{ "id": 3508580, "name": "AMERICAN PHARMASEAL, Plaintiff-Appellee, v. TEC SYSTEMS, Defendant-Appellant", "name_abbreviation": "American Pharmaseal v. TEC System", "decision_date": "1987-10-30", "docket_number": "No. 2-86-1098", "first_page": "351", "last_page": "361", "citations": [ { "type": "official", "cite": "162 Ill. App. 3d 351" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "114 Ill. App. 3d 563", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592075 ], "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0563-01" ] }, { "cite": "133 Ill. App. 3d 119", "category": "reporters:state", "reporter": "Ill. 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App.", "case_ids": [ 5652842 ], "year": 1925, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-app/329/0023-01" ] }, { "cite": "172 Ill. 407", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3173587 ], "year": 1946, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/ill/172/0407-01" ] }, { "cite": "271 Ill. 437", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4816306 ], "year": 1898, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/ill/271/0437-01" ] }, { "cite": "125 Ill. App. 3d 1053", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2487463 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "231" }, { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0229-01" ] }, { "cite": "99 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3099208 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0001-01" ] }, { "cite": "380 N.W.2d 440", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 6, "pin_cites": [ { "page": "441-43" }, { "page": "444" }, { "page": "456" } ], "opinion_index": 0 }, { "cite": "424 Mich. 166", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 2001943 ], "weight": 6, "pin_cites": [ { "page": "172-76" }, { "page": "178" }, { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/mich/424/0166-01" ] } ], "analysis": { "cardinality": 983, "char_count": 22358, "ocr_confidence": 0.743, "pagerank": { "raw": 2.3917266229180996e-07, "percentile": 0.7979523130499114 }, "sha256": "4bd447042a5612698f09775923ce694ea45a303829b9d1f12c03a080f01ed9ec", "simhash": "1:3bcf5de4e3451440", "word_count": 3584 }, "last_updated": "2023-07-14T21:56:31.562358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "AMERICAN PHARMASEAL, Plaintiff-Appellee, v. TEC SYSTEMS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nPlaintiff, American Pharmaseal, brought a products liability-action against defendant-appellant, TEC Systems (TEC), and three other defendants for property damages resulting from an explosion and fire at plaintiffs plant in March 1982. The fire began when fumes passing through a pollution control device (called an afterburner) manufactured by TEC ignited, causing a flashback fire and explosion. The afterburner was designed to dispose of volatile fumes generated by a laminating machine used in plaintiff\u2019s business, and the two machines were connected by a series of ducts. The other defendants were: GFG Corporation (GFG), manufacturer of the laminator; Fredriksen & Sons Fire Equipment Company (Fredriksen), the supplier of plaintiff\u2019s fire suppression system; and Greg Thomas Heating and Cooling (Greg Thomas), which installed the ductwork.\nOn March 3, 1986, the first day of trial, plaintiff settled with Greg Thomas and Fredriksen and filed its third amended complaint against the remaining defendants, TEC and GFG, over TEC\u2019s objection. The court gave the defendants until March 10 to file their answers. The parties stipulated orally to the amount of plaintiff\u2019s damages, from which they agreed they would deduct any damages attributed by the jury to plaintiff\u2019s conduct, and then the settlement amounts. The following day, plaintiff settled with GFG and filed a written version of the stipulation, signed by plaintiff and TEC, which plaintiff had corrected to include the amount of its settlement with GFG.\nOn March 10, after the close of plaintiff\u2019s case, TEC filed its answer, including new affirmative defenses to plaintiff\u2019s breach of warranty counts. The court struck the affirmative defenses on plaintiff\u2019s motion, finding that TEC should have raised the issues in its earlier pleadings and that the new defenses unfairly surprised the plaintiff. Plaintiff then withdrew two of its four claims against TEC and requested that only count I, alleging strict liability in tort, and count IV, alleging breach of an implied warranty of fitness for a particular purpose, be submitted to the jury. The jury found for plaintiff on both claims, but, on the strict liability count, it found plaintiff responsible for 28% of its damages based on TEC\u2019s assumption of the risk defense. The court entered judgment against TEC in the amount of $155,234 on the strict liability claim, and in the amount of $215,603 on the breach of warranty claim.\nTEC raises the following arguments on appeal: (1) the court erred in determining the amount of TEC\u2019s liability on count I by reversing the agreed order of deductions from plaintiff\u2019s damages, i.e., by deducting the settlement amounts before deducting - plaintiff\u2019s 28% comparative liability; (2) the court erred in striking TEC\u2019s affirmative defenses; (3) the court erred in deleting TEC\u2019s warranty disclaimer before submitting the parties\u2019 purchase contract to the jury; and (4) TEC\u2019s assumption of the risk defense should have applied equally to plaintiff\u2019s breach of warranty claim.\nI\nWe turn first to TEC\u2019s argument that the parties had stipulated not only to the amount of plaintiff\u2019s damages, but to the manner in which the ultimate judgment was to be calculated. The text of the stipulation filed by plaintiff is as follows:\n\u201cThe parties have agreed that as a result of the explosion and fire in the coater-laminator/afterburner system, American Pharmaseal sustained damages in the amount of $395,603. In the event that judgment is entered against one-or-bot-h-of the defendants, the parties agree that the court shall enter judgment in the amount of $395,603 minus any amounts assessed against American Pharmaseal for comparative negligence, then minus $130,000 $180,000 previously received by American Pharmaseal as settlement of its claim against defendants.\u201d (Corrections made in original.)\nThe judgment entered by the court on count I of the complaint (to which the plaintiff\u2019s comparative liability applied) was apparently calculated by deducting the settlement amounts before deducting plaintiff\u2019s comparative liability, as follows:\nTEC filed a post-trial motion challenging, among other things, the court\u2019s disregard for the stipulated method of calculating damages. TEC contends that the stipulation required the amount of judgment to be calculated as follows:\nAfter hearing oral arguments on the issue, the trial court concluded that the parties had not intended the result TEC claims, and that TEC had not adequately supported its contention that the stipulation should be applied literally. It then considered conflicting decisions cited by the parties on the issue of whether a reduction in damages for a plaintiff\u2019s comparative fault should properly precede a deduction for settlement amounts received from other defendants. It concluded that the reasoning of the Michigan Supreme Court in Rittenhouse v. Erhart (1985), 424 Mich. 166, 380 N.W.2d 440, was persuasive in its holding that settlement amounts must be deducted first.\nA stipulation is an agreement made by the parties with regard to business before the court (see Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1), and which may concern or resolve any matter involving the stipulating parties\u2019 individual rights. (See, e.g., Swank v. Bertuca (1976), 41 Ill. App. 3d 229, 231; Central Illinois Public Service Co. v. Badgley (1974), 24 Ill. App. 3d 294, 298.) Courts generally favor stipulations that are designed to save costs or to settle or simplify litigation (Swank v. Bertuca (1976), 41 Ill. App. 3d 229, 232; Central Illinois Public Service Co. v. Badgley (1974), 24 Ill. App. 3d 294, 298) and will enforce them against parties who have assented unless the stipulation is shown to be \u201cunreasonable, the result of fraud or violative of public policy.\u201d (Commonwealth Edison Co. v. Department of Local Government Affairs (1984), 126 Ill. App. 3d 277, 293; In re Marriage of Brand (1984), 123 Ill. App. 3d 1047, 1051; Catholic Bishop v. Village of Justice (1980), 84 Ill. App. 3d 827, 832.) However, while parties may bind themselves by stipulation, they \u201ccannot bind a court by stipulating to a question of law or the legal effect of facts.\u201d Domagalski v. Industrial Com. (1983), 97 Ill. 2d 228, 235; People v. Saunders (1985), 135 Ill. App. 3d 594, 604.\nThe stipulation in issue here indicates that the parties agreed to the amount of plaintiffs damages and the aggregate amount of plaintiff\u2019s settlements with other parties. The stipulation appears to go farther, however, directing the court as to how it must assess the amount of judgment based on those stipulated facts and any comparative fault the jury might attribute to the plaintiff. That direction in effect purports to bind the court to the legal result the parties have determined must follow from their stipulated facts. In People v. Levisen (1950), 404 Ill. 574, 578-79, our supreme court stated that \u201ca stipulation as to the legal conclusions arising from facts is inoperative. The court cannot be controlled by agreement of counsel on a related question of law.\u201d We believe that, to the extent that it purports to direct the manner in which judgment should be awarded, the stipulation invades the province of the trial court, and we conclude that the court properly disregarded it.\nTEC argues that, even disregarding the stipulation, plaintiffs damages must first be reduced to the extent attributable to plaintiff\u2019s assumption of the risk to give full effect to comparative fault principles. Relying on California and Washington decisions (Lemos v. Eichel (1978), 83 Cal. App. 3d 110, 147 Cal. Rptr. 603; Scott v. Cascade Structures (1983), 100 Wash. 2d 537, 673 P.2d 179), TEC argues that if plaintiff is permitted to deduct the settlement amounts first, the amount that it may not recover due to its own conduct will be less than the percentage the jury apportioned to it. We agree. Using plaintiff\u2019s approach, plaintiff may recover a total of $335,234.16 on its strict liability claim ($155,234.16 judgment against TEC plus $180,000 settlement), or 84.7% of its damages. The jury, however, attributed 28% of the damages to plaintiffs conduct, thereby authorizing its recovery of only 72% of the damages. See Lemos v. Eichel (1978), 83 Cal. App. 3d 110, 118, 147 Cal. Rptr. 603, 606-07.\nPlaintiff\u2019s approach (deducting the settlement amounts first), adopted in a comprehensive decision by the Michigan Supreme Court in Rittenhouse v. Erhart (1985), 424 Mich. 166, 380 N.W.2d 440, and followed by the trial court below, is simply not appropriate under Illinois law. The Rittenhouse court consolidated three cases, in each of which one or more tortfeasors had settled with the plaintiffs. The nonsettling defendants in each case claimed that the juries\u2019 assessment of plaintiffs\u2019 comparative liability must be deducted from the damages before the settlement amounts. (424 Mich. 166, 172-76, 380 N.W.2d 440, 441-43.) The court concluded that there was a fundamental flaw in the nonsettling defendants\u2019 approach \u2014 they had assumed that the juries had assessed plaintiffs\u2019 comparative fault by comparing plaintiffs\u2019 conduct with that of all possible tortfeasors. \u201cRather, the juries only weighed the responsibility of the plaintiffs as to the defendants at trial. It would thus be inaccurate to reduce plaintiffs\u2019 total damages by a percentage which only applies to the trial parties and not all tortfeasors.\u201d (Rittenhouse v. Erhart (1985), 424 Mich. 166, 178, 380 N.W.2d 440, 444. But see Rittenhouse v. Erhart (1985), 424 Mich. 166, 181, 380 N.W.2d 440, 456 (Riley, J., dissenting) (noting that the juries had been instructed to assign a percentage to plaintiff\u2019s fault based on the \u201ctotal combined negligence which caused the plaintiffs injury\") (emphasis in original).) The court conceded that subtracting the settlement amounts first would not give the optimum result in all cases (because settling parties may under- or overcompensate for the damages they in fact caused), but concluded that this approach would more fairly allocate the remaining damages between the plaintiff and nonsettling defendants commensurate with the way the jury had allocated fault between them. 424 Mich. 166, 178-80 n.3, 380 N.W.2d 440, 444-45 n.3.\nThe Missouri Court of Appeals recently reached the same conclusion in Jensen v. ARA Services, Inc. (Mo. App. 1986), 719 S.W.2d 121. The Jensen court held that settlement amounts must be deducted first because, in Missouri, fault is apportioned only among the parties at trial; the verdict form \u201cdoes not allow the jury to allocate fault between the plaintiff and the combined group of those who injured her.\u201d Jensen v. ARA Services, Inc. (Mo. App. 1986), 719 S.W.2d 121, 124.\nIn Illinois, however, a plaintiff\u2019s comparative fault is assessed with respect to the conduct of all who contributed to the injury whether or not they are parties to the lawsuit. \u201cConsideration of the negligence of both parties and nonparties to an action is essential for determining liability commensurate with degree of total fault. *** The purpose of considering the liability of nonparty tortfeasors is *** to determine the extent of plaintiff\u2019s responsibility for his own injuries.\u201d (Bofman v. Material Service Corp. (1984), 125 Ill. App. 3d 1053, 1064.) The comparative fault assigned to a plaintiff by an Illinois jury, therefore, should accurately reflect the percentage of plaintiff\u2019s overall damages actually attributable to plaintiff\u2019s own conduct.\nThe jury in the instant case returned a verdict form containing the following language:\n\u201cAssuming that 100% represents the total combined responsibility of the plaintiff and of the defendant and of other persons for plaintiff\u2019s damages, we find that the percentage attributable solely to plaintiff\u2019s assumption of risk that was a proximate cause of plaintiff\u2019s damage is 28 percent (%).\u201d (Modified Illinois Pattern Jury Instructions, Civil, No. A45.06 (2d ed. Supp. 1986).)\nThe jury inserted 28 as the appropriate figure. We must conclude that the jury evaluated plaintiff\u2019s conduct in relation to that of TEC and all other persons, as the verdict form indicates. There was expert testimony at trial indicating that a damper installed in the duct-work by Greg Thomas was seriously defective and that Fredriksen\u2019s fire suppression system was not functional due to faulty wiring. In fact, plaintiff\u2019s expert testified on cross-examination that of five specific problems in the system, only one was directly attributable to TEC\u2019s afterburner. The jury therefore had ample evidence before it with regard to the contributory conduct of the settling defendants.\nWe note additionally that we cannot accept plaintiff\u2019s contention that deducting the settlement amounts first will encourage settlements under Illinois law, because it is based on the incorrect assumption that Illinois juries compare only the relative conduct of the plaintiff and trial defendants. For example, under newly enacted section 2 \u2014 Ill. of the Code of Civil Procedure (Ill. Rev. Stat., 1986 Supp., ch. 110, par. 2 \u2014 1116), a plaintiff may not recover for any of its damages if its contributory fault accounted for more than 50% of the proximate cause of the injury or damage. If plaintiff\u2019s assumption is correct, the statute will serve as a strong disincentive for Illinois plaintiffs to settle unless they can settle with all defendants, because, with the elimination of each potential trial defendant, plaintiff\u2019s proportionate fault with respect to the remaining defendants would rise, perhaps bringing it dangerously close to exceeding 50%. The new statutory scheme therefore heavily depends on the jury\u2019s ability to evaluate plaintiff\u2019s conduct with regard to all persons, whether or not they are parties to the suit.\nWe believe that the jury evaluated plaintiff\u2019s comparative liability with respect to all causative conduct, and we conclude that its verdict can therefore most accurately be given effect by deducting plaintiff\u2019s comparative liability from its overall damages before deducting the settlement amounts. We therefore hold that the trial court erred in calculating the judgment amount and reduce the damage award on count I to $104,834.16.\nII\nAll of TEC\u2019s remaining arguments relate, directly or indirectly, to the trial court\u2019s alleged error in striking TEC\u2019s affirmative defenses to the breach of warranty counts. TEC essentially contends that, because the court allowed plaintiff to file an amended complaint, it was obligated to permit TEC to file an answer to it, including new affirmative defenses, notwithstanding plaintiff\u2019s having closed its case in the meantime.\nIt is true that, where a plaintiff files an amendment of substance to its complaint, the defendant must be afforded an opportunity to answer the amended complaint. (See Wende v. Chicago City Ry. Co. (1915), 271 Ill. 437, 442; Bauer Grocer Co. v. Zelle (1898), 172 Ill. 407, 413; Kiser v. Kiser (1946), 329 Ill. App. 23, 27; Dahlin v. Maytag Co. (1925), 238 Ill. App. 85, 88-89.) Where the amendment is immaterial, however, a defendant has no absolute right to file a new answer. (61A Am. Jur. 2d Pleading sec. 332 (1981); cf. Meyer v. Meyer (1912), 255 Ill. 436, 440 (finding no error in the trial court\u2019s having entered judgment on an amended bill without requiring the defendant to answer, where the amendment did not change or expand the cause of action or the relief sought).) Plaintiff\u2019s third amended complaint differed from the second only in that it rearranged the claims within the complaint and added more specific allegations of actions or omissions by TEC; it did not raise new claims or issues or seek additional or different relief. TEC\u2019s answer, by contrast, injected two new theories into its defense of the warranty counts: (1) that TEC had disclaimed all warranties except those stated in the purchase contract; and (2) that plaintiff had been contributorily negligent in its use of the afterburner. The answer also incorporated for the first time allegations that plaintiff had misused the afterburner and had not adopted recommended safety measures. We do not believe that the trial court, by permitting TEC to file an answer to plaintiff\u2019s amended complaint, authorized TEC to file a pleading substantially different from its earlier answers if the changes were not necessitated by any new or different claims by plaintiff. In effect, TEC did more than meet the changes made by plaintiff \u2014 it affirmatively amended its answer to plaintiff\u2019s second amended complaint, and we will treat the court\u2019s striking of TEC\u2019s affirmative defenses as a refusal to permit an amendment to TEC\u2019s pleadings.\nIt is within a trial court\u2019s sound discretion to permit or refuse an amendment to pleadings, and its decision will not be reversed on appeal absent a clear abuse of discretion. (See, e.g., DiBenedetto v. County of Du Page (1986), 141 Ill. App. 3d 675, 681; Dick v. Gursoy (1984), 124 Ill. App. 3d 185, 187.) Factors to be considered in evaluating the court\u2019s exercise of discretion include the timeliness of the proposed amendment and whether other parties have been prejudiced or surprised by the amendment. (DiBenedetto v. County of Du Page (1986), 141 Ill. App. 3d 675, 681; Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 377.) TEC contends that plaintiff could not have been surprised or prejudiced by its disclaimer defense because one or more of the other defendants who settled with plaintiff had raised the same or a similar defense. We disagree. Plaintiff had not had the opportunity to prepare for a disclaimer defense by TEC, and therefore had not sought or interviewed potential witnesses, nor had it presented evidence on the issue during its case. Moreover, TEC has offered no satisfactory explanation for its failure to raise these defenses during the four-year period this litigation was pending prior to trial. We find unconvincing TEC\u2019s contention that it had been alerted just before trial by our supreme court\u2019s decision in Casey v. Baseden (1986), 111 Ill. 2d 341, that contributory negligence is an affirmative defense. This does not explain TEC\u2019s failure to raise its disclaimer of warranty defense at an earlier time, or its failure to plead earlier to the warranty counts, as it had to the strict liability count, that plaintiff had misused the product and failed to adopt safety measures suggested by TEC.\nIn DiBenedetto v. County of Du Page (1986), 141 Ill. App. 3d 675, 681-82, this court reversed a trial court\u2019s decision permitting an amendment to defendant\u2019s answer. In that case, as in this one, the defendants had not raised the disputed issue over the extended course of litigation, raising it for the first time at the close of plaintiff\u2019s case. (141 Ill. App. 3d 675, 682.) And, as here, the defendants were unable to give any good reason for their oversight. (141 Ill. App. 3d 675, 682; see also Tate v. Coonce (1981), 97 Ill. App. 3d 145, 148 (finding no error in the court\u2019s refusal to permit adding a new affirmative defense on the day of trial); United Airlines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847, 858 (approving a trial court\u2019s refusal to permit an amendment to the answer after plaintiff had presented its motion for summary judgment); First National Bank & Trust Co. v. Sousanes (1978), 66 Ill. App. 3d 394, 396 (holding that amendments during or on the eve of trial ought not to be permitted if they concern matters known to the pleader at the time of the original pleading and if no good reason is offered for their not having been filed at that time).) We conclude that the trial court did not abuse its discretion in striking the new affirmative defenses, raised for the first time after the close of plaintiff\u2019s case, from TEC\u2019s amended answer. We therefore must also find no error in the trial court\u2019s removing TEC\u2019s disclaimer from the materials submitted to the jury, as the language may have confused the jury and was not relevant to any issue in the case. See, e.g., Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 358; Reynolds v. Alton & Southern Ry. Co. (1983), 115 Ill. App. 3d 88, 97.\nWe reject TEC\u2019s final argument that its assumption of the risk defense ought to have been applied to the breach of warranty claim in the same manner that it was applied to the strict liability count. TEC admits that no Illinois case has yet decided whether a plaintiff\u2019s assumption of the risk may be used as a partial defense to a breach of warranty claim. TEC additionally admits that it did not expressly plead assumption of the risk as an affirmative defense to the breach of warranty counts but argues that its factual allegations denying specific paragraphs of plaintiff\u2019s complaint sufficiently raised the issue. We find it unnecessary to determine whether or not the defense was properly raised in TEC\u2019s final pleading because, even so, it was raised for the first time as to the warranty counts after the plaintiff had closed its case. We find no error in the court\u2019s refusal to permit defendant to add a unique and unprecedented defense theory after the close of plaintiff\u2019s case. We therefore affirm the trial court\u2019s award on plaintiff\u2019s breach of warranty claim.\nWe reduce the damage award on count I to the amount of $104,834.16 and affirm the judgment as modified, and in all other respects.\nJudgment modified and affirmed.\nDUNN and WOODWARD, JJ., concur.\nThe verdict form quoted is a modified version of the standard form applicable where a plaintiff\u2019s contributory negligence is in issue. The standard verdict form must ordinarily be accompanied by IPI Civil, No. A45.05, a similarly worded jury instruction. (Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 133.) We note that the jury was not given the companion instruction. However, because plaintiff did not tender the instruction, it has waived any possible objection to its omission. See, e.g., Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 567.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "Snyder, Clarke, Dalziel & Johnson, of Waukegan (Julian Johnson, of counsel), for appellant.", "William T. Cahill, of Phelan, Pope & John, Ltd., of Chicago (Mary K. Kelly, of counsel), for appellee." ], "corrections": "", "head_matter": "AMERICAN PHARMASEAL, Plaintiff-Appellee, v. TEC SYSTEMS, Defendant-Appellant.\nSecond District\nNo. 2\u201486\u20141098\nOpinion filed October 30, 1987.\nSnyder, Clarke, Dalziel & Johnson, of Waukegan (Julian Johnson, of counsel), for appellant.\nWilliam T. Cahill, of Phelan, Pope & John, Ltd., of Chicago (Mary K. Kelly, of counsel), for appellee." }, "file_name": "0351-01", "first_page_order": 373, "last_page_order": 383 }