 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Illinois Tool Works12/31/2003
eiterates that where the value of Tapecoat's lien was $234,421.97 (the amount it paid in settlement) and the monetary value of its 35% fault attribution was $782,047.69, the difference remaining is $547,625.72. Under Gregor, however, IMC argues that the amount by which the trial court's determination of Tapecoat's fault exceeded the settlement it actually paid does not constitute an "uncollectible" share. Consequently, IMC continues, the reallocation required by section 3 of the Contribution Act is not required in this case because that statute is inapplicable. Such a result, IMC notes, would also be mandated under Minnesota law, where Minnesota courts have consistently held that the statutory provision for reallocation of uncollectible shares does not permit reallocation of an employer's share. See Hahn v. Tri-Line Farmers Co-op, 478 N.W.2d 515, 521-22 (Minn. App. 1991); Bursch v. Beardsley & Piper, 971 F.2d 108 (8th Cir. 1992) (applying Minnesota law).
We do not think that ITW has waived this issue for appeal. In the trial court, ITW proceeded under section 2 of the Contribution Act seeking the equitable apportionment of damages, based on pro rata shares of responsibility, so that it would not have to pay more than its pro rata share of fault. Unquestionably, therefore, it sought a determination of how to equitably apportion the total amount of responsibility, in light of the fact that the maximum amount of damages for which Tapecoat would be responsible was capped by Kotecki and was less than its determined share of responsibility of 35%. On appeal, ITW again argues that the trial court's decision essentially made ITW liable for its pro rata share plus the amount that was not collectible from Tapecoat because of its liability cap. It then goes on to assert that section 3 of the Contribution Act mandates the remaining tortfeasors who are jointly and severally liable to share that uncollectible obligation in accordance with their pro rata liability. Because we think these arguments advance, in essence, identical theories, we find that ITW has not waived this argument for our review.
In so holding, we find IMC's citation to Jackson to be inapposite to the facts here. In Jackson, plaintiffs brought a petition for the administrative review of a decision of the Cook County Regional Board of School Trustees (Regional Board) that denied a petition for the detachment of territory from one high school district and annexation to another. Jackson, 282 Ill. App. 3d at 193. In their petition for administrative review, plaintiffs relied on section 7-1 of the School Code and specifically stated before the Regional Board that they did not wish to proceed under section 7-2b of the School Code. Jackson, 288 Ill. App. 3d at 195-96. After their petition was denied, they appealed and argued that section 7-2b was the relevant and applicable code section. Jackson, 288 Ill. App. 3d at 194. In affirming the trial court's decision, this court found that the plaintiffs had a choice to proceed with their petition under either section 7-1 or section 7-2b, or both. Jackson, 288 Ill. App. 3d at 195-96. However, because plaintiffs expressly chose to proceed under section 7-1 and made the overt decision not to proceed under section 7-2b, this court found the issue was not properly before it. Jackson, 288 Ill. App. 3d at 196. In the present case, the ITW has always proceeded under the theory that section 2 of the Contribution Act prohibits it from being responsible for more than its pro rata share of fault, and has always sought a determination as to how to equitably apportion that total amount. Unlike the situation in Jackson, ITW here is not arguing that a new and different theory should control on appeal.
Howev
Page 1 2 3 4 5 6 7 8 9 10 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|