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Prejudgment Interest Legislative Developments in Illinois: The Prejudgment Interest Ball is Back in Governor Pritzker’s Court

April 16, 2021

by Emilee M. Bramstedt

On March 25, 2021, Illinois Governor Pritzker vetoed House Bill 3360 (H.B. 3360) regarding prejudgment interest on personal injury and wrongful death cases. The Legislature, however, was quick to amend and pass another iteration of the bill, Senate Bill 72 (S.B. 72), which they sent to Governor Pritzker on April 1, 2021. ( S.B. 72 can be read here.) The purpose of H.B. 3360 and S.B. 72 is to amend the Illinois statute 735 ILCS 5/2-1303 by applying post-judgment interest. If signed by the Governor, S.B. 72 would allow a plaintiff in a personal injury or wrongful death lawsuit to collect prejudgment interest.

Although the governor vetoed the last proposal, it is unclear what he’ll do with S.B. 72. Larry Rogers, Jr., the president of the Illinois Trial Lawyers Association (ITLA), believes S.B. 72 will incentivize early settlement offers and result in a more efficient legal system. (Rogers’ letter can be read here.) The Illinois Defense Counsel (IDC), on the other hand, has urged Governor Pritzker to veto S.B. 72 because the proposal appears to “penalize[] defendants, but not plaintiffs, for exercising their constitutional right to trial.” (IDC’s letter can be read here.)

Although some believe S.B. 72 is an improvement from H.B. 3360, others object to the bill, believing it could punish defendants for delays caused by many courts remaining backlogged as a consequence of the pandemic. Opponents of the bill, including the Illinois Hospital Association, also are particularly concerned with the potential penal nature of the bill when it is applied against defendant hospitals, clinics, physicians, nurses, and other health care workers and entities.  Enacting a bill like S.B. 72 could “dramatically increase litigation costs on manufacturers, hospitals, and doctors that have been on the front lines during the pandemic.”[1] Supporters of S.B. 72 urge Governor Pritzker to sign the legislation, stating it will incentivize “corporations and insurers to promptly and timely resolve meritorious claims instead of rewarding them for dragging cases out for years. . .”[2]

While some states have enacted prejudgment interest provisions, an important distinction in Illinois is that it lacks caps on compensatory or punitive damages awarded for personal injury. Some believe that by allowing uncapped damages plus interest to accrue from the date of filing (even capped at five years), an injured party will be overcompensated at the expense of a defendant simply wanting to have its day in court. Thus, they urge the governor to veto this bill, too.

As stated in the IDC’s letter to the governor, “[v]etoing [S.B.] 72 would allow a full discussion among all concerned about implementing procedures that are fair to all litigants and that would incentivize resolution of civil matters in order to address the ever-growing backlog of civil cases.” (emphasis added).

[1] Sarah Mansur, What Now: Lawmakers pass compromise bill on pretrial interest in Illinois personal injury cases, The Pantagraph (March 25, 2021), https://www.pantagraph.com/news/local/crime-and-courts/watch-now-lawmakers-pass-compromise-bill-on-pretrial-interest-in-illinois-personal-injury-cases/article_a5f79e31-5efd-521f-a048-1977bf9302c8.html (quoting Mark Denzler, president and CEO of the Illinois Manufacturers’ Association).

[2] Larry R. Rogers, Jr., My View: Senate bill would bring greater fairness to Illinois legal system, Rockford Register Star (April 11, 2021), https://www.rrstar.com/story/opinion/2021/04/11/my-view-senate-bill-would-bring-greater-fairness-illinois-legal-system/7166488002/.

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