Apex and Sinclair apply new court setoff law in Hartford pollution cases

Steve Korris Apr. 22, 2010, 2:00am


New law from the Illinois Supreme Court stirred Sinclair Oil and Apex Oil to claim setoffs against settlements of refinery pollution suits in the village of Hartford.

Sinclair filed a counterclaim for setoffs in Madison County circuit court on April 8, and Apex filed a crossclaim for setoffs on April 13.

Setoffs allow a defendant to reduce a jury verdict or court judgment by amounts that others have already paid in the same action.

Illinois lawyers formerly believed they could seek setoffs at any time, but last October the Supreme Court surprised them.

In a medical malpractice case, Thorton v. Carcini, a doctor argued after trial that he was entitled to a setoff in an amount his hospital had paid to the plaintiff.

The Justices decided he acted too late.

They quoted from the code of civil procedure that a counterclaim for setoff shall be a part of the answer.

"We therefore hold in this case that defendant forfeited his setoff claim by raising the issue for the first time in his post trial motion," Justice Thomas Kilbride wrote.

That shook Sinclair and Apex lawyers, who have resisted class action claims that other oil companies paid to settle.

For Sinclair, Joseph Nassif of St. Louis wrote that a defendant who hasn't filed a counterclaim could waive the right to a setoff.

"This is a new rule of procedure, diverging substantially from previous cases decided under the Contribution Act, which have held that a counterclaim is not necessary to secure such a setoff and that the issue of setoff may be raised at any time," he wrote.

"The monies received in settlement or from compensation trusts are for the same injuries claimed in this cause of action," he wrote.

"Such monies are setoffs to any amount of money received by plaintiffs from any award from a jury or judgment," he wrote.

He asked plaintiffs to disclose all monies they received for injuries they claimed.

For Apex, James O'Brien of St. Louis also urged full disclosure.

Apex denies that it injured anyone and denies that plaintiffs are injured to the extent they claim, he wrote.

Circuit Judge Daniel Stack presides.

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