The Supreme Court has
Spoken: Are You Ready for
Ready?
Larry Smith
SmithAmundsen LLC
April 7, 2011
www.salawus.com
The Supreme Court has Spoken:
Are You Ready for Ready?
Terry E. Ready, Special Administrator of
the Estate of Michael P. Ready, deceased
v.
BMW Constructors, Inc.;
United/Goedecke Services, Inc.
v. Midwest Generation, L.L.C.
The Supreme Court has Spoken:
Are You Ready for Ready?
Facts

Date of Loss: December 23, 1999

Plaintiff’s decedent was killed when a beam fell approximately eight
stories. BMW was the general contractor and United was the scaffolding
subcontractor of BMW. Midwest Generation was the Plaintiff’s
employer.

Midwest’s (the employer) work rules were violated.

If BMW (the general contractor) had used a crane on the pipe refitting
project, there arguably would have been no accident.

Affirmative defense: United had filed an affirmative defense alleging
that the conduct of BMW and/or Midwest was the sole proximate cause
of the accident.
The Supreme Court has Spoken:
Are You Ready for Ready?
(735 ILCS 5/2-1117) (from Ch. 110, par. 2-1117) Effective 3/9/95

Except as provided in Section 2-1118, in actions on account of
bodily injury or death or physical damage to property, based on
negligence, or product liability based on strict tort liability, all
defendants found liable are jointly and severally liable for
plaintiffs past and future medical and medically related
expenses. Any defendant whose fault, as determined by the trier
of fact, is less than 25% of the total fault attributable to the
plaintiff, the defendants sued by the plaintiff, and any third party
defendant who could have been sued by the plaintiff, shall be
severally liable for all other damages. Any defendant whose fault,
as determined by the trier of fact, is 25% or greater of the total
fault attributable to the plaintiff, the defendants sued by the
plaintiff, and any third party defendants who could have been
sued by the plaintiff, shall be jointly and severally liable for all
other damages.
The Supreme Court has Spoken:
Are You Ready for Ready?
(735 ILCS 5/2-1117) (from Ch. 110, par. 2-1117) Effective 6/4/03

Sec. 2-1117. Joint liability. Except as provided in Section 2-1118, in
actions on account of bodily injury or death or physical damage
to property, based on negligence, or product liability based on
strict tort liability, all defendants found liable are jointly and
severally liable for plaintiff's past and future medical and
medically related expenses. Any defendant whose fault, as
determined by the trier of fact, is less than 25% of the total fault
attributable to the plaintiff, the defendants sued by the plaintiff,
and any third party defendant except the plaintiff's employer,
shall be severally liable for all other damages. Any defendant
whose fault, as determined by the trier of fact, is 25% or greater of
the total fault attributable to the plaintiff, the defendants sued by
the plaintiff, and any third party defendants except the plaintiff's
employer, shall be jointly and severally liable for all other
damages.
The Supreme Court has Spoken:
Are You Ready for Ready?

Settlement: Plaintiff settles the case against BMW and
Midwest and goes to trial against United.
Trial



Plaintiff obtains a $14.23 million verdict against
United.
United was precluded from arguing allocation of
fault under 2-1117
United was prohibited from arguing the “sole
proximate cause” defense
The Supreme Court has Spoken:
Are You Ready for Ready?
Ready v. United/Goedecke Servs., 367
Ill. App. 3d 272, 854 N.E.2d 758, 2006 Ill.
App. LEXIS 744, 305 Ill. Dec. 166 (Ill.
App. Ct. 1st Dist. 2006)

The Illinois Appellate Court ruled in
favor of United on both the allocation of
fault and sole proximate cause issues.
The Supreme Court has Spoken:
Are You Ready for Ready?
Ready v. United/Goedecke Servs., 2008
Ill. LEXIS 1439 (Ill. Nov. 25, 2008)
 The Supreme Court reversed the
Appellate Court: the Supreme Court
determined that a non-settling
defendant was not entitled to an
allocation of fault determination for any
former party which entered into a good
faith settlement with plaintiff.
The Supreme Court has Spoken:
Are You Ready for Ready?
Ready v. United/Goedecke Servs., 232 Ill. 2d
369, 905 N.E.2d 725, 2008 Ill. LEXIS 1837, 328
Ill. Dec. 836 (2008)

On petition for rehearing, the Supreme Court
issued a modified opinion remanding the case
to the Appellate Court to determine if United
was entitled to use the sole proximate cause
defense.
The Supreme Court has Spoken:
Are You Ready for Ready?
Ready v. United/Goedecke Servs., 393 Ill.
App. 3d 56, 911 N.E.2d 1140, 2009 Ill. App.
LEXIS 589, 331 Ill. Dec. 910 (Ill. App. Ct. 1st
Dist. 2009)

Based upon the Supreme Court’s opinion, the
Appellate Court determined that United was
entitled to a new trial and could use the sole
proximate cause defense.
The Supreme Court has Spoken:
Are You Ready for Ready?
Ready v. United/Goedecke Servs., 238 Ill. 2d 582, 939
N.E.2d 417, 2010 Ill. LEXIS 1538, 345 Ill. Dec. 574 (2010)

On appeal, the Supreme Court held that “sole
proximate cause” is a valid defense for a remaining
defendant.

The Court also held that the evidence was insufficient
to allow United to win on the issue at trial. Therefore,
the original verdict in favor of plaintiff was upheld.
The Supreme Court has Spoken:
Are You Ready for Ready?
Ill. Pattern J.I. 15.01 Proximate Cause-Definition
 When I use the expression “proximate
cause,” I mean a cause that, in the natural or
ordinary course of events, produced the
plaintiff's injury. [It need not be the only
cause, nor the last or nearest cause. It is
sufficient if it combines with another cause
resulting in the injury.]
The Supreme Court has Spoken:
Are You Ready for Ready?
Potential Complicating Factors
 Target defendant
 Bankruptcy of a party
 Low coverage limits
 Behind the scenes deals
 Attorneys are friends
 The parties have an
ongoing business
relationship
 Insurance companies
overlap on coverage
 Tender of defense issues


Who tenders to whom?
What limits apply and to
whom?
The Supreme Court has Spoken:
Are You Ready for Ready?
Don’t be the last “man” standing…
….without plenty of ammunition!