Lannom v. Kosco
| Citation | 616 N.E.2d 731,247 Ill.App.3d 629 |
| Decision Date | 20 July 1993 |
| Docket Number | No. 5-92-0137,5-92-0137 |
| Parties | , 186 Ill.Dec. 541 Paul LANNOM and Nadine Lannom, Plaintiffs, v. Robert KOSCO, Defendant and Third-Party Plaintiff-Appellant (The COUNTY OF WILLIAMSON OF THE STATE OF ILLINOIS, Third-Party Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
William Kent Brandon, Christy Solverson, Brandon, Schmidt & Palmer, Carbondale, for appellant.
Dennis E. Rose, Donovan, Rose, Nester & Szewczyk, P.C., Belleville, for appellee.
This action was brought by Paul and Nadine Lannom to recover damages for personal injuries to Paul and loss of consortium to Nadine as a result of the alleged negligence of Robert Kosco. Paul Lannom was injured while working for the County of Williamson highway department when the car being driven by Kosco struck him. Kosco filed a third-party complaint for contribution against the County of Williamson, Lannom's employer, alleging that the County was guilty of willful and wanton misconduct in parking a County truck on the wrong side of the road without hazard lights or warning devices.
Lannom was allegedly injured on November 15, 1988. His complaint against Kosco was filed February 16, 1989. Kosco's third-party complaint against Williamson County was originally filed on March 9, 1989. The case was set for trial on December 10, 1991.
On April 18, 1991, the Illinois Supreme Court announced its decision in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill.2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023, holding that an employer's liability in contribution is limited to the amount of its workers' compensation liability. On December 2, 1991, a petition for rehearing of the Kotecki decision was denied. The mandate in Kotecki issued on December 12, 1991.
On December 3, 1991, relying on Kotecki, the County of Williamson filed a motion to strike the ad damnum clause of Kosco's third-party complaint. Plaintiffs Paul and Nadine Lannom objected to the motion, arguing that the decision in Kotecki should be applied prospectively only and not to the case at bar. Defendant and third-party plaintiff Kosco also objected to the motion to strike for the same reason.
On December 9, 1991, again relying on Kotecki, Williamson County filed a motion to limit its liability to the amount of its workers' compensation lien. At a hearing held December 10, 1991, the County made an oral motion to dismiss the third-party complaint against it, stipulating that it would waive its workers' compensation lien. All motions were argued at this hearing. The court concluded that Kotecki had application to the case before it, finding nothing in the supreme court's decision to indicate the court intended it to have only prospective application. The court granted the County's motion to dismiss the third-party complaint upon waiver of its workers' compensation lien. A written order was filed on February 7, 1992, finding that the County's potential liability for contribution is limited to the amount of its obligation under the workers' compensation statute, that Kotecki is not of prospective application only, and that Kotecki is equally applicable where willful and wanton misconduct rather than negligence is alleged.
Robert Kosco, defendant and third-party plaintiff, appeals, presenting four issues for our review: (1) whether the trial court erred in ruling that Kotecki is not of prospective application only; (2) whether the County of Williamson waived its Kotecki defense (limited liability) by purchasing liability insurance for unlimited contribution protection; (3) whether the trial court erred in dismissing the contribution action against plaintiff's employer, the County of Williamson, where the County allegedly committed willful and wanton misconduct; and (4) whether the trial court erred in dismissing the third-party complaint and not requiring the County of Williamson to participate in the trial.
As a general rule, a decision will be applied retrospectively unless the court expressly declares its decision to be a clear break with the past, such as when the court explicitly overrules its own past precedent, disapproves a practice it had previously sanctioned, or overturns a well-established body of lower-court authority. (People v. Boswell (1985), 132 Ill.App.3d 52, 56, 87 Ill.Dec. 162, 166, 476 N.E.2d 1154, 1158, rev'd on other grounds (1986), 111 Ill.2d 571, 94 Ill.Dec. 447, 488 N.E.2d 273 (supervisory order).) It is within a court's inherent power to give a decision prospective or retrospective application. (Boswell, 132 Ill.App.3d at 56, 87 Ill.Dec. at 166, 476 N.E.2d at 1158.) A new rule or decision will be given prospective operation whenever injustice or hardship due to justifiable reliance on the overruled decisions would thereby be averted. Elg v. Whittington (1987), 119 Ill.2d 344, 357, 116 Ill.Dec. 252, 258, 518 N.E.2d 1232, 1238.
The general test for prospective application is whether the decision establishes a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed. If this criteria is met, that is, if the decision sought to be applied prospectively establishes a new principle of law, prospective or retrospective application will depend on whether, given the purpose and prior history of the newly established rule, its operation will be retarded or promoted by prospective or retroactive application and whether prospective application is mandated by the balance of equities. Elg, 119 Ill.2d at 357, 116 Ill.Dec. at 258, 518 N.E.2d at 1238.
The first district and third district of this court have decided the issue of whether Kotecki should be given prospective or retrospective application. In Norberg v. Centex Homes Corp. (1993), 247 Ill.App.3d 267, 186 Ill.Dec. 710, 616 N.E.2d 1342 (), the first district of our court stated, "We read the majority opinion in Kotecki to be a recognition that its holding constitutes a change in the law," and "We conclude, therefore, that the supreme court recognized that in Kotecki it established a new principle of law." (247 Ill.App.3d at 272-73, 186 Ill.Dec. at 714, 616 N.E.2d at 1346.) The court further found that retrospective application of the Kotecki decision would hinder its application and result in prejudice to many defendants and held that the Kotecki decision applies only to cases in which trial had not yet commenced on the date the Kotecki opinion was released.
In Kocik v. Commonwealth Edison Co. (1993), 242 Ill.App.3d 679, 182 Ill.Dec. 897, 610 N.E.2d 766, the third district of this court found that, in Kotecki, the supreme court specifically rejected the argument that its holding was changing the law, the supreme court stating that its decision simply reflected the natural accommodation necessary to reconcile the Workers' Compensation Act () and the Contribution Act (Ill.Rev.Stat.1987, ch. 70, par. 301 et seq.), which accommodation had been foreshadowed in the court's earlier opinion in Doyle v. Rhodes (1984), 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382. The third district held that Kotecki did not establish a new principle of law but was merely a reconciliation of two potentially conflicting statutes which had been foreshadowed in Doyle. The court held that Kotecki should be retrospectively applied to cases which had not come to trial prior to the Kotecki decision.
It is clear that, under either of these analyses, the decision in Kotecki would apply to the case at bar, which had not come to trial prior to the Kotecki decision. Indeed, even the petition for rehearing was denied prior to the instant case coming to trial, although the mandate did not issue until two days after the scheduled trial date.
In any event, we find the reasoning and analysis of the Kocik decision to be persuasive. We agree with the third district that the supreme court in Kotecki took pains to emphasize that its decision therein did not reflect a change in the law in that it did not overrule clear past precedent on which litigants may have relied nor did it decide an issue of first impression whose resolution was not clearly foreshadowed. The supreme court explicitly stated that there is no clear past precedent to be overruled on this issue because, although Doyle did hold that a negligent employer is liable for contribution to a third party regardless of the Workers' Compensation Act, Doyle did not answer the question as to the amount of contribution for which an employer may be liable under the Contribution Act. The supreme court also explicitly recognized in Kotecki that its decision therein had been clearly foreshadowed by its decision in Doyle, in which the court stated that "some accommodation" between the Contribution Act and the Workers' Compensation Act would be necessary in the future. The court stated that the Kotecki decision is that "natural accommodation" which was foreshadowed in Doyle. Finally, we are reassured of the correctness of our analysis by the supreme court's denial of the petition for rehearing in Kotecki, which specifically asked the court to announce whether its ruling was of prospective or retrospective application. The supreme court's silence on this question indicates to us that the court intended its decision to have retrospective application according to the general rule.
We cannot agree with the conclusion of the first district of our court that the supreme court considered Kotecki to constitute a change in the law. The first district has, in our opinion, misunderstood the language of the supreme court and has misread the Kotecki opinion. See also Kalp v. American National Can Co., , No. 90-4910, 1991 WL 86096, 1991 U.S. Dist. LEXIS 6763 (...
To continue reading
Request your trial