602 N.E.2d 5 (Ill.App. 1 Dist. 1992), 1-90-2112, Ziarko v. Soo Line R. Co.

Docket Nº:1-90-2112, 1-90-2151, 1-91-1871.
Citation:602 N.E.2d 5, 234 Ill.App.3d 860, 176 Ill.Dec. 698
Party Name:Ronald J. ZIARKO, Plaintiff-Appellee, v. SOO LINE RAILROAD COMPANY, Defendant-Appellant and Counter-Plaintiff-Appellant and Counter-Defendant-Appellant and Third-Party Plaintiff-Appellant (Milwaukee Motor Transportation Company, a corporation, Defendant and Counter-Defendant-Appellee and Counter-Plaintiff-Appellee; (Nielson Brothers Cartage Company
Case Date:June 29, 1992
Court:Court of Appeals of Illinois
 
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602 N.E.2d 5 (Ill.App. 1 Dist. 1992)

234 Ill.App.3d 860, 176 Ill.Dec. 698

Ronald J. ZIARKO, Plaintiff-Appellee,

v.

SOO LINE RAILROAD COMPANY, Defendant-Appellant and

Counter-Plaintiff-Appellant and Counter-Defendant-Appellant

and Third-Party Plaintiff-Appellant (Milwaukee Motor

Transportation Company, a corporation, Defendant and

Counter-Defendant-Appellee and Counter-Plaintiff-Appellee;

(Nielson Brothers Cartage Company, Third-Party Defendant-Appellee)).

Nos. 1-90-2112, 1-90-2151, 1-91-1871.

Court of Appeals of Illinois, First District, First Division.

June 29, 1992.

Rehearing Denied July 28, 1992.

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[234 Ill.App.3d 861] [176 Ill.Dec. 699] Clausen, Miller, Gorman, Caffrey & Witous, P.C. (James T. Ferrini, Ivar A. Azeris, Edward M. Kay, of counsel), Chicago, for counter-plaintiff-appellant Soo R.R.

Cassiday, Schade & Gloor (Timothy J. Ashe, Lynn D. Dowd, Kathlein K. Krider, of counsel), Chicago, for counter-defendant-appellee Milwaukee Motor Trans.

Justice O'CONNOR delivered the opinion of the court:

While Ronald J. Ziarko tended to his tractor-trailer rig in a railroad yard owned by the Soo Line Railroad Company (Soo Line), one of that company's trains struck the rig which then struck Ziarko. The resulting injuries to Ziarko were extensive and necessitated amputation of his right leg.

Ziarko subsequently sued Soo Line and Milwaukee Motor Transportation (Milwaukee Motor), the entity which operated the area of the yard where the accident occurred. Based on the same alleged acts, Ziarko charged Soo Line with negligence and willful and wanton conduct in respective counts. The single count against Milwaukee Motor sounded in negligence. In turn, Soo Line and Milwaukee Motor filed counterclaims against each other which actions included counts for contribution (see Ill.Rev.Stat.1989, ch. 70, par. 302).

Ziarko's action proceeded to trial before a jury which rendered a verdict of $7,061,854.63 against both Soo Line and Milwaukee Motor. A special interrogatory revealed that the jury's award against Soo Line was premised on the determination that its conduct was willful and wanton, not negligent. The jury further determined Soo Line was 95% at fault in the accident and Milwaukee Motor was 5% at fault. Judgment was entered on the counterclaims with liability apportioned against each defendant accordingly.

[234 Ill.App.3d 862] Soo Line and Milwaukee Motor pursued separate appeals. With review of those matters pending, Soo Line tendered, and Ziarko accepted, monies in settlement of all claims against both defendants. We then ordered the circuit court to consider whether Soo Line was entitled to contribution in

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[176 Ill.Dec. 700] view of the following pertinent language of the Contribution Act:

"The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own pro rata share of the common liability." Ill.Rev.Stat.1989, ch. 70, par. 302.

Because the amount of the settlement differed from the verdict entered, a question arose, with attendant consequences, as to which amount should be used to determine the...

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