specially concurring:
In Skaggs v. Senior Services of Central Illinois, Inc., 355 Ill. App. 3d 1120, 1128 (2005), appeal allowed, 216 Ill. 2d 734 (2005), the court correctly observed:
“If a settling defendant may not be included under section 2 — 1117, a plaintiff could sue two defendants, one who is primarily at fault but indigent and one who is minimally at fault but wealthy. By settling with the indigent defendant, the plaintiff could circumvent the application of section 2 — 1117, leaving the wealthy defendant, even though minimally liable, jointly liable for all damages because the settling defendant’s portion of the fault can no longer be considered.”
The Skaggs court raised the possibility of bad faith, collusion and increased gamesmanship if such a circumstance were allowed. However, there are two sides to every story.
For the sake of analysis, let us assume that the hypothetical plaintiff in the Skaggs court’s example suffered a traumatic amputation of a foot and sued two defendants, one who was primarily at fault, 85%, but indigent and having only $300,000 in insurance coverage and one who was minimally at fault, 15%, but wealthy and having $5 million in coverage. Let us assume further that this plaintiff entered into a good-faith settlement with the indigent defendant and accepted the policy limit of $300,000 in exchange for a release of liability. Thereafter, the plaintiff went to trial against the wealthy defendant resulting in a $3 million verdict in favor of the plaintiff, no portion of which was assessed for medical expenses. If the indigent defendant’s fault is not considered in applying section 2 — 1117, the wealthy defendant, who was in reality only 15% at fault for the plaintiffs injury, would, just as the Skaggs court observed, be liable for the payment of the entire judgment less a setoff for the settlement amount that the plaintiff received from the indigent defendant. Simply put, the wealthy defendant would be required to pay the plaintiff $2,700,000. If, on the other hand, the indigent defendant’s fault is considered in applying section 2 — 1117, the wealthy defendant, being only 15% at fault for the plaintiffs injury, would be severally liable. The effect being that the wealthy defendant would pay 15% of the judgment after it was reduced by the $300,000 settlement amount (see 740 ILCS 100/2(c) (West 1998)) or $405,000.
Under the first scenario, the plaintiff would recover his total damages of $3 million. However, the wealthy defendant, who in actuality was only 15% at fault for the plaintiffs injury, would be required to pay $2,700,000 or 90% of the total damage award. Hardly an equitable apportionment of damages according to relative fault. Under the second scenario, the wealthy defendant would pay $405,000, and the plaintiff would recover $705,000 in total compensation for damages assessed at $3 million. Not only has the wealthy defendant paid $45,000 less than his 15% pro-rata share of the plaintiffs total damages as a result of the setoff provisions of the Contribution Act (see 740 ILCS 100/2(c) (West 1998)), but the plaintiff has been undercompensated by a total of $2,295,000. Hardly just compensation for the injury suffered or an equitable apportionment of damages.
In this case, the position advocated by the plaintiff would support the result in the first scenario, and United’s position supports the result in the second. To my mind, neither result is equitable. However, I cannot disagree with the reasoning of the majority in this case. The plain language of the statute provides that the fault of “defendants sued by the plaintiff’ must be considered in resolving the issue of the joint or several liability of non-settling defendants. See 735 ILCS 5/2— 1117 (West 1998). The fact that a defendant may have settled with a plaintiff during the course of litigation does not remove that defendant from the status of a defendant “sued by the plaintiff.” Skaggs, 355 Ill. App. 3d at 1129. For these reasons, I concur. Any remedy for the possible inequities created by section 2 — 1117 lies with the General Assembly.