After Song was found liable to Victim A, he presented a motion for prove-up of his contribution action, and the trial judge entered a written order finding "Charon Harper is 90% at fault for contribution and Chung Song is 10% at fault plus court costs."
¶ 4 Song then paid 10% of the $300,000 judgment and costs to Victim A ($30,658) and opposed her post-judgment supplementary proceedings to obtain the remaining $270,000 and costs by arguing that he had been found only severally liable for 10% of the judgment. The trial judge disagreed with Song's recollection of the contribution hearing, ruled that section 2-1117 did not apply to the facts ( 735 ILCS 5/2-1117 (West 2018) ), and granted Victim A's motion for a memorandum of judgment in the amount of $300,000, to be recorded as a lien against the doctor's residence. See 735 ILCS 5/12-101 (West 2018). The judge denied Song's motion to reconsider the memorandum and stay Victim A's recordation of it but authorized this interlocutory appeal. At the time, Victim A's supplementary citation proceedings had been dismissed without prejudice pending her presentation of a final and appealable judgment order. Her supplementary proceedings resumed when she tendered the $300,000 memorandum of judgment. We have since granted Song's motion to approve the filing of his $1 million professional liability insurance policy as security and stay execution of the judgment pending this appeal. See Ill. S. Ct. R. 305(d) (eff. July 1, 2017).
¶ 5 Song's first of three arguments is that the 90%-10% ruling in his contribution action brought his liability to Victim A under the 25% threshold for several liability set out in section 2-1117 ( 735 ILCS 5/2-1117 (West 1994) ). See Unzicker v. Kraft Food Ingredients Corp. , 203 Ill. 2d 64, 69, 270 Ill.Dec. 724, 783 N.E.2d 1024, 1028 (2002) (). Victim A responds that section 2-1117 does not apply by its plain language and that the verdict and judgment against Song could not be affected by his separate contribution action against Harper.
¶ 6 Section 2-1117 states as follows:
¶ 7 Song's argument is based on the first two sentences of the statute. He cites Unzicker and Ponto for the proposition that Unzicker , 203 Ill. 2d at 78, 270 Ill.Dec. 724, 783 N.E.2d 1024 ; Ponto v. Levan , 2012 IL App (2d) 110355, ¶ 38, 362 Ill.Dec. 57, 972 N.E.2d 772. Referring to the first sentence of the statute, Song argues that "Plaintiff filed suit against Dr. Song claiming negligence , and a verdict was rendered against Dr. Song and in favor of Plaintiff based on the negligence claim." Emphasis added. He contends that at his contribution hearing, "Harper was apportioned fault at 90% and Dr. Song was apportioned fault at 10% plus costs." Song then refers to the second of the three sentences by arguing that "2-1117 applies to ‘any third party defendant,’ who in this case was Charon Harper." He concludes that the 90%-10% ruling in his contribution action brought his liability to Victim A under the 25% threshold for several liability set out in section 2-1117 ( 735 ILCS 5/2-1117 (West 1994) ), and then, by operation of law, section 2-1117 rendered him only severally liable to Victim A for 10% of the $300,000 judgment plus costs, which he has already paid.
¶ 8 Statutory interpretation is a question of law, and questions of law are addressed de novo on appeal. Unzicker , 203 Ill. 2d at 74, 270 Ill.Dec. 724, 783 N.E.2d 1024. The primary objective in statutory construction is to determine and give effect to the legislature's intent. Unzicker , 203 Ill. 2d at 74, 270 Ill.Dec. 724, 783 N.E.2d 1024. The best indicator of the legislature's intent is the statute's language, which must be given its plain and ordinary meaning. Advincula v. United Blood Services , 176 Ill. 2d 1, 16-17, 223 Ill.Dec. 1, 678 N.E.2d 1009, 1017 (1996). Where language is clear and unambiguous, a court may not depart from it by reading into the statute exceptions, limitations, or conditions that the legislature did not express. Hayashi v. Illinois Department of Financial & Professional Regulation , 2014 IL 116023, ¶ 16, 388 Ill.Dec. 878, 25 N.E.3d 570.
¶ 9 As there is no suggestion that Song's tortious conduct caused death or physical damage to property, Song's appeal depends on the narrow question of whether Victim A brought a negligence "action[ ] on account of bodily injury." 735 ILCS 5/2-1117 (West 2018). Song fails to explain the meaning of this key phrase and thus explain how section 2-1117 is relevant to Victim A's action.
¶ 10 Because the legislature did not define "bodily injury," the legislature intended for the term to have its ordinary and popularly understood meaning. People v. Chapman , 2012 IL 111896, ¶ 24, 358 Ill.Dec. 640, 965 N.E.2d 1119 (); Advincula , 176 Ill. 2d at 17, 223 Ill.Dec. 1, 678 N.E.2d 1009 (). A commonly accepted definition of "bodily injury" is "Physical damage to a person's body." Black's Law Dictionary (11th ed. 2019). Victim A, however, did not claim she suffered physical damage to her body as result of Song's negligence with her medical records. She alleged in her first amended...
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