The Illinois Supreme Court in Ready v. United/Goedecke Services, Inc., 232 Ill.2d 369 (2008), interpreted Section 2-1117 of the Illinois Code of Civil Procedure to find that settling defendants are not included on the verdict form for determining joint and several liability. This created an incentive for plaintiffs to settle out highly culpable defendants with minimal insurance in “good faith” and target the deeper-pocketed defendants, who were now far more likely to be found jointly liable for a jury award. Ten years later, the court approved of the inequity created by Ready by setting a very high bar to challenge a codefendant's settlement.
In Antonicelli v. Rodriguez, 2018 IL 121943, the plaintiff was a passenger in a car traveling eastbound with a semi-truck following in the same direction. At this time, Daniel Rodriguez was traveling in the opposite direction while under the influence of cocaine. Rodriguez made an improper U-turn through the median and collided with the plaintiff's car. The driver of the semi-truck was unable to stop in time and slammed into the plaintiff's car, resulting in severe permanent injuries to the plaintiff. Rodriguez pled guilty and was imprisoned.
The plaintiff brought a negligence action against Rodriguez and the trucking entities. The plaintiff entered into a settlement with Rodriguez for $20,000, the limit of his insurance policy, and moved for a finding that the settlement was made in good faith under the Contribution Act. A good-faith settlement would have discharged all liability as to Rodriguez. The trucking defendants then filed a contribution claim against Rodriguez alleging that his conduct was intentional rather than negligent because there can be no good-faith settlement for intentional conduct. The trial court found the nominal settlement to be in good faith and dismissed all claims against Rodriguez.
The Supreme Court quickly dismissed the argument that Rodriguez's conduct was intentional because there was no authority to support the conclusion that “an intoxicated driver constitutes a de facto ‘intentional tort.'” The court then moved on to whether the settlement was in good faith. The burden is on the challenging party to show that the settling parties engaged in wrongful conduct, collusion, or fraud. The trucking defendants did not present evidence to support any such conduct.
The court found that the trucking defendants' rights had been properly considered because the Contribution Act ensures “equitable apportionment” of damages by providing a setoff to the non-settling defendants for the amount of any settlement. In this case, the trucking defendants' equitable apportionment” was ensured by a setoff for $20,000.
The Supreme Court's holding is not surprising because it is consistent with Ready and subsequent appellate case law finding all manner of settlements to constitute good faith. However, the Antonicelli opinion is noteworthy for its strong concurring and dissenting opinions. “Ready I was wrongly decided,” Justice Garman stated, and it should have held that settling defendants were to be included on the verdict form for a “truthful apportionment of relative fault.” She continued, “It is of no surprise that non-settling defendants now resort to challenging the finding of good faith entered in favor of Rodriguez as a last-ditch effort to ensure that the apportionment of fault is equitable.”
Justice Karmeier highlighted the unfairness of Ready in a 13-page dissent. He mentioned that “Ready I is clearly the cause of inequity here” and cited concerns of non-settling defendants being “left holding the bag.” He correctly observed that there can be no good faith when the “practical effect is to shift a disproportionally large and inequitable portion of the settling defendant's liability to the shoulders of another.”
With these types of fact patterns, the reality is that “the tragic facts could very well persuade the jury to award a large verdict [and the settling defendant's] drop-in-the-bucket settlement takes her off the stage at the jury trial.” The plaintiff “has every incentive to get that [settling] defendant out of the way and proceed against a defendant who may bear considerably less fault but who has deeper pockets.” In light of Ready, it is in the plaintiff's interest “to be one-on-one with the non-settling defendants at trial.”
The dissent also raised an important point that is often overlooked: settling defendants may be included on the verdict form to determine the plaintiff's contributory negligence – not joint and several liability. “It seems self-evident that the fairest and most accurate assessment of proportionate fault can only be achieved by including everyone involved in the accident on the verdict form.… I would note that including a defendant who has settled on the verdict form would not impair the rights of the settling defendant under the Contribution Act, but it would ensure that non-settling defendants' rights are preserved ….”
Near the conclusion, Justice Karmeier's dissent asks, “What basis is there – be it fairness or reason – to argue that a fairer, more equitable apportionment of fault can be accomplished with the principal actor in the accident absent from the verdict form by which a jury will determine percentages of liability?” Many of us have asked some form of this question since Ready was decided a decade earlier.