Illinois Appellate Court Finds Contribution Jury Verdict Form Flawed

Frank Barnai was injured while he was working for Summit Fire Protection Co. on a construction project. He sued the general contractor, International Contractors Inc. (ICI), the owner, Wal-Mart and electrical subcontractor, Nuline Technologies.  These defendants then brought a third-party action against Summit Fire Protection Co. for contribution.

Summit did not contribute when ICI, Wal-Mart and Nuline settled with Barnai for $5 million. As part of that settlement, the defendants assigned to Barnai their contribution claims against Summit.

Over Summit’s objection, the presiding Cook County judge granted Barnai’s motion for a good-faith finding even though the judge was not informed about how the settlement agreement allocated the $5 million payment between the defendants.

As the assignee, Barnai dropped Nuline’s contribution claim and pursued Wal-Mart’s and ICI’s claims against Summit.

At the jury trial, the trial judge gave the jury a verdict form based on Illinois Pattern Jury Instruction (Civil), IPI No. 600.16 that skipped Nuline and called on the jurors to allocate 100% of fault between Summit, Wal-Mart and ICI. With that limited choice, the allocation of fault was 52% for Summit, 38% for ICI and 10% for Wal-Mart.

Translating the verdict into a judgment with a setoff for the amount paid by Nuline, the judge ordered Summit to pay $2,144,201 to Barnai.

The Illinois Appellate Court for the 1st District reversed explaining that the good-faith finding was flawed because “the court was not presented with any information about how the settling defendants had allocated fault among themselves at the time it entered into a good-faith finding.”

The court added that the verdict form, 600.16, was defective because it did not call on the jurors to “apportion fault to each party that contributed to the settlement fund, including settling defendants who were not parties to the contribution case.”

Because the verdict form that was tendered required that the sum of each defendant’s fault add up to 100% and the jury was precluded from assigning fault to Nuline, it is possible that the jury attributed a greater degree of fault to Summit than it would have if it had been able to assign fault to Nuline.

In summary, Summit was prejudiced by Nuline’s absence from the verdict form. The jury’s verdict, accordingly, could not and will not stand. The Illinois Appellate Court reversed the Circuit Court’s order denying Summit’s posttrial motion for a new trial, vacated the Circuit Court’s order entering judgment on the jury’s verdict and converting the judgment to a monetary amount and remanded the case for a new trial.

In a supplemental brief, Barnai argued strenuously that Summit had waived the verdict form issue several times over by (1) failing to object to Nuline’s absence during the instruction conference, (2) itself tendering a verdict form that excluded Nuline, (3) failing to include the issue in its posttrial motion, and (4) failing to include the issue in its appellate brief.

It has long been understood however, that the waiver rule is an admonishment to the parties and not a restriction on this court’s jurisdiction. Jackson v. Board of Election Commissioners, 2012 IL 111928. “Courts of review may sometimes override considerations of waiver or forfeiture in the interest of achieving a just result and maintaining a sound and uniform body of precedent.”  Id.

Although Summit could have argued in the court below that Nuline should have been included on the verdict form, it can hardly be faulted for failing to do so given that Illinois Pattern Jury Instructions, Civil, No. 600.16 explicitly forbade including Nuline.

Moreover, by honoring Summit’s waiver, this court would work a manifest injustice since Summit indisputably did not have its rights and liabilities fairly determined by the jury in accordance with the requirements of the Illinois Contribution Act.

In this case, the “common liability” is the gross amount paid by the settling defendants to Barnai, which extinguished not only their liability, but also Summit’s liability for Barnai’s damages.

The party against whom contribution was sought cannot be forced to pay more than its pro rata share of common liability, and recovery to the party seeking contribution is limited to the amount paid by it in excess of its pro rata share of common liability. Therefore, the verdict form tendered to the jury in this case failed to include an assessment of Nuline’s responsibility, failed to accurately state the law and should never have been given to the jurors and thus the sound reasoning behind the reversal and the order vacating the Circuit Court’s order entering the good-faith finding.

Barnai v. Wal-Mart, 2017 IL App (1st) 171940 (Dec. 8, 2017).

Kreisman Law Offices has been handling construction work accident lawsuits, worker injury cases, forklift truck injury lawsuits, truck accident cases, wrongful death cases and car accident cases for individuals, families and the loved ones who have been injured, harmed or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Oak Lawn, Hinsdale, Mundelein, Morton Grove, Lake Forest, Round Lake Beach, Skokie, Evergreen Park, Fox River Grove, Cicero, Deerfield, Chicago (McKinley Park, Morgan Park, Portage Park, Printer’s Row, Pulaski Park, Ravenswood Manor, Rosemont, Sheffield, Southport, University of Chicago, Wrigleyville, Jefferson Park, Irving Park, Hyde Park), Northlake, Itasca and Rolling Meadows, Ill.

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