dissenting:
There is something terribly wrong with the construction we have placed on the law in relation to contribution, which permits the enhancement of the obligation of defendants St. John’s Hospital and Dr. Fitzgerald (St. John’s-Fitzgerald) to the plaintiff from $715,559.07 to $5,511,759 through the unexplained maneuvering between plaintiff and the drug company defendants. I must, therefore, dissent.
The jury found that defendants St. John’s Hospital and Dr. Fitzgerald’s pro rata share of plaintiff’s compensatory damages was 7%, which, with interest to the date of tender, amounted to $715,559.07. However, because of plaintiff’s settlement with the drug company defendants, whose pro rata shares of the compensatory damages, as found by the jury, totaled 93%, for substantially less than that amount, defendants St. John’s Hospital and Dr. Fitzgerald have now had judgment entered against them for $5,511,759, plus interest. Also, because the trial court found the settlement to be in good faith under our Contribution Act, as noted in the majority opinion, defendants St. John’s Hospital and Dr. Fitzgerald’s contribution rights against the defendants who had settled have been terminated.
Addressing first the question of the good faith of the settlement between the plaintiff and the drug companies, I cannot understand why plaintiffs would settle a claim against the drug company defendants, whose 93% pro rata share of the verdict was nearly $8 million, for roughly $3,350,000. As noted later, however, an examination of the structured settlement may shed some light on this. There is no indication that the drug companies were insolvent or that there was any reason that the full 93% of the verdict, or indeed the entire verdict, could not have been collected from the drug companies.
It appears that the settlement was entered into while the case was pending on the first appeal, that is, the appeal from the original verdict. That appeal is reported in 159 Ill. App. 3d 725. It was noted in the appellate court’s opinion in the second appeal" (180 Ill. App. 3d 558) that St. John’s-Fitzgerald filed objections to the settlement. There is also noted in the second appeal that the trial court found that the settlement was in good faith and that St. John’s-Fitzgerald attempted to appeal from the good-faith finding and the dismissal of plaintiff’s action pursuant to the agreement. The appellate court dismissed that appeal as not being based on a final order. The appellate court stated, in the second appeal, that St. John’ s-Fitzgerald argued, in that appeal, that “the settlement, if it allows for a post-judgment shifting of responsibilities, is not in good faith.” (180 Ill. App. 3d at 564.) This history is set forth in the appellate court’s opinion in the second appeal. (180 Ill. App. 3d at 562-64.) Thus, St. John’s-Fitzgerald objected to the settlement. The trial court ruled that the settlement was in good faith and an. appeal was taken from that order. The appeal was dismissed as not being based on a final order. The trial court then entered judgment against St. John’s-Fitzgerald based on the settlement .agreement and the second appeal was taken, in which the good-faith question was raised. The case is before us on the allowance of the petition for leave to appeal from the appellate court’s holding in the second appeal. (It should be noted that the appeal from the good-faith finding of the trial court which was dismissed came between what are referred to herein as the first and second appeals.)
In my opinion, an agreement which permits an unconscionable, unexplained shifting of liability from the defendants who have been found 93% responsible to the defendants who were found to be only 7% responsible, and which cuts off the right of contribution of the less responsible defendants from the more responsible defendants, is not a good-faith settlement.
I fear that trial courts and the appellate court have too casually assessed the good-faith requirement of settlements between plaintiffs and one or more of several defendants. In determining the good faith of a settlement, the interests of all of the parties affected by such a settlement should be considered, not just the interests or preferences of the parties to the agreement. Settlement agreements should not be used as an instrument of conspiracy to “gang up on” a nonsettling defendant, thereby shifting a substantial part of the liability to one not a party to the agreement. This is particularly true where, as in this case, there has been a determination that the nonsettling defendant is much less culpable than the settling defendant and the result of the settlement shifts the major share of the damages to the less responsible defendant. In such a situation as we have in this case, there should be a showing of a valid reason for such a disparate settlement which brings about such an inequitable result.
I acknowledge that section 4 of the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 304) makes each defendant, regardless of the finding as to its pro rata share of responsibility, severally liable for the entire verdict. That is all the more reason that courts should carefully protect the right of contribution of the one who is forced to pay more than its share of the damages. The purpose of contribution is to place the responsibility on the defendant who has caused the damages, so that each tortfeasor pays its pro rata share based on its culpability. The reason for adopting contribution is to permit those who are compelled to pay more than their share to recover from those who have not paid their share. The net result of the majority’s construction of the Contribution Act and prior decisions of this court defeats the very purpose which the adoption of contribution in this State sought to accomplish. The reason for adopting contribution can easily be defeated by the loose and casual handling of settlement agreements by our courts. The majority’s handling of contribution has resulted in just as inequitable a situation as that which existed before the adoption of the principle of contribution among joint tortfeasors.
The majority relies upon Laue v. Leifheit (1984), 105 Ill. 2d 191, in holding that St. John’s-Fitzgerald waived any right to contribution by not filing a counterclaim for contribution in the original action. I do not agree with the majority’s conclusion. I also do not agree with this court’s holding in Laue and filed a dissenting opinion in that case. However, I must accept Laue as the law of this State until it is overruled, but the facts of this case differ from those in Laue and I would not extend the holding in Laue to the facts of this case. Laue involved an automobile accident in which Leifheit and her passengers were injured. Leifheit and her passengers sued Laue and the jury returned verdicts in favor of the plaintiffs, but as to Leifheit, the jury found that she was 33V3% negligent for comparative negligence purposes. Laue then brought a separate suit against Leifheit for contribution for of the damages he had paid to the other passengers in Leifheit’s vehicle.
In our case the facts are different. Here, all parties against whom damages are sought are parties-defendants in this case, and the jury made the determination as to the percentage of damages each defendant should pay by way of contribution. That was not the case in Laue. There, Leifheit had not been a defendant as to the claims of the passengers in her car. No damages had been assessed against her and there had been no determination that as to the claims of her passengers she was in any way responsible. The question sought to be litigated in Laue was whether Leifheit was responsible for any of her passengers’ injuries and, if so, what was the percentage of her responsibility for contribution purposes. Those facts have already been determined in our case. All that St. John’s-Fitzgerald is trying to do is to collect from the drug company defendants the amount of the judgment over and above the 7% for which the jury found St. John’ s-Fitzgerald responsible. I would not extend the holding in Laue to these facts.
Also, the fact that St. John’s-Fitzgerald did not timely file a counterclaim for contribution against the drug company defendants is of no significance. The drug company defendants had filed a counterclaim against St. John’s-Fitzgerald. It was therefore necessary for the jury to determine the pro rata culpability of all of the defendants in the same manner as if St. John’s-Fitzgerald had filed a counterclaim for contribution against the drug company defendants. The relative culpability of all defendants was litigated and determined by the jury in the same manner as it would have been had the trial court permitted St. John’s-Fitzgerald to file a counterclaim for contribution when it was tendered at the close of the evidence. Thus, there is no reason to apply the holding in Laue to the facts of this case.
The appellate court attempted to fashion the remedy of “waiver” to give St. John’s-Fitzgerald relief from the inequities that have arisen by the application of Laue and the finding of good faith as to the settlement agreement. I fear that a finding that plaintiff has waived her claim against St. John’s-Fitzgerald for any amount in excess of 7% of the compensatory damages may result in the plaintiff’s, or at least some plaintiff in a future case to which the waiver doctrine is applied, recovering less than the verdict. I would prefer to hold, as indicated above, that the settlement was not in good faith and that the holding of Laue does not prevent the filing of a contribution action, and remand this case to the trial court to entertain the contribution claim of St. John’s-Fitzgerald, which defendants attempted to file at the close of the evidence.
I stated above that the structured settlement may shed some light on the reason for plaintiff’s willingness to settle with the drug company defendants for what appears to be substantially less than those defendants’ share of compensatory damages. The plaintiff’s brief, in this court, hints that the drug company defendants used the established law as “negotiating leverage” as a means of getting revenge^against St. John’s-Fitzgerald because of certain animosity among the defendants that developed during the trial. Plaintiff insists, in her brief, that she “did not work this settlement,” but that a codefendant “who took advantage of their partner in tort” was responsible for the settlement. Plaintiff insists she was merely a stakeholder with no interest in who paid.
The structured settlement computation sheet contained in the brief reflects a guaranteed payout of $7,908,084, very close to the amount of the drug company defendants’ 93% share of the compensatory damages. The payout over the plaintiff’s life expectancy is shown to be $44,361,056. The cost is shown to be $3 million. By use of the structured settlement, plaintiff is assured of receiving from the drug company defendants those defendants’ pro rata share of the compensatory damages. The life expectancy payout will far exceed both the compensatory and punitive damages awarded by the jury. Since the settlement only cost $3 million by virtue of the several liability aspect of our contribution law, plaintiff can collect over $5 million more from the other defendants, thereby, in effect, enhancing plaintiff’s recovery about $5 million above that awarded by the jury. In view of the effect of the structured settlement, I cannot accept plaintiff’s protestations of innocence or the assertion that the settlement was all the drug company defendants’ idea.
For the reasons stated herein, I dissent from the holding of the majority.