NO. 4-00-0671

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

MARLIN UNZICKER and THERESA UNZICKER,	)	Appeal from

		Plaintiffs-Appellants and	)	Circuit Court of

		Cross-Appellees,			)	Champaign County

		v.						)	No. 92L1278

KRAFT FOOD INGREDIENTS CORPORATION,	)

		Defendant and Third-Party     )

		Plaintiff-Appellee and        )

          Cross-Appellant,              )

		and						)

NOGLE & BLACK MECHANICAL, INC., a		)	Honorable

Foreign Corporation,				)	George S. Miller,

		Third-Party Defendant.		)	John R. DeLaMar

                                        )    Judges Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		Plaintiff, Marlin Unzicker, appeals a judgment finding

defendant Kraft Food Ingredients Corporation (Kraft) only sever

ally liable for the judgment in Unzicker's favor.  The judgment

was entered in accordance with the former version of section 2-

1117 of the Civil Practice Law, which provided several liability

for defendants whose fault was less than 25% of total fault,

including the fault of "any third[-]party defendants who could

have been sued by the plaintiff."  735 ILCS 5/2-1117 (West 1994). 

In September 1996, Judge Miller conducted the trial in the case

and the jury had apportioned fault at 1% on the part of Kraft and

99% on the part of third-party defendant, Nogle & Black Mechani

cal, Inc., Unzicker's employer.  In November 1996, Judge Miller

entered judgment.  We affirm for reasons different than those

given by the trial court.

	I.  BACKGROUND

		Unzicker was injured July 20, 1991, while he was

installing stainless steel piping in Kraft's Champaign, Illinois,

plant.  At the time of the accident, Unzicker and another Nogle &

Black employee, Mike Mills, were standing on a "manlift" (scis

sors lift), welding flanges to a pipe.  Mike Law, a Nogle & Black

foreman, wanted to deliver some equipment to Unzicker.  To do

that, the Nogle & Black crew used a Kraft forklift, previously

made available to Nogle & Black by Kraft.  The forklift was

operated by a Nogle & Black apprentice, with Law in the fork

lift's basket.  Law was being elevated as the forklift approached

the manlift.  The forklift struck the manlift and the manlift

tipped over, causing Unzicker and Mills to fall.     

		On October 7, 1992, Unzicker filed suit against Kraft,

alleging negligence and violations of the Structural Work Act

(740 ILCS 150/0.01 through 9 (West 1992) (repealed by Pub. Act 89-2, §5, eff. February 14, 1995 (1995 Ill. Laws 7))).  Kraft

filed a third-party complaint against Nogle & Black on September

21, 1993.  

		The jury returned its verdict on September 18, 1996,

finding against Unzicker on the Structural Work Act counts but

finding in his favor on the negligence counts.  The jury found

Unzicker's total damages to be $879,400, with nonmedical damages

of $788,000.  The jury apportioned 1% of the fault to Kraft and

99% to Nogle & Black.  If Kraft's liability were limited to 1% of

the damages, the verdict was essentially a loss for Unzicker.  As an employer, Nogle & Black was liable (for contribution) only to

the extent of its workers' compensation liability.  Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 165, 585 N.E.2d 1023, 1028 (1991).        

		On November 5, 1997, Unzicker filed a posttrial motion

and his first notice of appeal in this case, appealing the

judgment finding Kraft severally liable for only 1% of the

verdict, rather than jointly liable for the full amount.  Kraft

moved to dismiss that appeal, arguing that the case was over,

that the last pending posttrial motion was resolved on April 2,

1996, and any notice of appeal should have been filed by May 2,

1996.  This court, in a Rule 23 order (166 Ill. 2d R. 23) dated

October 30, 1998, disagreed with Kraft, noting that a claim for

attorney fees was unresolved until October 6, 1997, when a final

written order was entered.  Unzicker v. Kraft Food Ingredients Corp., No. 4-97-1019 (October 30, 1998) (unpublished order under Supreme Court Rule 23).  Therefore, Unzicker's notice of appeal

was timely, as was his November 5, 1997, motion for reconsidera

tion filed in the trial court.  However, this court determined

that it could not proceed with the appeal, quoting Rule 303 (155

Ill. 2d R. 303(a)(2)) that "'a notice of appeal filed before the

entry of the order disposing of the last pending post[]judgment

motion shall have no effect.'"  (Emphasis omitted.)  Unzicker, slip order at 11 (October 30, 1998.  This court then dismissed

the appeal, noting that "[t]he 30-day time limit for the filing

of an appeal will not begin to run in this case until the trial court rules on the pending posttrial motion."  Unzicker, slip order at 12 (October 30, 1998).  

		On March 31, 1999, the supreme court denied leave to

appeal, stating:

		"In the exercise of this Court's supervisory 

		authority the Appellate Court, Fourth Dis-

		trict, is directed to vacate that portion of 

		its judgment in Unzicker v. Kraft Food Ingre-

		dients Corp., case No. 4-97-1019, that remanded 

		with instructions."  Unzicker v. Kraft Food

		Ingredients Corp., 183 Ill. 2d 598, 707 N.E.2d

		1235 (1999) (nonprecedential supervisory order).

On May 24, 1999, this court entered an amended order which simply

dismissed the appeal.  Unzicker v. Kraft Food Ingredients Corp., No. 4-97-1019 (May 24, 1999) (unpublished order under Supreme

Court Rule 23).  

		When the case returned to the trial court, Kraft argued

that Unzicker's November 5, 1997, motion to reconsider could not

be considered.  Judge DeLaMar rejected that argument and ruled on

the motion, denying it.  The trial court found that Unzicker had

waived any argument that section 2-1117 did not apply to the

case, because Unzicker did not move to strike Kraft's answer. 

Kraft's answer was amended shortly before trial to raise as an

affirmative defense the applicability of section 2-1117.  Absent

waiver, however, the trial court noted that it would be bound to

follow Lilly v. Marcal Rope & Rigging, Inc., 289 Ill. App. 3d 1105, 682 N.E.2d 481 (1997), which held that section 2-1117 could

not be applied to limit recovery to a third-party defendant who

is plaintiff's employer.  

		Unzicker now appeals, arguing the trial court erred in

finding he had waived any objection to section 2-1117, improperly

responded to questions by the jury, erroneously refused one of

his instructions, and improperly limited his closing argument. 

Kraft cross-appeals, arguing the trial court had no jurisdiction

to consider the motion to reconsider.    

	II.  ANALYSIS

	A. Kraft's Arguments Regarding Jurisdiction

		Kraft argues in its cross-appeal that, after remand,

the trial court was without jurisdiction to consider Unzicker's

November 5, 1997, motion to reconsider.  Kraft notes that our

original order dismissed the appeal and remanded with directions

to consider the motion, but the supreme court directed us to

vacate that part of our order remanding with directions.  Kraft

views the supreme court order as a direction that no further

proceedings take place on remand.  We conclude, however, that the

supreme court was merely pointing out that dismissal and remand

with directions are mutually exclusive dispositions.

		While the case was previously pending before us, Kraft,

in the trial court, sought to dismiss Unzicker's motion to

reconsider.  Unzicker filed no response, and the trial court

granted Kraft's motion.  The trial court granted Kraft's motion

because it concluded that it had no jurisdiction to consider the motion to reconsider, because the case was then on appeal.  As

noted, we concluded we had no jurisdiction on appeal because of

matters then pending in the trial court, being Unzicker's motion

to reconsider filed contemporaneously with the appeal.  The trial

court had no power to affect our jurisdiction by orders it

entered after the notice of appeal was filed.  City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries,

Inc., 196 Ill. 2d 1, 11, 749 N.E.2d 916, 923 (2001) ("orders entered after filing of a notice of appeal may be valid if they

do not expand or modify the substantive issues before the review

ing court").  Kraft has not assisted in the orderly resolution of

this dispute by its efforts to litigate the matter in both the

trial court and the appellate court at the same time.          

	B. Waiver of the Section 2-1117 Argument

		We agree with Unzicker that the trial court erred in

deciding that Unzicker had waived any argument regarding the

application of section 2-1117 of the Civil Practice Law by

failing to file a motion to strike Kraft's affirmative defense

which raised that section.  We disagree that section 2-1117

issues must be raised by affirmative defense.  An affirmative

defense is one that gives color to the claim of an opposing party

and then asserts new matter by which the apparent right is

defeated.  Zook v. Norfolk & Western Ry. Co., 268 Ill. App. 3d 157, 169, 642 N.E.2d 1348, 1357 (1994); see also LaFever v. Kemlite Co., 185 Ill. 2d 380, 405, 706 N.E.2d 441, 454 (1998) (proper to raise compensation lien in a posttrial motion and to waive the lien after the jury verdict).  That is not how section

2-1117 operates.  Section 2-1117 operates as a matter of law to

allocate damages according to the verdict of the jury.  No facts

or other affirmative matters are required to apply its provi

sions, so long as defendant has joined any necessary third-party

defendants and the jury has determined the percentages of fault. 

Kraft was not required to raise section 2-1117 in an affirmative

defense, and Unzicker cannot be faulted for failure to move to

strike such an affirmative defense.  Both parties were entitled

to address the issue in motions filed after the verdict was

entered.  

	C. Application of Section 2-1117

		As the trial court noted, it would have been required

to apply the Fifth District's decision in Lilly to this case.  We, however, are not so bound.  Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 92, 679 N.E.2d 1224, 1229 (1997); Peerless Enterprises, Inc. v. Kruse, 317 Ill. App. 3d 133, 143, 738 N.E.2d 988, 998 (2000) (decisions of other districts have persuasive

value, and there may be compelling reasons to follow them).  We

disagree with Lilly.

		At the time of Unzicker's injury, section 2-117 pro

vided:

		"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 [damages other 

		than past and future medical and medically re-

		lated damages]."  735 ILCS 5/2-1117 (West 1994).  

In Lilly, the Fifth District concluded that the words, "who could have been sued by the plaintiff" were words of precise meaning

and that a plaintiff's employer is not a person "who could have

been sued by the plaintiff."  That overly technical interpreta

tion is at odds with the clear legislative intent that a mini

mally culpable defendant is not to be required to pay an entire

judgment and that responsibility for damages should be in propor

tion to fault.  In section 2-1117, the legislature intended to

list all those whose fault might play a role: the plaintiff,

those sued, and those who could have been sued.  Perhaps the

legislature could have used the broader phrase "and those not

sued," but that would have led to the ridiculous result described

in Lilly, where plaintiff's pet iguana fit in the category of those "not sued."  Lilly, 289 Ill. App. 3d at 1113, 682 N.E.2d at 486.  Only those whose fault might have played a role are to be 

considered under section 2-1117, and their fault must in fact be

determined by the jury.  What sense would it make, in applying

section 2-1117, to ignore the tortfeasor 99% at fault?

		There is an exclusivity provision in the Workers'

Compensation Act, that no common-law or statutory right to

recover damages, other than workers' compensation, is available to an employee covered by the Workers' Compensation Act.  820

ILCS 305/5(a) (West 1996).  Despite that provision, the supreme

court has concluded that employers are subject to the Joint

Tortfeasor Contribution Act (Contribution Act), which applies

where "[two] or more persons are subject to liability in tort

arising out of the same injury."  740 ILCS 100/2(a) (West 1996);

Doyle v. Rhodes, 101 Ill. 2d 1, 461 N.E.2d 382 (1984).  Lilly chooses to ignore Doyle on the basis that, if the legislature wanted to achieve the Doyle result, it would have used the identical language used in Doyle and the Contribution Act, "subject to liability in tort."  Lilly, 289 Ill. App. 3d at 1108, 682 N.E.2d at 483.  Again, we see no reason for such a restric

tion, particularly given the legislature's apparent purpose of

including all those at fault in determining which defendants'

fault might be less than 25% of the total fault.  As Doyle explains, employers can be sued by their employees.  The exclu

sivity provision of the Workers' Compensation Act is in the

nature of an affirmative defense which is waived if it is not

asserted.  Doyle, 101 Ill. 2d at 10-11, 461 N.E.2d at 386-87.  Lilly's suggestion that Doyle involved the Contribution Act, which this case does not, is a distinction without a difference. 

See Lilly, 289 Ill. App. 3d at 1109-10, 682 N.E.2d at 483-84.  

		Lilly suggests that a statute that restricts plain tiff's common-law rights should be strictly construed.  Lilly, 289 Ill. App. 3d at 1112, 682 N.E.2d at 485.  The fact that a

court has doubts whether damages from a injury can or should be divided among defendants is irrelevant.  That question is one for

the legislature, and we are bound to enforce the statute as it is

written.  The trial court correctly determined that Kraft, whose

fault was found to be only 1% of the total of those potentially

at fault (Unzicker, Nogle & Black, and Kraft), was only severally

liable.

	D. Unzicker's Argument Regarding Jury Questions

		We also reject Unzicker's argument that the trial court

erred in failing to instruct the jury after the jury submitted

questions.  During deliberations, the jury sent three questions

to the court.  After discussing the matter with counsel, the

court declined to answer the jury's questions, referring the jury

instead to the instructions and the evidence.  Unzicker claims

the court improperly refused to answer those questions.  Appar

ently the questions were:

			"1.  Plaintiff's [c]omplaint, what is the 

		specific meaning of the word 'structure'--(a) 

		scaffolding (scissors lift), (b) building, 

		(c) pipe, (d) whole project?

			2.  Does operation of the forklift fall 

		under the Structural Work Act as stated in 

		Item B of [p]laintiff's [c]omplaint?  Turning 

		to [d]efendant's [i]nstruction [No.] 8, which 

		gave the claims of the [p]laintiff in the 

		[p]laintiff's [c]omplaint, Item B under the 

		Structural Work Act count read, 'allowed a 

		co-worker of the [p]laintiff to use one of 

		Kraft's forklift trucks to raise another 

		co-worker in a basket in connection with the 

		use of the manlift.'

			3.  Is it a given that the Structural 

		Work Act applies in this case, or is this 

		something that we need to decide?"

		Perhaps the third question could have been answered in

the affirmative.  The question whether a certain device is

governed by the Structural Work Act is a matter of statutory

construction and thus a question of law for the court.  Smith v. Excello Press, Inc., 169 Ill. App. 3d 1084, 1091, 523 N.E.2d 1231, 1235 (1988).  However, the jury was told, in an instruction

that corresponded to Illinois Pattern Jury Instructions, Civil,

No. 180.04 (3d ed. 1995) (hereinafter IPI Civil 3d), what the

issues were.  In this case, plaintiff claimed that defendant

violated the Structural Work Act in a number of respects, and

defendant denied that it violated the Structural Work Act.  There

was no issue as to whether the Structural Work Act applied.  The

court had to be careful not to tell the jury there was a viola

tion of the Structural Work Act--that was a question which the

jury had to decide.  The jury was given an instruction corre

sponding to IPI Civil 3d No. 180.04, which said that plaintiffs

claimed Kraft violated the Structural Work Act in a number of

respects, including allowing "a co-worker of the plaintiff to use

one of Kraft's forklift trucks," and allowing "the operation of the manlift used by plaintiff in a manner which was dangerous."  

		Jurors are entitled to have their questions answered,

but the court may decline to answer a jury's question if the jury

instructions are readily understandable and sufficiently explain

the relevant law, further instructions would serve no useful

purpose, further instructions would potentially mislead the jury,

or the jury's inquiry involves a question of fact.  People v. Reid, 136 Ill. 2d 27, 39-40, 554 N.E.2d 174, 179-80 (1990).  Where answering the question would unduly single out a particular

instruction already given, the court may decline to answer it. 

See IPI Civil 3d No. 1.01 ("[y]ou must consider these instruc

tions as a whole, not picking out one instruction and disregard

ing others").  

		The jurors' first question, as to the meaning of the

word "structure," appears to relate to the instruction the jury

was given that corresponds to IPI Civil 3d No. 180.09.  Under

that instruction, one of the propositions which plaintiff had to

prove was that "Defendant was the person having charge of the

alteration, construction, or erection of the structure."  The

answer to the jurors' first question is clear from the

instruction--the structure is the thing being altered, con

structed, or erected.  Was the jury asking whether it was suffi

cient that Kraft had charge of something less?  In an instruction

corresponding to IPI Civil 3d No. 180.02, the jury was told a

person "who has charge of a particular phase of the work may also

'have charge of the work' if that phase of the work involves the violation from which the injury is alleged to arise."  If the

jury's question is ambiguous and any response to the question may

require a colloquy between the court and the jury, a further

explanation of the facts, and perhaps an expression of the trial

court's opinion on the evidence, the court may refuse to answer

the question.  Reid, 136 Ill. 2d at 39-40, 554 N.E.2d at 179-80. 

	E. Unzicker's Argument Regarding IPI Civil 3d No. 180.19

		Unzicker asked the trial court to give IPI Civil 3d No.

180.19, "Conduct of Employer or Third Person Not a Defense."  The

second paragraph of that instruction states: 

			"However, if you decide that the sole 

		proximate cause of the injury to the plain-

		tiff was something other than a violation of 

		the Structural Work Act by the defendant, then 

		your verdict should be for the defendant."  IPI

		Civil 3d No. 180.19  

That language can be confusing when Structural Work Act counts

are pleaded in addition to negligence counts.  If the jury

concluded that Kraft's negligence was the "sole proximate cause"

of the injury, should the verdict be for Kraft on the Structural

Work Act counts?  The trial court gave an instruction correspond

ing to IPI Civil 3d No. 180.02, that more than one person may have charge of the work, and which person or persons had charge of the work under the particular facts of this case was for the

jury to decide.  The trial court concluded that was sufficient. 

We agree.                   

F. Limitations on Unzicker's Rebuttal Argument

		Unzicker further argues the trial court improperly

sustained objections to one facet of his rebuttal argument, how

fault should specifically be apportioned between Kraft and Nogle

& Black.  Neither Kraft nor Nogle & Black broached that particu

lar subject in its arguments, however, and the issue was accord

ingly not the proper subject of a rebuttal argument.  To the

extent that Unzicker was attempting to respond to Kraft's plea

for a verdict in its favor, any error would be harmless.  The

court's instructions and the arguments that Unzicker actually

made adequately informed the jury that apportionment was an

alternative.  Indeed, that is precisely the route taken by the

jury.  

	III. CONCLUSION

		We have considered all the arguments raised by the

parties and we affirm the trial court's judgment accepting the

jury's apportionment of fault and determining that Kraft was only

severally liable.  

		Affirmed.    

		STEIGMANN, P.J., concurs.

		MYERSCOUGH, J., dissents.

		JUSTICE MYERSCOUGH, dissenting:

		I respectfully disagree with the majority that section

2-1117 expresses a clear legislative intent.  Section 2-1117 is

ambiguous.  Resort to legislative history does not answer the

question of whether employers were intended to be included in the

definition of those "who could have been sued by the plaintiff." 

The 1986 statute was intended to modify Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886 (1981), which abolished contributory negli

gence and substituted pure comparative negligence. 

		"We've been told that the abuses in product

liability have been such that have created

such an unpredictable and large...and judg

ment...large situation.  We have addressed

that at the request of the business community

so that the same comparative negligence re

strictions and joint and several restrictions

apply to product liability also.  And perhaps

most of all, the worst case scenario that

we've been presented with are the minimally

culpable individual defendants who end up

paying 100 percent of the award, primarily

the local government, perhaps the retailer

that are just there, and they have the deep

pockets, and they end up paying.  We have

said anyone less than 25 percent is a mini

mally culpable defendant and they should not be required to pay all.  So, as to non-eco

nomic damages or as to all damages other than

medical, they're only severally liable. 

We've addressed that abuse.  With the excep

tion of medical costs, we do not believe that

a medically indigent individual should end up

paying all or any of this medical cost ren

dered...by an injury rendered by any defen

dant.  We've made a restriction in there that

provides for that medically indigent plain

tiff to get relief.  In the 'Alvis versus

Rebard' [sic] case in a dissent by Justice Ryan, he points out why the Legislature is in

a much better position to address the com

plexities of something such as this.  In

discussing the change from contributory neg

ligence to comparative negligence, he indi

cates that it is the paramount role of the

Legislature as a coordinate branch of our

government, to meet the needs and demands of

changing times and legislate accordingly.  I

believe that the problem with the courts

creating laws is that they're presented with

a factual situation under which they cannot

change, and that the law is applied to this

particular, perhaps polarized, factual situa tion and it sets the trend and sets the pre

cedent for any other case that comes before

this...or that particular court.  What we

have done is, we have singled out the abuses

of the tort system and addressed them, single

issue by issue, and provided for equitable,

just relief.  We have not made everyone

happy.  We may not have made everyone happy

with the manner in which we've come to what

we consider an equitable solution, but it is

a solution, and it is an equitable one, and I

would heartily recommend that we adopt the

Conference Report on Senate Bill 1200."  84th

Ill. Gen. Assem., House Proceedings, June 30,

1986, at 19-20 (statements of Representative

O'Connell).

I can find no discussion in the legislative history, however, of

third-party employer's liability in tort in the context of this

case.

		Clearly, however, the 1996 amendments to section 2-1117

were meant to codify Kotecki, 146 Ill. 2d 155, 585 N.E.2d 1023, which held that an employer sued as a third-party defendant in

tort is liable in contribution for no amount in excess of his

statutory workers' compensation liability:

			"These modifications are entirely fair

and equitable and consistent with Illinois law concerning an employer's responsibility

to an employee and joint defendant's.  This

Bill merely codifies the decision of Kotechi

[sic] versus Cyclops Welding Corporation (585 N.E.2d 123 (Ill. 1991)).  In that case, Mr.

Kotechi [sic] brought an action for personal injuries against the defendant-manufacturer

of a welding agitator used on the premises of

his employer.  The manufacturer then filed a

third[-]party complaint against Mr. Kotechi's

[sic] employer seeking contribution.  Mr. Kotechi [sic] moved to strike the third[-] party complaint and the court denied the

[m]otion.  On appeal, the Appellate Court

reviewed whether an employer sued as a

third[-]party defendant, in a product liabil

ity case, is liable for contribution for any

amount in excess of the employer's statutory

obligation or liability under Workman's Com

pensation laws.  The court determined that

the employer is not liable for any amount

above the statutory Workman's Compensation

Act recoveries.  This Bill codifies current

case law into the context of Workers' Compen

sation Laws."  89th Ill. Gen. Assem., House

Proceedings, February 16, 1995, at 129-130 (statements of Representative Cross).

This is the first discussion of an employer third-party defendant

found in the legislative history of section 2-1117.  This discus

sion appears to recognize the need for legislation that allows

the third-party defendant employer to be sued.  The definition of

"tortfeasor" in the amendment clearly recognizes that liability:

			"'Tortfeasor' means any person, exclud

ing the injured person, whose fault is a

proximate cause of the death, bodily injury

to person, or physical damage to property for

which recovery is sought, regardless of

whether that person is the plaintiff's em

ployer, regardless of whether that person is

joined as a party to the action, and regard

less of whether that person may have settled

with the plaintiff."  735 ILCS 5/2-1116(b)

(West 1998).

	     However, the majority correctly notes that our supreme

court in Kotecki and Doyle v. Rhodes, 101 Ill. 2d 1, 461 N.E.2d 382 (1984), has concluded employers are subject to the Contribu

tion Act.  I, though, agree with the dissent in Ribar:

			"MR. JUSTICE UNDERWOOD, dissenting:

			While I acknowledge the court's power to

radically change a rule of law which has

existed in this State for nearly a century, I

still believe, as I did when Maki v. Frelk (1968), 40 Ill. 2d 193, was decided, that the

decision to change is best left to the Gen

eral Assembly."  Ribar, 85 Ill. 2d at 29, 421 N.E.2d at 898.

Nonetheless, I also agree that the pertinent supreme court

authority controls this issue. 

		I do, however, believe the trial court erred in failing

to instruct the jury after the jury submitted questions.  All

questions should have been answered.  The trial court should also

have given IPI Civil 3d No. 180.19.  For these reasons, I would

reverse the trial court.