dissenting:
The majority construes section 2 — 1117 to include plaintiffs employer as a third-party defendant who could have been sued by the plaintiff within the meaning of that statute. 203 Ill. 2d at 77. As a result of this construction, a seriously injured plaintiff entirely innocent of any fault can only recover 1% of his damages from a defendant whose negligence was found by a jury to be a direct and proximate cause of his injuries. A fair reading of the statute does not require such a result. Accordingly, I respectfully dissent.
The majority’s analysis begins with a recital of several well-known rules of statutory construction (203 Ill. 2d at 74), but omits an equally important rule: “Statutes in derogation of the common law are to be strictly construed in favor of persons sought to be subjected to their operation” (In re Illinois Bell Switching Station Litigation, 161 Ill. 2d 233, 240 (1994)).
This court has recognized that section 2 — 1117 is in derogation of the common law. Woods v. Cole, 181 Ill. 2d 512, 521 (1998). In that case, despite the fact that the statute contains no exception for tortfeasors who act in concert, the court held that there was no indication, in either the operation or the language of section 2 — 1117, that the legislature intended to abolish the well-established common law principle that “ ‘[p]arties who act in concert, and co-operate in doing a negligent act which causes an injury, are liable, either jointly or severally, to the person injured, for the damage thereby occasioned.’ ” Woods, 181 Ill. 2d at 521, quoting Andrews v. Boedecker, 126 Ill. 605, 610 (1888).
The majority discerns that the legislature, in enacting section 2 — 1117, clearly intended that minimally responsible defendants should not have to pay entire damage awards. 203 Ill. 2d at 78. No explanation is offered for this conclusion, save the majority’s opinion that “the broad wording in the statute merely shows that the legislature intended the division of responsibility to include those people in the suit who might have been responsible for the plaintiffs injuries.” 203 Ill. 2d at 78-79. The majority argues that “ignoring the party found to be 99% responsible for the plaintiff’s injuries and requiring the party found 1% responsible to pay all of the nonmedical damages would not be in accord with the clear legislative intent that minimally responsible defendants should not be liable for entire judgments.” 203 Ill. 2d at 79.
The Lilly court’s cogent analysis should have laid those fears to rest. That court said:
“Just as the Contribution Act does not come into play until the plaintiff has collected more than a pro rata share from a defendant, so, too, the joint liability law does not come into play until a plaintiff has obtained a judgment against a defendant. Therefore, in order to determine whether ‘any third party defendant who could have been sued by the plaintiff should include the plaintiffs employer, the relevant inquiry is not whether there is a theoretical or philosophical possibility of suing the employer at the outset, but whether the plaintiff could obtain a judgment against an employer. The judgment is the relevant time of inquiry under the joint liability law. Could a plaintiff obtain a judgment? If the employer did not raise the exclusivity provisions of section 5(a), presumably he could. If the plaintiff did obtain such a judgment, then it would be fair to allow that judgment, and the jury’s assessment of the employer’s culpability, to be included in the section 2 — 1117 equation of allocation. If, however, it was not the plaintiff but a third-party plaintiff who obtained the judgment, as will universally be the case in the real world, then the allocation provisions of section 2 — 1117 should not include the plaintiff’s employer.” (Emphasis in original.) Lilly, 289 Ill. App. 3d at 1116. Reasoning further, the Lilly court said:
“Turning to defendants who are immune from suit, such as the plaintiffs employer, the State of Illinois, and others, what is the practical effect of eliminating them from the allocation equation? First, as we indicated earlier, if for some unfathomable reason an immune defendant does not raise its immunity and is subjected to a judgment, then the allocation provisions of section 2 — 1117 would properly include that defendant’s fault in the equation. This result would be fair to all parties because as the plaintiff is able to collect whatever portion of the judgment was attributable to the immune defendant, so also should that immune defendant’s conduct be considered under 2 — 1117’s allocation of fault. But if the immune defendant asserts its immunity, or if the plaintiff does not file against the immune defendant because he or she is obeying the dictates of the supreme court rule which prohibits such unmeritorious filings (155 Ill. 2d R. 137), then the immune defendant will never be subject to any collection procedure by the plaintiff and its conduct should not play any part in the allocation equation of section 2 — 1117.” Lilly, 289 Ill. App. 3d at 1117.
Thus, it is apparent that a “minimally responsible” defendant would not have to pay an entire judgment in the case before us. Defendant can recoup 99% of the amount owing to plaintiff from the third-party defendant employer, subject only to the employer’s right to limit the amount of its contribution to its worker’s compensation payments as defined by our holding in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 164-65 (1991).
By the time relative fault was determined by the jury in the case before us, plaintiff had long since elected his worker’s compensation remedy against his employer and had received benefits. In the real world, any claim of common law fault by plaintiff against his employer would certainly have been met with the defense of immunity and, most probably, an application for sanctions under Supreme Court Rule 137 (155 Ill. 2d R. 137).
The majority has offered no authority and no rationale for its assertion that the clear legislative intent mandates its holding. The Lilly court, as the majority acknowledges (203 Ill. 2d at 76), has distinguished our holding in Doyle v. Rhodes, 101 Ill. 2d 1 (1984). I believe that well-reasoned distinction (Lilly, 289 Ill. App. 3d at 1108-10) is correct. Without restating in full the rationale set forth in Lilly, I contend that this court should have followed Lilly’s interpretation of section 2 — 1117.
The majority’s construction of section 2 — 1117 impairs the plaintiffs right to recover against a tortfeasor found to have proximately caused his injuries. Such a holding is contrary to the long-standing rule of construction regarding statutes in derogation of the common law recently restated in Bell Switching Station, 161 Ill. 2d at 240. Therefore, I respectfully dissent.