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responsible. So we came up with a compromise that said if you are more than 25 percent responsible, then you should be
responsible for up to the whole amount, but if you're less than 25 percent responsible, you should be limited to the
percentage of fault assigned by the court."
That was a "major consensus," Cullerton said. "We added a clause that was meant to say that in the case of workers' comp,
when one of the parties is an employer, then this case doesn't apply. This was a concession to the business community, and to
everyone who was potentially multiple defendants."
Most logically, he said, the revised legislation would have applied to construction-related accidents; that was the intent
of Illinois legislators who helped write and rewrite the bill.
"And it was really clear, from 1986 until two years ago, what we meant," Cullerton said.
Two years ago, the Illinois Supreme Court took objection with that portion of text in the state's overall tort reform
package, stating that plaintiffs should be able to sue their employers.
"That's what workers' comp is all about," the senator said. "Injured laborers can't sue their employers unless they're part
of a group. The (Illinois) Supreme Court said, 'Your efforts to exclude employers from this formula does not hold because you
didn't use the correct phrase."
All Democratic legislators did in proposing HR 2784 in early 2003, Cullerton said, was to restore what had always been the
practice, which was "clearly the intention" of the legislature in its tort reform years earlier.
"Some of the business community saw this as a windfall," he said. "But that was not our intent. Let's say there are two
parties negligent on a commercial construction project - the employer and the subcontractor. In figuring out these percentages
(of fault), our intent was that since you can't sue your employer and utilize his percent of liability, he (employer) should
be figured into the formula."
Essentially, the same insurance company could represent both defendants under this scenario, Cullerton said. In that form,
the law would have enabled that insurance company to arbitrarily assign percentages of liability.
"First of all, it clearly wasn't our intent to have that be the outcome back in 1986," he said. "Second, the outcome that
did occur clearly wasn't fair. You can't factor in the employer, and that's the gist of it."
Cullerton said the legislature is willing to amend the Several Liability Law in future sessions.
"After the bill was completed, Illinois business owners came forth and said, 'Maybe there's a better way to write it.' I
will clearly be open to future amendments. It wasn't a trial lawyers' power play, and it's not a leg up on the business
community. I just think the (Illinois) Supreme Court was hyper technical."
Dennis Garrett, executive vice president of the Professional Independent Insurance Agents of Illinois, begs to differ.
"Prior to HB 2784, if you were found by the courts to be less than 25 percent at fault, no one could go after you," said
Garrett, whose organization has about 1,500 member insurance agencies, in turn representing more than 12,000 independent
insurance agencies. "This latest legislation changes all that."
Illinois is a comparative negligence state, he said, meaning that if two vehicles run into each other, for example, the
insurance companies or the courts can determine the percentage of fault to which each party is responsible.
In contrast, workers' compensation policies are based on strict or statutory negligence.
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"There are already statutory limits on workers' compensation and there have been for years, so why change that? Garrett
said. "The statutes are there to address the benefits of workers' compensation. And workers' compensation is dictated by the
Illinois legislature, as to what benefits should be. If there's a dispute, it goes to the state's industrial commission."
How is the Several Liability Law tangibly affecting business across Southwestern Illinois?
It's hurting them in two major ways: increasing the cost of their workers' compensation premiums, and making the
availability of these types of policies - as well as general liability policies - much more rare.
Roger Tedrick, president of Mount Vernon-based Tedrick Insurance Agency Inc., said scarcity of this line of insurance is a
direct effect of legislation including the Several Liability Law.
"From a workers' comp perspective, the price of a policy is based on the (construction) company's experience modification
or its past claim history," Tedrick said.
"And if you're in a geographical area that is litigious by nature - such as the reputation of St. Clair and Madison
counties, where awards can be higher in workers' comp cases - that can figure into experience modification."
A company's experience modification quotient is based on the number of claims and the severity of those claims.
"It's not so much about the pricing as it is about the availability of insurance. A lot of insurance companies don't want
to write that type of policy anymore, often because of the reputation of a liberal court system. That definitely makes it
(workers' comp coverage) a tighter market than other lines of business insurance."
Where a company is domiciled - and where it actually does the work - are also factors that a workers' comp insurer looks
at. For example, if a general contractor is located in St. Louis but does a lot of work in the Metro East, that factors into
the price of the policy, Tedrick said.
"It's a vicious, vicious cycle," said Garrett of the number of pro-litigation, anti-employer bills introduced in the
Illinois Assembly this past session. "I had an insurance company tell me just last week that it doesn't want any of its
agencies soliciting in Madison County or St. Clair County due to the hostile legal environment and due to laws like this one.
Companies that have a choice to sell elsewhere are simply deciding to quit writing policies in these counties."
Garrett said the PIIAI has interviewed more than 30 of its members companies in the past year who said they would
discontinue writing any contractors' policies if legislation is passed to reinstate laws like Several Liability and the
Structural Work Act.
"If legislation continues to attack the insurance industry, companies will have no choice but to withdraw from the state or
severely limit the types of business they will write," he said. "Legislation like this prevents the insurance companies from
being able to accurately calculate premiums based on the exposure. No court should be able to alter a contract that is not
open to interpretation solely at the whim of the judge or jury. An insurance policy is a contract.
"It's a trial lawyer's haven in Springfield," he said. "The availability of workers' compensation (insurance) in our state
is lower today than it has ever been. (Client) companies are having to go to an assigned risk pool, just to be able to get a
policy, and that adds at least 10 percent onto the price of their premiums. Illinois' assigned risk workers' comp pool is
growing faster than any other state in the U.S. That ought to tell us all something."
editor/publisher: Kerry Smith
email: ksmith@ibjonline.com
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