                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Rogers v. Imeri, 2013 IL App (5th) 110546




Appellate Court            ROY DEAN ROGERS II and TERESA ROGERS, Individually and as
Caption                    Coadministrators of the Estate of Roy Dean Rogers III, and TERESA
                           ROGERS as Mother and Next Friend of Darian Rogers and Haylee
                           Rogers, Plaintiff-Appellees, v. GANI IMERI, Individually and d/b/a
                           Johnny’s Bar and Grill, Defendant-Appellant.


District & No.             Fifth District
                           Docket No. 5-11-0546


Rule 23 Order filed        February 1, 2013
Rehearing denied           March 8, 2013
Motion to publish
granted                    March 12, 2013
Opinion filed              March 12, 2013


Held                       In answer to a certified question, the appellate court responded that in a
(Note: This syllabus       dramshop action involving the Illinois Insurance Guaranty Fund, the
constitutes no part of     reduction of the verdict for plaintiffs for “other insurance” recoveries
the opinion of the court   pursuant to section 546(a) of the Insurance Code is applied against the
but has been prepared      jury’s verdict and the resulting amount is then reduced to the statutory
by the Reporter of         maximum set forth in the Dramshop Act if the resulting amount is greater
Decisions for the          than the maximum.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Effingham County, No.10-L-18; the
Review                     Hon. Kimberly G. Koester and the Hon. Michael P. Kiley, Judges,
                           presiding.
Judgment                   Affirmed; certified question answered.


Counsel on                 Hugh C. Griffin, of Hall, Prangle & Schoonveld, LLC, of Chicago, and
Appeal                     Jon R. Shelton, of Shelton & Madrid, LLC, of St. Louis, Missouri, for
                           appellant.

                           Christopher A. Koester, of Taylor Law Offices, P.C., of Effingham, for
                           appellees.


Panel                      JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
                           Justices Goldenhersh and Stewart concurred in the judgment and opinion.




                                              OPINION

¶1           The plaintiffs, Roy Dean Rogers II and Teresa Rogers, filed a petition under the
        Dramshop Act (235 ILCS 5/6-21 (West 2008)) after their son was fatally injured in a
        collision with a drunk driver. Because the defendant’s dramshop liability insurance carrier
        was insolvent, the defendant was represented in this action by the Illinois Insurance Guaranty
        Fund. Prior to trial, the defendant filed a motion for a summary determination of the extent
        to which his liability was to be offset by automobile insurance proceeds the plaintiffs had
        recovered. The defendant asked the court to rule that his liability was to be reduced to the
        statutory cap under the Dramshop Act and then further reduced by the amounts recovered
        from other insurance policies. The court denied the motion. The court subsequently granted
        the defendant’s motion to certify the question for interlocutory review pursuant to Illinois
        Supreme Court Rule 308(a) (eff. Feb. 26, 2010). We answer the certified question and affirm
        the trial court’s ruling.
¶2           The salient facts are not in dispute. In October 2009, the plaintiffs’ son, Roy Dean Rogers
        III, sustained fatal injuries when the vehicle he was driving was involved in a head-on
        collision with a vehicle driven by John E. Winterrowd. Rogers died later the same day. He
        was 18 years old. According to the allegations of the complaint, Winterrowd was intoxicated
        after consuming alcohol served to him at Johnny’s Bar and Grill, an establishment owned by
        the defendant, Gani Imeri. The plaintiffs received $26,550 from Winterrowd’s liability
        insurance policy. They also received $80,000 from their own automobile insurance policy
        ($75,000 under the underinsured motorist provision and $5,000 under a medical coverage
        provision).
¶3           The plaintiffs subsequently filed the instant action under the Dramshop Act (235 ILCS
        5/6-21 (West 2008)). They alleged that Winterrowd was intoxicated as a result of drinking

                                                  -2-
     alcoholic beverages at Johnny’s Bar and Grill and that his intoxication contributed to the
     collision. They sought damages for the loss of the decedent’s companionship, property
     damage to the vehicle, medical bills, and the decedent’s pain and suffering before he died.
¶4       At the time the accident occurred, the defendant maintained a dramshop liability policy
     with Constitutional Casualty Company. The policy provided a policy limit of $130,338.51,
     the statutory cap under the Dramshop Act. See 235 ILCS 5/6-21 (West 2008). However,
     while this matter was pending, Constitutional Casualty Company was declared insolvent and
     liquidated. Consequently, the Illinois Insurance Guaranty Fund (hereinafter Guaranty Fund
     or Fund) took over the defense of this litigation.
¶5       The defendant filed a “motion for summary adjudication of the amount that liability must
     be reduced under 215 ILCS 5/546.” See 735 ILCS 5/2-1005(d) (West 2008) (providing for
     summary determination of some, but not all, major issues). The defendant argued that his
     maximum dramshop liability is $130,338.51, the statutory damage cap, and that amount must
     therefore be reduced by the $106,550 received from other insurance companies under section
     546 of the Illinois Insurance Code (hereinafter the Illinois Insurance Guaranty Fund statute)
     (215 ILCS 5/546(a) (West 2008) (providing that “the Fund’s obligation” must be reduced by
     insurance proceeds received)).
¶6       The court denied the defendant’s motion, finding that the setoff issue was premature. The
     court further found that the ruling requested by the defendant would “invade the jury’s role
     as finder of fact.” The court noted that, if the jury found in favor of the plaintiffs, the
     defendant would then have the opportunity to request setoffs or other reductions.
¶7       The defendant filed a motion to reconsider that ruling or, in the alternative, to certify a
     question for appellate review pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 26,
     2010). The plaintiffs agreed to the request for certification. The court granted the motion and
     certified the following question for review:
         “Where the defendant in a dram shop case is being defended by the Illinois Insurance
         Guaranty Fund after defendant’s liability insurer was declared insolvent, and where
         plaintiff has already made an insurance recovery from plaintiff’s underinsured motorist
         insurer and from the alleged intoxicated person’s liability insurer, and where the jury
         returns a verdict in excess of the defendant’s maximum liability under the Dram Shop
         Act, is the reduction for ‘other insurance’ recoveries set forth in Section 546(a) of the
         Illinois Insurance Guaranty Fund Act applied against the jury’s verdict or against the
         defendant’s maximum dram shop liability?”
     We granted the defendant’s application for leave to appeal on January 11, 2012.
¶8       In an interlocutory appeal under Supreme Court Rule 308(a), our review is limited to
     addressing the question certified by the trial court. Ordinarily, we do not look beyond the
     question to consider the propriety of the court’s ruling on the underlying order. Hudkins v.
     Egan, 364 Ill. App. 3d 587, 590, 847 N.E.2d 145, 148 (2006). To qualify for review under
     Rule 308(a), a certified question must present an issue of law. Solon v. Midwest Medical
     Records Ass’n, 236 Ill. 2d 433, 439, 925 N.E.2d 1113, 1117 (2010). Thus, our review is de
     novo. Solon, 236 Ill. 2d at 439, 925 N.E.2d at 1117; Hudkins, 364 Ill. App. 3d at 590, 847
     N.E.2d at 148.

                                              -3-
¶9          The parties agree that the defendant is entitled to a setoff of the $106,550 the plaintiffs
       received from the two automobile insurance policies. The defendant argues that this amount
       is to be deducted from the statutory cap of $130,338.51. The plaintiffs argue that it must be
       deducted from the jury’s verdict and then reduced to the statutory cap if necessary. We note
       that, as previously discussed, this case has not yet been tried. However, because it involves
       a death, it is likely that a verdict in favor of the plaintiffs will result in damages exceeding
       the statutory cap. This assumption is included in the question certified by the trial court and
       argued by the parties.
¶ 10        Resolution of the parties’ contentions requires us to construe the language of two
       statutes–section 546 of the Illinois Insurance Guaranty Fund statute (215 ILCS 5/546 (West
       2008)) and the Dramshop Act (235 ILCS 5/6-21 (West 2008)). In resolving questions of
       statutory construction, our primary objective is to ascertain and effectuate the intent of the
       legislature in enacting the statutes. Solon, 236 Ill. 2d at 440, 925 N.E.2d at 1117. The best
       indicator of legislative intent is the express language of the statutes, which should be given
       its plain and ordinary meaning. Solon, 236 Ill. 2d at 440, 925 N.E.2d at 1117. If statutes are
       clear and unambiguous, we must apply them as written without resorting to extrinsic aids in
       statutory construction. However, if statutory language is susceptible to more than one
       reasonable interpretation, it is ambiguous and we may look beyond the express language to
       determine the legislature’s intent. Solon, 236 Ill. 2d at 440, 925 N.E.2d at 1117.
¶ 11        In interpreting statutes, we must read the relevant provisions in their entirety and consider
       the legislature’s apparent intent in enacting them. Solon, 236 Ill. 2d at 440, 925 N.E.2d at
       1117. We must interpret statutes in a way that will not render any portion of them
       meaningless or superfluous. Solon, 236 Ill. 2d at 440-41, 925 N.E.2d at 1117. We may also
       consider the consequences likely to result from our interpretation. Solon, 236 Ill. 2d at 441,
       925 N.E.2d at 1117. In doing so, we presume that the legislature did not intend an absurd or
       unjust result. Solon, 236 Ill. 2d at 441, 925 N.E.2d at 1118.
¶ 12        Section 546 of the Illinois Insurance Guaranty Fund statute provides that an insured or
       claimant must “exhaust all coverage provided by any other insurance policy *** if the claim
       under such other policy arises from the same facts, injury, or loss that gave rise to the
       covered claim against the Fund.” 215 ILCS 5/546(a) (West 2008). The statute further
       provides that “the Fund’s obligation” is to be reduced by amounts recovered. 215 ILCS
       5/546(a) (West 2008). At issue in this case is an interpretation of the phrase “the Fund’s
       obligation.”
¶ 13        The Guaranty Fund is intended “ ‘to place claimants in the same position that they would
       have been in if the liability insurer had not become insolvent.’ ” Gines v. Ivy, 358 Ill. App.
       3d 607, 609, 832 N.E.2d 937, 938 (2005) (quoting Lucas v. Illinois Insurance Guaranty
       Fund, 52 Ill. App. 3d 237, 239, 367 N.E.2d 469, 471 (1977)). As we will discuss in more
       detail later in this decision, there are some circumstances under which the Guaranty Fund’s
       liability may be less than that of the insolvent insurer. See Hasemann v. White, 177 Ill. 2d
       414, 420-21, 686 N.E.2d 571, 574 (1997). However, the Guaranty Fund is in essence a
       substitute for the insolvent insurer, not a separate source of recovery. Gines, 358 Ill. App. 3d
       at 609, 832 N.E.2d at 938. Thus, unless specific limitations in the Guaranty Fund statute are
       applicable, the Guaranty Fund’s obligation is determined by the Dramshop Act.

                                                  -4-
¶ 14        The Dramshop Act expressly provides for a jury to determine the amount of damages
       without regard to the statutory limit. 235 ILCS 5/6-21 (West 2008); Kurth v. Amee, Inc., 3
       Ill. App. 3d 506, 508, 278 N.E.2d 162, 163-64 (1972). In Kurth, the court considered the
       question of setoffs in a dramshop case where the plaintiffs settled with the driver while their
       dramshop action was pending. The plaintiffs there received $24,000 from the driver and
       executed a covenant not to sue. Kurth, 3 Ill. App. 3d at 508, 278 N.E.2d at 163. The parties
       agreed that the dramshop defendant was entitled to a $24,000 setoff. Kurth, 3 Ill. App. 3d at
       508, 278 N.E.2d at 163. However, as in this case, they did not agree on whether that amount
       was to be deducted from the jury verdict or the statutory limit. As here, the defendant argued
       that the setoff amount was to be deducted from the statutory damage cap in the Dramshop
       Act. Kurth, 3 Ill. App. 3d at 508, 278 N.E.2d at 163-64. The plaintiffs, however, argued that
       it should be deducted from the total damages awarded by the jury, and the difference, if any,
       should then be reduced to the statutory cap. Kurth, 3 Ill. App. 3d at 508, 278 N.E.2d at 164.
¶ 15        In rejecting the defendant’s argument, the Kurth court noted that the procedure advocated
       by the defendant could insulate dramshop defendants from liability in cases where damages
       received from drivers or other defendants exceed the statutory cap. Kurth, 3 Ill. App. 3d at
       510, 278 N.E.2d at 165. The court therefore determined that the Dramshop Act requires the
       following procedure where setoffs are involved: First, the jury determines the total damages
       sustained. The jury’s award is then offset by other recoveries. Finally, if the remainder is
       above the statutory limit, it is reduced to that limit. Kurth, 3 Ill. App. 3d at 510, 278 N.E.2d
       at 165.
¶ 16        The defendant acknowledges that this is generally the procedure under the Dramshop
       Act. He argues, however, that a different result is required here because the Guaranty Fund
       is involved. We disagree.
¶ 17        As the defendant correctly notes, the language of section 546 was amended in 1997, long
       after Kurth was decided. See Pub. Act 90-499 (eff. Aug. 19, 1997). The defendant contends
       that this change requires a different result in dramshop cases involving the Guaranty Fund.
       In support of this argument, the defendant cites Roth v. Illinois Insurance Guaranty Fund,
       366 Ill. App. 3d 787, 852 N.E.2d 289 (2006), which considered the effect of the 1997
       amendment to the statute. We find no support for the defendant’s position in Roth.
¶ 18        Roth did not involve proceedings under the Dramshop Act. The issue there was whether
       the Guaranty Fund was entitled to any setoff for amounts the plaintiff received from health
       insurance and disability insurance. Roth, 366 Ill. App. 3d at 789, 852 N.E.2d at 291. In
       finding that the Guaranty Fund was entitled to these setoffs, the Roth court considered the
       impact of the 1997 amendment to section 546. The previous version provided that claimants
       were required to exhaust “ ‘rights under any provision in any other insurance policy which
       may be applicable to the claim’ ” before seeking to recover from the Guaranty Fund.
       (Emphasis in original.) Roth, 366 Ill. App. 3d at 795, 852 N.E.2d at 296 (quoting 215 ILCS
       5/546(a) (West 1994)). As previously noted, the current version requires claimants to exhaust
       coverage under other policies if the coverage “arises from the same facts, injury, or loss that
       gave rise to the covered claim.” 215 ILCS 5/546(a) (West 2008).
¶ 19        The Roth court noted that prior to the amendment, courts interpreted the statute as


                                                 -5-
       applying only to policies that provide the same type of insurance as the insolvent insurer.
       Roth, 366 Ill. App. 3d at 798, 852 N.E.2d at 298. Thus, for example, in a dramshop case, the
       preamendment language was interpreted to require no setoff at all where the plaintiffs
       recovered from a solvent liability insurer that excluded dramshop coverage. Roth, 366 Ill.
       App. 3d at 796, 852 N.E.2d at 296-97 (discussing Beukema v. Yomac, Inc., 284 Ill. App. 3d
       790, 672 N.E.2d 755 (1996)). The court explained that the amended language–which focuses
       on the underlying injury or loss rather than the claim–was “intended to broaden the scope of
       the types of insurance” that must be exhausted before a claimant may recover from the
       Guaranty Fund. (Emphasis added.) Roth, 366 Ill. App. 3d at 798, 852 N.E.2d at 298.
¶ 20        Here, however, the applicability of section 546 to the automobile insurance proceeds the
       plaintiffs recovered is not at issue. As we stated earlier, there is no dispute here that the
       statute applies. The only issue is how that setoff is to be determined. Nothing in Roth or the
       express language of the amended statute alters the manner in which setoffs are to be
       determined in dramshop cases just because the Guaranty Fund is involved.
¶ 21        The defendant argues that this interpretation will eviscerate the purpose of section 546.
       We disagree. The defendant is correct that the Guaranty Fund is a “ ‘source [of recovery] of
       last resort.’ ” Roth, 366 Ill. App. 3d at 794-95, 852 N.E.2d at 295 (quoting Illinois Insurance
       Guaranty Fund v. Farmland Mutual Insurance Co., 274 Ill. App. 3d 671, 673, 653 N.E.2d
       856, 857 (1995)). The defendant is also correct that the Guaranty Fund’s liability is subject
       to the limitations in the Guaranty Fund statute. Roth, 366 Ill. App. 3d at 795, 852 N.E.2d at
       295. For example, the Guaranty Fund is entitled to a setoff of the full policy limits even if
       the plaintiff settles for less than those limits or does not pursue a claim. Burton v. Ramos,
       341 Ill. App. 3d 122, 125-26, 792 N.E.2d 362, 364-65 (2003); see also 215 ILCS 5/546(a)
       (West 2008). This limitation is not applicable in the instant case only because the plaintiffs
       recovered the full policy limits of the coverage available to them. However, the limitation
       is generally applicable in dramshop cases, which prevents claimants from seeking to recover
       from the Guaranty Fund without first exhausting other coverage available to them.
¶ 22        We also note that whether the Guaranty Fund is obligated to pay the statutory maximum
       in a dramshop case depends on the facts of the case. If the jury returns a verdict of $500,000
       in the instant case, that amount would be reduced to $393,450, which would then be reduced
       to the statutory dramshop maximum of $130,338.51. However, if the jury returns a verdict
       of $200,000, that would be reduced to $93,450, which is less than the statutory maximum.
       We believe that these limits are sufficient to effectuate the purpose of section 546.
¶ 23        For the foregoing reasons, we affirm the ruling of the trial court. We answer the certified
       question by holding that the reduction for “other insurance” recoveries set forth in section
       546(a) of the Guaranty Fund statute is applied against the jury’s verdict and then reduced to
       the statutory maximum in the Dramshop Act if necessary.

¶ 24      Affirmed; certified question answered.




                                                 -6-
