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Illinois Tool Works12/31/2003
n of an employer's pro rata share of liability in excess of its Kotecki cap is, indeed, uncollectible from that employer. C.f. Claudy, 169 Ill. 2d 44-45. In this case, therefore, we find that the difference between Tapecoat's Kotecki cap and its pro rata share of liability, $547,625.72, is, indeed, uncollectible.
Moreover, we find that IMC's reliance on Gregor is misplaced. While Gregor recited the general proposition that "the obligation of a settling tortfeasor is not uncollectible" (Gregor, 560 N.W.2d at 745), it was merely expounding the reasoning behind a Minnesota Supreme Court case, Fredrickson v. Alton M. Johnson Co., 402 N.W.2d 794 (Minn. 1987). In Fredrickson, a third-party defendant entered into a settlement agreement with the plaintiff prior to trial, and when calculating the allocation of damages, the trial court included that settling defendant in the equation for determining fault. Fredrickson, 402 N.W.2d at 796. Thereafter, the court reduced the verdict by the percentage of fault, 40%, attributed to the settling defendant. Fredrickson, 402 N.W.2d at 796.
Unlike the present case, however, because the settling party in Fredrickson was not plaintiff's employer, no Lambertson / Kotecki issues existed. In addition, as noted, the trial court reduced the jury's verdict by the 40% fault attributed to the settling defendant. In other words, the court actually released that portion of the plaintiff's cause of action, thereby reserving the balance of the plaintiff's cause of action against the non-settling defendants. In the present case, the total responsibility was never diminished by the percentage of fault attributable to ITW and Tapecoat. Instead, the full amount of the common liability remained to be apportioned among the jointly and severally liable defendants. Accordingly, because the court in Fredrickson was dealing with an entirely dissimilar factual situation, neither Fredrickson nor Gregor is persuasive authority in the present case.
In its cross-appeal, IMC then asserts that it is entitled to judgment as a matter of law because ITW failed to make a prima facie case because it did not present sufficient evidence as to the elements of its contribution claim. See Victory Memorial Hospital Ass'n v. Schmidt, Garden & Erickson, 158 Ill. App. 3d 931, 934 (1987) (holding that the prima facie case standard applies to a motion for directed verdict in a contribution case, where, like the present case, the motion is based on a failure to introduce evidence as to the amount paid by the settling tortfeasor). IMC admits that it did not move for judgment as a matter of law at the close of ITW's case under section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West 2000)). However, it claims that its assertion "at the close of all the evidence" that ITW had failed to introduce evidence on one of the elements of its contribution claim was, in effect, a section 2-1110 motion.
For this argument, IMC does not provide a citation to the record as to when, at the close of the evidence, it made its de facto section 2-1110 motion. And, in our review of the record, the first time at the close of evidence that we see such a contention being made is during IMC's closing argument. There, IMC's counsel stated:
"Your Honor, as far as damages are concerned, because this is a contribution action, there has been no evidence of payment of damages produced in this case to this court. The jury instruction IPI 600.09 requires that there be evidence of payment of damages in order for a party ro seek contribution for their payment. For the reasons stated above, Independent Machine Company respectfully asks this court to dismiss ITW's counterclaim for
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