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Illinois Prejudgment Interest Act Ruled Unconstitutional by Cook County Judge

June 2022

Jeffrey F. Clement

Judge Marcia Maras of the Circuit Court of Cook Country recently issued a ruling finding the Illinois prejudgment interest act to be unconstitutional. The ruling is welcome for multiple reasons, including the impending June 30, 2022 deadline in many cases for defendants to make a settlement offer to potentially avoid the imposition of prejudgment interest.

As background, effective July 1, 2021, the Illinois legislature amended 735 ILCS 5/2-1303 to provide for the awarding of prejudgment interest at a rate of 6% per annum in all actions to recover damages for personal injury or wrongful death resulting from or occasioned by negligence, willful and wanton misconduct, intentional conduct or strict liability. The only way to avoid interest was to make a written settlement offer which ends up being equal to or greater than the ultimate judgment. The written settlement offer must be made within 12 months of July 1, 2021 or the filing of the action, whichever is later.

Multiple motions were filed in Cook County to declare the amendment unconstitutional. All of those motions were consolidated before Judge Maras. Judge Maras found the amendment unconstitutional for 2 reasons: (1) it violated defendants’ rights to have a jury determine damages, and (2) it violated the Illinois prohibition against special legislation.

First, the pre-judgment law violated the right of the jury to determine damages and instead put that decision in the hands of the legislature. The judge further noted that authority exists which shows that Illinois juries, particularly those in Cook County, were already awarding interest for the time period between injury and trial as part of damages. Thus, plaintiff’s argument that long delayed trials erodes the value of plaintiff’s award due to inflation was not actually taking place. For those reasons, among others, the law removed the issue of damages from the jury which was unconstitutional.

Second, the judge ruled that the law failed because it violated the Illinois Constitution’s prohibition against special legislation. Special legislation arbitrarily discriminates in favor of a select group without a sound, reasonable basis. Here, the law set to create a separate classification for personal injury and wrongful death parties only. However, as the court pointed out, this ignores that there are other tort plaintiffs and defendants to which this prejudgment interest would not apply, thus making the law discriminatory. As a result, the court determined that the law was unconstitutional as it created different classes and arbitrarily favored personal injury and wrongful death plaintiffs and was not rationally related to any State interest.

This may not be the end of the story. The plaintiffs will have a right to a direct appeal to the Illinois Supreme Court pursuant to Rule 302. Moreover, the ruling doesn’t technically apply outside of Cook County as the Illinois Appellate Court has not reached the issue. That being said, we anticipate other more conservative counties would follow a similar logic as Judge Maras. We will continue to keep you updated on any developments as to appeal and/or further amendments to the legislation.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • DRI
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • DRI
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
1015 Locust Street, Suite 914
St. Louis, MO 63101
Phone: 314-300-0527
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