Illinois Governor Pritzker signed into law Senate Bill 72 (SB 72), which includes prejudgment interest and amends the Illinois Interest on Judgment Act 735 ILCS 2-1303 (Act). The amendment imposes six-percent prejudgment interest on economic and noneconomic damages in personal injury and wrongful death cases. Prior to SB 72’s passing, Illinois generally only recognized post-judgment interest at nine-percent per annum, running from when the judgment was made to the time it was satisfied. Personal injury plaintiffs generally could not recover losses incurred before judgment, but will be able to following SB 72’s effective date on July 1, 2021.

SB 72’s history is unique: it originated as House Bill 3360 (HB 3360) and passed through both houses of the Illinois General Assembly at 3:00 a.m. on the last day of the lame duck session on January 13. HB 3360 was vetoed by the Governor on March 25, but a revised version, SB 72, quickly returned to his desk for his signature. The Act, as amended, provides for the following:

Accrual Period

For actions filed after July 1, 2021, prejudgment interest will begin to accrue on the date the action is filed. The Act does not retroactively apply, but for existing actions, prejudgment interest will begin accruing on the effective date. This clarification is significant, as the Act’s prior interactions left open the possibility that interest would begin when defendants first had notice of potential litigation—a date often well before a case is filed. Prejudgment interest cannot accrue for longer than five years. Lastly, if the plaintiff voluntarily dismisses the action and refiles, the accrual of prejudgment interest tolls from the date the action is voluntarily dismissed to the date the action is refiled.

Pre-Settlement Offers

Importantly, the Act’s amendments impact written settlement offers: if a plaintiff receives a written settlement offer (WSO) within 12 months of filing and does not accept it within 90 days, the defendant will be entitled to a post-judgment set-off of the WSO’s amount if the jury verdict exceeds that amount. Additionally, if the verdict comes out to be less than WSO, then no prejudgment interest will be imposed on the judgment.

Damages, Costs, and Attorney Fees

Interest would not apply to, nor be calculated with, punitive damages, sanctions, attorney fees or court costs added to a judgment. However, the Act still imposes prejudgment interest on non-economic damage awards for pain and suffering, which cannot be anticipated with mathematical certainty and often comprise the majority of personal injury and wrongful death verdicts.

Analysis

The Act heavily pressures defendants to quickly settle in the litigation’s early stages, even though there are often limited facts available to truly evaluate whether the claims against them have merit. It is not uncommon for cases to idle for months or years, especially now in a judicial system backlogged by COVID-19 delays. Although provisions have been added to limit the duration and amount of prejudgment interest, multimillion-dollar verdicts are common in Illinois toxic tort litigation, which makes taking a case to verdict risky. Defendants will be forced to quickly evaluate whether it is worth it to defend a case, inevitably leading to unworthy settlement payouts. Where once the plaintiffs held the responsibility of driving their cases, defendants now must set the pace or run the risk of a lofty interest payment.

For more information on the Act’s history, please review our previous article.

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