A state appeals panel has ordered a new trial to determine liability for injuries a worker suffered on a Walmart construction site, after determining Cook County judges didn’t properly account for a settlement agreement between the worker and some of the defendants before allowing a jury to determine who should shoulder the blame for the accident, and how much each defendant should pay.

The First District Appellate Court issued an opinion Dec. 8 in the matter of Frank Barnai, an employee of Summit Fire Protection Company, who sued Wal-Mart Stores Inc., general contractor International Contractors Inc., and electrical subcontractor Nuline Technologies Inc., in relation to a worksite injury suffered Oct. 16, 2007.

In response to Barnai’s complaint, Walmart, ICI and Nuline filed contribution claims against Summit, which they assigned to Barnai as part of an April 2015 global settlement agreement worth more than $5 million.

Barnai dismissed Nuline’s contribution claim, so the trial focused on Walmart’s and ICI’s contributions claim against Summit. A Cook County jury found Summit 52 percent liable and Judges James N. O’Hara and Jeffrey Lawrence entered judgment, which Summit appealed, repeating tis argument the settlement was not negotiated in good faith.

Justice Mathias W. Delort wrote the opinion. Justice Joy V. Cunningham concurred, as did presiding Justice Thomas E. Hoffman, who wrote a special concurring opinion.

The panel rejected most of Summit’s arguments. Delort wrote the circuit court was not wrong to find the settlement in good faith, as the record showed Barnai accused Walmart and ICI of negligence, and the court imposed procedural sanctions on both companies. He also explained Summit failed to support its argument the court had to consider Barnai’s comparative fault in determining good faith, and also noted ICI suggested Barnai was partially at fault while defending itself, an issue unresolved heading into negotiations.

However, the panel was persuaded by Summit’s argument the settlement lacked an allocation of fault among Walmart and ICI, with Delort writing “the court could not possibly have assessed whether the settlement amounts were within a reasonable range of each settling defendant’s fair share of the liability.” As a result, the panel vacated the order entering a good faith finding and remanded the matter for a new hearing based on the sums each defendant paid in the settlement.

The panel also said the jury should have been required to apportion fault to Nuline to determine how much Walmart, ICI and Summit were each liable, but instead was given a form that omitted Nuline because it had been dropped from the claim. The panel reasoned that if Nuline had been included on the form, Summit might have been found to be less than 52 percent liable. The justices therefore reversed the circuit court’s order denying Summit’s motion for a new trial, vacated the orders entering the jury’s verdict and converting it to a monetary amount, and sent the matter back to Cook County Circuit Court for a new trial.

Bernai, in a supplemental brief, said Summit waived the verdict form issue when it didn’t object to Nuline’s absence during instructions, submitted its own form that excluded Nuline and didn’t raise the issue in its own posttrial motion or appellate brief. However, Delort explained the appellate court is allowed to override those considerations in the interest of a fair result and maintaining uniform, sound precedent.

In his special opinion, Hoffman highlighted “the most compelling reason to reverse the judgment,” citing the state’s Contribution Act. He said the verdict form that did not allow for assigning blame to Nuline “failed to accurately state the law and should never have been given.”

According to Cook County court records, Barnai was represented by attorneys with the firm of Martin J. Healy Jr. & Associates, of Chicago. 

Summit was defended by the firm of Sanchez Daniels & Hoffman LLP, of Chicago; Walmart was represented by the firm of Greenberg Traurig, of Chicago; Nuline by the Law Offices of Meachum Starck Boyle & Trafman, of Chicago; and ICI by the firm of Belgrade & O'Donnell, of Chicago. 

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Belgrade & O'Donnell Cook County Circuit Court Illinois First District Appellate Court




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