Find Legal Information

SIXTH DIVISION
December 10, 2004

This is a permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 308(134) Ill. 2d R. 308). Defendant George DePhillips appeals from the denial of his motion todismiss a claim for contribution filed against him by plaintiffs Clinton Harshman, BlachowskeTruck Lines, Inc. and Dahl Trucking, Inc. (collectively, Harshman). The circuit court certified forappeal the question: "[m]ay a contribution claim be brought in accordance with Illinois law in aseparate proceeding if the party first attempted to bring the claim in the original proceedings in aseparate jurisdiction and was denied leave by that court to file said contribution claim?" Webelieve that, on the record presented here, the certified question must be answered in the negative.

Background

In October 1999 LaVerne Peterson and Mary Peterson (the Petersons) filed suit in LakeCounty, Indiana, superior court, seeking damages from Harshman for injuries allegedly arisingfrom a March 23, 1999, collision in Gary, Indiana, between their car and his truck. As a resultof her injuries, LaVerne Peterson received medical treatment from DePhillips, including a four-level spine disectomy and fusion.

The Petersons asserted no claims against DePhillips in the original suit. The action wasremoved to the United States District Court for the Northern District of Indiana.

According to pleadings filed by Harshman, his claim for contribution arose from theJanuary 15, 2001, deposition of Dr. Gary Skaletsky, in which Skaletsky testified that DePhillips'treatment was unnecessary and actually worsened the injuries LaVerne sustained in the collision. On January 29, 2001, Harshman moved to extend discovery, to continue the trial date and forleave to file a third-party complaint for contribution against DePhillips. Discovery was scheduledto close on January 31, 2001, and trial was scheduled for March 26, 2001.

The United States District Court magistrate presiding over the matter ruled that reopeningdiscovery, postponing the scheduled trial date, and introducing the new issues of DePhillips'alleged negligence would be unduly prejudicial to the Petersons and accordingly deniedHarshman's motion. The magistrate advised Harshman that under Illinois law, "a contributionclaim may be brought in a separate action even if not filed while the underlying action is stillpending."

Harshman did not appeal the denial of his motion. Instead, he filed the contribution claimas a separate action in the circuit court of Cook County. Judgment in the Indiana action wasentered against Harshman for $1,471,350. In Illinois, DePhillips moved for the circuit court todismiss the action based on Section 5 of the Joint Tortfeasor Contribution Act (740 ILCS 100/5(West 1998)). The circuit court denied the motion to dismiss, but certified the aforementionedquestion for appeal.

Analysis

Section 5 of the Joint Tortfeasor Contribution Act (Contribution Act) provides that "acause of action for contribution among joint tortfeasors *** may be asserted by a separate actionbefore or after payment *** by counterclaim or by third-party complaint in a pending action." 740 ILCS 100/5 (West 1998). The supreme court has definitively interpreted the language of theAct to disallow the pursuit of contribution claims in separate actions where another actionregarding the matter has been previously filed. "[A] party seeking contribution must assert aclaim by counterclaim or by third-party claim in the [pending action]." Laue v. Leifheit, 105 Ill.2d 191, 196 (1984). "One jury should decide both the liability to the plaintiff and the percentagesof liability among the defendants, so as to avoid a multiplicity of lawsuits in an already crowdedcourt system and the possibility of inconsistent verdicts." Laue, 105 Ill. 2d at 196-97. Thesupreme court has consistently reiterated this construction of section 5 of the Contribution Act. "The Laue court's construction of section 5 of the Contribution Act leads us to conclude thatanytime a joint tortfeasor fails to bring his contribution claim in the original action, any claim tocontribution is thereafter a nullity." Henry v. St. John's Hospital, 138 Ill. 2d 533, 546 (1990); seealso Hayes v. Mercy Hospital & Medical Center, 136 Ill.2 d 450, 460 (1990).

Harshman argues that Laue should not be interpreted as a complete bar to the pursuit ofcontribution claims not filed during the pendency of a prior-filed action and cites Cook v. GeneralElectric Co. 146 Ill. 2d 548 (1992), and Anderson v. Alberto-Culver USA, Inc.,337 Ill.App. 3d643 (2003), as support for this argument. We find his reliance on these precedents to bemisplaced. In each case, the contribution plaintiff proceeded in accordance with the directive ofLaue by filing its contribution claim in the original action. In Cook, the supreme court held thatthis mandate did not preclude the possibility of separate trials in the event that severance wasdictated by forum non conveniens analysis. Cook, 146 Ill. 2d at 556. In Anderson, this courtheld that Laue did not prohibit a trial judge from directing separate, nonconcurrent jury deliberations on original wrongful death claims and related contribution claims in a complexaction. Anderson, 337 Ill. App. 3d at 664. Cook and Anderson thus confirm that a trial judgeretains discretion to sever the trial of a contribution claim from that of the original action; butneither case suggests a departure from the requirement that the contribution claim must initially befiled during the pendency of the original cause.

Harshman next argues that he met the requirements of the Contribution Act as interpretedby Laue by moving for leave of court to file a third-party complaint against DePhillips. In ourview, this argument is unsupported by the plain language of Laue, which unequivocally directsthat the contribution plaintiff not merely "assert" his claim, but that he assert it in the originalaction "by counterclaim or by third-party claim in that action." Laue, 105 Ill. 2d at 196. We areunaware of any Illinois precedent that has held this directive to be satisfied by the mere request forleave to file a complaint, and none has been cited by Harshman. We therefore adhere to theexplicit language of Laue and hold that Harshman was required to actually file his contributioncomplaint as a third-party claim in the original action filed by the Petersons.

Harshman also contends that an exception to the requirement of filing his contributionclaim in the original action should be made because the magistrate's denial of his motion for leaveto file prevented his compliance with the rule. On similar facts, Illinois reviewing courts havereached the opposite conclusion; finding that a trial court's denial of leave to file a third-partyclaim or counterclaim, rather than providing a basis for allowing such claims to be filed separately,instead operates to conclusively preclude further pursuit of such claims.

In Henry v. St. John's Hospital, 159 Ill. App. 3d 725, 734 (1987), a tort defendant was notallowed to file a contribution claim against a joint tortfeasor due to the prejudice to the otherparties that would have resulted from allowance of the belated claim; the denial of leave to filewas affirmed by the appellate court. The contribution claimant then attempted to assert theContribution Act's protection of joint tortfeasors against payments in excess of their proratedshare of liability by tendering only its prorated share of the unpaid damages to the plaintiff. Oursupreme court held that any right to contribution had been foreclosed by the initial denial of leaveto file the claim: "This serves only to support our holding that by failing to preserve theircontribution rights in the original action, defendants have effectively waived those rights." Henryv. St. John's Hospital, 138 Ill. 2d 533, 547 (1990).

In Mann v. Rowland, 342 Ill. App. 3d 827 (2003), a defendant in a federal court action forattorneys fees sought to assert a counterclaim for malpractice, but was denied leave to file theclaims because discovery in the original action had closed. 342 Ill. App. 3d at 831. Thedefendant then attempted to raise the same malpractice claims against the attorneys in asubsequent state court proceeding. Mann, 342 Ill. App. 3d at 832. This court held that the claimswere barred by the res judicata doctrine, noting that the defendant "did raise these same causes ofaction in the federal fees case but not until after the discovery deadline in the case had closed,"and concluding that "[i]ts failure to abide by the time requirements of the district court does notentitle it to a second 'bite at the apple' in this court." Mann, 342 Ill. App. 3d at 838, quotingPeregrine Financial Group, Inc. v. Ambuehl, 309 Ill. App. 3d 101, 109 (1999).

In our view, these precedents indicate that the magistrate's denial of leave to fileHarshmans's contribution counterclaim weighs in favor of dismissal of his claims here and do notoffer a basis for an exception to the requirements defined in Laue. We conclude that Illinois lawdoes not allow Harshman's contribution claim against DePhillips.

Certified question answered in the negative and cause remanded..

FITZGERALD-SMITH, P.J., and O'MARA FROSSARD, J., concur.