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Illinois Tool Works12/31/2003
er, even if we were to find that ITW did not raise this argument in the trial court, we note that waiver is a limitation on the parties, not the courts. See Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 514 (1994). Thus, in order to obtain a just result and maintain a sound and uniform body of precedent, we decline to waive ITW's argument on appeal. Geise, 159 Ill. 2d at 514.
In addressing the merits of ITW's appeal, we agree with ITW that the difference between the amount Tapecoat paid in settlement and the monetary value of its 35% fault attribution is, indeed, uncollectible. While independent research has not revealed a case on point in Illinois , we note that Minnesota has a statutory provision that was enacted to address this very issue. In Drake v. Reile's Transfer & Delivery, Inc., 613 N.W.2d 428 (Minn. App. 2000), the Minnesota Court of Appeals provided the following recitation as to the different methods a prospective plaintiff may use in his or her attempt to collect properly allocated tort proceeds from an underlying judgment:
"The district court concluded that respondents were entitled as a matter of law to elect a posttrial allocation of the judgment under either Henning v. Wineman, 306 N.W.2d 550 (Minn. 1981), or the statutory formula. *
The statutory formula does not require that the district court allocate the tort proceeds between damages recoverable and nonrecoverable under workers' compensation law. Locher v. Gareis, 411 N.W.2d 273, 275 (Minn. App. 1987). Instead, the employee receives one-third of the amount remaining after costs are deducted. Kliniski v. Southdale Manor, Inc., 518 N.W.2d 7, 9 n.2 (Minn. 1994). The employer/insurer is then reimbursed for its subrogation claim less a proportionate share of attorney fees, and the remainder, if any, is paid to the employee subject to a credit to the employer/insurer for any future benefits payable. Id. The statute's provision for an initial one-third payment to the employee recognizes that a tort recovery often includes damages that are nonrecoverable under workers' compensation law; thus, the employee receives this portion of the proceeds free from any subrogation claim by the insurer. Henning, 306 N.W.2d at 552.
In Henning, the supreme court held that where the employee settles with the third-party tortfeasor and the settlement includes amounts both recoverable and nonrecoverable under the workers' compensation statutes, the insurer's subrogation recovery can be calculated in one of two ways, at the employee's option. Id. The employee can elect to have the statutory allocation formula applied to the entire recovery in the manner described above. Alternatively, the employee can petition the district court to allocate the proceeds between recoverable and nonrecoverable damages, and then have the statutory formula applied only to that part of the settlement allocable to recoverable damages. Id. An employee who selects the latter option forfeits the statutory right to receive a one-third share of the settlement. Id. at 552-53." Drake, 613 N.W.2d at 431-32.
Because Illinois law offers no similar options to prospective plaintiffs who are suing their employers and third parties, the actual Minnesota options themselves are not critical to the issue in the case at bar. However, the impetus behind the creation of those options is of great relevance; specifically, "that a tort recovery often includes damages that are nonrecoverable under workers' compensation law." Drake, 613 N.W.2d at 431. Accordingly, in granting IMC's entreaty to find Minnesota law persuasive authority, we also recognize that any portio
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