Achi et al v. Tia Transport Inc. et al
MEMORANDUM Opinion and Order; For the reasons set forth herein, the motion to strike 34 is granted and the motion for a good-faith finding 31 is denied. Signed by the Honorable Sharon Johnson Coleman on 11/29/2017 Mailed notice (rth)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
SRIDEVI ACHI (individually and as Mother
and Next Friend of BHAVANARSI ACHI and
TIA TRANSPORT, INC., JIM SCOTT MILK
HAULING, LLC, and DOUGLAS BRITZKE,
) Case No. 16-cv-11632
) Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
The plaintiff, Sridevi Achi (Mrs. Achi), is married to third-party defendant Venkata Gobal
Achi (Mr. Achi). Mr. Achi was driving a car containing Mrs. Achi and their children, Bhavanarsi and
Indhresh Achi. The defendants contend that Mr. Achi failed to stop at a stop sign and entered the
path of their truck, which collided with the car and caused substantial injuries to Bhavanarsi and
Indhresh. Mrs. Achi subsequently filed suit against the defendants seeking, in pertinent part, to
recover for the children’s medical expenses pursuant to the Illinois Family Expense Act. The
defendants subsequently filed a third-party complaint against Mr. Achi, bringing him into this suit.
Mrs. Achi now moves this Court to make a good-faith finding as to the settlement between herself
and Mr. Achi and to strike the defendant’s third affirmative defense, which asserts Mr. Achi’s
contributory negligence as a defense to the Family Expense Act claim. For the reasons set forth
herein, the motion to strike  is granted and the motion for a good-faith finding  is denied.
Pursuant to Federal Rule of Civil Procedure 12(f), the court “may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.
P. 12(f). Affirmative defenses are subject to the pleading requirements of the Federal Rules of Civil
Procedure and therefore they must set forth a “short and plain statement” of the material elements
of the defense asserted and contain sufficient factual material that, when taken as true, states a
defense that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.E.2d
868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)); Reis Robotics USA, Inc. v. Concept Indus., Inc., 462 F. Supp. 2d 897, 904 (N.D. Ill. 2006)
“Motions to strike are not favored and will not be granted unless it appears to a certainty
that plaintiffs would succeed despite any state of the facts which could be proved in support of the
defense.” Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir. 1991) (internal quotations and
citations omitted). Such motions will only be granted where they remove unnecessary clutter from
the case or where the affirmative defense is insufficient on the face of the pleadings. Heller Fin’l, Inc.
v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). Even where a motion to strike is
granted, leave to amend the pleadings is to be freely granted as justice requires. Fed. R. Civ. P. 15(a).
Further, striking an affirmative defense does not necessary preclude the party from asserting or
arguing its substantive merits later in the case. Palomares v. Second Fed. Sav. & Loan Ass’n, No. 10-cv6124, 2011 WL 2111978, at *2 (N.D. Ill. May 25, 2011) (citing Instituto Nacional De Comercializacion
Agricola (Indeca) v. Cont’l I’ll. Nat’l Bank & Trust Co., 576 F. Supp. 985, 988 (N.D. Ill. 1983) (Shadur,
The Illinois Family Expense Act provides in pertinent part that “[t]he expenses of the family
and of the education of the children shall be chargeable upon the property of both husband and
wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued
jointly or separately.” 750 ILCS 65/15(a)(1). The responsibility to pay medical expenses incurred
on behalf of a minor child is thus joint and several, and extends even to noncustodial parents
following a divorce. Proctor Hospital v. Taylor, 665 N.E.2d 872, 875, 279 Ill.App.3d 624 (1996).
The common law, in turn, gives parents a cause of action against a tortfeasor who, by
injuring their child, causes them to incur medical expenses. Bauer v. Memorial Hospital, 879 N.E.2d
478, 502, 377 Ill.App.3d 895, 992 (2007). Such a claim is not one for damages as a result of the
child’s personal injury, but is instead premised upon the parents’ personal liability for the child’s
medical expenses under the Act. Pirrello v. Maryville Academy, Inc., 19 N.E.3d 1261, 1264, 2014 IL
App (1st) 133964. The cause of action has been recognized to belong to the parents, and “if the
parents are not entitled to recover, neither is the child.” Id. (citing Bauer, 879 N.E.2d at 502).
Although a child may be assigned the cause of action, the child must prove that his parents had a
cause of action, and the child is subject to any defenses that could have been raised against his
parents. Bauer, 879 N.E.2d at 503.
The caselaw is clear that when both parents file suit for a child’s medical expenses, their
recovery may be reduced based on their contributory negligence. Id. There is no case law, however,
explicitly holding what should happen when one parent seeks to recover under the Family Expense
Act and the other parent was contributorily negligent. 1
The defendants propose that Mr. Achi is the partial owner of the claim for medical expenses,
and that Mrs. Achi’s claim therefore is subject to reduction for Mr. Achi’s negligence. In essence,
the defendants ask this Court to treat both individual parents as a legal collective for the purpose of
their Family Expense Act claims. This position is not tenable. Under the Family Expense Act, each
spouse possesses a separate and independent cause of action, and the liability of a defendant toward
one spouse cannot be adjudicated in the other spouse’s action. Seymour v. Union News Co., 217 F.2d
The defendants contend that Kennedy v. Kiss, 412 N.E.2d 624, 89 Ill.App.3d 890 (1980) establishes that both parents
must be free from contributory negligence in order to assert a Family Expense Act claim. The defendants overlook the
fact that in Kennedy the Family Expense Act claim was being asserted by the minor child, who had been assigned both of
her parents’ rights to recover for medical expenses incurred on her behalf.
168, 170–171 (7th Cir. 1954). This is eminently sensible; otherwise a non-custodial parent who pays
all of a child’s medical expenses may be barred from recovering against a tortfeasor based on the
contributory negligence of the custodial parent (or visa versa).
The Family Expense Act provides that parents are jointly and severally liable for the
expenses of their children. And, as previously noted, common law confers parents with a right to
recover for the medical expenses they expend on behalf of their child. Bauer, 879 N.E.2d at 502.
Most Family Expense Act actions are likely brought jointly because the parents jointly pay the
medical expenses at issue. A parent, however, would also be individually entitled to recover for the
medical expenses that they individually incurred on behalf of their child. In such a circumstance, the
recovering parent would be the individual owner of the Family Expense Act claim, and the other
parent, who did not individually pay the medical expenses at issue, would not be entitled to bring
such a claim.
Here, Mrs. Achi has alleged that she individually incurred medical expenses in excess of
$75,000.00 in treating her children. Assuming, as this Court must at this stage in the proceedings,
that those medical expenses were in fact paid individually by Mrs. Achi and that they were not jointly
paid by Mr. and Mrs. Achi, any claim to recover those expenses would belong exclusively to Mrs.
Achi. Mr. Achi’s contributory negligence accordingly may not be considered in assessing Mrs.
Achi’s right to recover under the Family Expense Act. Because Mr. Achi’s contributory negligence
is not a defense to Mrs. Achi’s complaint on the facts alleged, the defendants’ third affirmative
defense must be stricken. The Court notes that this ruling does not preclude the defendants from
raising this issue again should Mrs. Achi seek to recover for medical expenses that were paid jointly
with Mr. Achi.
The plaintiffs separately move this Court to make a good faith finding, to approve the
settlement, and to dismiss the third-party complaint against Mr. Achi. The Illinois Contribution Act
extinguishes the contribution liability of a settling tortfeasor who settles in good-faith. 740 ILCS
100; Johnson v. United Airlines, 784 N.E.2d 812, 818, 203 Ill.2d 121 (Ill. 2003). In order to establish
good faith, it is the initial burden of the settling parties to show the existence of a legally valid
settlement agreement. Id. The burden then shifts to the non-movant to prove the absence of good
faith by a preponderance of the evidence. Id. at 820.
In determining whether a settlement was executed in good faith, this Court must remain
cognizant of the policies underlying the Contribution Act, the encouragement of settlements and the
equitable apportionment of damages among tortfeasors. Id at 821. Among the factors that the
Court may consider are whether the settlement amount is reasonable and fair, whether the parties
have a close personal relationship, whether the plaintiff sued the settling party, or whether
information about the settlement agreement was concealed. Palacios v. Mlot, 994 N.E.2d 1047, 1053,
2013 IL App (1st) 121416.
Mr. Achi has made a prima facie showing that the settlement between him and Mrs. Achi
was entered into in good faith and was supported by consideration. Defendants, however, contend
that the agreement was not in good faith in light of the extent of Mr. Achi’s fault in causing the
accident and the small size of the settlement payment.
Mr. Achi’s settlement offer is disproportionate with his alleged level of fault and the overall
damages being sought. The defendants have alleged that Mr. Achi is primarily at fault for the
accident, and in the present briefing Mr. Achi makes no attempt to dispute this fact. Nevertheless,
despite the fact that Bhavanarsi incurred over $1,500,000 in medical expenses Mr. Achi has only
offered a settlement of $100,000.00 per child, the policy limit of his automobile liability insurance
policy. Given the unrebutted assertion of Mr. Achi’s fault, this stark difference between the
settlement and the damages being sought is suggestive of bad faith. Cf. Johnson, 784 N.E.2d at 822
(“The amount of a settlement must be viewed in relation to the probability of recovery, the defenses
raised, and the settling party's potential legal liability.”).
Settlement with Mr. Achi, moreover, would eliminate the contributory negligence issues
previously discussed in the context of the Family Expense Act claims, potentially exposing the
defendants to liability to Mr. Achi for Family Expense Act claims without the benefit of a
contributory negligence defense. See Ready v. United/Goedecke Servs., Inc., 905 N.E.2d 725, 734, 232
Ill.2d 369 (2008) (holding that a jury cannot apportion fault to a settled defendant). The proposed
settlement therefore cannot be construed as being in good faith. Associated Aviation Underwriters, Inc.
v. Aon Corp., 800 N.E.2d 424, 435, 344 Ill.App.3d 163 (2003) (“An agreement cannot be construed
as a good-faith settlement under the Contribution Act if the effect of the settlement shifts a
disproportionally large and inequitable portion of the settling defendant's liability onto the shoulders
In assessing the good faith nature of a settlement, courts may also consider the relationship
between the settling parties. Palacios, 994 N.E.2d at 1053. Here, the settling parties are married to
each other. The parties have agreed to settle for Mr. Achi’s insurance coverage limits, thus relieving
Mr. Achi of any personal financial obligation notwithstanding his alleged culpability. Given the
parties’ relationship, any recovery from Mr. Achi in excess of his insurance coverage would likely be
to Mrs. Achi’s immediate detriment. The parties’ relationship therefore further calls into question
the good faith nature of the proposed settlement.
This Court is cognizant of the strong policy preference favoring early settlement under the
Illinois Contribution Act. Here, however, the relationship between the parties, the parties potential
joint ownership of the Family Expense Act claim, and the minimal settlement value lead this Court
to conclude that, based on the totality of the circumstances, the proposed settlement is not in good
faith and would undermine the Illinois’ Contribution Act’s purpose of providing for the equitable
apportionment of damages among tortfeasors. The Court accordingly declines to enter a good faith
finding and to approve the proposed settlement.
Sharon Johnson Coleman
United States District Court Judge
DATED: November 29, 2017
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