                           No. 3--09--0830

                   Opinion filed March 30, 2011
_________________________________________________________________

                                IN THE

                   APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                             A.D., 2011

SUSAN D. SPERL, Individually      )   Appeal from the Circuit Court
and as Executor of the Estate     )   of the 12th Judicial Circuit,
of Joseph G. Sperl, Deceased,     )   Will County, Illinois,
                                  )
     Plaintiff-Appellee,          )
                                  )
     v.                           )
                                  )
C.H. ROBINSON WORLDWIDE, INC.,    )
                                  )
     Defendant-Appellant          )
                                  )
(C.H. Robinson Worldwide-Ltl,     )
Inc., C.H. Robinson Company,      )
Inc., d/b/a C.H. Robinson         )
International, Inc., DeAn J.      )
Henry, Toad L. Dragonfly          )
Express, PBX, Inc., d/b/a Tyson   )
Food Logistics, a Foreign         )
Corporation, Tyson Fresh Meats,   )
Inc., a Foreign Corporation and   )
Michael R. Smith,                 )
                                  )
     Defendants).                 )
_______________________________   )
                                  )
WILLIAM TALUC and SKYE TALUC,     )
                                  )
     Plaintiffs-Appellees,        )
                                  )
     v.                           )
                                  )
C.H. ROBINSON WORLDWIDE, INC.,  )
and C.H. ROBINSON COMPANY,      )
                                )
     Defendants-Appellants      )    Nos. 04--L--428, 05--L--812,
                                )         09--L--005
(C.H. Robinson Company, Inc.,   )
C.H. Robinson International,    )
Inc., C.H. Robinson Worldwide- )
Ltl, Inc., DeAn Henry,          )
Individually and d/b/a DJ       )
Transport, Michael R. Smith,    )
Individually and d/b/a Toad L. )
Dragon Fly Express, Luann G.    )
Whitener-Black, Individually    )
and d/b/a Toad L. Dragonfly     )
Express,                        )
                                )
     Defendants).               )
_______________________________ )
                                )
ANNETTE SANDERS, Individually   )
and as Administrator of the     )
Estate of Thomas S. Sanders,    )
Deceased,                       )
                                )
     Plaintiff-Appellee,        )
                                )
     v.                         )
                                )
C.H. ROBINSON WORLDWIDE, INC., )
and C.H. ROBINSON COMPANY,      )
(referred to as C.H. Robinson   )
Worldwide),                     )
                                )
     Defendants-Appellants      )
                                )
(C.H. Robinson International    )
Inc., C.H. Robinson Company,    )
Inc., C.H. Robinson Company, LP,)
C.H. Robinson Worldwide         )
Foundation, DeAn J. Henry,      )
Luann G. Whitener-Black and     )
Michael R. Smith, Individually )

                                 2
and d/b/a Toad L. Dragonfly     )
Express,                        ) Honorable
                                ) James E. Garrison,
     Defendants).               ) Judge, Presiding.
________________________________________________________________

     JUSTICE LYTTON delivered the judgement of the court, with
opinion.
     Justices Holdridge and McDade concurred in the judgment and
opinion.
_________________________________________________________________


                                   OPINION

     Plaintiffs, Susan Sperl, individually and as the executor of

the estate of Joseph Sperl; Annette Sanders, individually and as

the administrator of the estate of Thomas Sanders; and William and

Skye Taluc, filed a complaint against, among others, defendant C.H.

Robinson Worldwide, Inc., a/k/a C.H. Robinson Company (CHR), for

wrongful death and personal injuries they sustained due to DeAn

Henry’s   negligent   operation     of      a   tractor-trailer.     The     jury

concluded that CHR was vicariously liable based on agency and

entered   judgment    in   favor   of       plaintiffs   in   the   amount    of

$23,775,000.   The trial court denied CHR’s motion for judgment

notwithstanding the verdict (judgment n.o.v.) or a new trial.                  On

appeal, CHR claims that (1) the evidence failed to establish an

agency relationship, and (2) the trial court erred in refusing to

allocate fault with Henry and her employer, Luann Whitener-Black,


                                        3
d/b/a Toad L. Dragonfly Express (Dragonfly).           We affirm.

     On the morning of April 1, 2004, Henry was driving a tractor-

trailer containing a load of potatoes from Idaho to CHR’s warehouse

in Bolingbrook, Illinois.      As she approached Plainfield, traveling

on Interstate 55, she noticed that the vehicles ahead of her were

not moving.    Henry was unable to stop her truck and ran over

several vehicles, causing a multiple-car accident.            Joseph Sperl

and Thomas    Sanders   died   in   the   collision,   and   William Taluc

sustained serious injuries.         Henry owned the tractor she was

driving and leased it to Dragonfly, a motor carrier.          On that day,

Henry was delivering a load for CHR.

     Plaintiffs sued Henry, Dragonfly and CHR for wrongful death

and personal injuries sustained as a result of Henry's negligence.

Henry and Dragonfly admitted liability.        CHR denied liability and

sought contribution from Henry and Dragonfly.

     At trial, the evidence revealed that CHR is a logistics

company that provides a variety of transportation-related services.

It is a federally licensed freight broker.             At the time of the

accident, it was not a licensed motor carrier.           CHR does not own

tractor-trailers, nor does it employ drivers.           Instead, CHR sells

its services to customers or shippers needing to transport goods

and then contracts with carriers to provide transportation for its

                                     4
customers.

     A   network   of    federally   licensed       carriers     hauls   freight,

primarily    perishable     products,       for   CHR   and    its   customers.

Dragonfly is one of those carriers.               In March of 2002, Dragonfly

and CHR entered into a contract carrier agreement that was standard

for the industry.       It provided that CHR was exclusively liable for

Dragonfly's freight charges; CHR's customers had no obligation to

pay Dragonfly.     Dragonfly agreed that all transportation provided

to CHR would be performed under the contract.             It warranted that it

would use competent drivers. Dragonfly also warranted that neither

CHR nor its customers were responsible for the drivers' salaries,

wages, charges, or worker's compensation expenses.                   The contract

described the relationship between the parties as follows:

     "The parties understand and agree that the relationship

     of Carrier to Robinson [CHR] hereunder is solely that of

     an independent contract and that Carrier shall and does,

     employ, retain or lease on its own behalf all persons

     operating motor vehicles transporting commodities under

     this Contract."

     Once a carrier signed a contract carrier agreement, it could

begin to haul loads for CHR. Upon arranging a delivery, CHR issued

a load confirmation sheet (LCS) for the load.                 The LCS identified

                                        5
the carrier, driver, product and rate.                  It also included any

special instructions that applied to the load.

      In 2004, Jewel Food Stores began remodeling its supermarket

distribution center and searching for an alternative warehouse that

could   temporarily      distribute      its   perishable   products.     Jewel

representatives knew that CHR was a federally licensed seller of

produce and fruit and could handle special projects.              CHR was able

to   offer    multiple     temperature    storage   capabilities    and   could

transport perishable items to Jewel's stores.               As a result, Jewel

entered into a delivery contract with CHR in which CHR purchased

produce for Jewel, stored it, and then arranged for transportation

to Jewel's various grocery stores.

      Henry owned her semi-tractor and leased it to Dragonfly.               In

the spring of 2004, Dragonfly gave Henry permission to use its

carrier authority to book and deliver loads on her own.                 If Henry

booked a load, she kept all the profit.             If Dragonfly dispatched

Henry, Dragonfly kept 5%.

      On     March   29,    2004,     Henry    called    Troy   Pleasants,    a

transportation manager in CHR's Bolingbrook office, and requested

a load. Pleasants offered a load of potatoes that CHR had recently

purchased in Idaho.        The potatoes were to be loaded and delivered

to CHR's Bolingbrook warehouse, where they would be repackaged and

                                         6
shipped to various Jewel grocery stores. Pleasants stated that CHR

required a refrigerated trailer that measured at least 48 feet in

length for the job.         Henry accepted the load for a payment of

$1,800, less a $700 advance for fuel.

     CHR sent Dragonfly an LCS confirming the shipment. At the top

of the LCS, in bold-face type, it stated: "Driver must call Troy

Pleasants for dispatch."         Under the subheading "DRIVER SPECIAL

INSTRUCTIONS", it listed the following requirements:

             "1.    Driver must make check calls daily by no later

     than 10 am CST daily or $50 will be deducted from the

     rate.

             2.    Driver must verify package count and/or pallet

     count being loaded on the truck.

             3.    Driver may incur a fine of $500 for being a full

     day late, without any proof of breakdown.

             4.    Driver may incur a fine of $250 for being late

     for an appt time.

             5.    Driver must stay in constant communication with

     me throughout entire load.

             6.    Driver may incur a fine, if he does not call,

     for any of the following reasons

                    a.) waiting longer than 2 hours for product

                                     7
                  ***

     7.    Driver must call after each pick up and verify

that he is loaded.

     8.     FAILURE TO NOTIFY FINE: If driver has a 7 am

appt for that day of delivery, and has a problem that

delays him to make on time delivery, and we do not

receive a phone call until after or at the time of the

delivery appt:

            a.) The carrier will be fined $250

            b.)   The    carrier    could   also   be

            responsible to cover the loss sales

            and   cost   to   cover   the   customer

            product for that day.

                  ***

     9. Driver must pulp all product being loaded on the

truck.     If pulp temperature is plus or minus 2 degrees

from the temperature on the dispatch sheet, driver must

call their CH Robinson Representative ASAP.

     10.     All Drivers must check call the day before

delivery no matter what day it is. If the driver is more

than 700 miles out at or before 10 CST driver must check

call again at 4 PM.      Any driver 700 miles out after 10 am

                                8
     CST MUST check call at 4 PM CST, and again at 10 PM CST

     the *** before delivery.

            * * * Most importantly, the DRIVER must stay in

     constant communication with Central Product and/or the

     night crew service."

     At trial, Henry testified that Dragonfly did not dispatch her

regarding the load; she contacted Troy Pleasants directly looking

for a load to deliver.     Henry further testified that she was in

constant contact with CHR dispatch throughout her trip. She called

Pleasants, or another member of his phone team, five times during

her trip, sometimes calling multiple times within a single day.

During each phone conversation, Pleasants asked Henry about her

location and about the temperature and integrity of the load.

Henry stated that, although she did not see the LCS for the load of

potatoes, she was aware of the fines CHR could impose because she

had worked with CHR in the past.       She knew that CHR's fines ranged

from $50 to $500 and that multiple fines could be imposed.      She was

also aware that if she was late delivering a load, a fine would be

imposed.    Henry testified that she would do "everything [she]

could" to avoid a fine.    Federal regulations only allowed Henry to

drive 10 hours each day.    CHR's schedule put pressure on Henry as

a driver.   Henry stated that, given the amount of time she had to

                                   9
get to Illinois, she would not have been able to deliver the load

to   the   Bolingbrook   warehouse     within   CHR’s    schedule      without

violating federal regulations.

      On   cross-examination,   Henry     testified     that    CHR   did   not

instruct her on how to get from Idaho to Bolingbrook.            She made the

decision to take Interstate 80 to Interstate 55, but she called CHR

for directions when she was close to the warehouse.                   She also

testified that had she successfully delivered the potatoes, CHR

would have directly deposited the payment into her personal account

at Transport Alliance Bank.

      Pleasants testified that after talking to Henry on March 29,

he filled in the driver's name as "DeAn" on the dispatch sheet and

faxed a copy of the LCS to Dragonfly.        According to the LCS, Henry

was required to stay in constant contact with CHR during delivery.

CHR imposed fines on the drivers to ensure timely delivery of a

load.   He was not surprised that Henry would not make any money on

the trip if she followed federal regulations.

      Plaintiffs'   expert   Whitney      Morgan   agreed      that   CHR   was

generally a freight broker but stated that CHR's conduct in this

case "also fell outside that definition and into the definition of

a motor carrier."   Morgan noted that CHR dealt directly with Henry

and that if Henry successfully delivered this load, she would be

                                     10
paid directly by CHR.     In addition, Henry received a fuel advance

from CHR.    Morgan noted that Dragonfly did not dispatch Henry.         She

believed that, for this load, CHR was acting as a motor carrier

with respect to dispatch, management and supervision of the load.

      CHR trucking expert Michael Napier testified that carriers and

brokers dispatch in different ways. Carriers dispatch to determine

driver conditions, hours of service, tax obligations and driver

qualifications. By contrast, a "broker" dispatches to monitor load

characteristics.     He opined that CHR acted as a broker in this

case, noting that CHR's special instructions and fines were not

unusual in the industry.

      At the close of the evidence, CHR moved for a directed verdict

on the issue of agency. The trial court denied defendant's motion.

The   jury   then   returned   three   general   verdicts   in   favor    of

plaintiffs.    It specifically found that Henry was an agent of CHR

at the time of the accident, making defendant vicariously liable

for plaintiffs' injuries under the doctrine of respondeat superior.

The court entered judgment against CHR.          CHR filed a posttrial

motion for judgment n.o.v. or, in the alternative, a new trial,

which was denied.

                          STANDARD OF REVIEW

      A judgment n.o.v. is properly entered where all the evidence,

                                   11
viewed in a light most favorable to the opponent, so overwhelming

favors the moving party that no contrary verdict based on that

evidence could ever stand.   Pedrick v. Peoria & Eastern R.R. Co.,

37 Ill. 2d 494 (1967).   In ruling on a motion for judgment n.o.v.,

the court does not weigh the evidence or reassess the witnesses'

credibility.   Maple v. Gustafson, 151 Ill. 2d 445 (1992).   A trial

court should not enter judgment n.o.v. if there is any evidence

establishing a substantial factual dispute or the determination

regarding conflicting evidence is decisive to the outcome of the

trial.   Maple, 151 Ill. 2d at 454.   Although we apply a de novo

standard of review to the denial of a motion for judgment n.o.v.,

the Pedrick standard applies on appeal as well.   Jones v. Chicago

Osteopathic Hospital, 316 Ill. App. 3d 1121 (2000).

     In contrast, on a motion for a new trial, the trial court will

weigh the evidence and order a new trial if the verdict is contrary

to the manifest weight of the evidence. Maple, 151 Ill. 2d at 454.

A verdict is against the manifest weight of the evidence only where

the opposite result is clearly evident or where the jury's finding

is unreasonable, arbitrary or not based on the evidence.     Maple,

151 Ill. 2d at 454.   We will not reverse the   court's ruling on a

motion for a new trial unless it is affirmatively shown that the

trial court clearly abused its discretion.   Id. at 455.

                                 12
                                    ANALYSIS

                        I.   Agency Relationship

     CHR argues that the trial court should have granted its motion

for judgment n.o.v. or a new trial because the evidence did not

support the jury's finding that a principal-agent relationship

existed between CHR and Henry.         Specifically, it claims that the

evidence overwhelmingly demonstrated that Henry was an independent

contractor and that CHR had no right to control her actions in

transporting the load of potatoes.

     Generally, a person injured by the negligence of another must

seek his or her remedy from the person who caused the injury.

Darner   v.   Colby,   375   Ill.    558    (1941).   The   principal-agent

relationship is an exception to this general rule.           Woods v. Cole,

181 Ill. 2d 512 (1998). Under the doctrine of respondeat superior,

a principal may be held liable for the negligent actions of an

agent that caused a plaintiff's injury, even if the principal does

not himself engage in any conduct in relation to the plaintiff.

Woods, 181 Ill. 2d at 517.

     A principal is vicariously liable for the conduct of its agent

but not for the conduct of an independent contractor. Petrovich v.

Share Health Plan of Illinois, Inc., 188 Ill. 2d 17 (1999).            The

difference is defined by the level of control over the manner of

                                       13
work performance.          Horwitz v. Holabird & Root, 212 Ill. 2d 1

(2004).     An    agency    is    a    consensual       relationship        in    which   a

principal has the right to control an agent's conduct and an agent

has the power to affect a principal's legal relations.                       Resolution

Trust    Corp.    v.   Hardisty,      269       Ill.   App.     3d   613   (1995).        An

independent contractor relationship is one in which an independent

contractor undertakes to produce a given result but, in the actual

execution of the work, is not under the order or control of the

person for whom he does the work.                 Horwitz, 212 Ill. 2d at 13.

     A    fact     finder’s       determination           of    whether      an    agency

relationship exists should be made by considering all of the

surrounding circumstances and actions of the parties, without

exclusive weight being given to contractual labels or provisions.

See Roberson v. Industrial Comm'n, 225 Ill. 2d 159 (2007).

Specific conduct can demonstrate by inference the existence of an

agency relationship, despite contractual evidence that the parties

intended an independent contractor relationship.                       Dahan v. UHS of

Bethesda, Inc., 295 Ill. App. 3d 770 (1998).

     In Roberson, the supreme court emphasized that the label given

by the parties in a written agreement will not be dispositive of

the employment status. Although a carrier agreement is a factor to

consider,    it    does    not,       as    a    matter    of    law,      determine      an

                                            14
individual's agency status. Roberson, 225 Ill. 2d at 183; see also

Earley v. Industrial Comm'n, 197 Ill. App. 3d 309 (1990).                       The

trier of fact must also look to the facts of the case to define the

relationship between CHR and the drivers transporting the loads.

See Petrovich, 188 Ill. 2d at 46.                 Here, the carrier agreement

provided that the relationship of the carrier to CHR was "solely

that of an independent contract" and that the carrier employed the

drivers.      However, there are substantial facts that indicate the

existence of an agency relationship.

      In determining whether a person is an agent or an independent

contractor, the court's cardinal consideration is the right to

control the manner of work performance, regardless of whether that

right was actually exercised.             Commerce Bank v. Youth Services of

Mid-Illinois,       Inc.,    333   Ill.    App.    3d    150   (2002).    Another

significant factor is the nature of work performed in relation to

the general business of the employer.              Ware v. Industrial Comm’n,

318 Ill. App. 3d 1117 (2000).             Other factors to consider are: (1)

the   right    to   discharge;     (2)    the   method    of   payment;   (3)   the

provision of necessary tools, materials, and equipment; (4) whether

taxes are deducted from the payment; and (5) the level of skill

required.     Commerce Bank, 333 Ill. App. 3d at 153; Ware, 318 Ill.

App. 3d at 1122.            No single factor is determinative, and the

                                          15
significance of each may change depending on the work involved.

Roberson, 225 Ill. 2d at 175.

      Applying these factors to this case, we find that the jury’s

decision was not against the manifest weight of the evidence.

First, CHR controlled the manner of Henry’s work performance.

Henry testified that she contacted Pleasants at CHR and asked for

a load.    CHR required her to have a refrigerated trailer of a

specified length.    Henry accepted a load of potatoes that CHR had

purchased in Idaho for delivery to its warehouse in Bolingbrook.

The LCS dictated special instructions concerning the load.           Henry

did not see a copy of the LCS for the load of potatoes; however,

she testified that she was familiar with the LCS requirements based

on   previous   deliveries   she   had   made    for   CHR.   The   special

instructions required her to pick up the load at a specified time,

make daily check calls, and stay in constant communication with

Pleasants and other CHR dispatchers.             Henry was instructed to

notify CHR if she had an accident.              She was also required to

continuously measure the temperature of the load during her trip.

If the load did not register a certain temperature, the LCS

required her to call CHR immediately.

      CHR enforced its special instructions with a system of fines.

Pleasants testified that the fines were imposed as incentives to

                                    16
drivers   to    get    the    load    delivered      on    time.      Yet,   federal

regulations mandated that Henry drive 10 hours each day.                      Henry

testified that the schedule imposed by CHR dictated her method of

delivery and created pressure on her as a driver to get to her

destination.          Henry    stated     that      if    she    followed    federal

regulations,     she    would    be    late    delivering       her   load   to   the

Bolingbrook warehouse; Pleasants agreed with that assessment.

These extensive        requirements,      coupled        with   Henry's fine-based

compliance,      directed       Henry's       conduct       during     the    entire

transportation process and support the finding that CHR had the

right to control the manner in which Henry performed her job.                     See

Ware, 318 Ill. App. 3d at 1123 (control demonstrated by showing

detailed regulations and proving driver was personally responsible

for their observance).

       Another factor of "great significance" is the nature of the

work   performed      in   relation     to    the    general     business    of   the

defendant.     Ware, 318 Ill. App. 3d at 1122.             Here, Henry's services

are closely aligned with CHR's business.                 CHR is in the business of

transportation logistics, handling the means and methods of hauling

freight for its customers. CHR’s business necessarily requires the

service of semi-tractor drivers.              The nature of Henry’s work is

hauling freight for customers from one location to another.                       The

                                         17
work Henry performs is not unique; it is directly related to, if

not the same as, the general transportation business conducted by

CHR.   In this case, the second factor weighs in favor of an agency

relationship.

       Other factors also support the jury's verdict.                 First, CHR

controlled the method of payment.             Henry called Pleasants and

requested a load.      Dragonfly was not involved in the negotiations,

and once Henry accepted the load, she was dispatched by CHR, not

Dragonfly.    If Henry successfully completed a delivery, CHR paid

her directly    by     depositing    the   negotiated    fee   into    her bank

account.     Second, the evidence indicates that CHR provided the

materials for delivery.        Although Henry owned her tractor and

leased the trailer from Dragonfly, CHR purchased the potatoes and

requested delivery to its Bolingbrook facility.

       Thus, several of the factors, including the two most pivotal

ones, indicate that Henry was acting as CHR’s agent at the time the

accident occurred.       Thus, we cannot say that the jury’s decision

was    unreasonable,     arbitrary    or   contrary     to   the   evidence.

Accordingly, the trial court properly denied CHR's motion for

judgment n.o.v. or for a new trial.

       Nevertheless, CHR asks us to disregard the jury's verdict and

follow two federal district cases in which CHR was the defendant,

                                      18
Jones v. C.H. Robinson Worldwide, Inc., 558 F. Supp. 2d 630 (W.D.

Va. 2008), and Schramm v. Foster, 341 F. Supp. 2d 536 (D. Md.

2004). In those cases, CHR moved for summary judgment on the issue

of liability.     Both district courts granted the motion, finding

that the carrier driver was an independent contractor and that, as

a result, CHR was not liable for the driver's negligence.                In

Jones, CHR     arranged   the   pick   up   date   and   time, communicated

information from the shipper regarding the loading and unloading of

the cargo and required the driver to make daily calls regarding the

status of the shipment.         Jones, 558 F. Supp. 2d at 639.           In

Schramm, CHR directly dispatched the driver, instructed him to pick

up and deliver the load at a certain time, gave him directions to

the delivery destination and required the driver to call CHR during

the trip.     Schramm, 341 F. Supp. 2d at 544-45.

     We find those cases distinguishable.          Critical facts that are

present in our case were not present in either Jones or Schramm.

Here, CHR owned the product being transported and the load was

being delivered to a CHR warehouse. Moreover, CHR imposed fines on

Henry to ensure she maintained CHR’s schedule during the trip.

CHR’s special instructions included the potential for multiple

fines and forced Henry to violate federal regulations in order to

avoid them.    These facts support the inference that CHR controlled

                                       19
the details of Henry’s operations, schedule and compensation.

     The jury heard the testimony, considered the evidence and

concluded that CHR had an agency relationship with Henry.                         That

finding   was   not    unreasonable      or     arbitrary.       Considering       the

evidence in a light most favorable to plaintiffs, we cannot say it

overwhelmingly       favors    CHR.      Thus,    the   trial     court    properly

permitted the jury to decide the case and interpret the inferences

to be drawn based on the evidence.

                         II.     Allocation of Fault

     CHR also claims that Henry and Dragonfly should have been

included on the jury's verdict form for purposes of allocating

fault under section 2--1117 of the Code of Civil Procedure (Code)

(735 ILCS 5/2--1117 (West 2008)).

     In cases of negligence, section 2--1117 allows a jury to

allocate the total fault attributable to the plaintiff among two or

more tortfeasors if their fault is greater than 25%.                735 ILCS 5/2-

-1117   (West   2008).         Section   2--1117    also     requires      that    the

tortfeasors’ liability be capable of being legally apportioned.

735 ILCS 5/2--1117 (West 2008). If liability among the tortfeasors

cannot be apportioned, section 2--1117 does not apply.                    Woods, 181

Ill. 2d at 520.

        "When   an    action    is    brought    against     a   master    based    on

                                         20
allegedly negligent acts of the servant and no independent wrong is

charged on behalf of the master, liability is entirely derivative,

being founded upon the doctrine of respondeat superior."                 Moy v.

County of Cook, 159 Ill. 2d 519, 524 (1994).                A principal found to

be vicariously liable is not found to be at fault but, rather, only

liable by application of the doctrine of respondeat superior.

American   National   Bank   &   Trust    Co.    v.    Columbus-Cuneo-Cabrini

Medical Center, 154 Ill. 2d 347 (1992).               In such cases, there is

only a basis for indemnity, not for apportionment of damages

between the principal and the agent.            Id. at 353.

     In this case, the finding of an agency relationship between

CHR and Henry eliminates the possibility of comparing conduct for

purposes of apportioning liability. Henry admitted negligence, and

the jury found that she was acting as CHR's agent when the accident

occurred. CHR was only found liable by application of the doctrine

of respondeat superior.          Since CHR's liability is exclusively

derivative, it is not entitled to an allocation or comparison of

fault under section 2--1117 of the Code.

     CHR also argues that the trial court should have allowed an

apportionment   instruction      between    CHR       and    Dragonfly   because

Dragonfly had a contractual relationship with Henry.                 CHR claims

that Dragonfly is also legally responsible for Henry's negligence

                                     21
based on its carrier lease with Henry.    CHR’s argument, however,

ignores the jury’s finding of an agency between CHR and Henry.

Once that legal relationship was established, CHR became entirely

liable for Henry's negligent conduct, which was the proximate cause

of the accident. Dragonfly's relationship with Henry may allow CHR

to seek contribution from Dragonfly, but it does not reduce CHR's

liability for plaintiffs' damages.   See Woods, 181 Ill. 2d at 519-

20.   Thus, the trial court properly denied CHR’s verdict form

seeking to allocate fault between Henry, Dragonfly and CHR.

                            CONCLUSION

      The judgment of the circuit court of Will County is affirmed.

      Affirmed.




                                22
