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Illinois Tool Works12/31/2003
its failure to show evidence of payment in excess of its pro rata share of damages."
The court then allowed IMC's counsel to submit a memorandum of law into evidence suggesting, inter alia, that a party in a contribution action has to show proof of payment as evidence in a case.
Section 2-1110 states:
"In all cases tried without a jury, defendant may, at the close of plaintiff's case, move for a finding or judgment in his or her favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant, the defendant may proceed to adduce evidence in support of his or her defense, in which event the motion is waived." 735 ILCS 5/2-1110 (West 2000).
In the present case, not only did IMC fail to make its de facto section 2-1110 motion at the close of the plaintiff's case (or, for that matter, before closing arguments in its own case), it then put on evidence in support of its defense. In other words, the trial court never had the opportunity to consider whether ITW had made a prima facie case at the close of its evidence, as that issue only surfaced in IMC's closing arguments after it had presented evidence in its defense. Accordingly, even if we could construe IMC's argument as a section 2-1110 motion -which, due to when the issue was raised, we cannot- IMC waived that motion once it presented evidence in its defense. See Falcon v. Thomas, 258 Ill. App. 3d 900, 903 (1994). Because IMC's argument is not properly before this court, we affirm the trial court's decision to enter judgment in ITW's favor and against IMC.
In finding the difference between Tapecoat's Kotecki cap and its pro rata share of liability to be uncollectible, and affirming the trial court's judgment against IMC, our next task is then to determine how to properly apportion that uncollectible share. To reiterate, section 3 of the Contribution Act states that "no person shall be required to contribute to one seeking contribution an amount greater than his pro rata share unless the obligation of one or more of the joint tortfeasors is uncollectible. In that event, the remaining tortfeasors shall share the unpaid portions of the uncollectible obligation in accordance with their pro rata liability." 740 ILCS 100/3 (West 2000). In looking at the plain meaning of that language, we find that ITW's proposed method of reallocation in this situation is what section 3 of the Contribution Act requires.
To determine Tapecoat's actual pro rata share of liability, we divide the amount paid by Tapecoat by the total common liability:
$234,421.97 (amount paid by Tapecoat) = 10.5%
$2,234,421.97 (common liability paid to Lucas plaintiffs) Therefore, the remaining percentage of responsibility after Tapecoat's liability is deducted is 89.5%. Then, to properly calculate what percentage of that uncollectible amount each defendant owes, we are to divide each pro rata share of responsibility by the total amount of responsibility attributable to IMC and ITW, 65%, and then multiply that figure by 89.5% - the remaining percentage of responsibility after Tapecoat's liability is deducted. Consequently, for IMC, the calculation is as follows:
IMC's pro rata share (30%) / Total pro rata shares of IMC (30%) + ITW (35%) = 65% = .461 x .895 = 41.3%
ITW's pro rata share of responsibility would be calculated in the same way:
ITW's pro rata share (35%) / Tota
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