On June 9, 2023, the Appellate Court of Illinois, First District, ruled that the Illinois Prejudgment Interest Act [“the Act”] was constitutional. The constitutionality of the Act was addressed in Cotton v. Coccaro, an appeal of $6.5 million dollar verdict against various defendants in a medical malpractice case. After the verdict the trial court denied plaintiff’s motion for pretrial interest under the Act. Cotton then filed a post-trial motion and renewed her request for a prejudgment interest award. The briefing on Cotton’s motion addressed the constitutionality of the Act. The trial court then modified the original judgment to include prejudgment of $111,332.99 and the court then entered judgment against the defendants. The defendants the appealed that order.

For clarification, the Act provides that after entering judgment for a plaintiff in an action, the court shall add to the amount of the judgment interest calculated at the rate of 6% per annum on the amount of the judgement, minus punitive damages, sanctions, statutory attorney’s fees and statutory costs[emphasis mine]. Prior to the Cotton decision, two Cook County judges had entered conflicting orders on the constitutionality of the Act, so there was a pressing need for Appellate Court clarification.

The Appellate Court opinion first noted that until the Act was amended in 2021, Illinois did not allow recovery of prejudgment interest in personal injury and wrongful death cases – but did allow prejudgment interest to be added in cases where it was permitted by contract, statute or equity. The opinion, written by Justice Mitchell, then noted that the rationale for prejudgment interest is ensure the plaintiff receives compensation for the actual injury and for the delay in being made whole. Justice Mitchell noted that providing interest on the verdict provides the injured party with a more complete recovery, and importantly, requires a defendant to bear the full cost of his breach. The opinion goes on to effectively and summarily rebut each of the arguments offered by the defense as to why the Act should be held unconstitutional.

Additional challenges to the Act are a virtual certainty and the issue will likely make its way to the Illinois Supreme Court. But for the moment, reason prevails and the Act stands.

Hats off to Raymond & Raymond Ltd; Pfaff Gill & Ports Ltd and Clifford Law Offices, all of whom represented plaintiff.