# Frank Barnai v. Wal-Mart Stores, Inc.

> Appellate Court of Illinois · March 31, 2021 · 2020 IL App (1st) 191306

URL: https://www.frixlaw.com/law-library/cases/4673424

## Case

- **Court:** Appellate Court of Illinois
- **Decided:** March 31, 2021
- **Citations:** 2020 IL App (1st) 191306
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4673424

## Opinion text

2020 IL App (1st) 191306-U

FIFTH DIVISION
March 31, 2021

No. 1-19-1306

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

FRANK BARNAI, ) Appeal from the Circuit Court of
) Cook County.
Plaintiff, )
)
v. ) No. 17 L 7543
)
WAL-MART STORES, INC., INTERNATIONAL )
CONTRACTORS, INC., and NULINE )
TECHNOLOGIES, INC., )
)
Defendants, )
)
(Marilyn Barnai, as Administrator of the Estate of )
Frank Barnai, Deceased, as Assignee of the )
Contribution Claims of Wal-Mart Stores, Inc., )
International Contractors, Inc., and Nuline )
Technologies, Inc., Third-Party Plaintiff-Appellee; ) Honorable James N. O’Hara and
Summit Fire Protection Company, Third-Party ) Janet A. Brosnahan,
Defendant-Appellant). ) Judges, presiding.

PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Hoffman and Rochford concurred in the judgment and opinion.
1-19-1306

OPINION

¶1 Plaintiff Frank Barnai 1 sued Wal-Mart Stores, Inc. (Wal-Mart), International Contractors,

Inc. (ICI), and Nuline Technologies, Inc. (Nuline), after he was injured while working at a Wal-

Mart store construction site. Wal-Mart, ICI, and Nuline, in turn, filed contribution claims against

Barnai’s employer, Summit Fire Protection Company (Summit), which they then assigned to

Barnai as part of a settlement agreement. Following a jury trial, Summit was found 52% liable for

plaintiff’s injuries. We (1) vacated the circuit court’s order finding the settlement was made in

good faith, (2) vacated the jury’s verdict, and (3) remanded the matter for a new trial and settlement

hearing. See Barnai v. Wal-Mart Stores, Inc., et al., 2017 IL App (1st) 171940 (Barnai II).

¶2 On remand, the circuit court again found the settlement with Wal-Mart, ICI, and Nuline

was made in good faith. The cause proceeded to a jury trial on the contribution claims against

Summit, after which the jury found Summit 92.5% at fault, and ICI 7.5% at fault. Summit again

appeals, 2 contending that (1) the assignments of contribution actions against Summit to plaintiff

are invalid; (2) Nuline’s assigned contribution cause of action is time barred; (3) the court erred in

finding that the settlement was made in good faith; (4) Summit is entitled to set-off; and (5) the

court erred in excluding Barnai’s judicial admissions. We affirm in part, reverse in part, and

modify in part the judgment of the circuit court.

1
Frank Barnai was the plaintiff who filed the original lawsuit. Upon his death, Marilyn
Barnai, Frank’s wife and the administrator of his estate, was substituted as plaintiff. For the sake
of clarity and simplicity, we shall refer to both individuals as “Barnai” or plaintiff.
2
This case was fully briefed and randomly assigned to a different authoring justice and
division in July 2020. Because of the difference in the circuit court case numbers, an
administrative error occurred resulting in the case not being assigned to the author and division
which heard the prior appeal (Barnai II). This appeal was not assigned to the current author and
panel until January 4, 2021.

2
1-19-1306

¶3 BACKGROUND

¶4 This court has detailed the underlying facts of this case in earlier decisions. Therefore, we

will summarize only those facts pertinent to the issues now before us.

¶5 On October 16, 2007, Frank Barnai was injured while working for Summit at a Wal-Mart

store construction site. Barnai then sued Wal-Mart (the property owner), ICI (the general

contractor), and Nuline (the electrical subcontractor). Those defendants answered Barnai’s

complaint and filed claims against Summit pursuant to the Joint Tortfeasor Contribution Act

(Contribution Act) (740 ILCS 100/0.01 et seq. (West 2010)). ICI later moved for partial summary

judgment against Summit, which the circuit court granted, finding that Summit waived its Kotecki

limitation and ICI was entitled to seek unlimited contribution against Summit based upon Summit’s

contract with ICI in which Summit agreed to waive the Kotecki limitation and fully indemnify both

Wal-Mart and ICI. Barnai eventually settled with Wal-Mart, ICI, and Nuline for $5,073,463.71.

Summit did not contribute to the settlement.

¶6 Barnai then filed a motion for a good faith finding as to the settlement, which recited the

aggregate cash amount of the settlement and that the settling defendants had also assigned their

contribution claims against Summit to Barnai. The motion neither included a copy of the

settlement agreement, nor indicated the allocation of the settlement proceeds among the settling

defendants. Despite those omissions, the court entered a good faith finding.

¶7 On April 10, 2015, Barnai, as assignee of Nuline, moved to dismiss Nuline’s contribution

action (the claim that Nuline had assigned to Barnai as part of the settlement agreement). The

common law record does not include a copy of Barnai’s motion to dismiss Nuline or the court’s

purported April 10, 2015, order dismissing Nuline with prejudice. 3 Only the report of proceedings

3
Summit provides no common law record citation, and plaintiff erroneously cites to
Summit’s response to plaintiff’s motion for leave to file an amended complaint.

3
1-19-1306

of the hearing on the motion to dismiss Nuline is included in the record. During the hearing,

counsel for Wal-Mart and ICI informed the court that he also represented Nuline, and that Nuline’s

contribution claim against Summit would be “dismissed with prejudice.” Summit sought to

confirm that Barnai would be “forever barred from bringing an action on behalf of Nuline,” and

the court responded, “That’s what it means” and stated that the order would reflect a dismissal

“with prejudice.” The circuit court granted the motion. The parties do not dispute that the

dismissal was with prejudice.

¶8 The case then proceeded to trial on the remaining contribution claims. During the jury

instruction conference, Barnai submitted a proposed verdict form labeled “IPI 600.16” that listed

only Wal-Mart, ICI, and Summit as possible responsible parties to Barnai’s injuries. The court

tendered this form to the jury.

¶9 After trial, the jury returned a verdict apportioning fault for Barnai’s injuries as follows:

Wal-Mart 10%, ICI 38%, and Summit 52%. The court entered judgment on the jury’s verdict,

granted Barnai’s motion to convert the contribution verdict to a money judgment, and denied

Summit’s post-trial motion.

¶ 10 Summit appealed under case number 1-15-2773. This court heard oral arguments and

obtained supplemental briefing as to whether both settling and nonsettling defendants should be

included on the verdict form when allocating the pro rata shares of the common liability.

Nonetheless, we determined that we lacked jurisdiction and dismissed Summit’s appeal as there

were pending claims. See Barnai v. Wal-Mart Stores, Inc., et al., No. 1-15-2773 (June 23, 2017)

(summary order pursuant to Supreme Court Rule 23(c) (eff. July 1, 2011) (Barnai I). We

suggested, however, that the circuit court could cure the jurisdictional defect by entering an order

4
1-19-1306

pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) finding no just reason existed

to delay appeal of the August 31, 2015, order denying Summit’s posttrial motion. 4

¶ 11 On July 26, 2017, the circuit court duly entered an order pursuant to Rule 304(a) that there

was no just reason to delay enforcement or appeal of the August 31, 2015, order denying Summit’s

posttrial motion. The cause then returned to this court under appellate number 1-17-1940, but with

the parties standing on the briefs filed in appeal No. 1-15-2773. See Barnai v. Wal-Mart Stores,

Inc., et al., 2017 IL App (1st) 171940 (Barnai II), ¶ 10.

¶ 12 In Barnai II, we held that the court erred by finding the settlement in good faith because

the court lacked any information as to the allocation of fault among the settling defendants.

Id. ¶ 17. We further held that, pursuant to the Contribution Act, the jury was required to apportion

fault to Nuline to correctly determine the relative fault of Wal-Mart, ICI, and Summit. Id. ¶ 18.

We thus (1) vacated the circuit court’s order entering a good faith finding and remanded the case

for a new good faith hearing and (2) remanded the cause for a new trial. Id. ¶ 26.

¶ 13 On August 29, 2018, and following remand, plaintiff filed both a motion for leave to file a

third amended complaint and a renewed motion for a good faith finding. The motion to file a third

amended complaint sought to substitute Frank’s wife Marilyn, the executor of Frank’s estate, as

plaintiff, and to add Nuline’s contribution claim (that had been previously assigned to plaintiff)

against Summit. This claim was substantially identical to the contribution claims of Wal-Mart and

ICI against Summit that had also been assigned to plaintiff. Over Summit’s objections that the

Nuline claim was time barred, the circuit court granted plaintiff’s motion.

¶ 14 Plaintiff’s renewed motion for a good faith finding included a copy of the settlement

agreement. The agreement provided that the settlement amount, $5,073,463.71, consisted of the

4
The August 31, 2015, order did not address the dismissal of Nuline’s contribution action
that it had assigned to plaintiff.

5
1-19-1306

following allocations: $2,598,058.32 (51%) to Wal-Mart, $1,525,405.39 (30%) to ICI, and

$950,000 (19%) to Nuline. The agreement further provided that Wal-Mart, ICI, and Nuline were

assigning their contribution claims against Summit to plaintiff as further consideration. In

addition, the settlement agreement stated that Wal-Mart, ICI, and Nuline were paying “more than

their pro rata share[s] of the common liability, which there may be between [Wal-Mart], [ICI],

and [Nuline] on the one hand, and [Summit] on the other.”

¶ 15 On September 28, 2018, Summit filed its response in opposition to plaintiff’s renewed

motion for a good faith finding. Summit argued that, since the common liability of Wal-Mart, ICI,

and Nuline was $5,073,463.71 plus the value of the assignments, they did not pay more than their

own pro rata shares of the common liability and therefore had nothing to assign, rendering the

purported assignments void ab initio. In the alternative, Summit argued that if $5,073,463.71 was

the common liability of Wal-Mart, ICI, Nuline and Summit, then any further recovery by the

plaintiff would be an improper double recovery. Summit also argued that (1) it was entitled to a

set-off for the amounts allocated to Wal-Mart and ICI that Summit’s commercial general liability

(CGL) insurer had previously paid on their behalf, and (2) the $2.6 million and $950,000

allocations to Wal-Mart and Nuline, respectively, were not within a reasonable range of their pro

rata shares of the common liability.

¶ 16 With respect to the set-off claim, Summit included a copy of the commercial general policy

it purchased, which was issued by Interstate Fire and Casualty Company (Interstate), and the

affidavit of the claim representative for Interstate. The insurance policy provided that the

definition of “who is an insured” was amended to include not only Summit but also “the person or

organization shown in the Schedule, but only with respect to liability arising out of ‘your work’

for that insured by or for you.” The schedule in the policy endorsement listed “Name of Person or

6
1-19-1306

Organization” and the following: “Any person or organization for whom you are performing

operations when you and such person or organization have agreed in writing in a contract or

agreement that such person or organization be added as an additional insured on your policy.” The

affidavit indicated that Interstate funded $773,463.71 of the total settlement.

¶ 17 On January 29, 2019, the circuit court granted plaintiff’s renewed motion. The court stated

that it was “satisfied there is an allocation of fault among each of the settling defendants so that

the amounts paid by each of the settling defendants was within a reasonable range of each of the

settling defendant’s fair shares pursuant to the Joint Tortfeas[o]r Contribution Act,” and the cause

again proceeded to a trial on the contribution claims, including Nuline’s.

¶ 18 Before trial, Summit filed a motion in limine seeking to allow as judicial admissions the

following allegations from plaintiff’s third amended complaint:

“At the time and place alleged in [plaintiff’s] Complaint,

[ICI] was operating as the general contractor on the project, oversaw

construction on this project, conducted regular inspections on the

job site, had a daily presence on the site, and had received

complaints of protruding conduit posing tripping hazards to workers

on the job site. Accordingly, based on these facts, [ICI] had a

reasonable anticipation that it would be held liable to [plaintiff].

At the time and place alleged in [plaintiff’s] Complaint,

[Nuline] was operating as an electrical contractor on the project,

placed the conduit over which [plaintiff] tripped, and failed to

properly mark or barricade the conduit it had installed. Accordingly

7
1-19-1306

based on these facts, [Nuline] had a reasonable anticipation that it

would be held liable to [plaintiff].”

The circuit court denied Summit’s motion, finding that the statements sought to be admitted were

merely allegations and not judicial admissions.

¶ 19 At trial, plaintiff’s expert witness opined that, although plaintiff tripped over the stubbed-

up electrical conduit, the conduit was not a hazard because it had been painted bright orange. The

expert witness further testified that, once Summit nonetheless identified the conduit as a hazard, it

was Summit’s responsibility to “do something” to prevent exposure of its employees to the hazard

and that merely notifying the construction manager was insufficient. The expert witness further

testified that Wal-Mart had no “responsibility” for either the state of the conduit and no control

over manner that its subcontractors, such as Summit, performed their jobs.

¶ 20 Nuline’s general foreman and ICI’s general superintendent both testified that they did not

consider the stubbed-up conduit a safety hazard, and that no one had “complained” that the conduit

presented a safety hazard. Wal-Mart’s construction manager also testified that he did not consider

the stubbed-up conduit to be hazardous.

¶ 21 Summit’s foreman, however, testified that the conduit was hazardous and that he did raise

the issue at safety meetings with Nuline and ICI. Summit’s foreman added that he told Summit’s

employees, “including Frank Barnai,” to avoid it. In addition, Summit’s expert witness on

construction safety testified that (1) the stubbed-up conduit was a hazardous condition, (2) ICI, as

the general contractor, was responsible to ensure the “workplace and the general site conditions”

safe, and (3) Nuline failed to properly remedy the condition.

¶ 22 After the close of the evidence, the jury heard closing arguments. During plaintiff’s closing

argument, plaintiff explained to the jury that one of the instructions it would receive would state

8
1-19-1306

that Wal-Mart, ICI, and Nuline made their settlement payments “in reasonable anticipation of

liability to Frank Barnai.” Plaintiff then argued to the jury, “Summit’s admitted that. We don’t

have to prove that.” Summit did not object to these arguments.

¶ 23 Following closing arguments, the jury then retired to deliberate, after which it allocated

fault among the parties as follows: Wal-Mart, 0%; Nuline, 0%; ICI, 7.5%; and Summit, 92.5%.

The circuit court later converted the allocation against Summit into a monetary judgment in the

amount of $4,692,953.93. Summit then filed its post-trial motion seeking judgment

notwithstanding the verdict, which the court subsequently denied. This appeal follows.

¶ 24 ANALYSIS

¶ 25 The Validity of the Assignments of the Contribution Actions

¶ 26 Summit first contends that the circuit court erred in denying its post-trial motion seeking

judgment notwithstanding the verdict on all counts of the third amended complaint. Summit first

argues that, if the common liability comprises both the settlement amount and the value of the

assigned contribution actions, then Wal-Mart, ICI, and Nuline paid exactly their pro rata shares

of the common liability and thus are not entitled to contribution pursuant to both section 2(b) of

the Joint Tortfeasor Contribution Act (the Contribution Act) (740 ILCS 100/2(b) (West 2020)) and

the holding in Claudy v. Commonwealth Edison Co., 169 Ill. 2d 39 (1995). In the alternative,

Summit argues that, if the common liability comprises solely the settlement amount, then Wal-

Mart, ICI, and Nuline improperly assigned their contribution rights to plaintiff because plaintiff’s

recovery of any contribution award would result in a prohibited double recovery pursuant to

section 2(c) of the Contribution Act.

¶ 27 A judgment notwithstanding the verdict (also termed a judgment n.o.v.) should only be

granted when all of the evidence, viewed in the light most favorable to the opponent, so

9
1-19-1306

overwhelmingly favors the moving party that “ ‘no contrary verdict based on that evidence could

ever stand.’ ” York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 178 (2006)

(quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967)). We acknowledge that

Summit challenges the verdict on legal grounds only, i.e., Summit’s challenge centers on the

interpretation of the Contribution Act. Nonetheless, a motion for judgment n.o.v. presents a

question of law. Id. We thus review the circuit court’s denial of the motion for judgment n.o.v.

and the interpretation of the Contribution Act de novo. See McClure v. Owens Corning Fiberglas

Corp., 188 Ill. 2d 102, 132 (1999) (motions for judgment n.o.v.); Hartney Fuel Oil Co. v. Hamer,

2013 IL 115130, ¶ 16 (interpretation of statutes).

¶ 28 Principles of statutory construction are well established. When construing a statute, our

goal is to “ascertain and give effect to the intent of the legislature.” Kean v. Wal-Mart Stores, Inc.,

235 Ill. 2d 351, 361 (2009). This inquiry begins with the language of the statute, “the best indicator

of legislative intent.” Id. Where the language in the statute is clear and unambiguous, we apply

the statute as written without resort to extrinsic aids of statutory construction. Landis v. Marc

Realty, L.L.C., 235 Ill. 2d 1, 6-7 (2009). Since all provisions of a statutory enactment are viewed

as a whole, we interpret the statute in light of other relevant portions of the statute and do not

construe words and phrases in isolation. Carver v. Sheriff of La Salle County, 203 Ill. 2d 497, 507-

08 (2003). We must further presume that the General Assembly did not intend absurdity,

inconvenience, or injustice. Id. at 508. In essence, we must employ a “ ‘practical and common-

sense construction.’ ” Hartney Fuel Oil Co. v. Hamer, 2013 IL 115130, ¶ 25 (quoting Automatic

Voting Machine Corp. v. Daley, 409 Ill. 438, 447 (1951)). The interpretation of a statute is a

question of law that we review de novo. Id. ¶ 16.

10
1-19-1306

¶ 29 The Contribution Act promotes two important policies: the encouragement of (1) the

equitable apportionment of damages, and (2) settlements with an injured plaintiff. In re

Guardianship of Babb, 162 Ill. 2d 153, 171 (1994). Sections 2(b) and 2(c) of the Contribution Act

provide in relevant part as follows:

“(b) The right of contribution exists only in favor of a

tortfeasor who has paid more than his pro rata share of the common

liability, and his total recovery is limited to the amount paid by him

in excess of his pro rata share. No tortfeasor is liable to make

contribution beyond his own pro rata share of the common liability.

(c) When a release *** is given in good faith to one or more

persons liable in tort arising out of the same injury ***, it does not

discharge any of the other tortfeasors from liability for the injury or

wrongful death unless its terms so provide but it reduces the

recovery on any claim against the others to the extent of any amount

stated in the release ***, or in the amount of the consideration

actually paid for it, whichever is greater.” 740 ILCS 100/2(b), 2(c)

(West 2018).

Section 2(c) above, the “setoff” provision, protects nonsettling tortfeasors from paying more than

their pro rata share of the final judgment for damages, which promotes the Contribution Act’s

policy of equitably apportioning damages among joint tortfeasors. Babb, 162 Ill. 2d at 173. In

addition, the setoff rights in section 2(c) further reflects the public policy of “protecting the

financial interests of nonsettling tortfeasors.” Id. It is well established, however, that one or more

third-party tortfeasors may assign their rights to contribution, even to a nontortfeasor plaintiff.

11
1-19-1306

Cozzone v. Garda GL Great Lakes, Inc., 2016 IL App (1st) 151479, ¶ 12 (citing Block v. Pepper

Construction Co., 304 Ill. App. 3d 809, 813 (1999)).

¶ 30 In this case, the circuit court did not err in rejecting Summit’s arguments in finding the

settlement was made in good faith. Summit first argues that, if the common liability consists of

the settlement amount and the value of the assigned contribution actions, then Wal-Mart, ICI, and

Nuline paid exactly their pro rata shares of the common liability and thus are not entitled to

contribution pursuant to both section 2(b) of the Contribution Act and the holding in Claudy v.

Commonwealth Edison Co., 169 Ill. 2d 39 (1995). The record reveals, however, that although the

jury allocated only 7.5% responsibility to ICI and 92.5% to Summit, the settlement amount of

$5,073,463.71 consisted of the following payments: $2,598,058.32 (51%) from Wal-Mart,

$1,525,405.39 (30%) from ICI, and $950,000 (19%) from Nuline. Summit paid nothing toward

the settlement despite the jury’s finding of 92.5% responsibility. The jury found Wal-Mart and

Nuline to be not responsible at all, but they paid nearly $2.6 million and $1 million, respectively.

Even ICI, which the jury found 7.5% responsible, paid about four times its pro rata share of

$380,509.78. On these facts, Summit’s claim that Wal-Mart, ICI, and Nuline only paid their pro

rata shares is untenable.

¶ 31 Summit, nonetheless, argues that, pursuant to Claudy, we must look to the record as a

whole and not solely the settlement agreement to determine the common liability. Summit notes

that, prior settlement negotiations in this case indicated that plaintiff “valued the case at $5,000,000

plus the waiver of the $2,000,000 net recoverable WC [workers’ compensation] lien.” Setting

aside whether evidence of an offer to compromise a claim is permissible under these circumstances

(see Ill. R. Evid. R. 408 (eff. Jan. 1, 2011)), Summit’s reliance upon Claudy is unavailing. Notably,

although presented with a certified question regarding whether a third-party tortfeasor may assign

12
1-19-1306

its contribution claim against an employer to the injured plaintiff-employee, the Claudy court

declined to resolve the matter. Claudy, 169 Ill. 2d at 43. Rather, the court resolved the case based

upon the fact that “the record” indicated that the common liability was $500,000: the settlement

amount, however, was $400,000 plus the assigned contribution claim against the employer, which

was limited under Kotecki to the $100,000 workers’ compensation award. Id. at 43-44.

¶ 32 In this case, we do not read Claudy’s vague reference to “the record” as a command for

this court to comb the record to determine the common liability in all cases. As we noted in Barnai

II, the common liability is the amount paid by the defendants to the injured party “pursuant to a

good-faith settlement in a reasonable amount in exchange for a full release.” (Internal quotation

marks removed.) Barnai, 2017 IL App (1st) 171940, ¶ 17 (quoting Zellers v. Hernandez, 406 Ill.

App. 3d 124, 127 (2010) (quoting Mallaney v. Dunaway, 178 Ill. App. 3d 827, 832 (1988))); see

also Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 286 (1994) (“ ‘[C]ommon liability’ in the case at

bar means the good-faith amount stated in the settlement agreement.”). Claudy did not overrule

or otherwise change the holding in Ziarko. We therefore hold that, where the settlement at issue

involves cash payments and assignments of contribution actions, a court determining whether the

settlement is in good faith under the Contribution Act will consider the common liability to be the

cash payments only. As such, the common liability here was the amount of the cash payments

stated in the settlement: $5,073,463.71.

¶ 33 In addition, the settlement in Claudy was not for the full common liability; instead, it

represented the common liability net of the maximum contribution award against the employer

based upon the Kotecki cap. See Claudy, 169 Ill. 2d at 43. Here by contrast, the settlement was

for the full amount of the common liability without any discount for a potential contribution award

13
1-19-1306

from plaintiff’s employer. Summit’s reliance upon Claudy is therefore misplaced, and its claim

on this point is unavailing.

¶ 34 Summit’s alternative argument fares no better. Summit asserts that, if the common liability

solely consists of the settlement amount, then Wal-Mart, ICI, and Nuline improperly assigned their

contribution rights to plaintiff because plaintiff’s recovery of any contribution award would result

in a prohibited double recovery pursuant to section 2(c) of the Contribution Act. The dissent in

Claudy, however, noted that, although a contribution claim may arise from a personal injury tort,

it is nonetheless distinct from the underlying tort. Claudy, 169 Ill. 2d at 47 (Nickels, J., dissenting).

“In Illinois, an ‘employer’s immunity from a suit in tort by its employee as plaintiff is not a bar to

a claim for contribution against it by a defendant held liable to such a plaintiff.’ ” Palmer v.

Freightliner, LLC, 383 Ill. App. 3d 57, 61 (2008) (quoting Doyle v. Rhodes, 101 Ill. 2d 1, 14

(1984)). Any amount that plaintiff recovers from the assigned contribution claims would not be

for plaintiff’s personal injuries, and plaintiff freely admits that there is “no question” that it must

first reimburse the workers’ compensation lien from the settlement proceeds. Here, the

contribution claims do not constitute a double recovery; they merely ensure the equitable

apportionment of damages, fulfilling a purpose of the Contribution Act. See Babb, 162 Ill. 2d at

171. We must therefore reject Summit’s argument on this point.

¶ 35 In addition, Summit’s reliance upon Wilson v. Hoffman Group, Inc., 131 Ill. 2d 308 (1989),

is unavailing. In that case, the injured plaintiff-employee sued a third-party tortfeasor (the general

contractor) and later settled with his employer for $24,000 and the employer’s waiver of its

workers’ compensation lien. Id. at 311. Before the supreme court, the general contractor argued

that it should be entitled to a setoff of the amount of the workers’ compensation lien. Id. at 319-

20. The court agreed, holding that, if the general contractor (the third-party tortfeasor) was not

14
1-19-1306

allowed a setoff, the plaintiff would receive a double recovery for his workplace injuries: one

consisting of the workers’ compensation benefits (that the plaintiff would not have to repay

following the employer’s waiver of the lien), and another from the judgment against the general

contractor. Id. at 322. Here, plaintiff did not settle with his employer, Summit, and as noted above,

plaintiff concedes that any amount received from the settlement proceeds will first have to pay

down the workers’ compensation lien. Wilson is thus unavailing, and the circuit court correctly

denied Summit’s motion.

¶ 36 The Circuit Court’s Good-Faith Finding

¶ 37 Summit next contends that the circuit court erroneously found that the settlement

agreement was entered into in good faith. Summit’s contention mirrors the arguments made above:

It argues that the settlement cannot satisfy the good faith requirements of the Contribution Act

because it either “conflicts with the terms of the Contribution Act” or “is not consistent with the

policies” underlying it.

¶ 38 Whether a settlement was made in good faith is a matter left for the circuit court's

determination “after consideration of all of the surrounding circumstances.” Dubina v. Mesirow

Realty Development, Inc., 197 Ill. 2d 185, 191-92 (2001). “This totality-of-the-circumstances

approach allows trial courts to give effect to the strong public policy favoring the peaceful

settlement of claims, and at the same time allows trial courts to be on guard for any evidence of

unfair dealing, collusion, or wrongful conduct by the settling parties.” Id. at 191. A settlement

agreement that conflicts with the terms of the Contribution Act or is not consistent with the policies

underlying it cannot satisfy the good-faith requirement of the Contribution Act. Id. at 192. The

settling parties carry the initial burden of making a preliminary showing of good faith, which at a

minimum requires “the existence of a legally valid settlement agreement.” Johnson v. United

15
1-19-1306

Airlines, 203 Ill. 2d 121, 132 (2003). Once the settling parties have made a preliminary showing

of good faith, the burden shifts to the party challenging the good faith of the settlement to show by

a preponderance of the evidence the absence of good faith. Id. We review a court’s determination

as to the good faith of a settlement for an abuse of discretion. Id. A court abuses its discretion

only where its ruling is “arbitrary, fanciful, or unreasonable, or where no reasonable person would

adopt the court’s view.” TruServ Corp. v. Ernst & Young, LLP, 376 Ill. App. 3d 218, 227 (2007).

¶ 39 In this case, Summit’s contention fails for the same reasons as above. The settlement

agreement here (which assigned the contribution claims against Summit to plaintiff) capped

Summit’s maximum contribution exposure that it would have to pay to plaintiff as the assignee

rather than the settling defendants. As we held above, this is not a double recovery because the

contribution claim is separate from a personal injury action (or here, plaintiff’s workers’

compensation coverage). See Claudy, 169 Ill. 2d at 47 (Nickels, J., dissenting); see also Palmer,

383 Ill. App. 3d at 61 (quoting Doyle, 101 Ill. 2d at 14). In addition, Wal-Mart (0% responsible,

per the jury verdict), Nuline (0%), and ICI (7.5%) paid $2.6 million, $950,000, and $1.6 million,

respectively, while Summit paid nothing toward the settlement despite the jury’s finding of 92.5%

responsibility. The settling defendants thus clearly paid far in excess of their pro rata shares of

the common liability. Summit has offered no other argument that the settlement agreement was

the product of unfair dealing, collusion, or wrongful conduct by the settling parties. Dubina, 197

Ill. 2d at 191. Accordingly, the circuit court’s good-faith finding was not arbitrary, fanciful, or

unreasonable, or where no reasonable person would adopt the court’s view. TruServ, 376 Ill. App.

3d at 227. Therefore, the court did not abuse its discretion.

¶ 40 Moreover, Summit’s reliance upon Dubina does not change our decision. In Dubina, the

agreement provided that, in addition to $4.5 million that was “allocated as payment toward the

16
1-19-1306

settlement, *** another $4.5 million was allocated as payment for the assignments, so that [the

nonsettling defendant] would be entitled to a setoff of only $4.5 million, even though the settling

defendants had paid, and plaintiffs had received, consideration totaling $9 million.” Dubina, 197

Ill. 2d at 195. This had the effect of depriving the nonsettling defendant of its statutory right to a

setoff of the full payments of $9 million. Id. Here, by contrast, there was no separate payment for

the assigned contribution claims. Summit’s claim of error is thus without merit.

¶ 41 Whether the Assigned Claim Against Nuline is Time Barred

¶ 42 Summit further contends that the circuit court erred in allowing plaintiff to file a third

amended complaint that added Nuline’s contribution claim against Summit, which Summit argues

is time barred. Plaintiff sought to add that claim following our decision in Barnai II. Summit

argues that plaintiff voluntarily dismissed Nuline’s contribution claim prior to the first trial and

our decision in Barnai II, and the circuit court dismissed it with prejudice based upon its agreement

that Nuline was “forever barred” from renewing the claim. As such Summit argues that the claim

was filed beyond the statute of limitations. Summit further asserts that Nuline “abandoned” the

claim because, following the dismissal of the claim, plaintiff failed to include Nuline’s contribution

claim in either the amended or second amended complaints.

¶ 43 After a judgment is reversed and the cause is remanded to the circuit court, that court can

hold “only such further proceedings as conform to the judgment of the appellate tribunal.”

Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 352-53 (2002). A reviewing court, however,

need not provide specific directions in remanding a cause. Id. at 353. If a cause is remanded with

directions that are not specified, the court to which the cause is remanded must examine the

reviewing court’s opinion and proceed in conformity with the views expressed in it. Id. We must

17
1-19-1306

reverse any orders by the circuit court that it entered following remand that do not conform to our

mandate. Id. at 355.

¶ 44 In Barnai II, this court held that Summit was prejudiced by Nuline’s absence from the

verdict form, and that the jury’s verdict “therefore cannot stand.” Barnai, 2017 IL App (1st)

171940, ¶ 20. We thus reversed the circuit court’s order denying Summit’s posttrial motion for

new trial, vacated the circuit court’s orders entering judgment on the jury’s verdict and converting

the judgment to a monetary amount, and remanded for a new trial. Id. Our mandate read,

“Reversed in part, vacated in part, and remanded with instructions.” Id. ¶ 27. Our “instructions”

(i.e., directions) were not specific, so the circuit court had a duty to review our opinion to proceed

in conformity with our views. See Clemons, 202 Ill. 2d at 353. The gist of our holding was that a

new trial was warranted because the verdict form did not include a fault allocation for Nuline but

required the jury’s fault allocations for the other parties to add to 100%. Clearly, in order to

conform to our opinion in Barnai II, the new trial would require that the jury verdict form include

a fault allocation for Nuline. It did not, however, require a revival of Nuline’s contribution claim.

Instead, the jury could have assessed the apportionment of fault based upon the evidence and

arguments related to the contribution claims that were not time-barred. Since the court erroneously

construed our mandate, we must reverse its judgment granting plaintiff’s motion for leave to file

a third amended complaint. Id. at 355. Therefore, we modify the circuit court’s order that

converted the jury’s fault allocation against Summit on Nuline’s assigned contribution claim into

a monetary judgment, reducing the judgment by $950,000, from $4,692,953.93 to $3,742,953.93.

¶ 45 Moreover, we note that Nuline was served with the complaint on October 29, 2018, 5 filed

its appearance on June 4, 2019, and filed its answer on July 30, 2009. Using even the latest of

5
The handwritten date on the summons was October 28, 2018, which was a Sunday.

18
1-19-1306

these three dates, the statute of limitations would have expired on July 30, 2011 (see 735 ILCS

5/13-204(b) (West 2018) (contribution actions must be commenced within two years of service)).

This was well before August 29, 2018, the date when plaintiff sought to refile the assigned

contribution claim from Nuline. Therefore, on this additional ground the court erred in allowing

plaintiff to revive Nuline’s contribution claim against Summit after dismissing that claim with

prejudice.

¶ 46 Whether Summit is Entitled to a Set-Off

¶ 47 Summit’s fourth contention of error is that the circuit court erred in denying Summit’s

request for a setoff. Summit contends that it is entitled to a setoff of $715,453.93 for amounts its

insurer paid on behalf of Wal-Mart and ICI toward the settlement. Although in Barnai II we

reversed the court’s order denying plaintiff’s motion for a new trial and remanded the cause for a

new trial (Barnai, 2017 IL App (1st) 171940, ¶ 26), plaintiff notes that we also held that this issue

was forfeited (see id. ¶ 24), and concludes that the law of the case doctrine applies, barring

consideration of this issue in this appeal.

¶ 48 The law of the case doctrine provides that rulings on points of law made by a reviewing

court are binding in that case both on the trial court and on subsequent appeals to that same

reviewing court unless a higher court has changed the law. Emerson Electric Co. v. Aetna Casualty

and Surety Co., 352 Ill. App. 3d 399, 417 (2004). Therefore, the determination of a question of

law by an appellate court on the first appeal is generally binding upon it on the second appeal.

Krautsack v. Anderson, 223 Ill. 2d 541, 552 (2006). A reviewing court may, however, revisit an

issue “ ‘where facts have changed or where we determine that our initial decision was clearly

erroneous and would work a manifest injustice.’ ” Bond Drug Co. of Illinois v. Amoco Oil Co.,

323 Ill. App. 3d 190, 198 (2001) (quoting Harris Trust & Savings Bank v. Otis Elevator Co., 297

19
1-19-1306

Ill. App. 3d 383, 388 (1998)). Whether the law-of-the-case doctrine applies presents a question of

law that we review de novo. In re Christopher K., 217 Ill. 2d 348, 363-64 (2005).

¶ 49 At the outset, we reject Summit’s argument that our statements regarding the setoff in

Barnai II were mere dicta. In that case, we considered the setoff issue that Summit had raised but

held that Summit’s failure to raise it in a posttrial motion resulted in its forfeiture. That is not

dicta; that is a holding. Moreover, even if it were dicta, it would still be controlling. Dicta

typically consists of two types: obiter dicta and judicial dicta. Both obiter dicta and judicial dicta

are comments in a judicial opinion that are unnecessary to the disposition of the case, but judicial

dicta involve an issue briefed and argued by the parties and thus “have the force of a determination

by a reviewing court and should receive dispositive weight in an inferior court.” People v.

Williams, 204 Ill. 2d 191, 206 (2003) (citing Black’s Law Dictionary 465, 1100 (7th ed. 1999)).

Here, as noted above, the setoff issue was briefed and argued before this court in Barnai II.

Accordingly, even if it were considered dicta, it is judicial dicta, which is tantamount to a

determination by this court.

¶ 50 Nonetheless, we agree with Summit that the law of the case doctrine is inapplicable. Our

holding that the issue was forfeited was solely for the purposes of the first appeal based upon

Summit’s failure to raise the issue in its post-trial motion following the first trial. We are now

considering the same issue after it was properly and timely raised in a post-trial motion following

an entirely new trial. Accordingly, the law of the case doctrine does not bar this court from

considering the claim.

¶ 51 When, as in this case, the setoff is “in the nature of an enforcement action,” section 2(c) of

the Contribution Act controls. Thornton v. Garcini, 237 Ill. 2d 100, 116 (2010). Section 2(c) is

intended to prevent double recovery and also ensures that nonsettling parties will not pay more

20
1-19-1306

than their pro rata shares of the common liability. Id. Generally, the nonsettling party seeking a

setoff bears the burden of proving what portion of a prior settlement was allocated or attributable

to its share of the liability. Id. The determination of whether a defendant is entitled to a setoff is

a question of law and, therefore, subject to de novo review. Id. at 115-16.

¶ 52 Mondschein v. Power Construction Co., 404 Ill. App. 3d 601, 602-03 (2010) provides

guidance. In that case, the plaintiff (an injured worker at a construction site) sued Power

Contracting and Engineering Corporation (Power) (the general contractor) and others for

negligence. Id. at 602-03. Power filed a third-party complaint for contribution against the

plaintiff’s employer, Joliet Steel and Construction, Inc. (Joliet Steel) (a subcontractor on the

project). Id. at 603. Joliet Steel in its subcontract promised to indemnify Power for any claims

arising out of Joliet Steel’s work and to obtain a CGL policy with a $1 million per occurrence limit

that named Power as an additional insured. Id. The plaintiff settled the underlying action against

Power for $2.673 million, which was funded in part by a payment of $1 million under Joliet Steel’s

insurance policy, and an assignment of Power’s third-party claim for contribution against Joliet

Steel. Id. at 605. The plaintiff, as assignee of Power, then filed an amended complaint against

Joliet Steel for contribution under the Contribution Act. Id. In response, Joliet Steel raised an

affirmative defense claiming it was entitled to an offset of the $1 million dollar insurance payment.

Following a trial on the contribution claim, a jury assessed Joliet Steel’s liability at 35%. Id. The

circuit court entered judgment against Joliet Steel for $935,550, or 35% of the common liability

of $2,673,000, after finding that Joliet Steel did not have a right to a setoff. Id.

¶ 53 On appeal, Joliet Steel argued that the circuit court erred in denying its affirmative defense

seeking an offset. Joliet Steel maintained that its pro rata share of the common liability ($935,550)

21
1-19-1306

had been fully satisfied through the $1 million insurance policy it agreed to purchase on Power’s

behalf. Id.

¶ 54 This court began its analysis by examining Joliet Steel’s contractual obligations to

indemnify Power and name Power as an additional insured and the language of the insurance

policy. Id. at 609. Under the additional insured provisions of the CGL policy that Joliet Steel

purchased, Power was covered for liability that arose out of Joliet Steel’s work and not for its own

direct negligence. Id. at 609-10. This court distinguished indemnification and contribution and

concluded that Power was reimbursed to the extent of its secondary liability and could not seek

further recovery for the $1 million indemnification payment. Id. However, Power was entitled to

seek contribution for its loss in excess of the insurance policy limits, which was $1.673 million.

Id. at 610. Therefore, the plaintiff, as assignee of Power, could “ obtain contribution for that

amount that exceeds Power’s pro rata share of the common liability which, based on the

apportionment by the jury would be 35% of the $1,673,000.” Id.

¶ 55 Here, as in Mondschein, Summit was obligated to indemnify Wal-Mart and ICI for

“liability arising out of ‘[Summit’s] work’ ” for them. It is undisputed that the Interstate insurance

policy that Summit purchased included Wal-Mart and ICI as additional named insureds and funded

$773,463.71 of the total settlement. In addition, the record reveals that Interstate’s $773,463.71

in payments allocated $348,058.67 to Wal-Mart and $425,405.04 to ICI. Therefore, as in

Mondschein, plaintiff may not seek contribution from Summit for those amounts, but may seek

contribution against Summit for the amounts paid in excess of the insurance payments. Id.

¶ 56 As a result, the original settlement amount allocated to Wal-Mart ($2,598,058.32) must be

reduced by $348,058.67 to $2,249,999.65, and the amount originally allocated to ICI

($1,525,405.39) must be reduced by $425,405.04 to $1,100,000.35. Because the jury found Wal-

22
1-19-1306

Mart 0% liable, Summit is liable for the full allocated amount of $2,249,999.65 relating to Wal-

Mart. However, Summit’s liability to ICI of $1,100,000.35 must be reduced by 7.5% to conform

to the jury’s allocation, resulting in an amount of $1,017,500.32. Above, we reduced the circuit

court’s judgment against Summit to $3,742,953.93 to reflect the absence of Nuline’s contribution

claim. See supra ¶44. Based on our set-off analysis, we reduce that amount further from

$3,742,953.93 to $3,350,000.00 (the total of $2,249,999.65 plus $1,100,000.35), a difference of

$392,953.93.

¶ 57 The Exclusion of Barnai’s Alleged Judicial Admissions

¶ 58 Finally, Summit contends that the court erred in excluding plaintiff’s alleged judicial

admissions. Specifically, Summit argues that plaintiff’s allegations in its complaint for

contribution that Nuline and ICI settled in reasonable anticipation of liability constituted judicial

admissions.

¶ 59 Summit, however, has forfeited this issue. “A motion in limine is an interlocutory order

and remains subject to reconsideration by the court throughout the trial.” Cetera v. DiFilippo, 404

Ill. App. 3d 20, 40 (2010) (citing Krengiel v. Lissner Corp., 250 Ill. App. 3d 288, 294 (1993)).

The failure to raise an objection forfeits consideration of the issue on appeal. Id. Here, following

the circuit court’s denial of its motion in limine, Summit failed to raise the issue at all during trial,

only waiting until after trial to raise it in its post-trial motion. Accordingly, it is forfeited.

¶ 60 Moreover, forfeiture aside, Summit’s claim is without merit. “Alleged judicial admissions

must be considered in their context.” Hall v. Cipolla, 2018 IL App (4th) 170664, ¶ 122. Read in

context, the statements at issue concerned allegations made in plaintiff’s complaint. In fact, both

statements are prefaced with the phrase, “At the time and place alleged in [plaintiff’s] complaint.”

We review the circuit court’s ruling on a judicial admission for an abuse of discretion. Serrano v.

23
1-19-1306

Rotman, 406 Ill. App. 3d 900, 907 (2011). As noted above, a court abuses its discretion only where

its ruling is “arbitrary, fanciful, or unreasonable, or where no reasonable person would adopt the

court’s view.” TruServ, 376 Ill. App. 3d at 227. Since we cannot hold that the court’s decision

was arbitrary, fanciful, unreasonable, or one that no reasonable person would adopt, the court did

not abuse its discretion, and we are compelled to reject Summit’s claim.

¶ 61 CONCLUSION

¶ 62 We reverse the circuit court’s order granting plaintiff’s motion for leave to file a third

amended complaint, which revived Nuline’s contribution claim against Summit, which results in

a reduction of the judgment against Summit by $950,000, from $4,692,953.93 to $3,742,953.93.

We further reverse that portion of the court’s May 31, 2019, order denying Summit’s request for

a setoff, resulting in an additional reduction of the judgment against Summit by $392,953.93,

resulting in a final judgment amount of $3,350,000. We otherwise affirm the judgment of the

circuit court.

¶ 63 Affirmed in part as modified and reversed in part.

24
1-19-1306

No. 1-19-1306

Cite as: Frank Barnai v. Wal-Mart Stores, Inc., 2020 IL App (1st)
191306

Decision Under Review: Appeal from the Circuit Court of Cook County, No.17 L 7543;
the Hon. James N. O’Hara and Janet A. Brosnahan, Judges,
presiding.

Attorney John J. Piegore, Brian H. Sanchez, and Edric S. Bautista, of
for Sanchez Daniels & Hoffman, LLP, of Chicago, for appellant.
Appellant:

Attorneys Martin Healy, Jr. and Kevin T. Veugeler, of Healy Scanlon, and
for Joan M. Mannix, of Joan M. Mannix, Ltd., both of Chicago, for
Appellee: appellee.

25

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4673424. Public record. Not legal advice.