Smith v. Wacker Nueson Corporation et al

Filing 89

ORDER granting 84 Motion for finding of good-faith settlement and other relief. Signed by Chief Judge David R. Herndon on 10/13/11. (klh, )

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
MARK S. SMITH, JR.,
Plaintiff,
v.
No. 09-CV-1064-DRH-DGW
WACKER NEUSON CORPORATION
and WACKER NEUSON SE,
Defendants.
____________________________________
WACKER NEUSON CORPORATION
and WACKER NEUSON SE,
Third-Party Plaintiffs,
v.
FONTANA CONTRACTING COMPANY
and WESCON PRODUCTS COMPANY,
a subsidiary of Latshaw Enterprises, Inc.,
Third-Party Defendants.
MEMORANDUM and ORDER
HERNDON, Chief Judge:
Pending before the Court is Wacker Neuson Corporation and Wacker Neuson
SE’s September 16, 2011 motion for finding of good-faith settlement (Doc. 84).
Specifically, these defendants move the Court to enter an order finding the following:
(a) finding the proposed Settlement Agreement for the payment of $500,000.00 is a
good-faith settlement pursuant to the Illinois Contribution Among Tortfeasors Act;
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(b) finding that all claims of plaintiff Smith against defendants, and the third-party
defendant Wescon Products Company are released by that Settlement Agreement; (c)
finding that the claims of plaintiff Smith in this lawsuit are dismissed with prejudice
and without costs; (d) finding that the pro rata liability between the two named
defendants to the plaintiff is apportioned one hundred percent to Wacker Neuson
Corporation and zero percent to Wacker Neuson SE; (e) that the amount paid by
Wacker Neuson Corporation to plaintiff is a fair and reasonable sum based upon the
recoverable damages which plaintiff could recover at trial; (f) finding that the thirdparty contribution action of Wacker Neuson Corporation against Wescon Products
Company is not dismissed and will continue to proceed before this Court; and (g) to
allow Wacker Nueson Corporation leave to amend the third-party complaint for
contribution against Wescon Products Company to conform to the terms of the
proposed Settlement Agreement. On September 26, 2011, third-party defendant
Wescon Products filed a response to the motion stating that it does not object to the
motion except that it objects to a finding of good faith settlement pursuant to Illinois
Contribution Among Joint Tortfeasors Act and it objects to a finding that the thirdparty contribution claim should continue as the contribution claim should be
dismissed when the settlement is made. Defendants filed a reply addressing Wescon
Product Company’s objections (Doc. 88). Based on the following, the Court GRANTS
the motion for good faith settlement and other relief.
Here, the Court finds that based on the settlement amount ($500,000.00), the
medical bills (in excess of $118,000.00), the lost wages (in excess of $47,000.00), the
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type of injuries incurred (femur fracture which resulted in intramedulary nailing of
the femur and post-operative complications), and the prognosis as outline in Dr.
Meyers’ report that the settlement is in good-faith. Further, the record demonstrates
that the settlement was reached as a result of extended negotiations, both in thirdparty mediation and in Court sponsored mediation settlement conferences and
ongoing settlement conferences. Moreover, the settlement agreement provides that
plaintiff releases and discharges Wescon Products Company’s from any and all
claims which could be brought by plaintiff on account of the incident or subject
lawsuit. It also states that plaintiffs and defendants wish to “”fully compromise” and
settle plaintiff’s lawsuit “as to the claims of Mark Smith against Wacker, Wescon and
Fontana.” Clearly, the settlement is reasonable and made in good-faith. Moreover,
utilizing either Illinois law or Missouri law, the Court finds that Wacker may still seek
contribution in tort from Wescon Products Company because it has extinguished
Wescon Products Company’s liability to plaintiff through the settlement. See Orejel
v. York Int’l Corp., 678 N.E.2d 683 (Ill. App. Ct. 1997); Missouri Pacific Railway Co.
v. Whitehead & Kales, 566 S.W.2d 466, 473-74 (Mo. 1978)(Court held defendant
has a right to seek contribution, by instituting third-party proceedings, against other
joint tortfeasors whom plaintiff has chosen not to sue.); Greenstreet v. Rupert, 795
S.W.2d 539, 540 (Mo. App. 1990); Gramex Corp. v. Green Supply, Inc., 89 S.W.3d
432, 443 (Mo. 2002).
Accordingly, the Court GRANTS defendants’ motion for finding of good-faith
settlement and other relief (Doc. 84). The Court FINDS the following:
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(a) that the proposed Settlement Agreement for the payment of
$500,000.00 is a good-faith settlement pursuant to the Illinois
Contribution Among Tortfeasors Act;
(b) that all claims of plaintiff Smith against defendants and the thirdparty defendant Wescon Products Company are released by the
Settlement Agreement;
(c) that the claims of plaintiff Smith in this lawsuit are dismissed with
prejudice and without costs;
(d)that the pro rata liability between the two named defendants to the
plaintiff is apportioned one hundred percent (100%) to Wacker Neuson
Corporation and zero (0%) percent to Wacker Neuson SE;
(e) that the amount paid by Wacker Neuson Corporation to plaintiff is
a fair and reasonable sum based upon the recoverable damages which
plaintiff could recover at trial; and
(f) that the third-party contribution action of Wacker Neuson
Corporation against Wescon Products Company is not dismissed and
will continue to proceed before this Court.
Further, the Court ALLOWS Wacker Nueson Corporation, up to and including
October 27, 2011, to file an amended third-party complaint for contribution against
Wescon Products Company to conform to the terms of the proposed Settlement
Agreement.
IT IS SO ORDERED.
Signed this 13th day of October, 2011.
Digitally signed by David R.
Herndon
Date: 2011.10.13 11:10:18 -05'00'

Chief Judge
United States District Court

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