Saunders v. Orbitz Worldwide, LLC ( 2023 )

2023 IL App (1st) 221018FIRST DISTRICT
THIRD DIVISION
May 24, 2023
No. 1-22-1018
KILEY SAUNDERS and SARAH SCANLON, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County
)
v. )
)
ORBITZ WORLDWIDE, LLC and RAMSES MEIJER, ) No. 2020 L 05809
Individually, )
)
Defendants, )
)
(Orbitz Worldwide, LLC, )
)
Third-Party Plaintiff-Appellee )
)
v. )
)
Havas Chicago Worldwide, LLC, ) Honorable
) Preston Jones, Jr.
Third-Party Defendant-Appellee). ) Judge, Presiding
OPINION
JUSTICE DEBRA B. WALKER delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.
¶1 Plaintiffs, Kiley Saunders and Sarah Scanlon, appeal the trial court’s judgment that the
Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 2020))
applied to set off a portion of their settlement with Havas Chicago Worldwide, LLC (Havas),
against a potential judgment in their case against defendants Ramses Meijer and Orbitz
Worldwide, LLC (Orbitz). On appeal, plaintiffs contend that the trial court’s determination was
No. 1-22-1018
error where (1) Havas was not a party subject to liability in tort under the Contribution Act, and
(2) the civil rights violations caused by Havas’ misconduct were distinct from the tort injuries
caused by Orbitz’s misconduct. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 Plaintiffs were employed by Havas, an advertising and marketing company. In November
2017, Expedia Group, Inc. (Expedia) hired Havas to create an advertising and marketing campaign
for Orbitz. Meijer managed the Orbitz project and worked directly with Havas employees,
including plaintiffs.
¶4 In December 2019, plaintiffs filed separate charges against Havas with the Illinois
Department of Human Rights (Department), claiming that they were subjected to sexual
harassment and a hostile work environment. Both received a “Notice of Opt Out” of the
Department’s investigative and administrative process, and the Department notified them of their
right to commence an action in circuit court.
¶5 On May 29, 2020, plaintiffs filed a 20-count complaint against Havas, Expedia, and Meijer,
alleging violations of the Gender Violence Act (740 ILCS 82/1 et seq. (West 2020)), negligence,
sexual assault in violation of the Illinois Human Rights Act (775 ILCS 5/1-101 et seq. (West
2020)), assault, battery, and intentional infliction of emotional distress. Plaintiffs alleged that
Meijer raped them after an Expedia-sponsored social event.
¶6 In the complaint, plaintiffs alleged that “Expedia fostered and condoned a corporate culture
that tolerated and promoted sexually-harassing and abusive conduct toward women.” Meijer had
a “long history” of harassing women, which was “well-known at Expedia.” Senior-level executives
at Expedia knew of Meijer’s propensity to make sexual comments toward women, massage the
shoulders of women on his team, and kiss them on the cheek. One supervisor expressed concern
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to plaintiffs about Meijer’s behavior during work-related social outings. Despite this knowledge,
Meijer’s team members “routinely made efforts to explain away [his] lewd, uncomfortable, and
sexually charged language as a vestige of his European upbringing.” Plaintiffs alleged that
Expedia’s failure to address Meijer’s “sexually harassing behavior,” or discipline him, fostered “a
toxic and hostile work environment for women who worked with” Meijer. “As a direct and
proximate result thereof, [plaintiffs] suffered severe emotional distress, anxiety, humiliation,
anguish, embarrassment, degradation, loss of enjoyment of life, and mental pain and suffering.”
¶7 Havas’ employment practices also created “a hostile and sexually-charged and harassing
work environment.” Havas’ sexual harassment policies and training failed to instruct employees
on handling sexually harassing behavior, nor did Havas provide a mechanism for confidential
reporting of misconduct. Rather, “the culture promoted at Havas was that of the quintessential
‘boys club,’ ” where work-related outings consisted of “alcohol-infused social events and
company-expensed trips to strip clubs.” Havas employees were “encouraged and expected to
attend happy hours and other social events with clients to maintain and strengthen client
relationships.”
¶8 After Havas secured Expedia’s business, Havas management “made clear to its employees
that keeping the client happy was a top priority.” As a result, female employees believed they had
to endure Meijer’s “increasingly sexual comments and physical conduct with Havas female
employees.” Although Havas management witnessed Meijer’s “frequent sexual comments and
unwanted physical contact” with female employees, they did nothing “to prevent the foreseeable
attacks” on plaintiffs. “Instead, Havas valued the lucrative contract with its client Expedia over the
safety and well-being of its employees.”
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¶9 Plaintiffs alleged that Havas “failed to take corrective measures to eliminate the ongoing
sexual harassment” and, as “a direct and proximate result of Defendant Havas’ actions and failure
to address the hostile work environment caused by [Meijer’s] sexual harassment,” each plaintiff
has “lost and will continue to lose, income and other employment benefits and has suffered
physical and emotional pain, mental anguish, loss of enjoyment of life, and other non-pecuniary
losses.”
¶ 10 On August 4, 2020, plaintiffs entered into a confidential settlement agreement with Havas.
Plaintiffs moved for leave to file an amended complaint that removed Havas but added Orbitz as
a defendant. On September 16, 2020, Havas was dismissed from the action with prejudice.
¶ 11 On January 6, 2021, the trial court dismissed Expedia from the action where uncontroverted
affidavits established that Orbitz, not Expedia, employed Meijer. On February 8, 2021, plaintiffs
filed their second-amended complaint which removed Expedia as a defendant. Orbitz filed a
motion to dismiss, and the trial court granted the motion as to all counts except those alleging
negligent retention and supervision of Meijer. The negligence counts asserted that Meijer was
acting within the course and scope of employment at all relevant times and that he was unfit to
work directly with women and posed a danger to them. Orbitz knew or should have known of the
risks in employing Meijer. Plaintiffs sought compensatory and punitive damages, damages for
emotional distress, and interest and costs.
¶ 12 On June 14, 2021, Orbitz filed a third-party complaint against Havas for contribution.
Havas filed a motion for a good faith finding on the settlement and dismissal of the third-party
complaint. On March 4, 2022, the trial court granted Havas’ motion, finding that the settlement
between plaintiffs and Havas was reasonable and made in good faith. The proposed order stated
that Havas was discharged from all liability for contribution under the Contribution Act.
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¶ 13 Although Orbitz did not object to the proposed order, it wanted an amendment providing
that if plaintiffs obtained a judgment against Orbitz on the remaining counts, Orbitz was entitled
under the Contribution Act to a set off “equal to the full amount of the settlement between Plaintiffs
and Havas.” Plaintiffs did not agree with the amendment. On June 10, 2022, after briefing and oral
argument, the trial court entered an order finding that the Contribution Act applied and, as a result,
Orbitz was entitled to a setoff of 30% of the total settlement. This represented the settlement
amount allocated for pain and suffering damages. The order gave Orbitz 30 days from the close of
discovery in which to file a motion to reconsider the setoff amount.
¶ 14 The order further stated that the court’s finding that the Contribution Act applied was “a
final judgment” and, pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), there was
no just reason to delay enforcement or appeal of that ruling. The order did not include the court’s
finding that the settlement was reasonable and made in good faith, or its calculation of the amount
of setoff, in its final judgment determination. On July 8, 2022, plaintiffs filed this appeal.
¶ 15 II. ANALYSIS
¶ 16 Plaintiffs contend that the trial court erred in finding that the Contribution Act applied to
their case where Havas was not a party subject to liability in tort, and the injuries caused by Havas’
misconduct were not the same injuries caused by Orbitz’s misconduct. This issue involves
interpretation of the Contribution Act, which we review de novo. Robidoux v. Oliphant, 201 Ill. 2d
324, 332 (2002).
¶ 17 The Contribution Act provides that “where 2 or more persons are subject to liability in tort
arising out of the same injury to person or property, *** there is a right of contribution among
them, even though judgment has not been entered against any or all of them.” 740 ILCS 100/2(a)
(West 2020). This right of contribution exists for a tortfeasor “who has paid more than his pro rata
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share of the common liability, and his total recovery is limited to the amount paid by him in excess
of his pro rata share.” Id. § 2(b). When a party liable in tort arising out of the same injury enters
into a settlement agreement in good faith, the recovery on any claim against the other tortfeasors
may be reduced by any amount stated in the agreement. Id. § 2(c).
¶ 18 The Contribution Act furthers two important public policies by encouraging settlements
and equitably apportioning damages among tortfeasors. Sperl v. Henry, 2018 IL 123132, ¶ 32. To
that end, the Contribution Act focuses “on the culpability of the parties rather than on the precise
legal means by which the plaintiff is ultimately able to make each defendant compensate [them]
for [their] loss.” Doyle v. Rhodes, 101 Ill. 2d 1, 14 (1984). The contribution between tortfeasors
“ ‘is not a recovery for the tort but the enforcement of an equitable duty to share liability for the
wrong done.’ ” Id. (quoting Puller v. Puller, 110 A.2d 175, 177 (Pa. 1955)).
¶ 19 For contribution to apply, however, the Contribution Act requires that the parties be
“subject to liability in tort arising out of the same injury.” 740 ILCS 100/2(a) (West 2020). Liability
in tort in this context means potential tort liability determined at the time of the plaintiff’s injury.
Raab v. Frank, 2019 IL 124641, ¶ 21. A “tort” is a “civil wrong, other than breach of contract, for
which a remedy may be obtained, usu. in the form of damages.” Black’s Law Dictionary (11th ed.
2019); see also Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 195 (1992) (defining
“tort” as “ ‘[a] private or civil wrong or injury *** for which the court will provide a remedy in
the form of an action for damages,’ ” and finding that the plaintiff’s allegations of negligence and
a Illinois Structural Work Act violation fell “within the ambit of the word ‘tort’ ” (quoting Black’s
Law Dictionary 1335 (5th ed. 1979))); Pleasant Hill Cemetery Ass’n v. Morefield, 2013 IL App
(4th) 120645, ¶ 31 (finding that “[a] tort is, by definition, contrary to law—it is a civil wrong, a
breach of a legal duty, for which the law affords a remedy”). If plaintiffs’ underlying claim against
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Havas does not create liability in tort, Orbitz cannot recover on its contribution claim. Raab, 2019
IL 124641, ¶ 21.
¶ 20 For torts based on a theory of common law negligence, there must exist “a duty or an
obligation requiring one to conform to a certain standard of conduct for the protection of another
against an unreasonable risk.” Fancil v. Q.S.E. Foods, Inc., 60 Ill. 2d 552, 554 (1975). A legal duty
necessary to prove tortious conduct, for contribution purposes, may be based either on common
law or on a standard of conduct imposed by statute. People v. Brockman, 143 Ill. 2d 351, 372
(1991).
¶ 21 In Brockman, the State filed a complaint against the defendant for violating provisions of
the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111½, ¶ 1001 et seq.). Brockman, 143
Ill. 2d at 358. The State’s complaint alleged that the defendant caused or allowed waste to be
accepted or deposited on its site, and these violations resulted in the contamination of ground and
surface water. Id. at 359. The defendant filed a third-party action against the generators and
transporters that deposited waste at the site asserting, in relevant part, a claim for contribution
under the Contribution Act. Id. at 359-60. The third-party defendants argued that the Contribution
Act was inapplicable where liability in the case was created by statute and did not sound in tort.
Id. at 371.
¶ 22 Our supreme court disagreed. Pursuant to the Environmental Protection Act, the third-party
defendants had a duty not to contaminate the environment. Id. at 372. The court further found that,
“[a]s a result of the contamination, the State has suffered injury for which it could have maintained
an action for damages.” Id. Although the State sought injunctive relief rather than damages, that
fact did not “convert the conduct into something other than tortious” conduct. Id. at 372-73. The
court concluded that “a violation of the [Environmental Protection Act] creates the potential for
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liability in tort and that it may be a proper predicate for a contribution claim.” Id. at 373.
¶ 23 Here, Havas’ liability for plaintiffs’ injuries stems from the Human Rights Act. Therefore,
we must determine whether a violation of the Human Rights Act, like a violation of the
Environmental Protection Act, creates the potential for liability in tort as required by the
Contribution Act.
¶ 24 The Human Rights Act provides that it is the public policy of Illinois “[t]o prevent sexual
harassment in employment.” 775 ILCS 5/1-102(B) (West 2020). Accordingly, it is a civil rights
violation:
“[f]or any employer, employee, agent of any employer, employment agency or labor
organization to engage in sexual harassment; provided, that an employer shall be
responsible for sexual harassment of the employer’s employees by nonemployees or
nonmanagerial and nonsupervisory employees only if the employer becomes aware of the
conduct and fails to take reasonable corrective measures.” Id. § 2-102(D).
“Sexual harassment” is defined as:
“any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual
nature when (1) submission to such conduct is made either explicitly or implicitly a term
or condition of an individual’s employment, (2) submission to or rejection of such conduct
by an individual is used as the basis for employment decisions affecting such individual,
or (3) such conduct has the purpose or effect of substantially interfering with an
individual’s work performance or creating an intimidating, hostile or offensive working
environment.” Id. § 2-101(E).
¶ 25 Under the Human Rights Act, it is a civil rights violation for an employer to engage in or
condone the sexual harassment of its employees. The statute establishes a standard of conduct that
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imposes a duty upon employers like Havas to address any sexual harassment of which they have
knowledge.
¶ 26 Plaintiffs’ original complaint alleged that Havas “knew about [Meijer’s] sexually harassing
behavior towards female employees at Havas, yet ignored [Meijer’s] conduct *** because Havas
did not want to lose Expedia as an important and lucrative client.” Plaintiffs alleged that Havas
violated the Human Rights Act by failing “to take corrective measures to eliminate the ongoing
sexual harassment” and “allowing the sexual harassment to continue, which resulted in [plaintiffs’]
horrific rape.” Plaintiffs further alleged that Havas “is liable for the hostile work environment it
created.” As a “direct and proximate result of Defendant Havas’ actions,” plaintiffs sought
damages for loss of income and other employment benefits, as well as compensatory damages for
“physical and emotional pain, mental anguish, loss of enjoyment of life, and other non-pecuniary
losses.”
¶ 27 Plaintiffs clearly alleged that Havas breached a duty owed to them under the Human Rights
Act and, as a direct and proximate result, plaintiffs suffered injuries for which they sought
compensation. In other words, plaintiffs requested damages for tortious conduct pursuant to a
statute. See Brockman, 143 Ill. 2d at 372-73. Following the reasoning in Brockman, we find that a
violation of the Human Rights Act “creates the potential for liability in tort and that it may be a
proper predicate for a contribution claim.” Id. at 373; see also Cirilo’s, Inc. v. Gleeson, Sklar &
Sawyers, 154 Ill. App. 3d 494, 497 (1987) (finding that the third-party complaint stated a cause of
action against the bank for contribution where the bank breached its statutory duty to “pay only
those checks which were ‘properly payable,’ ” and the plaintiff suffered damages as a direct result).
¶ 28 At oral argument, plaintiffs disagreed that their claims pursuant to a statute sound in tort.
Instead, they compared liability under the Human Rights Act to dramshop liability under the
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Liquor Control Act of 1934 (Dramshop Act) (235 ILCS 5/6-21 (West 2020)). The Dramshop Act
provides, in relevant part, that:
“[e]very person who is injured within this State *** by any intoxicated person has a right
of action in his or her own name, severally or jointly, against any person, licensed under
the laws of this State or of any other state to sell alcoholic liquor, who, by selling or giving
alcoholic liquor, within or without the territorial limits of this State, causes the intoxication
of such person.” Id. § 6-21(a).
Our supreme court determined that purveyors selling intoxicating beverages to a person are liable
only under the provisions of the Dramshop Act, and this liability is a “nontort liability” for
purposes of the Contribution Act. Hopkins v. Powers, 113 Ill. 2d 206, 211 (1986).
¶ 29 Unlike the Human Rights Act, the Dramshop Act imposes no duty to conform to a standard
of conduct in order to escape liability. Rather, alcohol suppliers are strictly liable under the statute
regardless of fault. Cunningham v. Brown, 22 Ill. 2d 23, 25-26 (1961). Purveyors of alcohol also
owe no duty of care, under common law or statute, to third-party victims injured by an intoxicated
person. Id. at 26-27; Hopkins, 113 Ill. 2d at 211. Generally, when a statutory or common law duty
is absent, there is no liability in tort for contribution purposes. Martin v. Lion Uniform Co., 180
Ill. App. 3d 955, 960 (1989). Accordingly, Dramshop Act cases are not relevant authority here.
¶ 30 We also find Maksimovic v. Tsogalis, 177 Ill. 2d 511 (1997), a case cited by plaintiffs,
distinguishable. In Maksimovic, the plaintiff filed a complaint with the Illinois Human Rights
Commission alleging sexual harassment by her former manager. Several months later, she filed an
action for damages in the circuit court. Id. at 514. The issue in Maksimovic was whether the
exclusive remedy provision of the Human Rights Act divested the circuit court of jurisdiction to
consider the plaintiff’s separate common law damages claim. Id. at 513.
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¶ 31 The court found that the plaintiff “alleged facts sufficient to establish the elements of
assault, battery and false imprisonment. These are long-recognized tort actions which exist wholly
separate and apart from a cause of action for sexual harassment” under the Human Rights Act. Id.
at 517. The purpose of the Human Rights Act is “to eradicate sexual harassment in the workplace,”
and the court found this purpose “distinct from [that of] a common law tort action.” Id. at 518. It
further noted that the exclusive remedy provision did not mention common law actions. Id. The
court found that a “legislative intent to abolish all common law torts factually related to sexual
harassment [was] not apparent from a plain reading of the statute.” Id.¶ 32 Since the plaintiff’s tort claims had an independent basis, “without reference to legal duties
created” by the Human Rights Act, her action for damages did not infringe upon the exclusive
remedy provision of the Human Rights Act. Id. at 517. Therefore, the circuit court could exercise
jurisdiction over her tort claims. Id.¶ 33 We note that Maksimovic was decided prior to amendment of the statute. Before the August
2007 amendment, the Human Rights Act “provided the Illinois Human Rights Commission with
exclusive jurisdiction to adjudicate claims of civil rights violations.” Robinson v. Village of Oak
Park, 2013 IL App (1st) 121220, ¶ 18. The statute now provides that after filing a charge under
the Human Rights Act, the complainant may submit a written request to opt out of the investigation
and “commence a civil action in the appropriate circuit court or other appropriate court of
competent jurisdiction.” 775 ILCS 5/7A-102(C-1) (West 2020). We should read Maksimovic in
light of the exclusive jurisdiction provision applicable to the case at the time.
¶ 34 More importantly, Maksimovic found only that the Human Rights Commission did not
have exclusive jurisdiction over the plaintiff’s common law tort claims. Although the court found
that a violation of the Human Rights Act differed in purpose from a common law tort action, it
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never determined that a civil rights violation could not be a tort. Maksimovic did not reach this
issue because the defendant did not seek contribution from another tortfeasor. We find Maksimovic
inapplicable here.
¶ 35 Likewise, we find unavailing plaintiffs’ argument that allowing contribution in this case
would frustrate the comprehensive statutory scheme created when the legislature enacted the
Human Rights Act. The two cases plaintiffs cite in support, Thomas v. EDI Specialists, Inc., 773
N.E.2d 415 (Mass. 2002), and Northwest Airlines, Inc. v. Transport Workers Union of America,
AFL-CIO, 451 U.S. 77 (1981), are distinguishable.
¶ 36 In Thomas, the defendant employer in a discrimination complaint sought contribution from
its employee, who was the primary offender. Thomas, 773 N.E.2d at 416. The complaint did not
name the employee. Id. The Massachusetts Supreme Court found that allowing an employer to
seek contribution from an employee would contradict the statute’s clear intent to hold employers
responsible for the discriminatory actions of its employees, “regardless of whether these actions
were authorized or supported by the employer or its policies.” Id. at 419. The contribution action
against the employee was also improper because the employee was not named in the charge before
the Commission or in the complaint. As such, he had no opportunity to invoke the administrative
protections of the statute. Id.
¶ 37 In Northwest Airlines, the district court found the air carrier liable under the Equal Pay Act
of 1963 (Equal Pay Act) (29 U.S.C. § 206(d) (1976)) and Title VII of the Civil Rights Act of 1964
(Title VII) (42 U.S.C. § 2000e-2 (1976)), for the improper wage differential between certain
female and male employees. Northwest Airlines, 451 U.S. at 81. The air carrier filed motions for
contribution and indemnification against two unions that allegedly bore partial responsibility for
the difference in wages. Id. at 80-82. The court denied the motions as untimely. Id. at 82. “Promptly
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thereafter,” the air carrier filed a separate action claiming a federal common-law right to
contribution from the unions. Id. The district court dismissed the action under the Equal Pay Act
but determined that the air carrier stated a claim for contribution under Title VII. Id. at 83-84.
¶ 38 The United States Supreme Court reasoned that a right of contribution in the case could
exist if (1) the Equal Pay Act and Title VII explicitly or implicitly created the right or (2) federal
common law recognized the right. Id. at 90. The court found neither an express nor implied right
of contribution in favor of employers in the Equal Pay Act or in Title VII. Id. at 93. Rather, the
comprehensive remedial scheme of those statutes strongly evidenced a legislative intent “not to
authorize additional remedies,” which federal courts had little power to change. Id. at 93-95. The
Court further found that no federal common law right of contribution existed among tortfeasors
outside of the admiralty context. Id. at 96-97. Therefore, the district court should have granted the
unions’ motion to dismiss the entire action for contribution. Id. at 98-99.
¶ 39 We do not find Thomas or Northwest Airlines persuasive here. First, Thomas is a
Massachusetts case, and this court is not bound by the decisions of other states. Perik v. JPMorgan
Chase Bank, N.A., 2014 IL App (1st) 132245, ¶ 25. Additionally, unlike Thomas, Orbitz was not
seeking contribution from its employee, and plaintiffs’ original complaint and charge named Havas
as a party. The concerns expressed by the Massachusetts court in Thomas are not implicated here.
¶ 40 In Northwest Airlines, the United States Supreme Court found that the air carrier had no
contribution right to claim at all. Here, the Illinois legislature enacted the Contribution Act
specifically to recognize a joint tortfeasor’s right of contribution. Doyle, 101 Ill. 2d at 8. We need
not scour the provisions of the Human Rights Act to search for a contribution remedy or look to
common law, as was the case in Northwest Airlines. We do not read Northwest Airlines as
prohibiting a contribution claim that is authorized by an Illinois statute, as is Orbitz’s claim here.
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In fact, the Court in Northwest Airlines recognized the propriety of such a claim. See Northwest
Airlines, 451 U.S. at 86-87 (noting that although there is no common law right to contribution
among joint tortfeasors, most states have changed that rule “either by statute or by judicial
decision”).
¶ 41 Plaintiffs argue, however, that the Human Rights Act provides no method for an employer
to join a third party in contribution “at the agency level.” Therefore, similar to Northwest Airlines,
allowing contribution here would frustrate the process set forth in the statute. We disagree.
¶ 42 Havas was named in plaintiffs’ charge with the Department. After plaintiffs filed their
charge, the Department served Havas and plaintiffs with a notice of plaintiffs’ right to opt out of
the Department’s investigation. See 775 ILCS 5/7A-102(B) (West 2020). Plaintiffs opted out of
the investigation, and upon receiving notice of their opt-out, the Department “ceased its
investigation” and “administratively clos[ed] the charge.” Id. § 7A-102(C-1). Plaintiffs thereafter
filed an action in circuit court, and Orbitz filed its third-party claim for contribution against Havas
in those proceedings. At that point, the administrative process set forth in the Human Rights Act
no longer applied.
¶ 43 Furthermore, allowing Orbitz to set off a portion of plaintiffs’ settlement with Havas
supports the Contribution Act’s purpose of equitably apportioning damages among joint
tortfeasors. Plaintiffs’ complaint alleged that both Orbitz and Havas fostered a corporate culture
that tolerated the sexual harassment of women, and both had knowledge of Meijer’s misconduct
but failed to address his troubling behavior. As a result, plaintiffs suffered compensatory damages,
as well as physical and emotional pain, mental anguish and loss of enjoyment of life. Contribution
between two tortfeasors is “the enforcement of an equitable duty to share liability for the wrong
done.” (Internal quotation marks omitted.) Doyle, 101 Ill. 2d at 14. What matters is the culpability
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of the parties, not the theories of recovery on which liability is based. Id. We agree with the trial
court that the Contribution Act applied here.
¶ 44 Plaintiffs also contend that the total settlement amount should not be set off because the
Contribution Act allows only a setoff of compensation they received for the same injury. The trial
court determined that Orbitz was entitled to a setoff of 30% of the total settlement amount, which
represented plaintiffs’ pain and suffering damages. However, the order allowed Orbitz time to file
a motion for reconsideration of the setoff amount until “30 days from the close of discovery.” As
a result, the court did not make this determination appealable under Rule 304(a).
¶ 45 The trial court’s determination as to the amount of setoff was not a final judgment, as Orbitz
has the opportunity to file a motion to reconsider the amount. A judgment is not final if the trial
court retains jurisdiction to resolve matters of substantial controversy. In re M.M., 337 Ill. App. 3d
764, 771 (2003). This court’s jurisdiction is limited to appeals from final judgments. In re
Marriage of Verdung, 126 Ill. 2d 542, 553 (1989). Therefore, this issue is not properly before us
at this time.
¶ 46 III. CONCLUSION
¶ 47 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 48 Affirmed.
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Saunders v. Orbitz Worldwide, LLC, 2023 IL App (1st) 221018Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-L-05809;
the Hon. Preston Jones Jr., Judge, presiding.
Attorneys Lisa B. Weinstein, of Grant & Eisenhofer P.A., of Chicago, Kelly
for L. Tucker (pro hac vice) and Cynthia B. Morgan (pro hac vice), of
Appellant: Grant & Eisenhofer P.A., of Wilmington, Delaware, and Irene R.
Lax (pro hac vice), of Grant & Eisenhofer P.A., of New York, New
York, for appellants.
Attorneys Michael A. Warner Jr. and Caroline K. Kane, of Franczek P.C.,
for and Bennett L. Epstein, Jena L. Levin, and Patrick J. McMahon,
Appellee: of Foley & Lardner LLP, both of Chicago, for appellees.
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