The Illinois Supreme Court recently construed section 2-1117 of the Illinois Rules of Civil Procedure, 735 ILCS, 5/2-1117, which allows for apportionment of fault under certain circumstances, to preclude the inclusion of settling defendants on the verdict form. Thus, apportionment of fault on the verdict form applies only to defendants remaining in the litigation at the time of trial.
In Ready v. United/Goedecke Services, Inc., Docket No. 103474, March 23, 2009, the Illinois Supreme Court issued a modified opinion on rehearing, addressing whether or not settled defendants are allowed on Illinois verdict forms. Over a dissent, the opinion resolved a conflict among different appellate panels and held that section 2-1117 of the Code of Civil Procedure (providing for allocation of fault among tortfeasors) does not apply to tortfeasors who have settled before judgment. Writing for a plurality, Justice Freeman construed the statutory language “defendants sued by the plaintiff” to be ambiguous, and disallowed the inclusion of settling defendants on the verdict form submitted to the jury. The result in Ready seems somewhat contrary to the Nolan decision (also authored by Justice Freeman), because as the dissent stated, the result reached in Ready was contrary to the goals of the legislature in striking a balance between fully compensating injured parties and fair imposition of liability upon tortfeasors.
In summary, Illinois defendants who have the necessary supporting facts to assert a sole proximate cause defense can now introduce evidence of other exposures, but those nonparty entities will not be allowed on the verdict form for an assessment of comparative fault. It continues to remain an “all or nothing” verdict if you find yourself defending the sole remaining defendant at trial in Illinois.