The opinion
Docket No. 99805.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
CLINTON HARSHMAN et al., Appellants, v. GEORGE E.
DePHILLIPS, Appellee.
Opinion filed February 17, 2006.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, McMorrow,
Fitzgerald, and Kilbride concurred in the judgment and opinion.
Justice Karmeier dissented.
OPINION
Plaintiffs Clinton Harshman, Blachowske Truck Lines, Inc., and
Dahl Trucking, Inc., were sued for negligence in the United States
District Court for the Northern District of Indiana. A federal
magistrate judge denied them leave to file a third-party complaint
against defendant Dr. George E. DePhillips (see Fed. R. Civ. Proc.
14(a)). Subsequently, they filed a separate contribution action against
defendant in the Cook County circuit court. The circuit court denied
defendant=s motion to dismiss (735 ILCS 5/2B619 (West 2002)).
However, the appellate court granted defendant leave to appeal (155
Ill. 2d R. 308) to address whether Illinois law permits a party to bring
a contribution claim in a separate proceeding after a court of another
jurisdiction has denied the party leave to file the claim in the original
proceeding. The appellate court answered the certified question in the
negative and remanded the cause for further proceedings. We hold
plaintiffs= contribution claim was not Aasserted *** by third-party
complaint in a pending action@ within the meaning of section 5 of the
Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS
100/5 (West 2000)) and is therefore not permitted by Illinois law.
Accordingly, we affirm the judgment of the appellate court.
BACKGROUND
On March 23, 1999, Clinton Harshman and LaVerne and Mary
Peterson were involved in an automobile accident in Gary, Indiana.
Harshman was driving a truck owned by Dahl Trucking, Inc., and
under lease to Blachowske Truck Lines, Inc. The truck collided with
the Petersons= car.
After the accident, LaVerne Peterson received medical treatment
from defendant for cervical spine pain and related symptoms. The
treatment included spinal surgery, which defendant performed on
July 9, 1999.
On October 21, 1999, the Petersons filed suit against plaintiffs in
the Lake County, Indiana, superior court. They sought damages for
injuries allegedly arising from the March 1999 accident. The
Petersons did not assert any claims against defendant.
Plaintiffs removed the Petersons= lawsuit to the United States
District Court for the Northern District of Indiana. The court
scheduled discovery to end January 31, 2001. Trial was to begin
March 26, 2001.
On January 15, 2001, plaintiffs deposed Dr. Gary Skaletsky. Dr.
Skaletsky had examined LaVerne Peterson after the March 1999
automobile accident. According to plaintiffs= response to defendant=s
motion to dismiss the present action, as well as plaintiffs= brief before
this court, they first became aware of the possibility of filing a
contribution claim against defendant during Dr. Skaletsky=s
deposition. Plaintiffs maintain the deposition revealed that the
surgery defendant performed on LaVerne Peterson was unnecessary
and exacerbated his injuries.
After deposing Dr. Skaletsky, plaintiffs moved to file a third-
party complaint for contribution against defendant, extend discovery,
and continue the trial date. A federal magistrate judge denied
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plaintiffs= motion. In an unpublished order (Peterson v. Harshman,
No. 2:99 cv 516 (March 22, 2001)), the magistrate noted that, under
Rule 14(a) of the Federal Rules of Civil Procedure (Fed. R. Civ. Proc.
14(a)), a defendant may, as a matter of right, file a third-party
complaint against a person who is not a party to an action if that
person might be liable to the defendant for all, or part, of the original
plaintiff=s claim. However, if the third-party plaintiff seeks to file a
third-party complaint more than 10 days after service of the original
answer, the third-party plaintiff must obtain leave of court to do so.
The magistrate concluded that granting plaintiffs leave to file a third-
party complaint against defendant would unfairly prejudice the
Petersons. Plaintiffs= motion, the magistrate reasoned, was made at
the close of discovery and on the eve of trial, long after the Petersons
had filed suit. Therefore, granting it would require reopening
discovery and continuing the trial date, which would unduly delay the
proceedings.
Alternatively, the magistrate reasoned that granting plaintiffs=
motion would unnecessarily complicate the case by introducing
unrelated issues. The magistrate observed that Indiana law does not
allow third-party contribution claims to be filed against physicians,
but that Illinois law does permit such claims. However, he deemed it
unnecessary to resolve whether Indiana law or Illinois law applied to
plaintiffs= contribution claim. Instead, the magistrate expressed
general concern with A[t]he complications attendant to the typical
third-party claim against a treating physician,@ adding that those
complications might be even greater in the instant case if a jury were
required to apply Indiana law to the Petersons= negligence claim and
Illinois law to plaintiffs= contribution claim.
Finally, the magistrate rejected plaintiffs= contention that refusing
to permit them to file their contribution claim in the pending action
would prevent them from bringing the claim in a separate action.
Plaintiffs argued this court=s interpretation of section 5 of the
Contribution Act (740 ILCS 100/5 (West 2000)) in Laue v. Leifheit,
105 Ill. 2d 191 (1984), establishes that the failure of a party to assert
a contribution claim while the original action is pending bars the
party from filing a contribution claim in a separate action at a later
time. The magistrate concluded, however, that Laue was abrogated
by statute when the Contribution Act was amended in 1995. See 740
ILCS 100/5 (West 1996). According to the magistrate, under current
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Illinois law, a contribution claim may be brought in a separate action
even if it is not filed while the original action is still pending.
While a complete record of the proceedings before the federal
district court is not before this court on review, plaintiffs do not
dispute that they did not ask the magistrate to reconsider his denial of
their motion. Nor do plaintiffs dispute that they did not seek review
of the magistrate=s decision by a federal district judge. Instead, on
March 20, 2001, plaintiffs filed a contribution claim against
defendant in a separate action in the Cook County circuit court.
While the action was pending, the Petersons= case went to trial, and a
jury returned verdicts in their favor. Judgment was entered against
plaintiffs for $1,471,350, and plaintiffs did not appeal.
On January 6, 2003, defendant filed a motion to dismiss plaintiffs=
contribution action. The circuit court denied the motion to dismiss.
However, it granted defendant=s motion to certify the following
question for interlocutory review (155 Ill. 2d R. 308): AMay a
contribution claim be brought in accordance with Illinois law in a
separate proceeding if the party first attempted to bring the claim in
the original proceedings in a separate jurisdiction and was denied
leave by that court to file said contribution claim?@
The appellate court granted plaintiffs leave to appeal and
answered the certified question in the negative. 354 Ill. App. 3d 429.
Citing Laue, the appellate court observed that this court has
interpreted section 5 of the Contribution Act to require a party
seeking contribution to assert its contribution claim in the pending
action. 354 Ill. App. 3d at 431, quoting Laue, 105 Ill. 2d at 196. The
appellate court then rejected plaintiffs= argument that Laue should not
be interpreted as a complete bar to pursuing a contribution claim not
filed while the underlying action is pending. 354 Ill. App. 3d at 431-
32. The court also declined to hold that plaintiffs met the
requirements of the Contribution Act, as interpreted in Laue, merely
by moving for leave to file a third-party complaint against defendant.
354 Ill. App. 3d at 432. Relatedly, the court refused to create an
exception to section 5 to accommodate plaintiffs. 354 Ill. App. 3d at
432-33. The court reasoned that, on similar facts, Illinois courts have
found that a circuit court=s denial of leave to file a third-party claim
or a counterclaim precludes further pursuit of the claim. 354 Ill. App.
3d at 432-33. Accordingly, the appellate court concluded that
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plaintiffs= contribution claim against defendant was not permitted by
Illinois law. 354 Ill. App. 3d at 433.
Plaintiffs filed a petition for leave to appeal, which we allowed
(177 Ill. 2d R. 315). While the case was pending, defendant filed a
motion to strike two appendices from plaintiffs= brief. We ordered the
motion to be taken with the case.
ANALYSIS
As a preliminary matter, we address defendant=s motion to strike
plaintiffs= appendices. The appendices consist of a medical report
prepared by Dr. Skaletsy and a transcript of Dr. Skaletsky=s
deposition. Defendant argues they were not presented to the circuit
court or the appellate court, and therefore are not properly before this
court. We agree. Plaintiffs failed to include the appendices within the
record on appeal in accordance with the procedures set forth in
Supreme Court Rule 308 (155 Ill. 2d R. 308). There is no indication
the appendices were submitted as part of a supplementary supporting
record with plaintiffs= answer to defendant=s application for leave to
appeal, as required by section (c) of Rule 308 (155 Ill. 2d R. 308(c)).
Nor is there any indication that, once leave to appeal was allowed, the
appendices were submitted as part of an additional record on appeal,
as required by section (d) of Rule 308 (155 Ill. 2d R. 308(d)).
Therefore, the appendices are stricken from plaintiffs= brief.
I
Proceeding to the merits, the question the circuit court certified
for review in this case asks whether plaintiffs= contribution claim is
permissible under Illinois law. The applicable statute is section 5 of
the Contribution Act, which provides:
AA cause of action for contribution among joint tortfeasors
may be asserted by a separate action before or after payment,
by counterclaim or by third-party complaint in a pending
action.@ 740 ILCS 100/5 (West 1992). 1
1
Effective March 9, 1995, section 5 was amended to provide as follows:
AOther than in actions for healing art malpractice, a cause of
action for contribution among joint tortfeasors is not required to
be asserted during the pendency of litigation brought by a
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This case requires us to determine whether plaintiffs= contribution
claim was Aasserted *** by third-party complaint in a pending action@
within the meaning of section 5. Because the issue is one of statutory
interpretation, we review it de novo. Barragan v. Casco Design
Corp., 216 Ill. 2d 435, 440 (2005).
At the outset, we note that we do not interpret section 5 on a
blank slate. This court originally analyzed the statute in Laue v.
Leifheit, 105 Ill. 2d 191. In Laue, the plaintiff filed a contribution
action against the defendant to recover a percentage of the damages
he had been required to pay in a prior action. See Laue, 105 Ill. 2d at
193-94. In the prior action, the defendant and four members of her
claimant and may be asserted by a separate action before or after
payment of a settlement or judgment in favor of the claimant, or
may be asserted by counterclaim or by third-party complaint in a
pending action.@ 740 ILCS 100/5 (West 1996).
The amended version of section 5 was part of Public Act 89B7, which this
court declared unconstitutional in its entirety in Best v. Taylor Machine
Works, 179 Ill. 2d 367, 467 (1997). As a result, the amended version of
section 5 was rendered void ab initio, and the version of the statute in
existence prior to its amendment remained in effect. See, e.g., People v.
Gersch, 135 Ill. 2d 384, 390 (1990) (AThe effect of enacting an
unconstitutional amendment to a statute is to leave the law in force as it was
before the adoption of the amendment@). As yet, the legislature has not
reenacted the amended version of section 5. See 740 ILCS 100/5 (West
2004). The unamended version of the statute is at issue in this case.
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family sued the plaintiff for negligence after the truck the plaintiff
was driving collided with a car driven by the defendant. Laue, 105 Ill.
2d at 193. A jury returned verdicts against the plaintiff, and the
defendant and all of her family members recovered damages for the
injuries they suffered in the collision. Laue, 105 Ill. 2d at 193. The
defendant=s award of damages, however, was reduced by 33a%,
which was the jury=s assessment of her comparative negligence in
causing her own injuries. Laue, 105 Ill. 2d at 193-94. After judgment
was entered on the verdicts, the plaintiff filed his contribution action
against the defendant to recover 33a% of the damages he had paid to
the defendant=s family members. Laue, 105 Ill. 2d at 194. The circuit
court granted the plaintiff=s motion for judgment on the pleadings, but
the appellate court reversed. Laue, 105 Ill. 2d at 194-95.
In affirming the judgment of the appellate court, this court
addressed a single issue: whether the Contribution Act barred the
plaintiff from bringing his contribution claim because he did not
assert the claim in the original action. Laue, 105 Ill. 2d at 195. In a
previous decision, Tisoncik v. Szczepankiewicz, 113 Ill. App. 3d 240
(1983), the appellate court had held that the language in section 5
providing that a contribution claim may be asserted by a Aseparate
action before or after payment@ applies to situations where the injured
party does not file suit. Laue, 105 Ill. 2d at 196, quoting Tisoncik, 113
Ill. App. 3d at 245. The appellate court had further held that if the
injured party does file suit, and there is a pending action, the
contribution claim should be asserted by counterclaim or third-party
complaint in that action. Laue, 105 Ill. 2d at 196, citing Tisoncik, 113
Ill. App. 3d at 245. Agreeing with the Tisoncik court=s interpretation
of section 5, this court held the language of the statute clearly
requires that if there is a pending action, the party seeking
contribution must assert his claim by counterclaim or by third-party
claim in that action. Laue, 105 Ill. 2d at 196. This court also stated
that public policy favors such a requirement, noting one jury should
decide both the liability to the plaintiff and the apportionment of that
liability among the named defendants and other parties. Laue, 105 Ill.
2d at 196-97. Requiring parties to litigate these matters in one suit,
this court reasoned, minimizes docket crowding, avoids inconsistent
verdicts, and limits the accumulation of attorney fees. Laue, 105 Ill.
2d at 196-97.
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II
In this case, plaintiffs do not ask that we overrule the Laue court=s
interpretation of section 5. Rather, they argue that while section 5, as
interpreted in Laue, requires a party to Aassert@ its contribution claim
in the original action, it does not require that the claim Aactually
proceed@ in the original action. Plaintiffs cite this court=s decision in
Cook v. General Electric Co., 146 Ill. 2d 548 (1992), for the
proposition that Laue Arequires only that claims for contribution be
asserted in the pending action, not that there must inevitably be a
joint trial in every case.@ Cook, 146 Ill. 2d at 556. Alternatively,
plaintiffs request that this court recognize an exception to the
requirement that a contribution claim must be asserted in the original
action. Plaintiffs urge that in some instances, as here, judicial
economy and fundamental fairness warrant allowing a party to bring
a contribution claim outside the original action. At oral argument,
plaintiffs also contended that the term Apending action@ in section 5
should be interpreted to apply only to actions pending in Illinois.
According to plaintiffs, section 5 is inapplicable to their contribution
claim, because the action it arose from was filed in Indiana.
In response, defendant argues that section 5 of the Contribution
Act does not permit a party to file a contribution claim outside the
original action. Rather, under the plain language of the statute, the
claim must be filed as a counterclaim or third-party complaint in the
original action. Defendant emphasizes that section 5 contains no
exception allowing a party who tries, but fails, to file a contribution
claim in the original action to then file the claim in a separate action.
Defendant further stresses that, in this case, plaintiffs made no
attempt to seek review of the magistrate=s denial of their motion to
file a third-party complaint. According to defendant, plaintiffs=
alleged late discovery of their contribution claim and the
Contribution Act=s bar to asserting a contribution claim outside the
original action are reasons the magistrate should have let plaintiffs
file their third-party complaint in federal court, not reasons this court
should interpret section 5 to allow plaintiffs to proceed with their
contribution claim in a separate action in Illinois.
Before we proceed, we briefly turn our attention to plaintiffs=
argument that the Apending action@ requirement in section 5 should be
interpreted to apply only to actions pending in Illinois. Supreme
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Court Rule 341 requires the appellant=s brief to include Athe
contentions of the appellant and the reasons therefor, with citation of
the authorities and the pages of the record relied on.@ 188 Ill. 2d R.
341(e)(7). Rule 341 further provides that A[p]oints not argued [in the
appellant=s brief] are waived and shall not be raised in the reply brief,
in oral argument, or on petition for rehearing.@ 188 Ill. 2d R.
341(e)(7). Plaintiffs, as appellants, did not raise their argument
regarding the scope of the Apending action@ requirement until oral
argument before this court. Accordingly, the argument is waived.
See, e.g., People v. Thomas, 164 Ill. 2d 410, 422 (1995) (ineffective
assistance of appellate counsel argument raised for first time at oral
argument before this court deemed waived).
III
Our primary objective in interpreting a statute is to give effect to
the intent of the legislature. U.S. Bank National Ass=n v. Clark, 216
Ill. 2d 334, 346 (2005). We read the statute as a whole, considering
all relevant parts. Barragan, 216 Ill. 2d at 441. The best indication of
the legislature=s intent is the statute=s language, given its plain and
ordinary meaning. Crusius v. Illinois Gaming Board, 216 Ill. 2d 315,
328 (2005). Where the statutory language is clear and unambiguous,
it will be given effect without resorting to other aids of construction.
Zaabel v. Konetski, 209 Ill. 2d 127, 133 (2004), quoting People v.
Rissley, 206 Ill. 2d 403, 414 (2003).
Section 5 of the Contribution Act requires that, if there is a
pending action, a contribution claim must be asserted in that action.
740 ILCS 100/5 (West 1992). Black=s Law Dictionary defines
Aassert@ as A[t]o state positively@ or A[t]o invoke or enforce (a legal
right).@ Black=s Law Dictionary 124 (8th ed. 2004). Significantly,
under section 5, the contribution claim may be asserted within the
pending action in one of two ways: by counterclaim or by third-party
complaint. 740 ILCS 100/5 (West 1992). Plaintiffs= argument that
section 5 does not require that the claim Aactually proceed@ in the
original action ignores this aspect of section 5. Where a court denies
a defendant leave to file a third-party complaint and, as a result, no
third-party complaint is filed, the defendant cannot be said to have
asserted a claim by third-party complaint. It is thus immaterial that
section 5 does not provide that a contribution claim Aactually
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proceed@ in the original action.
We further note that under plaintiffs= proposed interpretation of
section 5, a contribution claim would qualify as having been Aasserted
*** by third-party complaint in a pending action@ upon a defendant=s
request for leave to file a third-party complaint raising the
contribution claim, regardless of whether leave is actually granted.
This cannot be what the legislature intended in enacting section 5. A
statute should be construed in a manner such that no term is rendered
meaningless or superfluous. Stroger v. Regional Transportation
Authority, 201 Ill. 2d 508, 524 (2002). If merely requesting leave to
file a contribution claim constituted assertion of the contribution
claim, then a defendant denied leave to file a third-party complaint
raising his or her claim could immediately attempt to pursue the
claim in a separate action, because the defendant would have satisfied
the requirement of asserting the claim by third-party complaint in the
pending action. This would render the requirement that the claim be
asserted in the pending action a mere formality.
This court=s decision in Cook v. General Electric Co., 146 Ill. 2d
548 (1992), offers no support for plaintiffs= position. In Cook, the
plaintiff was operating a train when it collided with a combine. Cook,
146 Ill. 2d at 550-51. He filed suit against his employer and the
train=s manufacturer on the ground the train lacked adequate safety
equipment to protect him. Cook, 146 Ill. 2d at 551. The manufacturer
filed a third-party complaint for contribution against Montgomery
County and Walshville Township, and moved to transfer the entire
action from St. Clair County to Montgomery County under the
doctrine of forum non conveniens. Cook, 146 Ill. 2d at 551. It argued
that the governmental defendants could be sued only in Montgomery
County. Cook, 146 Ill. 2d at 551. The circuit court denied the
manufacturer=s motion but severed the contribution claim,
transferring it to Montgomery County. Cook, 146 Ill. 2d at 551. The
appellate court denied review. Cook, 146 Ill. 2d at 551.
On appeal, this court addressed whether the circuit court abused
its discretion in denying the manufacturer=s motion and transferring
only the contribution claim to Montgomery County. Cook, 146 Ill. 2d
at 551. Ultimately, this court reversed the judgment of the circuit
court on the ground that under the doctrine of forum non conveniens,
it was more appropriate to try the entire suit in Montgomery County.
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See Cook, 146 Ill. 2d at 556-60. However, before conducting its
forum non conveniens analysis, this court rejected the manufacturer=s
argument that Laue v. Leifheit and section 2B103 of the Code of Civil
Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2B103), taken without
more, compelled transfer of the entire action to Montgomery County.
See Cook, 146 Ill. 2d at 553-56. Section 2B103, governing venue in
lawsuits against governmental entities, required the contribution
claims against Montgomery County and Walshville Township to be
tried in Montgomery County because both entities had their principal
offices in Montgomery County and the accident occurred there. Cook,
146 Ill. 2d at 553. Moreover, Laue could not be interpreted to give
the circuit court discretion to sever the manufacturer=s contribution
claims. Cook, 146 Ill. 2d at 555 (quoting Laue=s requirement that
A >when there is a pending action, [any] contribution claim should be
asserted *** in that action= @(emphasis in original) and emphasizing
the considerations of judicial economy at play in Laue). However,
this court declined to hold that Acontribution actions must invariably
be tried together with the original tort action.@ Cook, 146 Ill. 2d at
556. Such a holding would let defendants change venue whenever
they wanted by merely filing a contribution complaint against a
governmental entity. Cook, 146 Ill. 2d at 556. This court went on to
determine that the concerns with judicial economy expressed in Laue
and the fact the governmental defendants were subject to suit only in
Montgomery County were just two factors to be considered within
the broader forum non conveniens analysis. Cook, 146 Ill. 2d at 559.
As plaintiffs point out, this court did state in Cook that Laue
Arequires only that claims for contribution be asserted in the pending
action, not that there must inevitably be a joint trial in every case.@
Cook, 146 Ill. 2d at 556. Cook, however, merely establishes that, for
purposes of forum non conveniens analysis, Laue does not
automatically require a joint trial, and thus does not automatically
compel the transfer of a case to a specific forum. See Cook, 146 Ill.
2d at 556, 559. Cook does not support the proposition that the mere
request for leave to file a third-party complaint constitutes the
assertion of a contribution claim for purposes of section 5. Indeed, the
defendant that raised the contribution claims in Cook was granted
leave to file its third-party complaint. Cook, 146 Ill. 2d at 552. Thus,
there was no question that the defendant=s contribution claims were
Aasserted *** by third-party complaint in a pending action@ (740
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ILCS 100/5 (West 1992)). The issue, rather, was whether, in light of
the applicable venue statute, the contribution claims that the
defendant asserted could be tried in a separate action.
Cook is consistent with the prior decision of Henry v. St. John=s
Hospital, 138 Ill. 2d 533 (1990), in which this court reaffirmed the
interpretation of section 5 set forth in Laue (Henry, 138 Ill. 2d at 546-
47). In Henry, the plaintiff was injured during her birth as a result of
the administration of an anesthetic to her mother. Henry, 138 Ill. 2d at
536. The plaintiff=s mother filed suit on the plaintiff=s behalf against
the hospital, the doctor who administered the anesthetic, and the
manufacturers of the anesthetic. Henry, 138 Ill. 2d at 536-37. During
the trial, the manufacturers filed a contribution counterclaim against
the hospital and the doctor, alleging that the doctor negligently
administered the anesthetic. Henry, 138 Ill. 2d at 537. After the close
of all evidence and prior to the instruction conference (Henry v. St.
John=s Hospital, 159 Ill. App. 3d 725, 734 (1987)), the hospital and
doctor filed a motion requesting leave to bring a contribution
counterclaim against the manufacturers, which was denied. Henry,
138 Ill. 2d at 547.
The jury returned a verdict against the defendants and determined
their pro rata shares of the damages. Henry, 138 Ill. 2d at 537. All
the defendants appealed the jury verdict, but while their appeals were
pending, the manufacturers settled with the plaintiff. Henry, 138 Ill.
2d at 537-38. The trial court found the settlement to be in good faith.
Henry, 138 Ill. 2d at 538. As a result, it dismissed the manufacturers
from the plaintiff=s action and vacated the judgment against them.
Henry, 138 Ill. 2d at 538. The appellate court proceeded with the
remaining defendants= appeal from the verdict and affirmed the
judgment against them. Henry, 138 Ill. 2d at 538, citing Henry, 159
Ill. App. 3d at 735.
At that point, the plaintiff initiated postjudgment proceedings.
Henry, 138 Ill. 2d at 538. The hospital and doctor responded by
tendering a check to the plaintiff for their pro rata share of the
judgment. Henry, 138 Ill. 2d at 538. They also moved for entry of
judgment on the verdict. Henry, 138 Ill. 2d at 538. The trial court
denied their motion, holding they were jointly and severally liable for
the entire sum of the judgment, reduced only by the dollar amount of
the plaintiff=s settlement with the manufacturers. Henry, 138 Ill. 2d at
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538. The hospital and doctor appealed this judgment, and the
appellate court reversed, finding in their favor. Henry, 138 Ill. 2d at
538-39, citing Henry v. St. John=s Hospital, 180 Ill. App. 3d 558
(1989). The appellate court interpreted the Contribution Act as
providing that a plaintiff who settles with a tortfeasor after a verdict
is returned in the plaintiff=s favor waives the right to enforce the
percentage of the judgment attributable to the settling tortfeasor
against the nonsettling tortfeasors. Henry, 138 Ill. 2d at 538.
The plaintiff appealed the judgment of the appellate court, and
this court reversed, holding that a plaintiff does not waive the right to
enforce a judgment against a jointly and severally liable tortfeasor by
settling with a co-tortfeasor. Henry, 138 Ill. 2d at 541. Based on the
plain meaning of various sections of the Contribution Act, this court
interpreted the Act as not affecting Aa plaintiff=s common law right to
collect the full amount of a judgment from any individual tortfeasor
who is jointly and severally liable for that plaintiff=s injuries.@ Henry,
138 Ill. 2d at 542-43. Rather, A[i]f a plaintiff elects to settle with one
party, the remaining tortfeasors are still jointly and severally liable
for the full amount of the judgment, less the amount of the
settlement.@ Henry, 138 Ill. 2d at 543. This court rejected the
appellate court=s characterization of the settlement agreement as a
waiver of the plaintiff=s right to the percentage of the judgment for
which the manufacturers were liable, finding no support for that
position in the language of the Act. Henry, 138 Ill. 2d at 543-44. In
addition, this court rejected the arguments of the hospital and doctor
that its interpretation of the Contribution Act would destroy their
purported Aright to pay only their pro rata share of the judgment@
(Henry, 138 Ill. 2d at 545), and that holding them liable for the entire
remainder of the judgment constituted improper postjudgment
reallocation of the jury verdict (Henry, 138 Ill. 2d at 549-50).
Relevant to the instant case, this court declined to reach the issue
raised by the hospital and doctor of whether the settlement between
the plaintiff and the manufacturers was reached in good faith. Henry,
138 Ill. 2d at 547-48. Specifically, it was unnecessary to reach the
issue because the settlement did not discharge any contribution
liability. Henry, 138 Ill. 2d at 548. Discharge of a settling tortfeasor=s
liability cannot occur, this court reasoned, where a nonsettling joint
tortfeasor has failed to preserve its contribution claim against the
settling tortfeasor. Henry, 138 Ill. 2d at 548. The hospital and doctor
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failed to preserve their contribution claim against the manufacturers
Abecause they neglected to raise the contribution claim in a timely
fashion during the original proceeding.@ Henry, 138 Ill. 2d at 548. As
this court explained, under the construction of section 5 of the
Contribution Act in Laue, Aanytime a joint tortfeasor fails to bring his
contribution claim in the original action, any claim to contribution is
thereafter a nullity.@ Henry, 138 Ill. 2d at 546. Although the facts of
Henry were distinguishable from Laue, this court found no reason to
depart from Laue=s Aexpress holding.@ Henry, 138 Ill. 2d at 546-47.
Applying that holding, this court noted its agreement with the
appellate court=s decision in the first appeal in Henry that the trial
court correctly denied the motion for leave to bring a contribution
claim filed by the hospital and doctor. Henry, 138 Ill. 2d at 547. The
trial court had determined the motion came at such a late stage of the
trial that to allow it would have prejudiced the other parties. Henry,
138 Ill. 2d at 547. The trial court had also noted the counterclaim
amounted to the hospital and doctor raising a new issue after all
parties had rested their cases. Henry, 138 Ill. 2d at 547. Moreover, the
appellate court had expressly held the counterclaim was not raised in
a timely fashion. Henry, 138 Ill. 2d at 547, citing Henry, 159 Ill. App.
3d at 734. These factors, this court observed, supported its holding
that the hospital and doctor forfeited their contribution rights by
failing to preserve them in the original action. Henry, 138 Ill. 2d at
547. Thus, at the time the trial court approved the settlement
agreement between the plaintiff and the manufacturers, the
manufacturers could not possibly have been liable to the hospital and
doctor for contribution. Henry, 138 Ill. 2d at 548. Because the
manufacturers had no contribution liability to be discharged, there
was no need to determine whether, under the circumstances, the
settlement was in good faith. Henry, 138 Ill. 2d at 547-48.
Henry undercuts the proposition that the mere request for leave to
file a contribution claim constitutes the assertion of a contribution
claim for purposes of section 5. In Henry, this court concluded that
the nonsettling defendants forfeited their contribution rights in
holding that there was no need to decide whether the agreement
between the settling defendants and the plaintiff was in good faith.
See Henry, 138 Ill. 2d at 547-48. The nonsettling defendants had
requested leave to file their counterclaim. Henry, 138 Ill. 2d at 547.
Nonetheless, this court accepted the appellate court=s decision to
-14-
affirm the trial court=s denial of leave to file the counterclaim, citing
with approval the appellate court=s holding that the nonsettling
defendants failed to raise the counterclaim in a timely fashion. Henry,
138 Ill. 2d at 547.
IV
The remainder of plaintiffs= arguments, which they phrase in
terms of judicial economy and fundamental fairness, amount to the
claim that, under the particular circumstances of this case, this court
should interpret section 5 to allow plaintiffs to proceed with their
contribution claim in a separate action. The circumstances that
plaintiffs emphasize include the alleged late discovery of their
contribution claim, their immediate attempt to obtain leave to file that
claim, and the magistrate=s concern with avoiding undue prejudice to
the plaintiffs who filed the original action. Plaintiffs characterize their
situation as a ACatch-22@ in which each of the two forums available
for bringing a contribution claim has pointed a finger toward the
other. We believe plaintiffs overstate their case.
This court will not read exceptions, conditions, or limitations into
a statute which the legislature did not express if the statutory
language is clear and unambiguous. Village of Chatham v. County of
Sangamon, 216 Ill. 2d 402, 429 (2005). However, when interpreting a
statute, we must presume the legislature did not intend to produce an
absurd or unjust result. Andrews v. Kowa Printing Corp., 217 Ill. 2d
101, 107 (2005). We are not unmindful of the possibility that a court
of another jurisdiction might deny an Illinois defendant leave to file a
contribution claim in a pending action, despite the requirement of
section 5, in an instance where an Illinois court would be more
sensitive to the effect of the statute=s application. However, we are
unconvinced that, in enacting section 5, the legislature intended the
actions taken by plaintiffs in this case to constitute the assertion of a
contribution claim by third-party complaint in the pending lawsuit.
There is no way for us to verify from the record whether plaintiffs
did, in fact, fail to discover the basis for their contribution claim until
after deposing Dr. Skaletsky. Defendant calls into question the
genuineness and reasonableness of the alleged late discovery of the
claim in his response brief. Yet, even assuming, arguendo, that
plaintiffs did not discover the basis for their contribution claim until
the deposition, and that this late discovery occurred through no fault
-15-
of their own, our analysis in this case remains the same.
We find it significant that plaintiffs sought no review of the
magistrate=s denial of their motion to file a third-party complaint.
Plaintiffs did not ask the magistrate to reconsider his decision. In
addition, they did not seek to have the decision reviewed by a federal
district judge (see 28 U.S.C. '636(b)(1)(A) (2000)), or attempt to file
an interlocutory appeal (see 28 U.S.C. '1292(b) (2000)), or appeal
from the final judgment entered against them (see 28 U.S.C. '1291
(2000)). Plaintiffs= failure to pursue review of the magistrate=s
decision is particularly detrimental to their case in light of the
magistrate=s obvious misstatement of Illinois contribution law. The
magistrate cited Credit General Insurance, Co. v. Midwest Indemnity
Corp., 916 F. Supp. 766, 774 (N.D. Ill. 1996), for the propositions
that Laue was abrogated by statute in 1995 with the amendment of
the Contribution Act and that, under current Illinois law, a
contribution claim may be brought in a separate action even if not
filed while the underlying litigation is still pending. Credit General,
however, relied on the version of section 5 declared unconstitutional
by this court in Best v. Taylor Machine Works. Compare Credit
General, 916 F. Supp. at 774, with Best, 179 Ill. 2d at 467, and 740
ILCS Ann. 100/5, Validity, at 426 (Smith-Hurd 2000) (APublic Act
89B7, which amended this section, has been held unconstitutional in
its entirety by the Illinois Supreme Court in the case of Best v. Taylor
Machine Works@). It is true that the magistrate=s denial of plaintiffs=
motion relied primarily on his concern with unfairly prejudicing the
Petersons by delaying their trial, and that there is no guarantee the
magistrate would have altered his decision if he had realized it would
preclude plaintiffs from raising their contribution claim. Nonetheless,
because plaintiffs failed to seek review of the magistrate=s decision,
we cannot fairly say that this case is one in which a court of another
jurisdiction denied an Illinois defendant the opportunity to file a
contribution claim in spite of the knowledge that doing so would bar
the defendant from asserting the claim.
We further observe that if the action filed against plaintiffs in
Indiana had been filed against them in one of this state=s circuit
courts, and the circuit court had denied plaintiffs leave to file their
contribution claim, it would have been incumbent upon them to
appeal the circuit court=s decision in order to preserve their claim.
See, e.g., Henry, 138 Ill. 2d at 547, citing Henry, 159 Ill. App. 3d at
-16-
734. They would not simply have been permitted to proceed with the
claim in a separate action. In Illinois, section 2B406 of the Code of
Civil Procedure (735 ILCS 5/2B406 (West 2000)) sets forth the
requirements governing third-party complaints. Under section 2B406,
a defendant must file a third-party complaint A[w]ithin the time for
filing his or her answer or thereafter by leave of court.@ 735 ILCS
5/2B406(b) (West 2000). Thus, if a defendant fails to file a third-party
complaint with his or her answer, the defendant must obtain
permission to do so. Granting leave falls within the circuit court=s
discretion, and the appropriate avenue for challenging denial is to file
an appeal, not to proceed with a separate action. See, e.g., Winter v.
Henry Service Co., 143 Ill. 2d 289, 293-94 (1991). This reference to
our own court system brings an important fact into distinction. While
plaintiffs now ask us to interpret section 5 to accommodate the
pursuit of their contribution claim in a separate proceeding, their
actions in federal court fell short of what clearly would have been
required of them to preserve their contribution claim in the courts of
this state.
As this court noted in Henry, A[t]he doctrine of contribution
among joint tortfeasors is equitable in origin [citations], and >equity
aids the vigilant and not those who sleep on their rights= [citation].@
Henry, 138 Ill. 2d at 548. We cannot ignore the applicability of this
principle to the case at bar. Plaintiffs could have sought review of the
magistrate=s decision but declined to do so. Instead, they simply
proceeded with a separate contribution action. We are unwilling to
conclude, under the facts of this case, that plaintiffs should be
allowed to proceed with that action.
CONCLUSION
We hold plaintiffs= contribution claim was not Aasserted *** by
third-party complaint in a pending action@ for purposes of section 5 of
the Contribution Act. Accordingly, we affirm the judgment of the
appellate court, which answered the certified question in the negative
and remanded the cause to the circuit court for further proceedings.
Affirmed.
JUSTICE KARMEIER, dissenting:
-17-
The genesis of this dispute was an action by LaVerne and Mary
Peterson to recover damages for personal injuries they sustained
when a truck operated by defendants/third-party plaintiffs (Clinton
Harshman et al.) collided with their automobile in the State of
Indiana. As the majority correctly recounts, the Petersons= lawsuit
was originally filed in an Indiana state court. Defendants/third-party
plaintiffs subsequently succeeded in removing the litigation to the
United States District Court for the Northern District of Indiana,
where it was docketed as Peterson v. Harshman, No. 2:99 cv 516
(N.D. Ind.). Defendants/third-party plaintiffs then moved for leave to
bring a third-party action for contribution against Dr. George
DePhillips, a surgeon who had treated Mr. Peterson in Illinois after
the accident. According to the defendants/third-party plaintiffs, they
had not joined DePhillips earlier because his potential liability had
not been known to them until, in preparation for the upcoming trial,
they were able to depose a neurosurgeon named Skaletsky who had
examined Mr. Peterson at the behest of Peterson=s workers
compensation insurance carrier.
The federal magistrate presiding over the personal injury case
exercised his discretion under Rule 14 of the Federal Rules of Civil
Procedure and refused to allow defendants/third-party plaintiffs to
pursue their third-party claim in the federal action. The federal
judge=s decision was unrelated to the merits of the claim. Rather, it
was based on his assessment of various factors, including prejudice
and delay that the Petersons would inevitably experience if discovery,
etc., were reopened to accommodate the third-party action and his
belief that under the substantive law of Indiana, which governed the
Petersons= personal injury claim, the defendants/third-party plaintiffs
could not assert a physician=s negligence either by way of
contribution or as a nonparty defense. Peterson v. Harshman, No.
2:99 cv 516, slip op. at 4 (N.D. Ind. March 22, 2001).
In an effort to avoid the bar of Indiana law, defendants/third-party
plaintiffs argued that because Dr. DePhillips treated Mr. Peterson in
our state, the third-party contribution claim should be governed by
the law of Illinois. The federal magistrate found it unnecessary to
decide this choice of law question, however, because even if Illinois
law did apply, he would still not have allowed the third-party claim to
proceed in his court. He explained that permitting the third-party
claim to proceed would unduly complicate the Petersons= lawsuit by
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injecting medical malpractice issues into a negligence action. If
Illinois law applied to the medical malpractice action, the
complications would be magnified because, then, one state=s law
would control the underlying negligence action while a second state=s
law would govern the third-party action, a difficult matter for a jury
to follow. A final consideration in the federal magistrate=s decision
was his belief that refusing to allow the third-party action to proceed
in federal court would not necessarily defeat defendants/third-party
plaintiffs= right to seek contribution. In the magistrate=s view, the
defendants/third-party plaintiffs could still bring a separate action for
contribution in Illinois under section 5 of the Contribution Act, as
amended in 1995 by Public Act 89B7 (see 740 ILCS 100/5 (West
1996)).
When the defendants/third-party plaintiffs were denied leave to
pursue their contribution claim against Dr. DePhillips in federal
court, they filed a third-party action for contribution against him in
the circuit court of Cook County. Dr. DePhillips moved for dismissal
of that third-party action on the grounds that, under Illinois law, one
may not pursue a contribution claim in a separate action where, as
here, another action regarding the matter has previously been filed.
Rather, the party seeking contribution must do so by means of a third-
party claim in the pending action.
The circuit court denied DePhillips= motion, but made a finding
under Rule 308 (155 Ill. 2d R. 308) that its order involved a question
of law as to which there is substantial ground for difference of
opinion and that immediate appeal might materially advance the
ultimate termination of the appeal. The precise question certified was
this: AMay a contribution claim be brought in accordance with Illinois
law in a separate proceeding if the party first attempted to bring the
claim in the original proceedings in a separate jurisdiction and was
denied leave by that court to file said contribution claim?@
The appellate court allowed the interlocutory appeal and
answered this question in the negative. In its view, precedent from
our court precluded the Apursuit of contribution claims in separate
actions where another action regarding the matter has been
previously filed.@ 354 Ill. App. 3d 429, 431. Although my colleagues
have affirmed the appellate court=s judgment, I do not believe their
decision is correct. In my view, Illinois law does not invariably bar
-19-
third-party actions from being litigated in separate proceedings and
should not bar the third-party action filed by defendants/third-party
plaintiffs in Cook County in this case. I would therefore reverse the
judgment of the appellate court and affirm the order of the circuit
court denying DePhillips= motion to dismiss.
Defendants/third-party plaintiffs= action against DePhillips is
founded on the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01
et seq. (West 2004)), popularly known as the Contribution Act. The
purpose of that statute is twofold: (1) to equitably distribute among
all joint tortfeasors the burden of compensating an injured plaintiff,
and (2) to encourage settlement of claims. In re Guardianship of
Babb, 162 Ill. 2d 153, 175-76 (1994).
Enforcement of contribution claims is dictated by section 5 of the
Contribution Act. The version of that provision applicable to this case
provides that
A[a] cause of action for contribution among joint
tortfeasors may be asserted by a separate action before or
after payment, by counterclaim or by third-party complaint in
a pending action.@ 740 ILCS 100/5 (West 1994).
Under a straightforward reading of this statute, one joint tortfeasor
may seek contribution from another in one of two ways. He may
either (1) bring a separate action against the joint tortfeasor or (2)
advance a claim against the joint tortfeasor within the confines of a
pending proceeding. If the other joint tortfeasor is already a party to
the proceedings, the claim may be asserted by means of a
counterclaim. If the other joint tortfeasor is not already a party, he or
she may be brought in by means of a third-party action.
In Laue v. Leifheit, 105 Ill. 2d 191 (1984), our court held that the
first of these two options is available only where the injured party has
not already filed suit to recover damages for his or her injuries.
Where such an action has been filed, the joint tortfeasor must seek
contribution within the confines of that proceeding. If a defendant
waits to file a claim for contribution until a verdict has been rendered
and a judgment entered against him in the underlying personal injury
action, his contribution claim will be barred. Laue v. Leifheit, 105 Ill.
2d at 196-97. Interpreting the statute in this way, the court believed,
would advance strong public policy interests in having A[o]ne jury
*** decide both the liability to the plaintiff and the percentages of
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liability among the defendants, so as to avoid a multiplicity of
lawsuits in an already crowded court system and the possibility of
inconsistent verdicts.@ Laue v. Leifheit, 105 Ill. 2d at 196-97. The
court further opined that A[r]equiring the parties to litigate the matter
in one suit [would] also save court time and attorney fees.@ Laue v.
Leifheit, 105 Ill. 2d at 197.
The public policy considerations invoked by this court in Laue v.
Leifheit are unquestionably sound. The statutory construction it
employs is open to question. As I have just indicated, the decision
interprets the law to mean that the Aseparate action@ option may be
employed only where the injured party has not already filed an
action. If there is no underlying action on file, however, it is difficult
to see how the contribution claim can be considered a Aseparate
action.@ In that instance, the contribution claim is not a separate
action. It is the only action.
The weaknesses in Laue v. Leifheit=s statutory analysis were
recognized by then Chief Justice Ryan, who wrote in dissent that the
statute plainly permits alternative methods for asserting contribution
claims. He could find Ano expression of legislative intent that the
cause of action created for contribution must be asserted by way of a
cross-complaint or a third-party complaint if the injured party sues
one of the tortfeasors.@ (Emphasis in original.) Laue v. Leifheit, 105
Ill. 2d at 198 (Ryan, C.J., dissenting). He believed that if the
legislature had intended to require contribution actions to be filed in
the underlying case, it could easily have done so. It did not. AInstead,@
he wrote, it Aprovided that a cause of action may be asserted in all of
the *** ways set out in the statute, including >by a separate action.= @
(Emphasis in original.) Laue v. Leifheit, 105 Ill. 2d at 201 (Ryan,
C.J., dissenting).
In an effort to correct Laue v. Leifheit=s problematic construction
of section 5, the legislature amended the law in 1995. That
amendment revised the language of the statute by adding a new
clause at the beginning of the provision which expressly stated that
except for actions for healing art malpractice, Aa cause of action for
contribution among joint tortfeasors is not required to be asserted
during the pendency of litigation brought by a claimant.@ (Emphasis
added.) 740 ILCS 100/5 (West 1996).
When the federal magistrate in this case concluded that
-21-
defendants/third-party plaintiffs would not be prejudiced by failure to
obtain leave to file their contribution claim in the pending federal
proceedings because Illinois law offered them the opportunity to
pursue a separate action in our courts, this is the version of the law he
was following. What the magistrate did not realize is that because the
amendment was part of Public Act 89B7, it was rendered invalid by
this court=s decision in Best v. Taylor Machine Works, 179 Ill. 2d 367
(1997), which declared Public Act 89B7 void and unenforceable in its
entirety. 2
A fundamental rule of statutory construction is that where the
language of a statute is clear and unambiguous, the court must
enforce it as written. It may not annex new provisions or substitute
different ones, or read into the statute exceptions, limitations, or
conditions which the legislature did not express. People ex rel.
Department of Professional Regulation v. Manos, 202 Ill. 2d 563,
568 (2002). That is so no matter how desirable the new provisions
might be. Bridgestone/Firestone v. Aldridge, 179 Ill. 2d 141, 154-55
(1997). In my view, a compelling argument can be made that Laue v.
Leifheit, 105 Ill. 2d 191 (1984), and Tisoncik v. Szczepankiewicz, 113
Ill. App. 3d 240 (1983), the appellate court decision on which the
interpretation followed in Laue v. Leifheit was derived, are in direct
conflict with these principles. There is no basis in the plain language
2
The suggestion has been made that even if the amended version of the
statute were valid, the federal magistrate=s reading of Illinois law would still
have been incorrect. The basis for this assertion is the amendment=s
qualifying language precluding its application to medical malpractice cases.
As the federal magistrate correctly realized, however, the case before him
was not a medical malpractice action. It was a negligence claim involving a
collision between a truck and a car. The exception was therefore
inapplicable.
-22-
of the statute for the limitation they impose. While they purport to
rely on the terms used in the statute, their construction of the law is
ultimately derived from policy considerations, not vocabulary or
syntax.
In construing a similar provision, the courts of New York had
little difficulty in recognizing that it meant what it said and allowed
contribution claims to be filed either in a separate proceeding or in
the pending action. The court in Tisoncik v. Szczepankiewicz, 113 Ill.
App. 3d 240, 246 (1983), acknowledged that interpretation of the law
but declined to follow it, emphasizing the policy considerations
which militate against allowing contribution claims to be litigated
separately, e.g., the added burdens on the courts and the possibility of
inconsistent verdicts. That, of course, is not a legitimate method of
statutory construction. If a statute is clear and unambiguous, the
courts must apply it as written. We cannot rewrite a law under the
guise of statutory construction merely because it may have
consequences of which we disapprove. Weighing the relevant policy
considerations is a matter for the legislature, not us.
The legislature has not reenacted the 1995 amendment to section
5 of the Contribution Act necessitated by our decision in Laue v.
Leifheit, but invalidated by Best v. Taylor Machine Works, 179 Ill. 2d
367 (1997). Significantly, however, it has not made any other
amendments to that section either. Had the General Assembly made
subsequent revisions to the law in a way that did not challenge the
interpretation we adopted in Laue v. Leifheit, one could presume that
the legislature had acquiesced in our construction of the law. See,
e.g., In re Michele J., 209 Ill. 2d 428, 437 (2004). Absent any
revisions, such a presumption would be unfounded.
During the court=s deliberations in this case, the point was made
that Laue v. Leifheit has been settled law in Illinois for 21 years and
that we should therefore be reluctant to overrule it. I certainly agree
that stare decisis is an essential doctrine. It is not, however, an
inexorable command. Chicago Bar Ass=n v. Illinois State Board of
Elections, 161 Ill. 2d 502, 510 (1994). It may yield when
countervailing considerations so demand. See, e.g., People v. Sharpe,
216 Ill. 2d 481, 520 (2005). Such considerations are present here.
First, as my discussion of the law has indicated, Laue v. Leifheit
has not really been settled law for 21 years. The one time the
-23-
legislature addressed section 5 of the Contribution Act following
Laue v. Leifheit, it enacted a revision that rejected the limiting
construction of the statute we adopted in that case. It was only
because of this court=s decision in Best v. Taylor Machine Works, 179
Ill. 2d 367 (1997), to nullify Public Act 89B7 in its entirety that the
revised version of section 5 is not in force today.
Second, this matter does not present a situation where revision of
the law will upset settled expectations or vested rights. The legal
principle involved is procedural in nature. It does nothing but
delineate how contribution claims may be enforced. Cases which are
closed will be unaffected. If we begin applying the statute as it is
actually written rather than as we construed it in Laue v. Leifheit, the
only cases to which our decision would have any potential effect are
existing disputes in which contribution claims remain unresolved or
future cases which have yet to accrue.
Third, the decision is poorly reasoned. As already noted, the
decision purports to apply the plain language of the statute, but
imposes conditions and limitations on the law which the language
employed by the General Assembly will not support. In so doing, the
court exceeded it legitimate function. The often repeated lesson from
Henrich v. Libertyville High School, 186 Ill. 2d 381, 394-95 (1998),
is pertinent here:
AIt is the province of the legislature to enact laws; it is the
province of the courts to construe them. Courts have no
legislative powers; courts may not enact or amend statutes. A
court cannot restrict or enlarge the meaning of an
unambiguous statute. The responsibility for the justice or
wisdom of legislation rests upon the legislature. [Citations.] A
court must interpret and apply statutes in the manner in which
they are written. A court must not rewrite statutes to make
them consistent with the court's idea of orderliness and public
policy. [Citation.]@
This impediment cannot be avoided by arguing that the court is
merely giving effect to a limitation created by the legislature itself. If
such a limitation could somehow be divined from the text of the
statute, a possibility incompatible with my understanding of the
English language, a different but equally serious constitutional
problem would be created. Under the interpretation of section 5
-24-
adopted in Laue v. Leifheit, the legislature has decreed that Aif there is
a pending action, *** then the party seeking contribution must assert
a claim [under the Contribution Act] by counterclaim or by third-
party claim in that action.@ Laue v. Leifheit, 105 Ill. 2d at 196. If that
interpretation were valid, it would mean that the legislature had
totally divested the courts of any authority to permit contribution
claims to be enforced through separate proceedings, even where
considerations of efficiency and docket management would militate
in favor of litigating the cases separately. Such matters of procedure
and docket management are central to power of the judiciary. While
the legislature may enact laws that complement the authority of the
courts or that have only a peripheral effect on judicial administration,
a legislative enactment which unduly encroaches upon the inherent
powers of the judiciary violates the doctrine of separation of powers
encompassed in section 1 of article II of the Illinois Constitution of
1970 (Ill. Const. 1970, art. II, '1). Kunkel v. Walton, 179 Ill. 2d 519,
528 (1997). The restrictions imposed here trench no less heavily on
the inherent authority of the judiciary than the statutory restrictions
on damages at issue in Best v. Taylor Machine Works, 179 Ill. 2d 367
(1997). If the limitations on damages could not pass constitutional
muster, it is difficult for me to see how the procedural restrictions
here could be upheld.
These separation of powers problems disappear if section 5 is
simply interpreted as it is written. Under the actual terms of the
statute, alternate avenues are provided for enforcing contribution
claims. There is no restriction on the court=s authority to allow
contribution claims to be litigated separately from the underlying
action where appropriate. The inherent authority of the judiciary is
unchallenged. Because courts have a duty to construe statutes in a
manner that upholds their validity whenever it is reasonably possible
to do so (In re Robert S., 213 Ill. 2d 30, 45 (2004)), that is the
approach we should take.
In reaching this conclusion, I am mindful that the
defendants/third-party plaintiffs have not, themselves, urged us to
reject Laue v. Leifheit, as the General Assembly attempted to do
when it revised section 5 of the Contribution Act through Public Act
89B7. Absent such a challenge, we could deem the matter waived.
Waiver, however, is an admonition to the parties, not a limitation on
the jurisdiction of this court. In furtherance of its responsibility to
-25-
provide a just result and maintain a sound body of precedent, a court
of review may override considerations of waiver. Illinois State
Chamber of Commerce v. Filan, 216 Ill. 2d 653,664 (2005).
I would decline to find waiver in this case and vote to overrule Laue v.
Leifheit.
Even if I believed that Laue v. Leifheit should be retained, I do not
believe that it compels the result reached by the majority in this case. Laue v.
Leifheit is distinguishable on its facts. In that case, which involved
liability for injuries sustained in an automobile collision, the jury
found the driver of one vehicle liable and awarded damages to the
driver and passengers in the second vehicle. In so doing, it reduced
the damages awarded to the driver of the second vehicle by 33a%
based on its assessment of her comparative negligence. Laue v.
Leifheit, 105 Ill. 2d at 193-94.
After the jury returned its verdict and judgment was entered
against the defendant, the driver of the first vehicle filed a
contribution claim against the driver of the second vehicle. The
circuit court granted judgment on the pleadings in favor of the driver
of the first vehicle and ordered the driver of the second vehicle to
make contribution to him for a portion of the damages for which he
had been found liable.
The appellate court reversed. We affirmed the judgment of the
appellate court and remanded to the circuit court with directions to
dismiss the complaint for contribution. Laue v. Leifheit, 105 Ill. 2d at
194-98.
A contrary result is mandated in the case before us, for the
situation here is fundamentally different. The alleged negligence on
which defendants/third-party plaintiffs= contribution claim was
predicated was separate and distinct from the underlying claim filed
by the Petersons. It occurred after the collision for which
defendants/third party plaintiffs were found liable; involved a new
and unrelated party; and was based on a totally different legal theory,
medical malpractice. Unlike Laue v. Leifheit, the defendants/third-
party plaintiffs did not wait to see how the underlying claim against
them would be resolved before taking action. They asserted their
contribution claim as soon as they became aware of it. In contrast to
Laue v. Leifheit, the matter had not yet gone to verdict and judgment
had not yet been entered. When defendants/third-party plaintiffs
-26-
sought leave to file their contribution claim here, the underlying
negligence action remained unresolved.
Under these circumstances, none of the public policy
considerations that motivated our decision in Laue v. Leifheit are
present. The purpose of the rule we articulated in that case was not to
impede contribution claims, but to insure that they are litigated
efficiently, expeditiously and with due consideration to fairness of all
the parties. By first seeking permission to file the claim in the
pending negligence claim, defendants/third-party plaintiffs insured
that those considerations could be properly assessed by the court. A
federal magistrate balanced the relevant factors and concluded that
the just course would be to require defendants/third-party plaintiffs to
pursue their contribution claim separately rather than in connection
with the underlying vehicle collision case.
It is difficult to find fault with the magistrate=s assessment. Had
the matters been litigated together, the trial of the underlying claim
would have been complicated and delayed with little benefit in terms
of efficiency. Because the issues in the contribution claim differed so
substantially from those in the underlying action, trying the matters
separately would not involve significant duplication of effort.
Litigating the medical malpractice case separately in Illinois, where
the alleged malpractice took place, would eliminate the choice of law
problems. There would be no possibility of inconsistent verdicts, for
there is no question as to plaintiffs= comparative fault and the extent
of plaintiffs= injuries would not be revisited. The only issue would be
how responsibility for the damages should be apportioned. There
would be no undue burden on the litigants, for the only parties who
would be required to appear in both proceedings are defendants/third-
party plaintiffs, who obviously have no objection to pursing their
contribution claim separately. There would be no undue burden on
the courts of Illinois, for the contribution claim is the only aspect of
the dispute they would be called upon to resolve, and Illinois clearly
has an interest in hearing claims arising from negligence that occurs
in our state, as Dr. DePhillips= alleged malpractice did.
As observed earlier in this dissent, when the federal magistrate
declined to permit defendants/third-party plaintiffs from pursuing
their contribution claim in the pending federal action, he believed,
erroneously, that section 5 of the Contribution Act, as amended by
-27-
Public Act 89B7, superceded Laue v. Leifheit and afforded them the
opportunity to advance that claim in the courts of Illinois. The
majority=s opinion finds it significant that defendants/third-party
plaintiffs did not challenge the magistrate=s decision, particularly
given Athe magistrate=s obvious misstatement of Illinois contribution
law.@ Slip op. at 16. I disagree. Although reconsideration or appellate
review may well have led to the realization that the magistrate was
wrong about Laue v. Leifheit being superceded by statute, that does
not mean that his decision would have been set aside. The federal
magistrate weighed numerous factors besides the viability of Laue.
His decision involved a matter of discretion, and I think it very
unlikely that a reviewing court would have found an abuse of
discretion here. As I have just discussed, there were excellent reasons
for the third-party action to be handled separately wholly independent
of Illinois law. Defendants/third-party plaintiffs= would therefore
have accomplished nothing by seeking reconsideration or review
from the federal courts. Pursuing that recourse would merely have
delayed resolution of the case further.
The majority=s opinion hints that it may ultimately have reached a
different result had defendants/third-party plaintiffs attempted to
obtain relief from the federal courts through reconsideration or
review, but been unsuccessful in doing so. Under the majority=s own
analysis, however, it is difficult to see how that could be true. If
section 5 of the Contribution Act does preclude contribution actions
from being litigated separately from the underlying negligence
claims, as the majority holds, we would be compelled to apply it as
written, no matter how unjust the federal court=s misconstruction of
the law might be. No principle of statutory construction permits us to
invoke equitable principles to create exceptions to a statute not
expressed by the legislature.
The majority suggests that under Illinois law, a party who has
been denied leave to file a third-party action in a pending matter
would be required to appeal that denial before attempting to assert his
third-party claim in a separate proceeding. None of the authorities
cited in the opinion, including Henry v. St. John=s Hospital, 138 Ill.
2d 533 (1990), so holds. Section 2B406 of the Code of Civil
Procedure (735 ILCS 5/2B406 (West 2004)), on which the majority
also relies, is not germane to the question. It sets forth rules
governing bringing new parties into actions that are already pending.
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It does not pertain to third-party claims asserted in separate
proceedings.
From the record now before us, there is no basis for holding that
defendants/third-party plaintiffs were in any way remiss in protecting
their position. They attempted to bring their third-party claim in
federal court as soon as they learned, through discovery, that grounds
for such a claim existed. When the federal magistrate denied them
leave to proceed there, defendants/third-party plaintiffs moved
seasonably to preserve their claim by bringing suit in Cook County.
Under these circumstances, one cannot fairly charge that they slept
on their rights.
For the foregoing reasons, I believe that the question certified by
the circuit court should be answered in the affirmative. Under
circumstances such as those present in this case, Illinois law does
permit a contribution claim to be brought in a separate proceeding if
the party first attempted to bring the claim in the original proceedings
in another jurisdiction and was denied leave by that court to do so.
Laue v. Leifheit is of dubious validity and should be overruled. Even
if we retain that decision, however, this case is distinguishable.
Allowing the case to proceed separately in Cook County does no
violence to Laue v. Leifheit and is consistent with the principles of
fairness and sound judicial administration it represents. Accordingly,
I dissent. The judgment of the appellate court should be reversed, the
order of the circuit court denying DePhillips= motion to dismiss
should be affirmed, and this cause should be remanded to the circuit
court for further proceedings.
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