                                                                      THIRD DIVISION
                                                                      NOVEMBER 10, 2009




No. 1-07-1338


KATHERINE HEUPEL,                                     )       Appeal from the
                                                      )       Circuit Court of
       Plaintiffs-Appellant,                          )       Cook County.
                                                      )
                 v.                                   )       No. 05 L 928
                                                      )
JORIE LYNN JENKINS,                                   )       The Honorable
                                                      )       Richard J. Elrod,
       Defendant-Appellee.                            )       Judge Presiding.


             JUSTICE COLEMAN delivered the opinion of the court:1

       This cause of action arises from a September 7, 2000, accident involving two cars and a

pedestrian. Plaintiff, Katherine Heupel, was walking southbound on the sidewalk on Woodlawn

Avenue nearing the intersection of Woodlawn Avenue and 55th Street in Chicago, Illinois.

Defendant, Jorie Lynn Jenkins, was driving westbound on 55th Street. The driver of a second

vehicle, Nivethitha Murugeson, was traveling eastbound on 55th Street. At the intersection of

55th Street and Woodlawn Avenue, Murugeson stopped in the left-turn lane and waited for

traffic to clear. Meanwhile, Jenkins also approached the intersection. The traffic light was green

for east-west traffic. It is unclear when the light turned yellow or red, but the two cars driven by

Jenkins and Murugeson collided in the intersection. Jenkins' car then spun into the nearby

sidewalk, struck Heupel, and pinned her against a building. Heupel suffered extensive injuries.

       Prior to filing the instant lawsuit, Heupel and Murugeson reached a settlement agreement

for $100,000, the limit of Murugeson's insurance policy. Following a trial, the jury returned a

verdict in favor of Jenkins. Heupel appealed. On appeal, Heupel argued that the trial court erred

in denying her motion for judgment notwithstanding the verdict or, alternatively, a new trial;



       1
           Due to the retirement of Justice Alan J. Greiman, Justice Sharon Johnson Coleman has

been assigned to be the third panel member on this case.
1-07-1338


defense counsel's improper closing arguments were prejudicial; the trial court erred in issuing the

long form of Illinois Pattern Jury Instructions, Civil, No. 12.04 (2000) to the jury; and the trial

court erred by including Murugeson on one of the jury verdict forms. This court affirmed.

Heupel v. Jenkins, 379 Ill. App. 3d 893 (2008).

       Heupel filed a petition for leave to appeal with the Supreme Court of Illinois. In the

exercise of its supervisory authority, the Illinois Supreme Court directed this court to vacate our

judgment in Heupel v. Jenkins, 379 Ill. App. 3d 893 (2008), and reconsider it in light of Ready v.

United/Goedecke Services, Inc., 232 Ill. 2d 369 (2008), to determine if a different result is

warranted. In accordance with the Illinois Supreme Court's directive, we vacate our earlier
opinion in this case. Based upon our reconsideration of the instant case in light of Ready, we

reverse and remand for a new trial.

       Central to the issue before the court is section 2-1117 of the Illinois Code of Civil

Procedure, which provides:

            "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 except the plaintiff's employer,

            shall be severally liable for all other [nonmedical] 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 except the plaintiff's employer,

            shall be jointly and severally liable for all other damages." 735 ILCS 5/2-

            1117 (West 2004).

       In Ready, our supreme court held that good-faith settling tortfeasors are not "defendants

sued by the plaintiff" within the meaning of section 2-1117. Ready, 232 Ill. 2d at 385. Although

the Ready court limited its analysis to the version of section 2-1117 in effect at the time of the

plaintiff's accident, i.e., the 1986 version (Ready, 232 Ill. 2d at 374), the 2003 amendment merely

excluded the plaintiff's employer from the third-party defendants subject to a finding of fault and

                                                   2
1-07-1338


did not alter the other parties subject to the allocation of fault (735 ILCS 5/2-1117 (West 2004)).

Thus, the analysis in Ready applies equally to the instant case where the statutory language at

issue, i.e., "defendants sued by the plaintiff," is identical to the language construed by the court in

Ready, and there is nothing to suggest that that language has a different meaning after the 2003

amendment.

       In Ready, following a jury trial, the circuit court of Cook County entered judgment in

favor of the plaintiff Terry Ready in a wrongful-death action stemming from the death of her

husband, Michael Ready, in a workplace accident. Ready, 232 Ill. 2d at 371. The wrongful death

suit named two defendants: United/Goedecke Services, Inc., and BMW Constructors, Inc. After
both the defendants filed third-party contribution claims against Michael Ready's employer,

Midwest Generation, L.L.C., the plaintiff amended the complaint to add Midwest as a defendant.

Thereafter, BMW and Midwest settled with the plaintiff. United did not object to the settlements

and the trial court found they were made in good faith. Ready, 232 Ill. 2d at 372. As a result of

pretrial rulings, United was not allowed to present any evidence at trial regarding the conduct of

the settling defendants. Ready, 232 Ill. 2d at 373. The trial court also denied United's motion to

list BMW and Midwest on the verdict form. The jury awarded the plaintiff $14.23 million in

damages. Ready, 232 Ill. 2d at 373. The trial court found United jointly and severally liable for

the amount of the verdict remaining after offsets for Ready's comparative negligence (35%) and

the settlement amounts paid by BMW and Midwest. Ready, 232 Ill. 2d at 373.

       On appeal, United argued that the trial court erred by refusing to include the settling

defendants on the verdict form in order for the jury to determine their share of fault, if any.

Ready, 232 Ill. 2d at 373. The appellate court affirmed in part, reversed in part, and remanded

for a reapportioning of fault because BMW and Midwest should have been on the verdict form.

The Illinois Supreme Court allowed the plaintiff's petition for leave to appeal.

       The central issue before our supreme court was whether settled tortfeasors are

"defendants sued by the plaintiff" within the meaning of section 2-1117. Ready, 232 Ill. 2d at

374. The court concluded that they are not "defendants sued by the plaintiff" and, thus, settled

                                                  3
1-07-1338


tortfeasors should not be listed on the verdict form. In reaching its conclusion, the court

examined the language of the statute to determine the legislative intent and found the language of

the statute ambiguous as to the intended meaning of "defendants sued by the plaintiff." Ready,

232 Ill. 2d at 377-78.

       The court found support for its determination that the language of section 2-1117 is

ambiguous in the conflicting interpretations of the statute by the Illinois Appellate Court, though

the different appellate interpretations are not dispositive as to ambiguity. Ready, 232 Ill. 2d at

379. The court also looked to other tools of statutory interpretation, including the principle that,

"where the legislature chooses not to amend a statute after judicial construction, it is presumed
that the legislature has acquiesced in the court's statement of the legislative intent." Ready, 232

Ill. 2d at 380, citing Wakulich v. Mraz, 203 Ill. 2d 223, 233 (2003); Bruso v. Alexian Brothers

Hospital, 178 Ill. 2d 445, 457-59 (1997). In 1995, prior to Public Act 89-7, effective March 9,

1995, the appellate court held in Blake v. Hy Ho Restaurant, Inc., 273 Ill. App. 3d 372 (1995),

that settling defendants were not to be included in the apportionment of fault under section 2-

1117. The legislature failed to address the Blake holding in the amendment. The Ready court

therefore considered the legislature to have acquiesced in the judicial interpretation of section 2-

1117 in Blake. Ready, 232 Ill. 2d at 380.

       The court also considered the principle that an amendment to a statute creates a

presumption that the legislature intended to change the law. Ready, 232 Ill. 2d at 380, citing

People v. Hicks, 119 Ill. 2d 29, 34 (1987). The "Tort Reform Act of 1995," Public Act 89-7,

amended both section 2-1117 and 2-1116 (addressing "fault" in tort actions and defining

"tortfeasor" to include anyone whose fault is a proximate cause of the injury, regardless of

whether the person settled with the plaintiff). Thus, under the amendment, settling tortfeasors

were included in the apportionment of fault. The court found the inclusion of settling tortfeasors

in the 1995 amendment a compelling indication that settling tortfeasors were not intended to be

included under the 1986 pre-amendment version of the statute. Since our supreme court held the

Civil Reform Act of 1995, Public Act 89-7, unconstitutional in its entirety in Best v. Taylor

                                                  4
1-07-1338


Machine Works, 179 Ill. 2d 367 (1997), sections 2-1116 and 2-1117 reverted to the pre-

amendment language that did not include settling tortfeasors in the apportionment of fault.

        The court further noted that Illinois Senator John Cullerton, during a floor debate of a

new bill intended to amend section 2-1117, gave some background on the intent of section 2-

1117, stating that, "the intent of the 1986 statute was *** if you settle with somebody, their

names don't go on the verdict form." 95th Ill. Gen. Assem., Senate Proceedings, March 20, 2007,

at 77 (statements of Senator Cullerton). Based on the foregoing, our supreme court concluded

that the legislature did not intend to include settling tortfeasors in the apportionment of fault.

Ready, 232 Ill. 2d at 382-83.
       In the instant case, Murugeson settled with Heupel before the lawsuit was even filed. It is

undisputed that Murugeson settled in good faith for the limits of her insurance policy. The trial

court denied Jenkins' motion to file a third-party contribution action against Murugeson.

Therefore, pursuant to our supreme court's holding in Ready, Murugeson was not a "defendant

sued by the plaintiff" within the meaning of section 2-1117. See Ready, 232 Ill. 2d at 382.

       Despite its ruling denying Jenkins' third-party action, the trial court allowed Murugeson

to be listed on the verdict form over Heupel's objection. The jury received two verdict forms

with their instructions. Verdict Form A provided a finding in favor of the plaintiff and against

the defendant with further provisions for the allocation of fault between defendant Jenkins and

Murugeson. Heupel objected to the verdict form because of the inclusion of Murugeson. Verdict

Form B provided for a finding in favor of defendant Jenkins and against plaintiff Heupel. Since

Murugeson was a good-faith settling tortfeasor, according to Ready it was error for the trial court

to include her on the verdict form for the allocation of fault. See Ready, 232 Ill. 2d at 382.

       The jury returned a verdict for defendant, Jenkins, which we initially affirmed. Heupel v.

Jenkins, 379 Ill. App. 3d 893 (2008). However, in light of our supreme court's subsequent

decision that under section 2-1117 settling tortfeasors should not be listed on the verdict form or

considered in the apportionment of fault, we reverse and remand for a new trial.



                                                  5
1-07-1338


       A new trial is warranted because it was error for the trial court to include Murugeson on

the verdict form and we cannot be certain that the jury did not consider the amount of fault

attributable to Murugeson. Unlike in Ready, where the trial court did not allow United to present

any evidence regarding the conduct of the settling defendants, here, the jury heard a great deal of

testimony regarding Murugeson's role in the collision. Thus, the jury would have considered that

evidence in light of the instructions and verdict form when reaching its decision. Defendant

Jenkins argues that the jury reached a general verdict, no special interrogatory was asked, and

thus, there is no evidence that the jury considered Murugeson in the apportionment of fault.

However, the jury is presumed to follow the trial court's instructions. Beard v. Barron, 379 Ill.
App. 3d 1, 11 (2008), citing People v. Taylor, 166 Ill. 2d 414, 438 (1995). Therefore, the

inclusion of Murugeson on a verdict form asking the jury to apportion fault if it were to find for

the plaintiff, in addition to the general instructions to the jury to consider the evidence when

deliberating, creates a presumption that jurors considered Murugeson's role in the accident.

       Notably, Jenkins did not move for directed verdict at the close of plaintiff's case and the

only evidence that Jenkins introduced consisted of two photographs of Murugeson's car.

Therefore, despite arguing that there was ample evidence to support the jury's verdict in favor of

defendant, Jenkins presumably did not believe the evidence so overwhelmingly favored her that

no contrary verdict could ever stand or she would have sought a directed verdict. See Pedrick v.

Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967).

       Therefore, since the trial court improperly included Murugeson, a settling tortfeasor, on

the verdict form and we cannot state for certain that the jury did not consider Murugeson's role in

the accident when reaching its verdict, we are compelled pursuant to Ready to reverse and

remand for a new trial.

       Reversed and remanded.

       QUINN and CUNNINGHAM, JJ., concur.




                                                  6
             REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                     (Front Sheet to be Attached to Each Case)


                   KATHERINE HEUPEL,

                                  Plaintiffs-Appellant,

CASE NAME:        v.

                   JORIE LYNN JENKINS,

                           Defendant-Appellee.


                                     No. 1-07-1338


                                Appellate Court of Illinois
                               First District, Third Division

                                  NOVEMBER 10, 2009


                JUSTICE COLEMAN delivered the opinion of the court:

                         QUINN and CUNNINGHAM, JJ., concur.



                       Appeal from the Circuit Court of Cook County

                   The Honorable Richard J. Elrod, Judge Presiding.



         For APPELLANT, Clancy & Stevens, of Chicago (Thomas A. Clancy and
                 Jeanine L. Stevens, of counsel).

         For APPELLEE, Bruce Farrel Dorn & Associates, of Chicago (Carol P. Woosley,
                 of counsel).
