dissenting:
I respectfully dissent. I believe the majority’s reliance on Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111, 124-25 (2000), and Blake v. Hy Ho Restaurant, Inc., 273 Ill. App. 3d 372 (1995), is misplaced. I also disagree with the majority’s holding that a settling defendant’s name should not be included in a verdict form submitted to a jury because the fault of a settling defendant is not considered when determining the fault of a nonsettling defendant. 381 Ill. App. 3d at 373-79.
In order to understand my position, we need to examine section 2 — 1117 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1117 (West 1994)). Section 2 — 1117 of the Code provides:
“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 plaintiffs 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.” (Emphasis added.) 735 ILCS 5/2 — 1117 (West 1994).
First, I note that section 2 — 1117 directs the trier of fact to consider the “total fault” attributable to the plaintiff. 735 ILCS 5/2— 1117 (West 1994). Second, I note that section 2 — 1117 directs the trier of fact to consider (a) the fault of “the defendant sued by the plaintiff,” and (b) the fault of “any third party defendant who could have been sued by the plaintiff.” 735 ILCS 5/2 — 1117 (West 1994). Finally, nowhere in section 2 — 1117 is the trier of fact directed not to consider the fault of settling defendants. 735 ILCS 5/2 — 1117 (West 1994).
The fact that a defendant has settled with the plaintiff does not change the fact that he or she was a party to the lawsuit. I note that only misjoined parties may be dropped or stricken as parties to a lawsuit after the entry of a court order. 735 ILCS 5/2 — 407 (West 2002) (“parties misjoined may be dropped by order of the court, at any stage of the cause, before or after judgment, as the ends of justice may require and on terms which the court may fix”). Absent an order of court that identifies a defendant as having been misjoined and that authorizes the dropping of that defendant, which did not occur in this case, “ ‘the rights of a nonsettling defendant under section 2 — 1117 “cannot be negated simply because another tortfeasor has settled with the plaintiff.” ’ ” Ready v. United/Goedecke Services, Inc., 367 Ill. App. 3d 272, 278 (2006), quoting Alvarez v. Fred Hintze Construction, 247 Ill. App. 3d 811, 818 (1993), quoting E. Walsh & E. Doherty, Section 2 — 1117: Several Liability’s Effect on Settlement and Contribution, 79 Ill. B.J. 122, 125 (1991).
In my opinion, the fact that a defendant has settled with the plaintiff does not change that defendant’s status as a “defendant sued by the plaintiff’ and should not be permitted to “alter the remaining defendant(s)’ degree of fault” because that could cause the nonsettling defendants to experience a “double benefit.” Ready, 367 Ill. App. 3d at 279. By “double benefit,” Ready explains that “[a nonsettling defendant] would be able to ‘levy fault to nonparties at trial’ and, after trial, would receive the benefit of a reduction in the total judgment amount from [the settling defendant’s] settlement[ ] with plaintiff.” Ready, 367 Ill. App. 3d at 279.
In conclusion, because the plain language of section 2 — 1117 of the Code does not direct the trier of fact not to consider the fault of settling defendants (725 ILCS 5/2 — 1117 (West 1994)), I think the majority has misinterpreted the language in the statute. Therefore, I would reverse the trial court’s decision in this case because I believe that section 2 — 1117 of the Code requires the settling and the nonsettling defendants’ fault to be determined in the same verdict form so the jury can properly apportion their fault. Ready, 367 Ill. App. 3d at 278-79.