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October 10, 2001

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Robert A. Sooter, appeals the trial court's orderdenying his motion for summary judgment on a counterclaim filed byplaintiff, Rodrick Whetstone, as assignee of Rose Groce, CharlesLusk, and Bill Thompson Transport, Inc. We affirm.

Rodrick Whetstone was riding as a passenger in an automobiledriven by Robert P. Sooter. On August 22, 1994, the automobiledriven by Sooter collided with the rear portion of a truck drivenby Rose Groce. The truck had pulled into the lane in front ofSooter's vehicle after having been stopped on the shoulder. Thetruck was owned by Charles Lusk and Bill Thompson TransportCompany, Inc.

Whetstone filed an amended complaint alleging negligenceagainst defendants, Sooter, Groce, Lusk, and Thompson Transport. Groce, Lusk, and Thompson Transport filed a counterclaim forcontribution against defendant Sooter.

Groce, Lusk, and Thompson Transport entered into a settlementwith Whetstone. In exchange for a general release of all claimsagainst all defendants and the dismissal of the entire complaintwith prejudice, Whetstone accepted a sum of $30,000 paid by Groce,Lusk, and Thompson Transport. The settlement also included anassignment to Whetstone of the counterclaim for contribution filedagainst Sooter by Groce, Lusk, and Thompson Transport.

The trial court entered the following order approving thesettlement:

"THIS MATTER coming on for hearing on the Motion forApproval of Settlement, and the Plaintiff appearing by RENO,ZAHM, FOLGATE, LINDBERG & POWELL, by Robert A. Frederickson,and the Defendant, ROBERT P. SOOTER, appearing by ENNACE,MEADE & ASSOCIATES, by J. Klein, and the Defendants, ROSEGROCE, CHARLES LUSK, and BILL THOMPSON TRANSPORT, INC.,appearing by LANDAU, OMAHANA & KOPKA, by Barry A. Robin andthe Court being fully advised in the premises finds:

1. That the Plaintiff has settled the case as to allDefendants for the sum of $30,000 and an assignment ofthe counterclaim of ROSE GROCE, CHARLES LUSK, and BILLTHOMPSON TRANSPORT, INC., and their insurer MARKELINSURANCE COMPANY OF CANADA, against Robert P. Sooter,and the Court hereby approves said settlement as a goodfaith settlement;

2. That Defendants, ROSE GROCE, CHARLES LUSK andBILL THOMPSON TRANSPORT, INC., and their insurer, MARKELINSURANCE COMPANY OF CANADA, have assigned to RODRICKWHETSTONE their counterclaim against SOOTER, and leave isgranted for Rodrick Whetstone to amend said counterclaimto add Rodrick Whetstone as a counterplaintiff therein.

3. That the counterclaim (GROCE, LUSK, THOMPSONTRANSPORTATION, AND WHETSTONE v. SOOTER) aspect of thiscase is hereby assigned to the arbitration docket, as theamount in controversy is $30,000.

4. That the case of RODRICK WHETSTONE v. ROBERT P.SOOTER, ROSE GROCE, CHARLES LUSK, and BILL THOMPSONTRANSPORT, INC. (case no. 96-L-247 less the Groce, et al.v. Sooter counterclaim), is hereby dismissed withprejudice as the main case has been settled as set forthherein."

The order was signed by the attorneys for each of the parties,including Sooter.

Sooter filed a motion to dismiss the counterclaim pursuant tosection 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--619 (West 2000)). The motion asserted that the general release ofclaims executed by Whetstone barred Whetstone's ability to proceedas plaintiff on the counterclaim assigned as part of thesettlement. Sooter also filed a motion to dismiss the counterclaimas violative of his constitutional right to a jury trial. Themotion asserted that the purpose and effect of the assignment ofthe counterclaim against Sooter was to avoid a jury's determinationof the amount of damages to be awarded to Whetstone. Since Sooterfiled a jury demand, he asserted that the assignment of thecounterclaim violated his right to have a jury determine the amountof damages and contravened the purpose behind the Joint TortfeasorContribution Act (740 ILCS 100/1 et seq. (West 2000)).

After a hearing on Sooter's motions, the trial court foundthat the settlement placed the total amount of damages at $30,000and that a jury would determine the percentage of liabilityattributed to Sooter on the assigned counterclaim. Based on thisruling, Sooter withdrew the motion to dismiss for constitutionalreasons. The trial court denied Sooter's section 2--619 motion todismiss the counterclaim, specifically finding the terms of therelease to be unambiguous, and did not bar an assignment of thecounterclaim to Whetstone. Although the order references themotion filed by Sooter as a motion for "summary judgment," this isan error, as the pleading upon which the order was entered clearlyidentifies it as being brought pursuant to section 2--619 of theCode.

The case proceeded to a jury trial on the assignedcounterclaim for contribution. The jury apportioned liability at35% against Thompson Transport and 65% against Sooter. A judgmentwas entered in favor of Whetstone as assignee of the counterclaimand against Sooter in the amount of $19,500.

Sooter filed a posttrial motion. The motion asserted that thetrial court erred in denying his motion for summary judgment. Sooter's posttrial motion was denied and this appeal followed. Sooter seeks the reversal of the denial of his section 2--619motion to dismiss the counterclaim and the judgment entered againsthim in the amount of $19,500.

The release at issue provided as follows:

"FULL AND FINAL RELEASE OF ALL CLAIMS

IN CONSIDERATION of payment of the sum of Thirty ThousandDollars ($30,000.00) paid by or on behalf of ROSE GROCE,CHARLES LUSK, BILL THOMPSON TRANSPORT, INC., and MARKELINSURANCE COMPANY OF CANADA, receipt of which is herebyacknowledged, Releasor, RODRICK WHETSTONE, for Releasor andall heirs, executors, administrators and assigns herebyreleases and forever discharges, and holds harmless andindemnifies Releasees, ROSE GROCE, CHARLES LUSK, BILL THOMPSONTRANSPORT, INC., and MARKEL INSURANCE COMPANY OF CANADA, andall of their agents, servants, related subsidiaries, parentcompanies, affiliated companies and assigns and herebyreleases and forever discharges all other parties of allclaims, damages, costs, expenses, demands, actions and suitsof whatever kind, whether known or unknown at this time,whether now existing or existing in the future or whetherbrought by or on behalf of Releasor or against Releasorresulting or arising from an accident which occurred on orabout the 22nd day of August, 1994, at or near Bypass U.S. 20,in the City of Belvidere, County of Winnebago, State ofIllinois, and more particularly described in a lawsuit filedin the Circuit Court of the Seventeenth Judicial Circuit,Winnebago County, Illinois bearing Case No. 96 L 247."

In a separate document executed as part of the settlement,Groce, Lusk, and Thompson Transport assigned their counterclaim forcontribution against Sooter to Whetstone. The assignment providedas follows:

"The undersigned [sic], ROSE GROCE, CHARLES LUSK, andBILL THOMPSON TRANSPORT, INC., and their insurer, MARKELINSURANCE COMPANY OF CANADA, by their attorneys, LANDAU,OMAHANA & KOPKA, LTD., by Barry A. Robin, for one dollar andother good and valuable consideration hereby assign to RODRICKWHETSTONE their cause of action in the form of counterclaimagainst ROBERT SOOTER for reimbursement of sums paid by saidassignors in excess of their pro rata share of sums dueRodrick Whetstone."

Since the release provided that Whetstone released anddischarged all parties of all claims, "actions and suits ofwhatever kind, whether known or unknown at this time, whether nowexisting or existing in the future or whether brought by or onbehalf of Releasor or against Releasor resulting or arising from anaccident which occurred on or about the 22nd day of August, 1994,at or near Bypass U.S. 20, in the City of Belvidere," Sootercontends that the assigned counterclaim brought by Whetstone wascovered by the terms of the release. He contends the counterclaimshould have been dismissed pursuant to his section 2--619 motion.

The purpose of a section 2--619 motion to dismiss is toprovide a means to dispose of issues of law or easily proved issuesof fact. Noesges v. Servicemaster Co., 233 Ill. App. 3d 158, 162(1992). A section 2--619 motion to dismiss admits the legalsufficiency of the complaint, but asserts an affirmative defense orother matter that avoids or defeats the claim. Joseph v. Collis,272 Ill. App. 3d 200, 206 (1995). The motion should be granted if,after construing the documents in support and in opposition to themotion in the light most favorable to the nonmoving party, thereare no disputed issues of material fact. Noesges, 233 Ill. App. 3dat 162. A reviewing court is not required to defer to the trialcourt's judgment on a motion to dismiss and will review the matterde novo. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d1080, 1084 (1994).

The Joint Tortfeasor Contribution Act (Contribution Act orAct) provides, in pertinent portion:

"(a) Except as otherwise provided in this Act, where 2 ormore persons are subject to liability in tort arising out ofthe same injury to person or property, or the same wrongfuldeath, there is a right of contribution among them, eventhough judgment has not been entered against any or all ofthem.

(b) The right of contribution exists only in favor of atortfeasor who has paid more than his pro rata share of thecommon liability, and his total recovery is limited to theamount paid by him in excess of his pro rata share. Notortfeasor is liable to make contribution beyond his pro ratashare of the common liability." 740 ILCS 100/2 (West 2000).

In Claudy v. Commonwealth Edison Co., 169 Ill. 2d 39, 43(1995), our supreme court addressed the issue of whether a right ofcontribution can be assigned. The majority in Claudy decided thatthe assigned contribution action failed under the particular factsof the case because the settling defendant did not pay in excess ofits pro rata share of the common liability as required in section2(b) of the Act. Claudy, 169 Ill. 2d at 43.

The majority in Claudy declined to address the propriety of anassignment of the right of contribution. Claudy, 169 Ill. 2d at43. The dissent directly addressed the issue and believed that aright of contribution is generally assignable. Claudy, 169 Ill. 2dat 47 ("a right of contribution is generally assignable") (Nickels,J., dissenting, joined by Bilandic, C.J., and McMorrow, J.) In asubsequent decision from the Illinois Appellate Court, FirstDistrict, the court adopted the rationale of the dissent and heldthat a contribution action can be assigned to a nontortfeasor. Block v. Pepper Construction Co., 304 Ill. App. 3d 809, 813-14(1999); see also Dubina v. Mesirow Realty Development, Inc., 308Ill. App. 3d 348 (1999).

Contrary to the rationale of Claudy, the settlement at issuewas consistent with the purpose behind the Contribution Act. Byarranging for a complete and final settlement against all parties,including Sooter, Thompson Transport's counterclaim, which was assigned to Whetstone, sought contribution against Sooter for hispro rata share of liability. The issue of Sooter's pro rata shareof liability was tried before a jury. The jury assessed Sooter'spro rata share of the common liability of $30,000 pursuant to theterms of the settlement to be 65%. Sooter benefitted by thesettlement in that the judgment against him was calculated based onthe amount of the settlement. Had the settlement amount beenhigher, the judgment against Sooter would have increased.

Nevertheless, Sooter contends that the language of the releasebetween Whetstone and the Thompson Transport defendants wassufficiently broad to release the assigned counterclaim againsthim. In support of his position, Sooter cites Rakowski v. Lucente,104 Ill. 2d 317 (1984).

In Rakowski, the plaintiff and two passengers were involved inan automobile collision with Lucente. Lucente executed anddelivered a general release in favor of Rakowski. Rakowski andhis two passengers then sued Lucente for personal injuries theysuffered in the accident. Lucente counterclaimed for contributionagainst Rakowski. Rakowski filed a motion to dismiss, assertingthat the general release barred Lucente's counterclaim forcontribution as well as any other claims filed against him. Inopposition to the motion, Lucente filed an affidavit stating thathe did not intend to give up his right to seek contribution fromRakowski and intended only to release Rakowski from claims forinjuries Lucente suffered as well as for damage to the automobile.

Our supreme court affirmed the trial court's dismissal of thecontribution claim. The court examined the language of the generalrelease, which provided, generally, that Rakowski releasedliability from "any and all claims, demands, damages, actions,causes of actions or suits of any kind or nature" whatsoever. Onthis basis, the court found the contribution action to be withinthe scope of the general release that was "comprehensive, preciseand unambiguous." Rakowski, 104 Ill. 2d at 323.

We addressed a similar situation in Haley v. Posdal, 201 Ill.App. 3d 963 (1990). Haley and Allport were passengers in anautomobile driven by Haley's son, Tate, when it was involved in acollision with an automobile driven by Posdal. Haley and Allportfiled suit against Posdal. Posdal filed suit against Tate. Healso filed a contribution action against Tate in the Haley suit. Posdal settled his suit against Tate and executed a releasedischarging Haley and Haley's insurer from "any and all actions,causes of action, claims, demands, costs, loss of services,expenses and compensation, on account of, or in any way growing outof, any and all known and unknown personal injuries and propertydamage resulting or to result from an accident." 201 Ill. App. 3dat 969. Tate then moved to dismiss Posdal's contribution actionagainst him, claiming that the release Posdal executed also settledand released the counterclaim. On the basis of the generalrelease, the trial court dismissed Posdal's contribution actionagainst Tate and Posdal's action for personal injuries and propertydamage against Tate. On appeal, the court relied on Rakowski indetermining that the contribution action was a cause of action thatgrew out of the automobile collision at issue and was barred by theexpress language of the general release.

In denying Sooter's section 2--619 motion to dismiss, thetrial court distinguished Rakowski and Haley. The trial courtfound the cases distinguishable because they did not involve anassigned counterclaim. In both Rakowski and Haley, the same partythat executed the release had a counterclaim pending. The broadlanguage of the release was construed to discharge thecounterclaim, as it was a cause of action "owned" by the releasingparty. In the trial court's view, the assigned counterclaim couldnot have been released or discharged by Whetstone, as he did not"own" the counterclaim when the release was executed, havingsubsequently acquired the right to proceed on the counterclaim aspart of the final settlement.

We agree with the trial court's analysis. By the terms of therelease, Whetstone released and discharged his pending claimagainst defendants, including Sooter. Although the language of therelease is broad, it does not specifically state that the ThompsonTrucking counterclaim is included. Before the assignment of thecounterclaim to Whetstone, the Thompson Trucking defendants werethe only parties that could release their counterclaim againstSooter. It is significant that Whetstone acquired the counterclaimpursuant to the terms of the settlement. Consistent with theposition taken by the trial court, Whetstone could not havereleased a cause of action he did not acquire until the settlementwas final.

Construing the release filed in support of Sooter's section 2--619 motion to dismiss in the light most favorable to Sooter, thenonmoving party, there is no issue of fact concerning the causes ofaction discharged by the terms of the general release. The trialcourt's denial of Sooter's section 2--619 motion to dismiss theassigned counterclaim based on the language of the release wasappropriate.

The judgment of the circuit court of Winnebago County isaffirmed.

Affirmed.

HUTCHINSON, P.J., and BOWMAN, J., concur.