## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Suprem e Court

Rogers v. Im eri , 2013 IL 115860

Caption in S upreme Court: ROY DEAN ROGERS I I et al. , Appellee s, v. GANI I MERI , I ndiv. and d/b/a J ohnny ’s B ar a

nd Grill, Appellant.

Docke t No. 115860

Filed November 21, 2013

Held ( Note : Thi s syl l abus

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The Dramshop Act both allows jury trial and sets the maxi mum for a bar

owner ’s liability ; and, when the I nsuranc e Guar anty Fund assumed such

an owner ’s defe nse, its g overning statute did not allow it to pay more than that and provided that dramshop plaintiffs’ other insurance rec overie s be set off a g ainst that cap pr ior to jury trial.

Dec ision Under Review Appea l from the Appellate Court for the Fifth District; hear d in that court

on ap peal from the Circuit Court of Effing ham County
, the Hon. Kimberly G. Koeste r and the Hon. Michae l P. Kiley , J udg es, pre siding.

J udg ment Appellate c ourt judg ment reve rsed. Cause re manded.Counsel on

Appea l Hug h C. Griff in, of Hall, P rang le & Schoonveld, L L C, of C hicag o, and J on R. Shelton, of Shelton & M ad rid, L L C, of St. L ouis, Missouri, for appellant.

Christopher A. Koester , of Tay lor L aw Office s, P.C., of Effingha m, for appellee s.

Cochran, Cherry
, Givens, Smit h & Montgome ry , L .L .C., of Chicag o (John K. Kenne dy
, of counsel), for amicus curiae I llinois Trial L awy ers Association.

J ustices J USTI CE THEI S delivered the judgme nt of the cour t, with opinion. Chief J ustice Gar

man and J ustices Fr e e ma

n , T h o ma s , K ilb r id e, Kar

meier, and B urke c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 The sole issue in this appea l is whether
, in a Dramshop Act case wh er e a b ar o wner is defe nded by the I llin o is Insuranc e Guar anty Fund (the Fund)
, the reduc tion for “other ins u ra nce” rec overie s under section 546(a) of the I llinois I nsuranc e Code (her einaf ter, the Guar anty Fund statute) (215 I L CS 5/ 546(a) (West 2012)) applies a g ainst the jury ’s ver dict

or ag ainst the bar owner ’s maxi mum statutory liability

. The trial court decide d that the issue

was premature beca

use the plaintiffs, Roy and There sa Roge rs, had not obtained a verdic t ag ainst the defe ndant, Gani Imeri. But the trial court ce rt ified a question to the appellate
court pursuant to Supreme Court Rule 308(a)

. I ll. S. Ct. R. 308(a) (ef f. Fe b. 26, 2010). The appellate court held that the reduc tion should be applied ag ainst the jury ’s verdic t. 2013 I L App (5th) 110546. ¶ 2 For

the re asons that follow, we reve rse a nd rema nd for f urther pr ocee dings.

¶ 3 BA CKGROUND ¶ 4 I n 2009, a vehicle driven by 18-y ear -old Roy Dea n Roge rs I I I and a vehicle driven by 60-
y ear -old J oh n W i n t er rowd wer e involved in a head- on collision on a rura l highw ay in Effing ham County

. Wint err owd was intox icated, and Roge rs was not. Roge rs died in the

acc ident. His pare nts rec eived $26,550 from Wint err owd’s automobile liability insurer and $80,000 from their own autom obile liability insurer—a total of $106,550. They subsequently filed a six -count complaint under the Dramshop Act ag ainst I meri, the owner of the bar

-2-wher e Wint err owd was drinking , seeking rec overy for their son’s persona l injury and their loss of society

. ¶ 5 At the time the acc ident o cc u rr ed
, I m eri maintained a dramshop liability policy with Constit utional Casualty Company

. The policy provided a pol i cy l i m i t of $130,338.51, the statutory cap under the Dra mshop Act. See g ener ally 235 I L CS 5/6-21(a) (West 2012). Whil e this c ase w as pending , I meri’s insure r wa s decla red insolvent and liquidated, and the Fund assumed his defe nse. ¶ 6 I meri filed a “motion for summary adjudication of the amount that l i ab i l i t y m u s t b e reduc ed” under section 546(a)

. I n th at motion, I meri soug ht a ruling that his maxi mum liabili t y wa s $ 23,788.51, which repr esente d the differ ence betwee n the statutory cap on dramshop liability and the other insurance proce eds. The Roge rses responde d that the setoff for o t h er insurance proce eds should come afte r the jury ’s verdic t. The trial court denied I meri’s mot ion as premature, commenting that such a ruling would “invade the j ury ’s role

as finder of fac t.” The court noted that, if the jury should find in favor of the Roge rses, Imeri would have a

n opportunity

to reque st setoffs. ¶ 7 I meri filed a motion to reconsider that ruling or, in the alter native, to ce rtify

a question under Rule 308(a)

. The Roge rses agreed to the reque st for cer tification. The trial court g rante d the motion and cer tified the following question for re view: “Where the defe ndant in a dram shop case is b ei ng defe nded by the I llinois I nsuranc e Gua

ranty Fund a fter de fenda

nt’s liability

insurer w as dec lare d insolvent,

an d wher e plaintiff has alre ady made an insurance rec overy from plaintiff’s underinsure d m o t orist insurer and from the alleg ed intox icated person’ s liability insurer, and wher e the jury returns a verdic t in e x cess of the defe ndant’s maxi mum liability under the Dra

m Shop Act, is the reduction for ‘other insurance ’ rec overie s set fo rt h in Section 546(a) of the I llinois I nsuranc e Guar anty Fund Act applied ag ainst the jury ’s verdic t or ag ainst the defe ndant’s maxi mum dram shop liability ? ” ¶ 8 The appellate court held that the section 546(a) reduc tion should be applied ag ainst the jury ’s verdic t. 2013 I L App (5th) 110546, ¶ 23. The court noted that while the Fund acts as a subst itute for an insolvent insurer, it is not a separate source of recover y

. Id

. ¶ 1 3

. Thus, “unless specific limit ations in the Guar anty Fund statute are applicable
, the Guar anty Fund’ s obligation is deter

mined by the Dramshop Act.” Id. The appell ate court, howeve r, did not look to the Dramshop Act to deter mine the extent of that obligation, but rathe r to emphasize
t h e p ro v i s ion of a jury trial on damag es wit hout reg ard to the s tatutory limit

. Id. ¶ 14. The
court then discussed Kurth v. Amee

, Inc.
, 3 I ll. App. 3d 506 (1972), a dramshop case that did
not involve the Fund, which outlined a three -step proce dure for setoffs in such case s: “F irst, the jury deter

mines the total damag es sustained. The jury ’s aw ard is then offse t by other

rec overie s. Finally
, if the rema inder is a bove the statutory limit
, it is reduc ed to that limit.” 2013 I L App (5th) 110546, ¶ 15. The court disag ree d that a differ ent proce dure should apply simply beca

use the Fund was involved, and dist inguishe d Roth v. Illinois Insurance Guaranty Fund
, 366 I ll. App. 3d 787 (2006), beca use it was not a Dramshop Act case

. 2013 I LApp (5th) 110546, ¶

20. I n closing the cour

t noted: “[W ]hether the Guar anty Fund is obligated to pay the statutory maxi mum in a

-3-dramshop case depends on the fac ts of the case

. I f the j ury returns a verdic t of $500,000 in t h e i n s t ant case , that amount would be reduc ed to $393,450, which

wo u ld then be reduc ed to the statutory dramshop maxi mum of $130,338.51. Howeve r, if the jury returns a verdic t of $200,000, that would be reduc ed to $93,450, which is less than the statutory maxi mum. We believe that these limit s are sufficie nt to effe ctuate the purpose of section 546.” Id. ¶ 22. ¶ 9 This court allowed I meri’s petition for leave to appea l. See I ll. S. Ct. R. 315(a) (ef f. F eb. 26, 2010). We allowed the I llinois Trial L awy ers Association to file an amicus curiae brief in support of the plaintiffs. See I ll. S. C t. R. 345 (eff. Sept. 20, 2010)

.

¶ 10 ANALYSI S ¶ 11 Supreme Court Rule 308(a) provides for interlocutory ap p eals of nonfinal order s that prese nt “a question of law as to which there is substantial g round for differ ence of opinion.” I ll. S. Ct. R. 308(a)

. When the trial court conclude s that an answe r to such a question “may materia lly advanc e the ultimate termination of the litigation,” t h e court must identify the question in writing
, and the appellate court may allow an appea l. Id. Be cause an interlocutory appea l under Rule 308(a ) nec essar ily involves a question of l aw, our standard of revie w i s de novo. In re Marriage of Mathis
, 2012 I L 113496, ¶ 19 (citing Barbara’s Sales, Inc. v. Intel Corp. , 227 I ll. 2d 45, 58 (2007)). ¶ 12 As the appellate court noted, the parties ag ree I meri is entitled to a setoff of the $106,550 that the Roge rses rec eived from the two automobile insurance policies. Their disag ree ment cente rs on how that setoff opera tes, or, more prec isely
, the amount ag ainst which it applies. The F und argues that the setof f should be deduc ted from the statutory cap of $130,338.51, based on the plain lang uag e of the Guaranty Fund provisions. The Roger ses arg ue that the setoff should be deducte d from the jury ’s eventua l verdic t, which may then be reduc ed to the statutory cap, if nece ssary

. These opposing positions corr espond to those taken by the Fifth District here and the First District in Guzman v. 7513 W est Madison Street, Inc.
, 2013 I L App (1st) 122161. ¶ 13 The car dinal rule of statutory construction is to asce rtain and eff ectua te the leg islature’s intent. Moore v. Gree n , 219 I ll. 2d 470, 479 (2006). The best indicator of that intent is the express lang uag e of the statut e, which should be g iven its plain and ordinary meaning

. W ilkins v. W illiams
, 2013 I L 114310, ¶ 14. I n interpre ting a statute, we must rea d the rele vant provisions in their entirety and in their contex t within the broader framew ork of th e ac t of which they are a part. See Solon v. Midwest Medic al Rec ords As s ’n
, 2 3 6 I ll. 2d 433, 440 (2010). We now turn to the Insuranc e Code. ¶ 14 The Code establishes the Fund, a nonprofit entity that protec ts holders of policies issued by now-insolvent insurer s , and third-par ty claimants under those policies, when expected

cover ag e cease s to exis t. See Hasemann v. W hite
, 177 I ll. 2d 414, 415-16 (1 9 9 7 ); see also 215 I L CS 5/ 5 3 2 (W es t 2012). The Fund is not “a collater al or independe nt source of

rec overy” (

Lucas v. Illinois Insurance Guaranty Fund , 52 I ll. App. 3d 237, 240 (1977)); it is “a source of last resor

t,” whose role as a s u b s t i t ute i nsurer is subject t o cer tain statutory limit ations (

Illinois Insurance Guaranty Fund v . Farmland Mutual Insurance Co. , 274 I ll.

-4-App. 3d 671, 673 (1995))

. Section 546(a) provid es a key limit ation, which ensure s that

potential claims on the Fund are reduc ed by the assets of solve nt insurers, not assets of the Fund itself. That section, entitled “Othe r insuranc e,” pr ovides: “An insured o r claimant shall be required first to exhaust all cover ag e provided by any other insurance policy
, reg ardle ss of whether or not such other insurance policy

was written by a member company , if the claim under such other policy arises from the same fac ts, injury
, or loss that g ave rise to the cover ed claim ag ainst t h e Fund. The Fund’ s obligation under Section 537.2 shall be reduc ed by the amount rec overe d

or rec overa

ble, whicheve r is g reater, under such other insurance policy

. Where such other insurance poli cy p rovi des uninsured or underinsure d motorist cover ag e, the
amount rec overa

ble shall be deeme d to be the full applicable limit s of such cover ag e. To the extent that the Fund’ s obli g ation under Section 537.2 is reduc ed by application o f t h is Section, the liability of the person insured by the insolvent insurer’ s policy for the claim shall be reduc ed in the same amoun t.” 215 I L CS 5/546(a) ( West 2012). ¶ 15 Unde r s ec t i o n 5 4 6 (a ), the Roge rses, as claimants under I meri’s policy with his nowinsolvent insurer, wer e require d to exhaust cover ag e provided by any other insurance policy
, i f t heir claim under such a policy arose from the same fac ts as I meri’s “cove red cl ai m ” aga inst the Fund. The Roge rses’ claims under their automobile liability poli cy an d Wint err owd’s automobile liability policy
, like I meri’s claim, wer e base d o n the acc ident. The amounts that the Roge rses re cover ed fr om their claims re duce the Fund’ s obligation. ¶ 16 Section 537.2 states that the Fund “shall be obligated to the ex t en t o f t h e co v ere d claims.” 21 5 I L CS 5/537.2 (West 2012). Section 534.3 define s a “cove red claim” as “an unpaid claim for a loss arising out of and within the cover ag e of an insurance policy to which this Article applies and which is in fo rce at the time of the occur renc e g iving rise to the unpaid claim *** made by a person insured under such policy or by a person suffe ring injury

or damag e for which a person insured under such policy is l ega l l y l i able.” Thoug h the Gu aranty Fund provisions do not define the term “leg ally liable,” that conce pt li es at t h e foundation of our civil a

nd criminal jurisprudenc e, and simply contemplates an obligation. See Bla ck’s L aw Dictionary 997 (9th ed. 2009) (def ining “liability ” as “[t] he quality or state of being leg ally obligated or acc ountable; leg al responsibility to another or to society
, enfor cea ble by civil remedy or criminal punishment”). I n civil litigation, t hat obl iga tion is

an obligation to pay damag es. See id. (def ining “civil liability ” as “[t] he state of being leg ally obligated for civil damag es”)

. Thu s , as the appellate court here observe d, the Fund’ s obligation is linked with Imeri’s obligation to pay damag es. 2013 I L App (5th)110546, ¶ 13. I n this case, Imeri’s oblig ation cannot e x cee d $130,338.51. See 235 I L CS 5/6-21(a) (West 2012) (“in no event shall the judgme nt or rec overy for injury to the person or proper ty of any person exceed” the statutory cap)

. And that is the maxi mum extent of the Fund’ s obligation. ¶ 17 The Roge rses, howeve r, ask us to i gn o re t h e p l ai n l anguag e of the Guar anty Fund provisions, as well as the clea r limit of the Dramshop Act, and to focus on the latter statute’s require ment that “the jury shall deter mine the amount of damag es to be re cover ed without reg ard to and with no specia l instructions as to the dollar limit s on rec overy .” 235 I L CS 5/6- 21(a) (West 2012). The Roge rses insist that the only way to rea d that require ment in harmony

-5-with se ction 546(a) is to let the jury set the amount of damag es, re duce that amount by any

other insurance proce eds, and then, if nece ssary , reduc e the resulting amount to the statutory cap. ¶ 18 Guzman corr ectly reje cted that approa ch. There
, a panel from the First District addre ssed the same cer

tified question as the panel from the Fifth District i n t h i s case , but rea ched a d i ff er en t answe r. The Guzman court looked to the Dramshop Act, and conclude d that t h e defe ndant was “l egally liable” to the plaintiffs only up to the maxi mum rec overy possible under that Act. Guzman
, 2013 I L App (1 s t ) 1 2 2 1 6 1, ¶ 26. The court distinguished Kurth
, noting that, while t hat case determined t he proper procedure for se toffs in dramshop c ases g ener ally
, it did not interpre t section 546(a) or deter mine the proper proce dure for setoffs in dramshop ca ses involving de fenda nts repre sented by

the Fund. Id. ¶ 30. ¶ 19 The require ment t h at a j u ry d etermine damag es in Dramshop Act case s is simply not rele vant to the construction of section 546(a)

. Under that statute, the Fund’ s obligation
cannot be expanded by a jury ’s verdic t; it can only be reduc ed by other insurance

. The setoff

o f t h e amount that the Roge rses rec eived from the automobile liability insurance policies should come fr om I meri’s maximum dramshop liability

.

¶ 20 CONCL USI ON ¶ 21 For the rea sons that we have stated, the judgme nt of the appellate court is reve rsed, and the ca use is rema

nded to the cir cuit court for further proce eding s.

¶ 22 Appellate c ourt judg ment reve rsed. ¶ 23 Cause re manded.

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