Illinois Supreme Court Distinguishes “Waiver” From “Forfeiture”

This automobile accident case resulted in one defendant (COSCO) suing another (Frontline) for express indemnity. One of the issues was the scope of indemnity agreement. But Frontline, which took the appeal to the Illinois Supreme Court, did not raise that question in its petition to the Supreme Court for leave to appeal. The Illinois Supreme Court ruled that the failure to raise it in the petition for leave to appeal resulted in forfeiture of the issue.

Courts and practitioners routinely confuse “forfeiture” and “waiver.” In this opinion, the Illinois Supreme Court distinguished the terms. “As this court has noted, there is a difference between waiver and forfeiture. While waiver is the voluntary relinquishment of a known right, forfeiture is the failure to timely comply with procedural requirements … These characterizations apply equally to criminal and civil matters … [A] party’s failure to raise an issue in its petition for leave to appeal may equally be deemed a forfeiture of that issue.”

Frontline argued the “scope” question in its brief, but that did not cure the forfeiture. Read the whole case, Buenz v. Frontline Transportation Co., No. 103562 (1/25/08), by clicking here.