dissenting:
I respectfully dissent from the opinion of the majority on the matter of the setoff.
The trial court returned a verdict in favor of Samantha in the amount of $1,500,000 and in favor of David in the amount of $150,000. There previously had been a settlement, in round numbers, of $860,000. A judge of the circuit court found the settlement to be in good faith and apportioned the recovery on a 50-50 basis so that David and Samantha each received $430,000. At the conclusion of the trial, the trial judge determined the setoff as follows:
Verdict for Samantha $1,500,000
Setoff for settlement - 430,000
Judgment for Samantha $1,070,000
Verdict for David $ 150,000
Setoff for settlement 430,000
Judgment for David $ 0
The majority on appeal calculates the setoff as follows:
Verdict for Samantha $1,500,000
Verdict for David + 150,000
Total of verdicts $1,650,000
Setoff - 860,000
Judgment to be apportioned by $ 790,000 the trial court
The holding of the majority gives the first settling plaintiff a right in many cases to adversely affect a coplaintiff in either a wrongful death or a common law situation. For example, assume David settled in good faith with one defendant for $2 million and Samantha did not settle. A joint verdict of $1.5 million would result in the following calculation:
Verdict $1,500,000
Setoff 2,000,000
Judgment to be distributed to $ 0 Samantha and David
The matter might be somewhat obscured by the procedural peculiarities of the Wrongful Death Act. Assume David and Samantha had common law tort claims against the jointly and severally liable tortfeasors. Also assume the same factual setting as in the instant case, that is, that they each settled for $430,000,' then proceeded to trial against the remaining defendant and obtained judgments of $150,000 and $1,500,000. The judgments in that common law tort action would be the same as those entered by the trial court in this wrongful death case. I believe the results should be the same in a wrongful death or a common law situation.
The majority states that a wrongful death action is a “single cause of action” (252 Ill. App. 3d at 733) and notes that the Contribution Act provides that a good-faith settlement reduces the recovery “on any claim.” (Emphasis in original.) (252 Ill. App. 3d at 733, citing Ill. Rev. Stat. 1991, ch. 70, par. 302(c).) From this, the majority concludes that the entire verdict must be off set by the entire settlement. This reasoning carries the legal fiction of a single cause of action to an unreasonable conclusion. This reasoning is not necessary to prevent a double recovery, as is asserted by the defendant. Instead, the ultimate denouement of the majority’s conclusion is to subject the coplaintiff to fortuity, because if the plaintiff who settles receives more than a jury would give, the excess will be deducted from the recovery due the other plaintiff. I see nothing intrinsic in the Wrongful Death Act to warrant this result. Nor is the majority’s conclusion supported by logic. While there may be only one lawsuit, each of the parties has a separate right to recover for his or her pecuniary injury.
This concept is embodied in Illinois Pattern Jury Instructions, Civil, No. 31.09 (3d ed. 1992) (hereafter IPI Civil 3d). That instruction states that the plaintiff brings the action in a representative capacity but that the plaintiff represents the surviving spouse and the next of kin. It further states that “[t]hey are the real parties in interest in this lawsuit, and in that sense are the real plaintiffs whose damages you are to determine.” (IPI Civil 3d No. 31.09 (1992).) As with all other rights, the parties may compromise those rights and after those rights are compromised any recovery that party has against any other defendant will be reduced by what he or she has already received. This is patently clear in an action involving common law injury and should be no less clear in a wrongful death situation. An overcompensation by one settling plaintiff cannot diminish the recovery of any other plaintiff. It appears to me beyond cavil that this was not the legislature’s intent in a wrongful death situation any more than it would have been its intent in a common law situation.
The majority remands the $790,000 judgment to the circuit court for a hearing under section 2 of the Wrongful Death Act, which provides that the court shall distribute the amount recovered to the spouse and next of kin based on the percentage of the dependency of each person on the deceased. (111. Rev. Stat. 1991, ch. 70, par. 2.) The majority does not consider the previous order of the trial court dividing the setoff evenly as constituting the required hearing on the percentage of dependency. It is true that there is nothing in the record to suggest that a hearing was in fact held on dependency. However, I believe that the trial court in applying the setoffs did what it was required to do under section 2 of the Wrongful Death Act, that is, it considered the dependency of Samantha and David on the decedent. While this may not have been done in a formal way, the trial court was in a position to consider the evidence, and the ultimate effect of its actions was that the dependency was so considered. After considering that dependency, it deducted the amounts that each party had received in settlement just the same as would have been done in a common law action.
This situation is unusual in that the jury, for the reasons stated in the majority, set separate verdicts for David and Samantha. In the ordinary situation, there will be only one verdict, and in that event I believe the trial court should set the amount of dependency and then deduct any settlement that any party receives from a settling defendant.