text:
      In re P.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. L.M., Respondent-Appellant).
    Fifth District
    No. 5 — 90—0585
    Opinion filed October 18, 1991.

      Thomas W. Burkart, of Burkart Law Offices, of Hamel, for appellant.
    William R. Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Respondent is 24 years old, is mentally retarded with an I.Q. of 60, and has the cognitive level of a seven-year-old. She is also a mother. The circuit court took her child from her, ruling that it was in his best interest, made him ward of the court, and placed him with a guardianship administrator of the Department of Children and Family Services (DCFS). We affirm.

Respondent’s son was born premature. Concerned that respondent could not properly care for her son, the hospital contacted DCFS, which referred respondent to an agency that provided a home health care nurse to help with the child’s needs; but, the child’s needs were extraordinary: he could not keep food down and he was losing weight. Initially concerned that the child suffered from “failure to thrive” syndrome, DCFS placed the child in protective custody. Later he was adjudicated dependent (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 4) and placed with a guardianship administrator. Ill. Rev. Stat. 1989, ch. 37, par. 802 — 27.

Respondent makes two claims on appeal: (1) that DCFS did not offer appropriate services for mentally retarded parents aimed at family preservation and family reunification as required by the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 27); and (2) that failure to provide appropriate services for mentally retarded parents while providing services for nonretarded parents violates her right to equal protection and due process of law.

To affirm a circuit court order terminating parental rights, a court of review must find in the record clear and convincing evidence that the parent is unfit. (In re R.M.S. (1989), 187 Ill. App. 3d 41, 542 N.E.2d 1323.) We find such evidence. Respondent, at the age of two, suffered a severe head injury when she was struck in the head by a carnival ride. The injury left her with a severely diminished mental capacity, i.e., she is borderline mentally retarded, with a full scale I.Q. of 60. Evidence in the record shows that respondent’s son suffers from gastroesophageal reflux, a condition that makes it difficult to keep food down and impairs good nutrition. Also, preliminary neurological examinations show that respondent’s son may have cerebral palsy and will require special attention and medication. These conditions, combined with evidence that respondent was not feeding her son regularly, was feeding him spoiled formula, and was feeding him from dirty bottles and with unsterilized nipples, clearly and convincingly show that respondent is unable to care for this child. The record also indicates that respondent loves her child and that she truly attempted to care for him, but our paramount concern must be the best interests of this child, interests best served, we believe, by the circuit court’s order.

Respondent claims that services aimed at family preservation and family reunification offered to her pursuant to section 2 — 27 were not appropriate for a mentally retarded person, and that failure to provide appropriate services to her while providing appropriate services to nonretarded people violates her right to equal protection and due process of law.

The DCFS case worker testified at the dispositional hearing that nothing short of 24-hour supervision would protect respondent’s child from danger. In other words, only 24-hour supervision — a service that does not exist — would preserve her family. Respondent claims that anything less would be a failure to offer “appropriate” services. We disagree. Though there are no statutory guidelines to determine whether appropriate services were offered and were unsuccessful (In re Lewis (1986), 144 Ill. App. 3d 55, 494 N.E.2d 261), we believe the unsoundness of respondent’s argument is made clear by the following example.

If respondent were a pyromaniac and the only way in which to protect her child and preserve her family was to place a firefighter in her home 24 hours a day, no one would suggest that the State must offer such a service or violate the equal protection clause. There must be some limit to the extent of the State’s obligation.

The sad reality is that some are less fortunate than others, so less fortunate that they, through no fault of their own, cannot care for a child. (See In re Devine (1980), 81 Ill. App. 3d 314, 401 N.E.2d 616.) Equal protection does not proscribe treatment of different classes of persons in different ways; it requires only equal treatment of persons similarly situated. (Yellow Cab Co. v. Jones (1985), 108 Ill. 2d 330, 483 N.E.2d 1278.) Here, we are dealing with one class of individuals, i.e., parents, and not all parents are similarly situated, as this case illustrates. Faced with this reality, the circuit court properly granted guardianship, for there were no services that would make respondent a better parent. Although there are services that might help her keep the baby, such as a live-in, surrogate mother, these services do not exist and the State has no duty to create them for respondent’s sole benefit.

The circuit court is affirmed.

Affirmed.

RARICK, P.J., and HARRISON, J„ concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    GENERAL CASUALTY COMPANY OF ILLINOIS, Plaintiff and Counterdefendant-Appellee, v. DAVID McCOWAN et al., Defendants and Counterplaintiffs-Appellants (Arnold D. Sternberg, Defendant).
    Fifth District
    No. 5-90-0115
    Opinion filed October 22, 1991.

      J.C. Mitchell, of Mitchell & Armstrong, Ltd., of Marion, and Donald R. Brandon, of Herrin, for appellants.
    Ted W. Dennis and Jeffery A. Cain, both of Freeark, Harvey, Mendillo, Dennis & Wuller, P.C., of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

David McCowan was involved in an automobile accident between his vehicle and one driven by Arnold Sternberg. David McCowan and his wife, Karla McCowan, brought a two-count complaint against Mr. Sternberg: count I for the personal injuries sustained by David, and count II for loss of consortium for Karla.

While the above action was pending, the General Casualty Company of Illinois (General Casualty), Sternberg’s insurer, brought a declaratory judgment action for the purpose of determining the amount of insurance coverage afforded by its automobile liability policy. The McGowans filed a counterclaim in the declaratory judgment action in which they also sought a declaration in the amount of coverage afforded. The policy provides coverages in the amount of $50,000 per “person” and $100,000 per “accident.” General Casualty sought a determination that only $50,000 coverage was afforded while the McGowans sought a ruling that $100,000 was available.

The circuit court of Randolph County found in favor of General Casualty and allowed its motion for summary judgment. It denied the counterclaim for summary judgment filed by the McGowans. The Mc-Gowans appeal.

The issue presented for this court is whether the loss-of-consortium claim of Karla McCowan is a separate bodily injury claim so as to activate the per-occurrence limit of $100,000 of the General Casualty policy.

The determination of this issue depends upon the language of the policy, as the parties are bound to the agreement they made. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) Several provisions of the policy must be considered. Under the heading, “II — Liability Coverage, Part A,” the policy provides:

“We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.” (Emphasis added.)

Under another part of the policy, “Part B — Definitions,” “bodily injury” is defined: “ ‘Bodily injury’ means injury, sickness, disease or death.” (Emphasis in original.) One final paragraph of the policy that needs to be considered is found under the section labelled, “Limit of Liability”:

“The limit of liability shown in the Declarations for ‘each person’ for Bodily Injury Liability is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. Subject to this limit for ‘each person’, the limit of liability shown in the Declarations for ‘each accident’ for Bodily Injury Liability is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident.”

With these provisions in mind, we examine Illinois cases that have addressed this issue. The first case brought to our attention is Gass v. Carducci (1964), 52 Ill. App. 2d 394, 202 N.E.2d 73, which denied coverage to a husband on a loss-of-consortium damage claim because:

“The term ‘one person’ contained therein has repeatedly been construed by the courts to mean ‘one person injured’ and that it applies to all damages sustained by all persons as the result of injury to one person; they have rejected the contention that the ‘one person’ limit merely deals with the loss suffered by any one person.” (Gass, 52 Ill. App. 2d at 402, 202 N.E.2d at 77.)

While it is not completely clear from the Gass opinion, it is at least suggested that the provision involved in that case included any damages for loss of services that arose out of the bodily injury. That interpretation is found in the following language:

“The policy of insurance limits recovery to $25,000 for damages arising out of bodily injury sustained by one person in any one accident, which includes damages for care and loss of services arising out of bodily injury.” (Emphasis added.) (Gass, 52 Ill. App. 2d at 402, 202 N.E.2d at 76-77.)

Thus it is at least suggested that loss of services was specifically included in the injuries to one person involved in the policy in Gass.

We observe that Gass comes to its conclusion that “one person” means “all persons” with very little discussion or analysis. Also, we note that Gass cited no Illinois cases, in fact no cases at all, for its broad proposition. Finally, we observe that Gass was decided some years before the supreme court’s ruling in Page v. Hibbard, which held that

“an action for loss of consortium is not a derivative claim brought by the spouse as the personal representative of the employee, but is an independent action to recover for injuries the spouse has suffered, such as loss of support and loss of society.” (Page v. Hibbard (1987), 119 Ill. 2d 41, 48, 518 N.E.2d 69, 72.)

In view of the foregoing, we hold that Gass is not controlling on the issue of whether or not a loss-of-consortium claim is subject to the limitation of one person in all situations.

General Casualty relies upon Cross v. Country Cos. (1989), 188 Ill. App. 3d 847, 544 N.E.2d 1246, and Creamer v. State Farm Mutual Automobile Insurance Co. (1987), 161 Ill. App. 3d 223, 514 N.E.2d 214. The policy involved in Cross apparently included loss of services, not as a separate bodily injury, but instead as an explanation of the extent of the liability coverage. The Creamer decision has been distinguished by the recent first district case of Filip v. North River Insurance Co. (1990), 201 Ill. App. 3d 351, 559 N.E.2d 17, because in Creamer the policy defined “ ‘bodily injury’ ” as “ ‘bodily injury to a person and sickness, disease or death which results from it.’ ” (Filip, 201 Ill. App. 3d at 353, 559 N.E.2d at 19, quoting Creamer, 161 Ill. App. 3d at 224.) The Filip court pointed out that “[i]n contrast to the policy in Creamer, the Policy in the present case defines ‘bodily injury’ as ‘injury,’ thereby broadening the ordinary definition of ‘bodily injury’ to encompass all types of injury, including the personal injury of loss of consortium.” (201 Ill. App. 3d at 353-54.) The policy language involved in our case is closer to that involved in Filip than that involved in Creamer.

With this in mind, we now turn to the recent supreme court decision of Blagg v. Illinois F.W.D. Truck & Equipment Co. (1991), 143 Ill. 2d 188, 572 N.E.2d 920, which addressed the issue of whether a spouse’s loss-of-consortium claim is derivative or an independent cause of action. One of the issues before the supreme court in Blagg was whether the wife’s loss-of-consortium award should be reduced by the comparative fault of William in causing his own injuries, and the court held that for the purposes of comparative negligence, a loss-of-consortium claim is derivative. While Blagg holds that a loss-of-consortium award may be reduced by the comparative negligence of the injured spouse, this is not to say that a loss-of-consortium action is wholly derivative. To the contrary, Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210, Brown v. Metzger (1984), 104 Ill. 2d 30, 470 N.E.2d 302, and Page v. Hibbard, (1987), 119 Ill. 2d 41, 518 N.E.2d 69, recognize the fact that the noninjured spouse has a separate and distinct loss-of-consortium claim.

The issue here regarding coverage afforded under the insurance policy provisions is not whether Karla’s award is to be reduced by the comparative fault of David, but whether Karla has a separate and distinct claim for which the policy in question extends coverage. We hold that the loss-of-consortium claim in the instant case is independent of the primary claim to the extent that loss of consortium is a separate bodily injury under the policy.

We conclude, therefore, that the policy involved in this case provides separate coverage for the loss of consortium as a compensable bodily injury and that the trial court erred in entering summary judgment in favor of General Casualty. We hereby reverse the trial court’s decision and remand this cause to the trial court with instructions to enter summary judgment in favor of the McGowans and against General Casualty.

Reversed and remanded with directions.

RARICK, P.J., and GOLDENHERSH, J., concur.


text:
    CARLEEN JOHNSON et al., Plaintiffs-Appellees, v. BELLEVILLE RADIOLOGISTS, LTD., et al., Defendants-Appellants (St. Elizabeth’s Hospital et al., Defendants).
    Fifth District
    No. 5 — 90—0313
    Opinion filed October 23, 1991.

      Peter von Gontard and Jan E. Dodd, both of Sandberg, Phoenix & von Gontard, P.C., of St. Louis, Missouri, for appellants.
    Philip C. Denton, of Hullverson Law Firm, of St. Louis, Missouri, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiffs brought this action for medical malpractice and claimed Carleen was rendered infertile because two surgical sponges were left in her abdomen following a caesarean delivery. Her husband, Mark Johnson, brought a claim for loss of consortium. Plaintiffs’ claim against Dr. Fred Mueller was dismissed before trial, and his role in this cause is not involved in this appeal.

The case was called for jury trial in December 1989. After voir dire and prior to opening statements, plaintiffs announced that they had reached a settlement agreement with St. Elizabeth’s Hospital and Dr. Stephen Mueller. A hearing was immediately conducted to obtain court approval of the settlement. During the hearing it was disclosed that the proposed settlement called for each of the settling defendants to pay $170,000 and to be dismissed with prejudice. The total settlement of $340,000 was then apportioned by the plaintiffs’ attorney at $40,000 for Carleen Johnson’s injuries and $300,000 for Mark Johnson’s loss of consortium. The settling defendants took no part in the allocation.

Dr. Lehnert and Belleville Radiologists, Ltd. (Belleville Radiologists), objected to the apportionment of the settlement and argued that it was contrived to circumvent section 2(c) of the Contribution Among Joint Tortfeasor’s Act (Contribution Act) (Ill. Rev. Stat. 1989, ch. 70, par. 302(c)), which provides:

“When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury *** it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.” (Ill. Rev. Stat. 1989, ch. 70, par. 302(c).)

Lehnert and Belleville Radiologists argued that the apportionment would effectively avoid any meaningful setoff anticipated from a jury verdict favoring the plaintiffs. After the hearing the trial court found the amount of settlement was made in good faith and reserved any ruling on the apportionment. The jury ultimately awarded Carleen Johnson $529,600, and Mark Johnson $50,000.

Defendants Lehnert and Belleville Radiologists filed a post-trial motion seeking a setoff of the entire $340,000 from the verdict of $579,600. In the alternative, defendants requested that the trial court reallocate the settlement proceeds to fairly preserve the defendants’ right of setoff. The trial court denied Lehnert’s and Belleville Radiologists’ motions. Their appeal raises three issues: (1) whether the trial court applied the proper standard in approving the settlement allocation; (2) whether the settlement setoff, which is allegedly disproportionate to the jury award, is fair and reasonable; and (3) whether Lehnert and Belleville Radiologists have a right to set off the entire settlement proceeds against the judgment. We believe the three questions presented can be consolidated into two basic issues: (1) whether the settlement, including the allocation, was in good faith pursuant to section 2(c) of the Contribution Act, and (2) whether the entire amount of the settlement should be used as a setoff against the judgment. We affirm.

Illinois public policy favors the peaceful and voluntary resolution of disputes through settlement agreements; any claim that such an agreement is not valid must be proved by clear and convincing evidence. (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 525, 515 N.E.2d 157, 162.) Once the settling parties represent to the court that they have reached a good-faith settlement and present its terms to the court, a presumption of validity arises and the burden of proof on the issue of good-faith shifts to the party challenging the good-faith nature of the settlement. (Pritchard v. Swedish American Hospital (1990), 199 Ill. App. 3d 990, 996-97, 557 N.E.2d 988, 992.) The Contribution Act does not define a good-faith settlement. The circuit court is authorized to determine the good faith of a settlement in a variety of ways: solely upon the arguments of counsel (McKanna, 161 Ill. App. 3d at 526, 515 N.E.2d at 163); or on the basis of affidavits, depositions, and other discovery materials of record (Melzer v. Bausch & Lomb, Inc. (1989), 193 Ill. App. 3d 59, 62, 549 N.E.2d 817, 820); or after conducting an evidentiary hearing (see Lorenz v. Air Illinois, Inc. (1988), 168 Ill. App. 3d 1060, 522 N.E.2d 1352). In assessing good faith, the court must consider all of the circumstances surrounding the settlement. Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 122, 499 N.E.2d 1373, 1380; Snoddy v. Teepak, Inc. (1990), 198 Ill. App. 3d 966, 969, 556 N.E.2d 682, 684.

Lehnert and Belleville Radiologists point out that the jury returned a verdict 10 times greater for the wife’s claim than for the husband’s consortium claim, while the settlement allocated nine times more to the husband’s claim than to the wife’s. Defendants argue that there is no basis in the record to support the greater allocation to the consortium claim. Defendants claim that their objection to the apportionment is not based on hindsight following the return of the verdict, but rather on common sense. They submit that a settlement apportionment should not be out of line with the sums which the injured party and spouse would foreseeably recover by way of judgment. They urge this court to find that this settlement apportionment is unsupported by the record and is, therefore, erroneous.

In testing a pretrial settlement for good faith, the Illinois courts have rejected the “ratio test,” which compares the amounts of settlements with verdicts ultimately returned (Doellman v. Warner & Swasey Co. (1986), 147 Ill. App. 3d 842, 849, 498 N.E.2d 690, 696; Ballweg v. City of Springfield (1984), 130 Ill. App. 3d 241, 473 N.E.2d 342, aff’d in part, rev’d in part (1986), 114 Ill. 2d 107, 499 N.E.2d 1373; Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792), and treat it as only one factor in determining good faith because damage awards are often difficult to predict. (O’Connor v. Pinto Trucking Service, Inc. (1986), 149 Ill. App. 3d 911, 501 N.E.2d 263; Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 484 N.E.2d 1232.) We find the reasoning adopted in those cases testing good faith applicable to the issue at bar. Just as “ ‘[i]t is virtually impossible to use an unknown factor; i.e., the jury’s verdict, to test good faith prior to trial’ ” (Doellman, 147 Ill. App. 3d at 849, 498 N.E.2d at 696, quoting Lowe, 124 Ill. App. 3d at 94, 463 N.E.2d at 803), it is naive to suggest that the trial court has the ability to delve into the minds of the jurors and determine whether the settlement apportionment is in accord with the sums the jury would foreseeably award. Apportionment of a total settlement amount is nothing more than an assignment of a predicted value for more than one claimant’s case to each of those claimants. The amount of a settlement might legitimately be far different from a damage award which results from full litigation. Snoddy, 198 Ill. App. 3d at 970, 556 N.E.2d at 685.

In this case the circuit court’s order confirms that the court did indeed take into consideration the probable verdict and the possibility of an unexpected result:

“Considering all the unique circumstances at the time the case was settled — without the benefit of the foresight [sic] of the actual jury verdict — the Court finds that the Defendants were clearly open to a very large verdict in favor of Mark Johnson since his consortium loss could be considered equivalent to his wife’s loss of fertility. On the other hand, given the uncontroverted evidence that Carleen would not have become infertile had Dr. Lehnert reported the obvious presence of the surgical sponges in his X-ray report, the jury may have limited Dr. Mueller’s and St. Elizabeth Hospital’s responsibility for damages to no more than those related to a prompt second surgery to remove the sponges. Hence, a small payment by Dr. Mueller and the hospital to Carleen to cover bills, lost wages and some slight disfigurement can be soundly justified.”

Settlement was reached prior to trial when the amount of plaintiffs’ recovery was uncertain. Based on the foregoing, we cannot find that the circuit court erred in concluding that the settlement amount and apportionment were in good faith.

Defendants argue that the circuit court applied an improper standard in determining the validity of the settlement. Our attention is drawn to the circuit court’s order wherein it states:

“Dr. Lehnert[ ]at no time before judgment sought leave to file a contribution claim. As a result of his election not to file a contribution claim, Dr. Lehnert concedes that his claim for contribution is barred under the holding of the Illinois Supreme Court in Lome v. Leifheit, 105 Ill. 2d 191, 473 N.E.2d 939 (1985).
In this context, the Court finds that Dr. Lehnert has waived his objection that the settlement was not given in good faith. This conclusion is supported by Dr. Lehnert’s counsel’s comment on the record ***
‘So I don’t quarrel with those settling Defendants’ opportunities to each offer $170,000 to be free from the litigation except to the extent that it is used ... fraudulently or at least in bad faith to try to defeat a valid and appropriate setoff in the full amount of the settlement, which is $340,000 and not $40,000.’ ***
This statement does not object to the good faith aspect of the settlement, but rather requests the court to interpret the settlement in a manner not intended or acquiesced in by the settling parties.
* * *
*** [A]ll parties agreed to or ratified the apportionment between Mark and Carleen ***.”

Defendants contend that it is clear that the circuit court premised its findings on the conclusion that failure to file a claim for contribution waives a party’s ability to contest the good-faith nature of the settlement. Defendants argue that the court’s conclusion is erroneous. They also maintain that even if such a conclusion were not improper, the circuit court should have assessed whether the settlement allocation impaired the rights of the nonsettling parties.

The trial court was mistaken in its conclusion that the defendants’ failure to file a contribution claim constituted a waiver of their position. The provision for a setoff contained in the Contribution Act is not the source of the defendants’ right to a setoff; it is merely a codification of that right. Defendants were entitled to a setoff at common law. (New York, Chicago & St. Louis R.R. Co. v. American Transit Lines, Inc. (1951), 408 Ill. 336, 97 N.E.2d 264.) Defendants objected to the settlement allocation immediately upon learning of the settlement. Therefore, the trial court’s reliance on the defendants’ failure to file a contribution counterclaim as indicative of waiver was improper.

In another part of its order the trial court went on to state that even though it need not decide the issue of the appropriateness of the allocation, because of the defendants’ waiver, it had in fact already done so in an earlier ruling and reaffirmed that position. Immediately following this statement, the trial court states that all parties had agreed to or ratified the settlement. This latter statement is incorrect; the defendants clearly objected at the first revelation of the settlement and continued to maintain their position that the allocation was inappropriate throughout the remainder of the proceedings. Therefore, defendants have not waived their position. However, even though the trial court mistakenly thought there was a waiver either because of defendants’ failure to file a counterclaim or because of counsel’s statement, it nevertheless did consider and rule upon the appropriateness of the allocation.

The defendants contend that the allocation was no more than a manipulation by the plaintiffs which enabled them to make a double recovery, to obtain more than the jury actually intended them to receive.

The jury awarded Carleen $529,600 and Mark $50,000 for a total of $579,600. Lehnert and Belleville Radiologists are required to pay that portion of the jury verdict not covered by the settlement. Defendants argue that the pretrial settlement allocation denied them any meaningful setoff because $250,000 of Mark’s settlement proceeds were not available as a setoff since the jury only awarded him $50,000. In addition, only the $40,000 allocated to Carleen was available as a setoff against her $529,600 verdict. They contend that because of the ill-apportioned settlement, plaintiffs’ total recovery is increased by $250,000. To illustrate, if the total verdict of $579,600 was reduced by the total settlement of $340,000, Lehnert and Belleville Radiologists’ liability would be $239,600. However, if the wife’s verdict of $529,600 was reduced only by her apportioned settlement of $40,000, Lehnert and Belleville Radiologists’ liability would be $489,600. No amount would be due from defendants with regard to the husband because his $50,000 verdict was satisfied by the settlement.

Defendants rely upon Page v. Hibbard (1987), 119 Ill. 2d 41, 518 N.E.2d 69, and Blagg v. Illinois F.W.D. Truck & Equipment Co. (1991), 143 Ill. 2d 188, 572 N.E.2d 920, to support their contention that allocation of a settlement involving consortium claims should be closely scrutinized to prevent the injustice which they claim occurred in this case. They contend that an allocation which results in reduction of the setoff potential to the remaining defendants prevents the settlement from being in good faith.

We must reject this contention. In a multiparty case there are many factors to be considered in effecting a settlement agreement. The first and most obvious consideration is the total amount of money involved. Each plaintiff is interested in obtaining the greatest amount of money for his or her claim, and each defendant is desirous of contributing the smallest amount toward the settlement. With this overall concept in mind the differences between the sides and among the parties on either side can multiply rapidly.

There may be a significant disparity between the value plaintiffs place on their loss and the value the defendants place on that same loss. There may be a dispute as to just what the loss is: is the injury permanent; if not, how far into the future is it likely to persist? There may be disputes among the individual plaintiffs as to the value of their respective claims and among individual defendants as to the extent of their relative culpabilities. The extent to which any party is risk averse or risk prone will also effect its desire to settle the case or to gamble on the result of a trial.

These are only a few of the broad factors that are taken into consideration in the settlement of a case. Subsumed within them are the relative abilities of counsel, the appearance and potential jury appeal of the parties, pending evidentiary and other legal issues, the makeup of the jury, and the parties’ perception of the attitude of the court toward the type of the case involved. Superimposed upon all of this are the dynamics of the settlement process itself. Someone has to begin it; generally, it is the plaintiff who opens with a demand to which some response in the way of an offer is made. At this point matters can become more complicated. Multiple plaintiffs may have given a single joint demand or they may have submitted individual demands. Multiple defendants may have made their offer individually or as a single joint response. Individual defendants may have made their offers dependent upon any of several conditions: an offer may be contingent upon the entire case being settled; an offer of “X” dollars may be made, but only if each of the other defendants also pays “X” dollars or some percentage of that amount; an offer may be contingent upon a court finding of a good-faith settlement under the Contribution Act so that they will not be subjected to continued litigation and/or risk after the settlement.

Since settlement with any defendant provides the remaining defendants with a setoff of the settlement amount, there is a certain temptation for each defendant to be recalcitrant.

The situation that can occur during settlement negotiations is similar to the one described by economists as the “free rider problem.” (C. Goetz, Law & Economics 24-29 (1984).) If we assume there is a private bridge that leads to four houses and requires maintenance of $400 per year, we might conclude that a fair distribution of that maintenance fee would be for each of the home owners, A through D, to voluntarily pay $100 toward the maintenance of the bridge. The problem is that the bridge must have the $400 in maintenance each year or none of the home owners can safely use it. Therefore, if Mr. “A” wants to cross his bridge in peace following a hard day’s work (and if he is more of a risk averter than B, C, or D), he may be willing to pay more than his $100 share. Once any of the homeowners pays more than $100, each of the remaining homeowners’ responsibility is reduced. It is, therefore, perfectly logical for each of them to look to the others to pay first and to hope that any or all of the first payors will reduce their eventual payment. Under these circumstances, recalcitrance rewards.

We do not mean to imply any connotation of moral, legal, or ethical disapprobation by the use of the words temptation and recalcitrant. We are not critical of any counsel in litigation who advises his client, “I think our chances of winning the case are 50/50. I estimate the verdict range at $200-400,000, let’s say it’s $300,000. Therefore, I estimate our own potential risk at 50% of $300,000, or $150,000. If the other three defendants’ offer of $50,000 each is accepted, we would be entitled to a setoff of $150,000 which is what our theoretical exposure is, i.e., the plaintiff has to get a verdict against us of over $150,000 before we pay anything. Therefore, my advice is offer nothing, try the case.” This is perfectly sound and logical legal advice, and if it is given and followed in every multiparty case, very few of such cases will ever be completely settled. Given that the settlement of cases is one of the goals of the Contribution Act (Rakowski v. Lucente (1984), 104 Ill. 2d 317, 325, 472 N.E.2d 791, 795), the question which arises is how the plaintiffs and the defendants who are willing to settle deal with recalcitrant defendants.

There are several ways. First, the use of a loan agreement. While the loan agreement has been characterized as a device created to ameliorate the harsh results of the no-contribution rule (Henry v. St. John’s Hospital (1990), 138 Ill. 2d 533, 563 N.E.2d 410), it also has the distinct, practical advantage of depriving recalcitrant defendants of the benefit of a setoff. A second tool is the Contribution Act itself, which allows settling defendants to pay the entire claim, obtain the remaining defendants' names on the release, and then pursue the remaining defendant for the amount they feel they have paid in excess of their culpability. Another way that is not available in all cases is the allocation of settlement proceeds among plaintiffs in a way that is intended to put pressure to settle on the remaining defendant.

We note that the record in this case does not reflect that the plaintiffs allocated the settlement proceeds solely to pressure the defendants into settling. In fact plaintiffs deny any such motivation. Plaintiffs’ counsel argues that: (1) he felt that Mark’s claim was almost as substantial as Carleen’s because he too had been deprived of the ability to have additional children, and (2) even though in counsel’s estimation the claims came close to having the same value, he was concerned that the jury might not view them in the same way. If the jury viewed Carleen’s claim as the more significant injury, then Mark could be undercompensated. Plaintiffs’ counsel contends that he allocated more of the settlement proceeds to Mark to overcome the potential jury bias in Carleen’s favor. We have engaged in the somewhat lengthy discussion on allocation as a method of pressuring remaining defendants not because we are unaware of plaintiffs’ counsel’s denial of the use of the method, but because we think it should be made clear that, even if plaintiffs had pressure application as a motive of the allocation, that motivation alone does not necessarily establish bad faith on the part of the plaintiffs and the settling defendants. Manipulation of an allocation can be evidence of bad faith in a settlement negotiation, but it is not per se bad faith to engage in such a manipulation. In other words, the policy of effectuating settlements that is one of the policies of the Contribution Act can be achieved by allocations such as the one involved in this case. Therefore, an allocation made by that process may be in good faith.

Both parties cite the case of Blagg v. Illinois F.W.D. Truck & Equipment Co. (1989), 186 Ill. App. 3d 955, 542 N.E.2d 1294, which denied good-faith status to a settlement. Since the instant appeal was argued that decision has been affirmed by the supreme court. (Blagg, 143 Ill. 2d 188, 572 N.E.2d 920.) The settlement at issue in Blagg concerned the allocation of recovery for loss of consortium in light of a worker’s compensation lien. Section 5(b) of the Workers’ Compensation Act provides that an employer who has compensated an employee has a right to reimbursement from any compensation the employee receives from a suit against a third party. (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).) The court explained:

“It is of utmost importance that the trial court protect an employer’s lien. When a settlement agreement allocates an award between an employee’s claim for personal injuries and a spouse’s claim for loss of consortium, the trial court must closely scrutinize the agreement so that an employer’s rights are not abused.” (Blagg, 143 Ill. 2d at 195, 572 N.E.2d at 924.)

Even though there is no lien warranting protection in the instant case, the requirement of good faith in allocating a settlement is applicable here. However, because we are not dealing with an employer’s lien, as in Blagg, the question becomes “what constitutes good faith in allocating the settlement and can parties act in good faith if they allocate settlement proceeds to reduce setoff?”

The Contribution Act contemplates settlement as a goal. (Ill. Rev. Stat. 1989, ch. 70, pars. 302, 303, 304.) This goal would be thwarted were we to adopt defendants’ suggestion of interfering in the apportionment of settlements where a settlement is otherwise made in good faith.

“[A] party refusing to settle a case on agreed terms *** always risks that he will be exposed to enhanced liability by that refusal. This is implicit in the very nature of a settlement: a party either compromises in return for the certainty of a fixed result, or gambles that he will obtain a more advantageous result by taking his case to trial, knowing that he risks losing by that gamble. ***
* * *
*** [Appellant's argument would take from appellee and those in appellee’s position the ability to settle their own cases, and would rather effectively place veto power over any settlement in the hands of the hardest bargainer ***. ***[I]t seems contradictory to allow one litigant to hold the others hostage to its own intransigence.” (Doellman, 147 Ill. App. 3d at 849-51, 498 N.E.2d at 696.)

Defendants refer to Justice Ryan’s dissenting opinion in Henry v. St. John’s Hospital'.

“Settlement agreements should not be used as an instrument of conspiracy to ‘gang up on’ a nonsettling defendant, thereby shifting a substantial part of the liability to one not a party to the agreement.” (Henry v. St. John’s Hospital, 138 Ill. 2d at 553, 563 N.E.2d at 419.)

As we have indicated earlier, however, there is more to consider than just the nonsettling defendant. Those parties opting to settle should have control over the settlement allocation in order to provide leverage as to the nonsettling parties. To hold otherwise would enable the recalcitrant defendant to dictate that a trial would ensue. This is not the goal of the Contribution Act.

Defendants’ final argument is that because another policy of the Contribution Act is to equitably apportion damages (Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 765, 484 N.E.2d 1232, 1235), we should set off the total settlement to preclude the plaintiffs from receiving a double recovery. Defendants’ suggestion would require that we treat the plaintiffs in this case as a “family unit.” No authority is cited for this theory, and we are not prepared to hold that the amounts awarded in settlement are to be combined for the purposes of setoff simply because the plaintiffs are a “family unit.” Under the defendants’ theory, multiple plaintiffs with any familial relationship would necessarily be treated as a single entity. We can visualize many situations when such treatment would not only be difficult to achieve, but would also be potentially inequitable. For example, if a family unit of a mother, father, and three children were injured in an automobile accident involving two defendants, the appellants would contend that the possibility of settlement manipulations would dictate that the total amount paid for all five claims by defendant one would have to be lumped together as a setoff to benefit defendant two. This bright-line rule would be easy to apply, but like most such rules its ease of application must be balanced against its need and its potential for inequitable results. If we were to adopt defendants’ argument, plaintiffs who are not part of a family unit would not be required to set off their total recovery against the jury’s verdict. To require a setoff of the entire settlement for family units while not requiring such for other types of plaintiffs is inconsistent. Trial courts have been given the discretion to evaluate the good-faith nature of settlements precisely because they are in the best position to make such decisions. As indicated earlier, we find no abuse in the trial court’s decision in this case.

Defendants further contend that the two verdicts here are inseparable and are to be shared by each plaintiff. The parties have not cited any authority, and our research has uncovered none, which holds that a nonsettling defendant is permitted to use the total settlement as a setoff against the jury’s verdict.

The judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CONRAD RENTFROW, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0160
    Opinion filed October 23, 1991.

      Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Conrad Rentfrow, was charged by information in the circuit court of Effingham County with attempted murder (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a)) in the stabbing of his estranged wife, Shirley Ann Rentfrow, one count of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2) in her stabbing, and aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3) in the stabbing of his wife with a knife in excess of three inches in length. The jury returned verdicts of guilty of attempted murder, guilty of armed violence, guilty of aggravated battery, and guilty of an uncharged count of reckless conduct (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 5(a)), which, at defendant’s request, the jury was instructed to consider as a lesser-included offense of the aggravated battery count. The trial court entered judgment only on the attempted murder count, and defendant was sentenced to a 20-year term of imprisonment.

On appeal, defendant contended that he was denied a fair trial when the court, outside of the presence of defendant or his counsel, initiated a discussion with the jurors. Defendant contended the jurors could reasonably infer from that discussion that the judge was attempting to rush a decision. He also contended that the trial court abused its discretion when it refused to grant the jury’s request that defendant’s and the complainant’s testimony be “read back” to them. Defendant asked that his appellate counsel raise, inter alia, the issue of inconsistent verdicts. In a letter to defendant, his appellate counsel declined to do so, stating that this issue and other contentions raised by defendant were not of any value on appeal.

Following this court’s decision affirming defendant’s conviction (People v. Rentfrow (1984), 125 Ill. App. 3d 1181, 481 N.E.2d 371 (unpublished Rule 23 order)), defendant filed a pro se post-conviction petition alleging, inter alia, that his appellate counsel was incompetent for failing to raise the issue of the inconsistent verdicts returned by the jury. The public defender was appointed to represent defendant at post-conviction hearing proceedings and filed an amended petition for post-conviction relief asserting that defendant’s appellate counsel was incompetent for failing to raise the inconsistent verdict issue. Defendant’s post-conviction petition was denied by the trial court, and it is from this denial that defendant takes his appeal. The decision of the trial court is reversed, and the cause is remanded for a new trial on all counts.

At the time of defendant’s direct appeal in 1983, it was well-established law that where inconsistent guilty verdicts are returned, the defendant is entitled to a reversal of the judgment and a remand of the cause for a new trial on all counts. (People v. Hairston (1970), 46 Ill. 2d 348, 361, 263 N.E.2d 840, 849.) This has long been the case where inconsistent verdicts of guilty were returned on separate indictments or on separate counts of a single indictment. People v. Turner (1930), 256 Ill. App. 493 (guilty verdicts on both burglary and receiving stolen property); Tobin v. People (1882), 104 Ill. 565 (guilty verdicts on larceny and receiving stolen property).

The return of guilty verdicts on attempted murder, armed violence, aggravated battery, and reckless conduct is legally inconsistent. Despite the fact that all four charges to the jury were based on the single stab wound to defendant’s estranged wife, the jury, by its guilty verdicts, found in effect that defendant acted recklessly (reckless conduct), intentionally (attempted murder), and knowingly (armed violence) based on attempted murder or aggravated battery. These decisions are legally inconsistent under Hairston.

The supreme court’s position in Hairston was reaffirmed in cases which were decided subsequent to defendant’s direct appeal: People v. Spears (1986), 112 Ill. 2d 396, 493 N.E.2d 1030; People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203; People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335; and People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233.

In Spears, the defendant was charged with attempted murder and two counts of armed violence. The jury returned guilty verdicts on all counts, including two uncharged counts of reckless conduct. Judgment was entered on the attempted murder and armed violence counts. In reversing and remanding, our supreme court stated:

“It is well established that where inconsistent guilty verdicts are returned, the defendant is entitled to a reversal of the judgment and a remand of the cause for a new trial on all counts. (People v. Almo (1985), 108 Ill. 2d 54, 62-63[, 483 N.E.2d 203, 206]; People v. Hoffer (1985), 106 Ill. 2d 186, 195[, 478 N.E.2d 335, 340]; People v. Frias (1983), 99 Ill. 2d 193, 203[, 457 N.E.2d 1233, 1238]; People v. Hairston (1970), 46 Ill. 2d 348, 361[, 263 N.E.2d 840, 849].) By returning guilty verdicts for reckless conduct and attempted murder, the jury necessarily found mutually inconsistent mental states to exist when defendant shot and wounded Barbara.” People v. Spears, 112 Ill. 2d at 407, 493 N.E.2d at 1035.

Earlier, in Almo, the court gave this analysis of a similar situation:

“In this case, the trial judge received the verdicts and, upon reading them, realized that the convictions of murder and voluntary manslaughter were inconsistent.
At this point, the duty of the circuit judge was to preserve the integrity of the trial. We know from People v. Hoffer [(1985), 106 Ill. 2d 186, 478 N.E.2d 335] that had the trial judge accepted both the voluntary manslaughter and murder verdicts, he would have been in error, and eventually the defendant would have been given a new trial at considerable expense to the State and inconvenience to all. In this case, the trial judge avoided that difficulty by sending the jury back to continue its deliberations. He had no choice. Since the two verdicts were legally inconsistent, he could not enter judgment on one and vacate the other. He had no way of knowing which of the two verdicts was intended by the jury and which was a result of some misconception. If the judge entered judgment on murder and vacated the voluntary-manslaughter conviction, he risked convicting the defendant of more than the jury intended. On the other hand, if he entered judgment on voluntary manslaughter only, he might be acquitting the defendant of murder contrary to what the jury had in fact found. In a jury trial, it is the jury’s duty to determine innocence or guilt in accord with the law. The court could not usurp that jury function by second-guessing what the jury really meant.” People v. Almo, 108 Ill. 2d at 63-64, 483 N.E.2d at 207.

The court in Spears gave direction for the circuit court when faced with inconsistent verdicts:

“In the case at bar, the instructions on the reckless-conduct counts were tendered, at the defendant’s request, to provide the jury with an alternative which would exonerate the defendant of the greater charges. As such, the trial judge had a duty to apprise the jury that it could find the defendant guilty of the lesser or greater offenses, but not both. When the jury returned with inconsistent guilty verdicts, the trial judge had a duty to send the jury back for further deliberations consistent with new instructions to resolve the inconsistency. We noted in Almo that a trial judge faced with inconsistent guilty verdicts may not properly enter judgment on one or more of the verdicts and vacate the others. Where inconsistent verdicts are returned, a trial judge may not usurp the function of a jury by second-guessing ‘which of the two verdicts was intended by the jury and which was a result of some misconception.’ (People v. Almo (1985), 108 Ill. 2d 54, 63-64[, 483 N.E.2d 203, 207].) Since the trial court here failed to take either the preventative step of instructing the jury that it could not consistently return guilty verdicts for both the greater and lesser offenses, or the remedial action approved in Almo, the cause must be remanded for a new trial on all counts.” People v. Spears, 112 Ill. 2d at 410, 493 N.E.2d at 1036.

The State’s reliance on People v. Dawson (1975), 60 Ill. 2d 278, 326 N.E.2d 775, for the proposition that at the time of the decision the supreme court had apparently abandoned inconsistency of verdicts as a ground for reversal, is misplaced. The Dawson case held that there was no inconsistency of verdicts where the defendant had been convicted of armed robbery but acquitted of felony murder based on armed robbery. The court rejected the defendant’s argument that the verdict of guilty as to armed robbery was inconsistent with the acquittal of felony murder. The supreme court held that while logically inconsistent, the decisions were not legally inconsistent, and that it was to be presumed that the inconsistency stemmed from the jury’s exercise of its “historic power of lenity.” In the case at bar, lenity did not enter into the equation.

The appellate court decisions cited by the State as following Dawson in upholding inconsistent jury verdicts are inapposite to the instant case. People v. O’Malley (1982), 108 Ill. App. 3d 823, 439 N.E.2d 998, and People v. Johnson (1980), 87 Ill. App. 3d 306, 409 N.E.2d 48, dealt with inconsistency between acquittals and guilty verdicts. People v. Harris (1982), 104 Ill. App. 3d 833, 433 N.E.2d 343, found that jury verdicts finding a defendant guilty of aggravated battery and reckless conduct were not legally inconsistent but vacated the conviction for reckless conduct because it was held to be a lesser-included offense of aggravated battery.

The State further argues that defendant waived the issue of inconsistent verdicts by not raising it on direct appeal. We disagree. The issue of inconsistent verdicts was preserved for appeal both through defendant’s post-trial motions and defendant’s request that the appellate defender argue the inconsistent verdict issue in support of his appeal of his conviction.

It is therefore ordered that defendant’s conviction for the offense of attempted murder be reversed, the verdicts of guilty of attempted murder, armed violence, aggravated battery, and reckless conduct be vacated, and the cause be remanded for new trial on all counts.

Reversed and remanded.

RARICK, P.J., and HOWERTON, J., concur.


author:
JUSTICE HARRISON
      JUSTICE CHAPMAN,

text:
    PAUL WILLIAMS III, Plaintiff-Appellant, v. DANIEL J. FISCHER, Indiv. and as Coroner of Marion County, Defendant-Appellee.
    Fifth District
    No. 5 — 90—0757
    Opinion filed October 23, 1991.
    CHAPMAN, J., specially concurring.

      Roger C. Denton, of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogará, of Belleville, for appellant.
    Byron D. Knight and Janella L. Barbrow, both of Knight, Hoppe, Fanning & Knight, Ltd., of Park Ridge, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Daniel J. Fischer, is the coroner of Marion County. As coroner, he is required to issue a death certificate following investigation of “the cause and circumstances of any death coming within his jurisdiction.” (Ill. Rev. Stat. 1989, ch. 34, par. 3 — 3018.) In the exercise of that statutory responsibility, defendant issued a death certificate for Nina M. Cheatum, who died while residing in the nursing home where plaintiff, Paul Williams, III, was employed as a nurse. On the death certificate, defendant wrote that Cheatum had died of cardiopulmonary arrest “due to, or as a consequence of[,] medication dosage misadventure due, to [sic] or as a consequence of[,] 35 units NPH insulin administered intravenous [sic].” Defendant later issued a corrected death certificate which indicated that the “I.V. administration of 35 units NPH insulin” was a “significant condition contributing to [Cheatum’s] death but not resulting in the underlying cause.” Based on these statements, plaintiff filed a defamation action against defendant in the circuit court of Marion County. On defendant’s motion, plaintiff’s cause of action was dismissed with prejudice. Plaintiff now appeals. We affirm.

Under the common law of Illinois, an official of the executive branch of State or local government cannot be held liable for statements made within the scope of his official duties. (Dolatowski v. Life Printing & Publishing Co. (1990), 197 Ill. App. 3d 23, 28, 554 N.E.2d 692, 695.) Defendant here was such an official, and his allegedly defamatory statements were clearly made within the scope of his official duties as county coroner. What defendant wrote on Cheatum’s death certificates was therefore absolutely privileged and could not serve as the predicate for a civil defamation action against him. (197 Ill. App. 3d at 29, 554 N.E.2d at 695; Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 425-26, 495 N.E.2d 1159, 1164.) Accordingly, the judgment of the circuit court of Marion County dismissing plaintiff’s cause of action with prejudice is affirmed.

Affirmed.

HOWERTON, J., concurs.

JUSTICE CHAPMAN,

specially concurring:

I concur in the result because it is required under the supreme court’s decision of Blair v. Walker (1976), 64 Ill. 2d 1, 349 N.E.2d 385.1 write separately for two reasons: first, I am concerned that the majority’s opinion is another in a line of cases which could be construed to mean that a public official can never be liable for statements made in his official capacity; second, I think that the broad holding of Blair warrants reexamination.

I realize that our supreme court has ruled that absolute immunity for executives is necessary. Blair v. Walker (1976), 64 Ill. 2d 1, 349 N.E.2d 385:

“While it is unfortunate that the application of executive immunity may occasionally deny relief to a deserving individual, the sacrifice is justified by the public’s need for free and unfettered action by its representatives.” Blair, 64 Ill. 2d at 11, 349 N.E.2d at 389.

I submit that the Blair concern can be just as validly viewed from another angle. Free and open criticism of government officials has always been one of the hallmarks of a democratic society. This basic policy goal, however, is not without its limitations; critics of government officials cannot maliciously lie about those they oppose. Therefore, if a challenger in an election defames his opponent, the challenger could be subject to liability. Under the doctrine of absolute immunity, the same is not as true of the incumbent. A person holding an office is free to malign the challenger in the worst way, and if he can, by any stretch of the imagination, maintain that his statements are necessary because of his official capacity, he can wrap himself in a cloak of absolute immunity. As Chief Justice Warren said in his dissent in Barr v. Matteo:

“The public interest in limiting libel suits against officers in order that the public might be adequately informed is paralleled by another interest of equal importance: that of preserving the opportunity to criticize the administration of our Government and the action of its officials without being subjected to unfair — and absolutely privileged — retorts. If it is important to permit government officials absolute freedom to say anything they wish in the name of public information, it is at least as important to preserve and foster public discussion concerning our Government and its operation.” Barr v. Matteo (1959), 360 U.S. 564, 584-85, 3 L. Ed. 2d 1434, 1449, 79 S. Ct. 1335, 1346 (Warren, C.J., dissenting).

The doctrine of absolute immunity for executives in Illinois was adopted in Blair, and Blair relied heavily on Barr v. Matteo. While the dissents in Barr challenge its holding on several grounds, the basis of the majority’s holding is:

“We are called upon in this case to weigh in a particular context two considerations of high importance which now and again come into sharp conflict — on the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.” (Barr v. Matteo (1959), 360 U.S. 564, 564-65, 3 L. Ed. 2d 1434, 1437-38, 79 S. Ct. 1335, 1336.)

I would submit that the majority’s concern about “vindictive or ill-founded damage suits” may no longer be the compelling basis it was in the time of Barr. At that time a wrongfully charged civil litigant did not have the tools furnished by the present day Federal Rule 11 (Fed. R. Civ. R 11). The 1983 amendments to Rule 11 marked a dramatic shift in attitudes toward the use of sanctions to discourage these suits (Nelken, Sanctions Under Amended Federal Rule 11 — Some “Chilling” Problems in the Struggle Between Compensation & Punishment, 74 Geo. L.J. 1313, 1321 (1986)) and were intended to reduce the reluctance of courts to impose sanctions in order to protect against such “ill-founded” actions. (Fed. R. Civ. P. 11, Advisory Committee’s note.) Having once been viewed as meaningless and soft, the new provisions of Rule 11 emphasize and give teeth to its policing function. Sanctions, 74 Geo. L.J. at 1316.

Finally, the cases cited by the majority express a familiar concern that, absent the claim of absolute immunity, public officials would be so inundated with claims they would fail to make the pronouncements required by the duties of their offices. It is unfortunate that almost every time an aggrieved person seeks recourse, the age-old threat of “opening a Pandora’s box” or the more recent and ecologically frightening “opening the floodgates of litigation” is summoned up to deny access to the courts. Sound empirical support for such claims is as rare as the threats are frequent.