An Illinois wrongful death verdict arising out of a construction accident where a scaffold collapsed was reversed by the appellate court in Chicago. The Court did rule that the defendants had waived any right to challenge the award of $14,230,000. The issue as framed by the Appellate Court:
Is a defendant who settles with the plaintiff prior to trial still a “defendant sued by the plaintiff” within the meaning of section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117)? If we answer this question in the affirmative, then all defendants sued by the plaintiff, including those who settled prior to trial, may be included on the jury verdict form so that the fact finder can assign each defendant their degree of fault, if any. If we answer this question in the negative, then only those defendants who remain when the case is submitted to the fact finder may be included on the verdict form.
Ready v. United, 367 Ill. App. 3d 272, 854 N.E. 758, 2006 WL 2434935 (2006).
The reason that this decision is so important is that a verdict form that is crowded with settling defendants, non-settling defendants, and plaintiff it is much more likely that a defendant will fall below the 25% threshold set in section 2-1117 to be jointly and severally liable for non-medical damages, such as loss of consortium, pain and suffering, disability, and disfigurement. Plaintiff’s attorneys contemplating settling with some but not all defendants will have to deal with the non-settling defendants introducing evidence of the settling defendants negligence and will have to contemplate a scenario where the non-settling defendants share of the fault will fall below the 25% threshold or even 0%. Where damages, such as in wrongful death actions, are frequently non medical damages, the plaintiff will have to carefully consider the implications of any settlement involving fewer than all the defendants.