By Steven M. Puiszis
President, Illinois Association of Defense Counsel, partner Hinshaw & Culbertson LLP

Consider this hypothetical:

You were recently involved in an automobile accident with a drunk driver.

While neither you nor the drunk driver were hurt, a passenger in the drunk driver's car was seriously injured. Although you were not at fault, the injured passenger sued both you and the other driver claiming you failed to keep a proper lookout for the driver of the other car who rammed the side of your vehicle after you entered the intersection.

The injured party then settles with the drunk driver because as often happens, the drunk driver had minimal insurance coverage.

Should you be worried? Because of legislation currently under consideration in Springfield, you should be.

In 1986, the Illinois legislature passed a law designed to protect parties who are only minimally responsible for an injury. The legislature said that if a defendant was less than 25 percent at fault in causing an accident or injury, then it would only have to pay its percentage share.

That law was based on common sense notions of fairness – a party should only have to pay for the damages caused by the fault of that party.

Before that law was enacted, a defendant was potentially liable for 100 percent of a judgment even if that person was only 1 percent at fault. An injured person could collect the entire judgment from any party, regardless of how at fault the party was in causing the accident.

This meant that defendants who had the most assets - the deepest pockets, could and often ended up paying the most, even though they were minimally at fault, compared to others, in causing an injury.

Last week, the Illinois Senate's Judiciary Committee approved a bill sponsored by the plaintiff's trial lawyers, the Illinois Trial Lawyers Association. This bill (Senate Bill 1296) provides that when a party settles out of a lawsuit, that party's fault cannot be considered in determining whether the remaining defendant's fault is more or less than the 25 percent threshold.

This is deep pockets tort law at its worst.

The proposed legislation does not attempt to change the fact that a settled party's fault can be considered for another purpose – for determining the plaintiff's own fault in causing his or her own injuries.

Under existing law, a verdict is reduced by the plaintiff's own fault in causing an accident or injury. Why is that being left undisturbed?

Because the more parties whose fault can be considered in making that calculation, the smaller the plaintiff's fault will generally be, and the larger the resulting award to the plaintiff. So the current bill will do nothing more that widen the fairness gap between plaintiffs and defendants, and give plaintiffs the benefit of reducing their fault by including the fault of others in the calculation, but denying that same right to defendants.

Worse, it gives the plaintiffs' trial bar the right to manipulate the application of a defense that was intended to assist defendants, by deciding when and with whom to settle. This bill essentially eliminates the protection that the original 1986 statute was intended to provide.

It is unfair and defies common sense, which teaches you should only have to pay for the damage for which you are responsible.

In other states, such as neighboring Indiana, there is not even a 25 percent threshold – each defendant always pays only its share of the cause of an injury, and is not responsible for the shares of other persons.

If enacted, Senate Bill 1296 will put Illinois further out of step with its neighbors, out of step with fairness, out of step with common sense and drop Illinois deeper into the tort "hellhole" category that drives businesses out of Illinois.

Senate Bill 1296 is bad public policy and should not be passed into law.

The Illinois Association of Defense Counsel (IDC) was formed over 45 years ago and serves as the voice of the defense bar in Illinois. It has more than 1,000 attorneys throughout Illinois as its members. The members of the IDC represent, doctors, and other professionals, hospitals, businesses, manufactures and your neighbors.

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