Docket No. 92838-Agenda 14-May 2002.
MARLIN UNZICKER et al., Appellants, v. KRAFT FOOD
INGREDIENTS CORPORATION, Appellee.
Opinion filed November 21, 2002.
JUSTICE THOMAS delivered the opinion of the court:
At issue in this appeal are several questions regarding both theinterpretation and constitutionality of section 2-1117 of the Codeof Civil Procedure (735 ILCS 5/2-1117 (West 1994)), whichmodified the common law rule of joint and several liability.Pursuant to section 2-1117, any tortfeasor whose percentage offault for a plaintiff's injuries is found to be "less than 25% of thetotal fault attributable to the plaintiff, the defendants sued by theplaintiff, and any third party defendant who could have been suedby the plaintiff" is only severally liable for the plaintiff'snonmedical damages. 735 ILCS 5/2-1117 (West 1994). In thiscase, plaintiffs, Marlin and Theresa Unzicker, argue that the trialcourt erred in applying section 2-1117, which resulted in ajudgment that defendant Kraft Food Ingredients Corporation(Kraft) was liable for only 1% of Marlin's nonmedical damages.Plaintiffs assert that Marlin's employer, third-party defendantNogle & Black Mechanical, Inc. (Nogle), whom a jury found to be99% responsible for Marlin's injuries, should not have beenincluded in the division of fault. Plaintiffs contend that anemployer who is protected from suit by the Workers'Compensation Act (820 ILCS 305/1 et seq. (West 2000)) is not aparty who "could have been sued" by the plaintiff. Additionally,plaintiffs contend that section 2-1117 is unconstitutional and thatthe trial court erred in failing to answer the jurors' questions andto give a certain jury instruction.
BACKGROUND
The essential facts are undisputed. Marlin was injured on July20, 1991, while he was installing stainless steel piping at Kraft'splant in Champaign. Marlin and another Nogle employee, MikeMills, were standing on a "manlift" and welding flanges to a pipe.Marlin's foreman, Mike Law, attempted to deliver someequipment to him by bringing it in the basket of a forklift that wasowned by Kraft and operated by another Nogle employee. Theforklift collided with the manlift, causing Marlin and Mills to fall.
Marlin applied for and received workers' compensationbenefits. Additionally, Marlin and his wife, Theresa, sued Kraft,alleging negligence and violations of the Structural Work Act (740ILCS 150/0.01 through 9 (West 1992), repealed by Pub. Act 89-2,