By: Jason G. Schutte
Often in our practice we see casualty and injury cases that involve several potential defendants. Plaintiffs may file suit directly against one or all defendants. Also, defendants may file suit against each other seeking contribution toward any judgment they might owe the plaintiff if found liable. Alternatively, a defendant may settle with plaintiff and file a stand-alone contribution action against the non-settling defendants. These actions filed between defendants are commonly brought under the Illinois Joint Tortfeasor Contribution Act (herein Act).[i]
The Act provides a right of contribution “where 2 or more persons are subject to liability in tort arising out of the same injury to person or property”[ii]. The Act further provides that “the right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share.”[iii] The amount a tortfeasor must contribute his “pro rata share” “in accordance with his relative culpability.”[iv]
Defendants must be wary of the specific allegations being made against each defendant when determining how to handle these cases. Where the liability of multiple defendants derives wholly from the alleged action of one single defendant, a right of contribution may not exist. This situation was discussed extensively in the recent case Sperl v. Henry, et al.[v]
Sperl revolved around a multiple vehicle collision causing serious injury and death.[vi] The semi involved in the accident was owned and operated by Defendant Henry. Defendant CHR was a logistics and freight brokerage company arranging the transport of the product hauled by Henry. Defendant Dragonfly was a federally licensed motor vehicle carrier that leased Henry’s vehicle and allowed Henry to use Dragonfly’s carrier authority to book and deliver goods on her own. Henry contacted CHR and agreed to deliver the load in question.[vii]
Plaintiffs sued Henry, Dragonfly and CHR for wrongful death and personal injury as a result of the negligence of Henry.[viii] Henry admitted negligence and liability at trial. Dragonfly admitted liability and a “united” negligence with Henry. CHR denied liability and sought contribution against Henry and Dragonfly for any judgment entered against it. The trial court severed CHR’s contribution claim. The case proceeded to trial with the principal issue being whether there was sufficient evidence to establish an agency relationship between CHR and Henry. The existence of an agency relationship with Henry would result in vicarious liability through respondeat superior.[ix]
CHR tendered a jury instruction at trial that would have had the jury allocate fault between the three defendants. The trial court rejected the instruction. The jury subsequently found that an agency relationship existed between CHR and Henry. A verdict in excess of $23,000,000 was entered. CHR satisfied the judgment and pursued their cross claim against Dragonfly seeking contribution. The trial court found CHR and Dragonfly equally at fault and entered judgement against Dragonfly in favor of CHR for half the prior jury trial verdict.[x]
The appellate court noted that when a principal is held vicariously liable for its agent’s conduct, the principal is not “at fault in fact” because he has not committed any independent tortious act. Rather, liability for the agent’s negligent conduct is imposed solely upon the principal due to its relationship with the agent. Essentially, the principal is blameless (free from fault), is liable solely as a matter of policy and is not a tortfeasor under the Act. [xi] The principal/employer’s liability is wholly derivative of the agent’s fault and the principal is liable to the same extent of the agent.[xii]
In the Sperl case, both Dragonfly and CHR were found liable for Henry’s negligence. They were not found to have committed any independent wrongful conduct. Therefore, Dragonfly and CHR stand in an identical position and are 100% liable for Henry’s negligence. Neither Dragonfly nor CHR are ‘at fault in fact’. As such, there was no basis to compare relative fault between Dragonfly and CHR as required by the provisions of the Act. Further, since both Dragonfly and CHR are 100% liable through their derivative liability, there is no situation where one would pay more than their “pro rata” share, sufficient to give either defendant a right to contribution under the Act.[xiii] Thus the Appellate court reversed the Trial court’s decision ordering Dragonfly to pay half the jury verdict.[xiv]
Effect of case
The Sperl case involved a unique situation, but we can learn from its discussion of the provisions of the Act. For instance, if you face a multiple defendant situation similar to the one described in Sperl, it would be wise to consider developing contribution allegations that are independent torts. For instance, negligent hiring and negligent supervision are independent actions that are not derivative of the actions of an employee/agent. Moreover, including such allegations in a contribution action might encourage the plaintiff to pursue these causes of action as well. The inclusion of independent torts would, if viable, provide a basis to divide fault between defendants, which would help keep contribution under the Act viable and in play.
The lessons taught by Sperl also could be very useful in a subrogation situation as well. The author is currently defending a subrogation law suit where an excess insurer is filing suit against a party that it treated as an insured in defending and settling a personal injury lawsuit. This lawsuit includes more than one theory of liability, including contribution. The law suit has many problems, however, the situation in Sperl provides an excellent basis to pursue dismissal of the contribution action. This insurer is not an independent tortfeasor and has no fault/culpability to divide with my client. In fact, the insurer has no liability at all. It only has on obligation to indemnify for the negligent acts of the insured. Hence, any liability is derivative and flows through the insured. The Act should not apply in this situation.
In closing, in a multi tortfeasor situation, be weary of the specific allegations included in plaintiff’s Complaint and be considerate of the allegations included in any contribution action filed between defendants as they will certainly have ramifications on the applicability of the Illinois Joint Tortfeasor Contribution Act and parties’ responsibility to contribute to a potential settlement or award at trial.
[i] 740 ILCS 100/1 et seq.;
[ii] 740 ILCS 100/2(a);
[iii] 740 ILCS 100/2(b);
[iv] 740 ILCS 100/3;
[v] Sperl v. Henry, et al., 2017 IL App (3d)150097;
[vi] Sperl at ¶8;
[vii] Sperl at ¶7&8;
[viii] Sperl at ¶9;
[ix] Sperl at ¶9;
[x] See Sperl generally;
[xi] Sperl at ¶28;
[xii] Sperl at ¶28;
[xiii] Sperl at ¶29;
[xiv] Sperl at ¶60.