                                                                             THIRD DIVISION
                                                                              August 23, 2006




                                        No. 1-04-1762

                                IN THE APPELLATE COURT
                                       OF ILLINOIS
                                 FIRST JUDICIAL DISTRICT


TERRY E. READY, Special Administrator of the                  )    Appeal from the
Estate of Michael P. Ready, Deceased,                         )    Circuit Court of
                    Plaintiff-Appellee,                       )    Cook County
       v.                                                     )
                                                              )
UNITED/GOEDECKE SERVICES, INC.,                               )
       Defendant-Appellant and Counterplaintiff,              )    No. 00 L 4797
(BMW Constructors, Inc., and Midwest Generation               )
EME, L.L.C.,                                                  )
                    Defendants;                               ))
Midwest Generation EME, L.L.C., BMW Constructors,             ))   Honorable
Inc., Midwest Generation L.L.C., Edison Mission               )    Mary Mulhern, Judge
Energy Services, Inc.,                                             Presiding.
                    Counterdefendants).




       JUSTICE KARNEZIS delivered the opinion of the court:

       In this appeal, we must answer the question: 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 (West 2002))? 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 relative fault, if any. If we answer this
1-04-1762


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.

       Plaintiff, Terry E. Ready, special administrator of the estate of Michael P. Ready,

sued defendants United/Goedecke Services, Inc. (United), BMW Constructors, Inc.

(BMW), and Midwest Generation EME, L.L.C. (Midwest), as a result of an accident in

which Ready was killed at Midwest's factory on December 23, 1999, in Joliet, Illinois.

Ready was a mechanic employed by Midwest Generation, L.L.C., whose parent

company was defendant Midwest. Ready was working on a pipe-refitting-project at the

factory. Defendant BMW was the general contractor hired by Midwest and defendant

United was the scaffolding subcontractor hired by BMW to erect temporary scaffolding

for the project. Ready was killed when one of the beams that was to be used for

scaffolding fell and struck him.

       Plaintiff settled her claims prior to trial with defendants BMW and Midwest.

United did not object to the settlements and the trial court found they were made in

good faith. Plaintiff proceeded to trial against United, the sole remaining defendant.

       The jury returned a verdict for plaintiff in the amount of $14,230,000. It assessed

Ready's contributory negligence at 35%, which reduced the judgment to $9,250,000.

The trial court allowed a setoff of $1,112,502.58, which was the total amount paid to

plaintiff by the settling defendants. United now appeals.

       On appeal, United raises numerous contentions relating to the admissibility of

certain evidence at trial regarding the settling defendants. United also contends that the


                                            2
1-04-1762


trial court erred in excluding the settling defendants from the jury verdict form.

       Prior to trial, plaintiff filed motions in limine seeking to bar the introduction of any

evidence at trial relating to defendants BMW and Midwest. The trial court granted the

motions, finding that any evidence relating to BMW and Midwest was irrelevant because

they had settled with plaintiff prior to trial.

       Also prior to trial, defendant filed a motion in limine seeking to have BMW and

Midwest included on the jury verdict form for purposes of fault apportionment. The trial

court denied the motion, determining that only the sole remaining defendant, United,

was to be included on the verdict form and the jury would apportion fault between

Ready and United.

       United further argues that these erroneous pretrial rulings, in addition to the trial

court's use of the short form of Illinois Pattern Jury Instructions, Civil, No. 12.04

(2000)(hereinafter IPI Civil (2000) No. 12.04), prevented United from raising the

argument that something other than the conduct of the defendant was the sole

proximate cause of the injury.

       In order to address United's contentions, we first examine whether the trial

court's ruling excluding the settling defendants from the jury verdict form was proper.

The trial court's ruling was based on its interpretation of section 2-1117 of the Code of

Civil Procedure (735 ILCS 5/2-1117 (West 2002)). Section 2-1117 assigns joint and/or

several liability for nonmedical damages to a defendant "sued by the plaintiff" depending

upon that defendant's percentage of total fault. The preamendment version of section


                                                  3
1-04-1762


2-1117 that was in effect at the time of Ready's death provides in part:

              "Except as provided in section 2-1118, in actions on account of

       bodily injury or death or physical damage to property, based on

       negligence, or product liability based on strict tort liability, all defendants

       found liable are jointly and severally liable for plaintiff's past and future

       medical and medically related expenses. Any defendant whose fault, as

       determined by the trier of fact, is less than 25% of the total fault

       attributable to the plaintiff, the defendants sued by the plaintiff, and any

       third party defendant who could have been sued by the plaintiff, shall be

       severally liable for all other damages. Any defendant whose fault, as

       determined by the trier of fact, is 25% or greater of the total fault

       attributable to the plaintiff, the defendants sued by the plaintiff, and any

       third party defendants who could have been sued by the plaintiff, shall be

       jointly and severally liable for all other damages." (Emphasis added.) 735

       ILCS 5/2-1117 (West 1998).

       The trial court specifically found that section 2-1117 excluded settling defendants

from the verdict form because they were neither "defendants" nor "third party

defendants" at the time of trial. The court stated, "we cannot apportion on a verdict form

fault to settling parties." The court noted that its finding was the same regardless of

whether the preamendment or amended version of section 2-1117 was applied.

Section 2-1117 was amended in 2003, changing the phrase "any third party defendants


                                               4
1-04-1762


who could have been sued by the plaintiff" to "any third party defendants except the

plaintiff's employer." 735 ILCS 5/2-1117 (West 2004).

       Initially, we note that the parties disagree as to which version of section 2-1117

applies. Plaintiff contends the amended version applies, whereas United contends the

preamendment version applies. Plaintiff argues that the amended version of the statute

applies because the amendment does not alter any "vested right." Defendant maintains

that because the 2003 amendments were substantive changes, they have prospective

application only and the preamendment version of the statute applies because it was in

effect when plaintiff's cause of action accrued.

       In general, statutory amendments relating to substantive rights must be applied

prospectively while amendments relating to remedies or procedures are generally

applied retroactively. Harraz v. Snyder III, 283 Ill. App. 3d 254, 259 (1996). The

prospective application of statutes is preferred because of the fundamental principle that

the retroactive application of new laws is usually unfair and notice or warning of the rule

should be given in advance. Harraz, 283 Ill. App. 3d at 259. This presumption of

prospective application is rebuttable, but only by the act itself which, either by express

language or necessary implication, must clearly indicate that the legislature intended a

retroactive application. Harraz, 283 Ill. App. 3d at 259.

       Here, the amended version of section 2-1117 does not specifically state whether

it applies prospectively or retroactively. Unlike the preamendment version, which stated

that it applied "to causes of action filed on or after its effective date," the amended


                                              5
1-04-1762


version is silent in this regard. We find that this silence can be interpreted as either an

assumption that it could only apply prospectively, as is generally the case, or as an

indication that it could apply retroactively because of the absence of language limiting

its application. Because the statute is silent, we can also look to whether the

amendment was substantive or procedural to determine its prospective or retroactive

application. As stated previously, the amendment changed the phrase "any third party

defendants who could have been sued by the plaintiff" to "any third party defendants

except the plaintiff's employer." The amendment is not procedural in nature; rather, it

excludes the plaintiff's employer's fault from section 2-1117's joint and several liability

analysis. Amendments that are substantive in nature weigh in favor of prospective

application. Therefore, because the statute is silent and the amendment was a

substantive change, as well as the general preference that amendments are applied

prospectively, we find that the amended version of section 2-1117 applies prospectively.

As a result, the amended version does not apply to this cause of action. We now

examine the parties' contentions in relation to the preamendment version of the statute.



       Plaintiff contends that section 2-1117 prohibits including settling defendants on

the jury verdict form to apportion their relative degree of fault, if any. Plaintiff relies on

the Fifth District case of Blake v. Hy Ho Restaurant, Inc., 273 Ill. App. 3d 372 (1995),

which held that settling defendants were not to be included in fault apportionment.

Plaintiff also relies on Freislinger v. Emro Propane Co., 99 F.3d 1412 (7th Cir. 1996), a


                                               6
1-04-1762


federal case that followed Blake and held that settling defendants should not be

included in fault apportionment because the term "defendants sued by the plaintiff"

referred to only those defendants who remained in the case when it was submitted to

the fact finder. Freislinger, 99 F.3d at 1419.

         United's contentions are just the opposite. United relies on the Fourth District

case of Skaggs v. Senior Services of Central Illinois, Inc., 355 Ill. App. 3d 1120 (2005),

which held that settling defendants were to be included on the jury verdict form to

apportion their relative degree of fault, if any, because even though a defendant settles

and is dismissed from the case, that defendant does not lose its status as a "defendant

sued by the plaintiff." Skaggs, 355 Ill. App. 3d at 1129. United also relies on Dowe v.

National R.R. Passenger Corp., No. 01-C-5808 (April 26, 2004)(memorandum opinion

and order), a federal court memorandum opinion and order ruling on pretrial motions.

The court's position in Dowe was that settling defendants were still "defendants sued by

the plaintiff," which required them to be included in fault apportionment. Dowe, slip op.

at 17.

         Adding to the divergence of opinions is our supreme court's opinion in Lannom v.

Kosco, 158 Ill. 2d 535 (1994), which has been given various interpretations by different

courts. Both plaintiff and United contend Lannom supports their respective positions. In

Lannom, the parties consisted of a plaintiff, a defendant and a third-party defendant.

The third-party defendant settled with the plaintiff prior to trial and was dismissed from

the case. The defendant argued on appeal that the third-party defendant should not


                                              7
1-04-1762


have been dismissed from the case because it would preclude the jury from

apportioning any fault to that third-party defendant due to its absence from the litigation.

Our supreme court affirmed the dismissal. The court noted, however:

              "[T]his dilemma arises whenever a defendant or third party settles

       with the plaintiff or is dismissed from an action for any reason. Section 2-

       1117 was not intended to prohibit the dismissal of a defendant or third

       party from an action, where such dismissal is otherwise warranted.

       Moreover, the defendant's rights under section 2-1117 are not abolished

       simply because a defendant or third party settles or is dismissed from an

       action. The jury may still assess the remaining defendants' relative

       culpability, and if the degree of fault attributable to one or more defendants

       is less than 25%, those defendants' liability is several only." Lannom, 158

       Ill. 2d at 542-43.

       Plaintiff interprets Lannom as holding that only those defendants who remain in

the case when it is submitted to the fact finder are defendants within the meaning of

section 2-1117. This interpretation is consistent with the Freislinger court's reading of

Lannom. Freislinger, 99 F.3d at 1419.



       United interprets Lannom to support its position that settling defendants should

be included in fault apportionment. United points to the following sentence in Lannom.

"The jury may still assess the remaining defendants' relative culpability, and if the


                                             8
1-04-1762


degree of fault attributable to one or more defendants is less than 25%, those

defendants' liability is several only." Lannom, 158 Ill. 2d at 543. United maintains that

the term "relative culpability" assumes that the remaining defendant's culpability is

assessed relative to the other defendants, including any dismissed defendant or

dismissed third party defendant. The purpose of section 2-1117 is to hold minimally

culpable defendants minimally responsible. United maintains that it would be

inconsistent with the purpose of the statute to interpret the above sentence in Lannom

as meaning to assess the remaining defendant's culpability relative only to the plaintiff.

United also points out that Lannom cited Alvarez v. Fred Hintze Construction, 247 Ill.

App. 3d 811, 818 (3rd Dist. 1993), which stated that "the rights of a nonsettling

defendant under section 2-1117 'cannot be negated simply because another tortfeasor

has settled with the plaintiff,'" quoting E. Walsh & E. Doherty, Section 2-1117: Several

Liability's Effect on Settlement and Contribution, 79 Ill. B.J. 122, 125 (1991). United

further points out that the court in Dowe, which analyzed Blake, Lannom and

Freislinger, concluded that the Freislinger court misread Lannom. The Dowe court

specifically noted that there was no statement in Lannom that the term "defendants

sued by the plaintiff" in section 2-1117 "mean[t] only those defendants who remain in

the case when it is submitted to the fact finder." Dowe, slip op. at 16, quoting

Freislinger, 99 F.3d at 1419. The Dowe court determined that the better interpretation

to be given to Lannom was that the supreme court had intended to indicate that the

culpability of the "remaining defendants" should be assessed against that of all


                                             9
1-04-1762


defendants, including the settling defendants. Dowe, slip op. at 18.

       Here, we agree with United and the courts' interpretations of section 2-1117 in

Dowe and Skaggs that a remaining defendant's culpability should be assessed relative

to the culpability of all defendants, including settling defendants. Only in this manner

can the intent of section 2-1117, that minimally culpable defendants be held minimally

responsible, be achieved. As stated in Dowe, there is no statement in Lannom that the

term "defendants sued by the plaintiff" as used in section 2-1117 means only those

defendants who remain in the case when it is submitted to the fact finder. A defendant

who settles with the plaintiff is still a "defendant sued by the plaintiff." Further, Lannom

is different from the case at bar insomuch as Lannom solely involved whether the

dismissal of a party was proper. Here, the issue is whether settling defendants who

have been dismissed from the case should remain on the verdict form for fault

apportionment. Nevertheless, because Lannom held that a settling defendant and its

dismissal from the case does not effect a nonsettling defendant's rights under 2-1117, it

follows that settling defendants must appear on the verdict form so as not to affect the

rights of the nonsettling defendants. In conclusion, we find that the trial court erred in

holding that BMW and Midwest should not be included on the jury verdict form for fault

apportionment. Accordingly, we find that a new trial is in order.

       Plaintiff notes that interpreting section 2-1117 in this manner would confer a

"double benefit" upon United because United would be able to "levy fault to nonparties

at trial," and after trial, would receive the benefit of a reduction in the total judgment


                                              10
1-04-1762


amount from BMW and Midwest's settlements with plaintiff. We disagree. Fault is to be

apportioned among all defendants sued by the plaintiff. Any settlement plaintiff enters

into with any defendant should not serve to alter the remaining defendant(s)' degree of

fault. United will not receive a "double benefit"; rather, United will be assessed it's

degree of fault relative to the fault of all defendants sued by the plaintiff as well as the

plaintiff's fault. The fact that there is a set off of the total judgment for the settlement

amount is not a "double benefit"; it is in essence the settling defendants' payment of

their portion of the total judgment.

       We next examine whether the trial court erred in excluding certain evidence

regarding the settling defendants. The trial court found evidence relating to BMW and

Midwest irrelevant and inadmissible because they had settled with plaintiff. However,

because we now find that both BMW and Midwest should have been included on the

jury verdict form, it follows that any evidence necessary to determine their relative

culpability is relevant and admissible on retrial.

       We now address United's contention that the trial court erred in giving the short

form of IPI Civil (2000) No. 12.04. United argues that, by only giving the first paragraph

of the instruction, the court precluded United from raising the argument that something

other than the conduct of the defendant was the sole proximate cause of the injury.

       The instruction provides:

       "12.04 Concurrent Negligence Other Than Defendant's

              More than one person may be to blame for causing an injury. If you


                                              11
       1-04-1762


       decide that a [the] defendant[s] was [were] negligent and that his [their]

       negligence was a proximate cause of injury to the plaintiff, it is not a

       defense that some third person who is not a party to the suit may also

       have been to blame.

              [However, if you decide that the sole proximate cause of injury to

       the plaintiff was the conduct of some person other than the defendant,

       then your verdict should be for the defendant.]" IPI Civil (2000) No. 12.04.



The Notes that follow the instruction provide that "[t]he second paragraph should be

used only where there is evidence tending to show that the sole proximate cause of the

occurrence was the conduct of a third person." IPI Civil (2000) No. 12.04, Notes on

Use. Because we have determined that a new trial is in order, we need not now

address United's contention. However, to the extent that this issue might again occur

on retrial, we instruct the trial court that a determination regarding the instruction given

will depend upon the evidence adduced at retrial. See Leonardi v. Loyola University of

Chicago, 168 Ill. 2d 83, 100 (1995) (a litigant has the right to have the jury clearly and

fairly instructed upon each theory that was supported by the evidence).

       Lastly, we must address whether the issue of damages will be revisited on retrial.

Plaintiff contends that because United did not argue in its brief that the damage award

was excessive, it has waived any right to challenge the amount of damages awarded.

United disagrees. United points out that it did challenge the damage award on pages


                                                     12
1-04-1762


69 and 70 of its opening brief. However, pages 69 and 70 of United's brief are not

within the "Argument" section; rather, they fall within the "Conclusion" section, which

United titles "Concluding Remarks." United's "challenge" to the damage award amount

is not presented as a separate issue for review. Instead, United briefly states that

because of the trial court's rulings, plaintiff was able to argue that United alone was

responsible for Ready's death, which appealed to the "passions and prejudice" of the

jury and had an effect on the jury's assessment of damages. We note that United's

posttrial motion challenging the jury's verdict did argue that the award was excessive

and asked for a remittitur. Further, United's brief does not set forth specific reasons or

argument as to why the damage award was excessive or unreasonable. Illinois

Supreme Court Rule 341(e)(7) requires that arguments "shall contain the contentions of

the appellant and the reasons therefor, with citation of the authorities and the pages of

the record relied on." 188 Ill. 2d R. 341(e)(7). The rule further provides that "[p]oints

not argued are waived and shall not be raised in the reply brief, in oral argument, or on

petition for rehearing." 188 Ill. 2d R. 341(e)(7). Because United has failed to

specifically argue that the damage award was improper, United has waived any right to

challenge the amount of damages awarded. See In re Marriage of Thornqvist, 79 Ill.

App. 3d 791, 799 (1979)(points not argued on appeal are waived). Therefore, we affirm

the damage award amount.

       In conclusion, we find that the trial court should not have excluded the settling

defendants from the jury verdict form and that a new trial as to liability only is required.


                                             13
1-04-1762


We note that because the preamendment version of section 2-1117 applies, it is proper

to include plaintiff's employer, Midwest, on the verdict form on retrial. We further find

that upon retrial, evidence relating to the culpability of the settling defendants and third-

party defendants is relevant and admissible. Additionally, only after the close of

evidence at retrial can a determination be made as to whether a jury instruction

regarding sole proximate cause would be proper.

        Accordingly, the judgment of the circuit court is affirmed in part, reversed in part

and remanded for a new trial on the issues of liability and apportionment of damages

only.

        Affirmed in part and reversed in part; cause remanded with directions.

        THEIS, J., concurs.




                                              14
No. 1-04-1762



       PRESIDING JUSTICE HOFFMAN, specially concurring:

       In Skaggs v. Senior Services of Central Illinois, Inc., 355 Ill. App. 3d 1120, 1128

(2005), PLA allowed, 216 Ill. 2d 734 (2005), the court correctly observed that:

       "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 $5,000,000 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

$3,000,000 verdict in favor of the plaintiff, no portion of which was assessed for medical

                                               15
No. 1-04-1762

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 plaintiff=s injury, would, just

as the Skaggs Court observed, be liable for the payment of the entire judgment less a set-

off 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 plaintiff=s 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 $3,000,000.

However, the wealthy defendant, who in actuality was only 15% at fault for the plaintiff=s

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 $3,000,000. Not only has the

wealthy defendant paid $45,000 less than his 15% pro-rata share of the plaintiff=s total

damages as a result of the set-off provisions of the Contribution Act (see 740 ILCS 100/2(c)

(West 1998)), but the plaintiff has been under compensated 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

                                               16
No. 1-04-1762

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.




                                             17
