Caballero v. Rockford Punch Press and Mfg. Co., Inc.

• Decision Date: 31 March 1993
• Docket Number: No. 1-91-1808,1-91-1808
• Citation: 614 N.E.2d 362,244 Ill.App.3d 333,185 Ill.Dec. 228
• Parties: , 185 Ill.Dec. 228 Roman CABALLERO, Plaintiff-Appellee, v. ROCKFORD PUNCH PRESS AND MANUFACTURING COMPANY, INC., a corporation, and Allen-Bradley Company, a corporation, Defendants-Appellants. ROCKFORD PUNCH PRESS AND MANUFACTURING COMPANY, INC., Third-Party Plaintiff, v. VAUGHAN MANUFACTURING COMPANY, Third-Party Defendant.
• Court: United States Appellate Court of Illinois

Page 362

614 N.E.2d 362

244 Ill.App.3d 333, 185 Ill.Dec. 228

Roman CABALLERO, Plaintiff-Appellee, v. ROCKFORD PUNCH PRESS AND MANUFACTURING COMPANY, INC., a

corporation, and Allen-Bradley Company, a

corporation, Defendants-Appellants.

ROCKFORD PUNCH PRESS AND MANUFACTURING COMPANY, INC., Third-Party Plaintiff, v. VAUGHAN MANUFACTURING COMPANY, Third-Party Defendant.

No. 1-91-1808.

Appellate Court of Illinois First District, Third Division.

March 31, 1993.

James Kirk Perrin, Audrey S. Hanrahan, Chicago, for defendant-appellant Allen-Bradley Co.

French, Kezelis & Kominiarek, Chicago (Algimantas Kezelis, Russell P. Veldenz, John A. Culver, of counsel), for plaintiff-appellee Vaughan Mfg. Co.

Justice RIZZI delivered the opinion of the court:

Plaintiff, Roman Caballero, brought a personal injury action against defendant Rockford Punch Press and Manufacturing Company (Rockford). Shortly thereafter, Allen-Bradley Company (Allen) was added as a defendant. More than five years and four months after it became a defendant, Allen sought leave to file a third-party complaint for contribution against Caballero's employer, Vaughan Manufacturing Company (Vaughan). The trial court denied Allen's request for leave to file its third-party complaint on the basis that the statute of limitations for filing the contribution claim had expired, and Allen has appealed from the order. We affirm.

On August 21, 1984, Caballero was employed by Vaughan and was injured while working on a punch press manufactured by Rockford. On January 31, 1985, Caballero filed a personal injury action against Rockford. The two-count complaint is based on product liability and negligence. The negligence count alleges negligence in the design and manufacture of the punch press. On September 27, 1985, Caballero's complaint was amended to add Allen as a defendant. The amended complaint alleges that Caballero was injured while employed by Vaughan, and charges Allen with product liability and negligence. The negligence count alleges that Allen negligently designed and manufactured the foot switch attached to the punch press manufactured by Rockford. On February 2, 1987, Rockford filed a third-party complaint for contribution against Vaughan.

In late 1990, the case was set for trial but the trial date was continued from time to time and reset for May 23, 1991. On February 1, 1991, Allen sought leave to file a third-party complaint for contribution against Vaughan; the third-party complaint alleges that Vaughan failed to properly train and instruct Caballero in using the punch press. Vaughan objected on the basis that the applicable statute of limitations for filing the contribution claim had expired. The trial court denied Allen leave to file its third-party complaint for the reason that the contribution claim was time barred.

Allen contends that the time for filing its third-party complaint for contribution has not expired because the time for filing its contribution claim has not expired under section 13-204 of the Code of Civil Procedure (735 ILCS 5/13-204 (West 1992)). Section 13-204 states:

Contribution among tortfeasors. No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party's pro rata share more than 2 years after the party seeking contribution has made such payment towards discharge of his or her liability. 735 ILCS 5/13-204 (West 1992).

It is Allen's position that since it has not made payment to Caballero, the two-year "limitation period of section 13-204 has not yet started to run." Allen's reliance on section 13-204, however, is misplaced.

Although by its terms section 13-204 bars the filing of a contribution action more than two years after payment by a joint tortfeasor, it does not by its terms provide that all contribution actions are timely so long as they are commenced before two years after payment. Thompson v. Walters (1991), 207 Ill.App.3d 531, 537-38, 152 Ill.Dec. 467, 471-72, 565 N.E.2d 1385, 1389-90; Hayes v. Mercy Hospital & Medical Center (1989), 180 Ill.App.3d 441, 446, 129 Ill.Dec. 372, 375, 535 N.E.2d 1137, 1140, aff'd (1990), 136 Ill.2d 450, 145 Ill.Dec. 894, 557 N.E.2d 873; Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill.App.3d 515, 518, 110 Ill.Dec. 529, 531, 511 N.E.2d 706, 708. Moreover, by its terms section 13-204 is applicable only to the filing of a contribution action after payment has been made; but section 13-204 is not applicable to the filing of a contribution action after an underlying direct action is pending. After an underlying direct action is pending, section 5 of the Joint Tortfeasor Contribution Act (740 ILCS 100/5 (West 1992)) rather than section 13-204 of the Code of Civil Procedure applies to an action for contribution. Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill.2d 450, 459, 145 Ill.Dec. 894, 898, 557 N.E.2d 873, 877; Laue v. Leifheit (1984), 105 Ill.2d 191, 196, 85 Ill.Dec. 340, 342-43, 473 N.E.2d 939, 941-42; Rummel v. Yazoo Manufacturing Co. (1991), 222 Ill.App.3d 526, 529, 164 Ill.Dec. 465, 467, 583 N.E.2d 19, 21. Thus, despite section 13-204, a joint tortfeasor cannot file a contribution action up to two years after making payment if he fails to file the contribution action in an underlying pending direct action. Laue, 105 Ill.2d at 196, 85 Ill.Dec. at 342-43, 473 N.E.2d at 941-42. Also, despite section 13-204, a joint tortfeasor cannot file a contribution action up to two years after making payment when there is an expired statute of repose that is applicable to an underlying pending direct action. Hayes, 136 Ill.2d at 459-61, 145 Ill.Dec. at 898-99, 557 N.E.2d at 877-78. In these instances, like the present case, the controlling feature is that section 5 of the Joint Tortfeasor Contribution Act rather than section 13-204 of the Code of Civil Procedure applies.

Section 5 of the Joint Tortfeasor Contribution Act provides:

Enforcement. 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 1992).

Allen argues that if section 5 of the Joint Tortfeasor Contribution Act rather than section 13-204 of the Code of Civil Procedure is applicable here, then the time for filing its third-party complaint for contribution has not expired because the underlying direct action is still pending. Allen relies on Laue v. Leifheit (1984), 105 Ill.2d 191, 85 Ill.Dec. 340, 473 N.E.2d 939. In Laue, 105 Ill.2d at 196, 85 Ill.Dec. at 342-43, 473 N.E.2d at 941-42, the supreme court held that under section 5 of the Joint Tortfeasor Contribution Act, if there is an underlying direct action pending then the party seeking contribution must assert its claim for contribution by counterclaim or third-party action in the pending underlying direct action. Laue, however, only "established a procedural requirement that actions for contribution must be filed during the pendency of the underlying direct action. The decision does not hold that all actions for contribution brought within the time an underlying suit is pending are timely filed." Hayes, 136 Ill.2d at 460, 145 Ill.Dec. at 898, 557 N.E.2d at 877.

It is clear from a reading of Hayes and Laue that whether an action for contribution is timely filed is dependent upon whether there is an underlying direct action pending. Where an underlying direct action is not pending and a joint tortfeasor makes payment to the injured claimant, an action for contribution is subject to the limitation period provided in 735 ILCS 5/13-204 (West 1992). Where an underlying direct action is pending an action for contribution by a joint tortfeasor is subject to the same statutes of limitations and repose that are applicable to the original claimant's cause of action in the underlying direct action. ¹ Antunes v. Sookhakitch (1992), 146 Ill.2d 477, 491, 167 Ill.Dec. 981, 987-88, 588 N.E.2d 1111, 1117-18; Hayes, 136 Ill.2d at 458-61, 145 Ill.Dec. at 898-99, 557 N.E.2d at 877- 78; Rummel, 222 Ill.App.3d at 530, 164 Ill.Dec. at 466-67, 583 N.E.2d at 21-22; Thompson, 207 Ill.App.3d at 536-39, 152 Ill.Dec. at 470-71, 565 N.E.2d at 1388-90; Highland v. Bracken (1990), 202 Ill.App.3d 625, 630, 148 Ill.Dec. 104, 108, 560 N.E.2d 406, 410.

The right of a contribution action, however, exists in an inchoate form from the time of the injury to the original claimant and accrues for purposes of statutes of limitations (1) when there is no underlying direct action pending and the party seeking contribution makes payment or undertakes an obligation to make payment to the injured original claimant, or (2) when the party seeking contribution is sued in an underlying direct action and given notice of the nature of the action upon which the contribution claim is based. Rummel, 222 Ill.App.3d at 529, 164 Ill.Dec. at 467, 583 N.E.2d at 21; Bonfield v. Jordan (1990), 202 Ill.App.3d 638, 642, 148 Ill.Dec. 110, 113, 560 N.E.2d 412, 415; Highland, 202 Ill.App.3d at 630, 148 Ill.Dec. at 107, 560 N.E.2d at 409. ²

In the present case, Caballero was injured on August 21, 1984. The applicable statute of limitations for filing a personal injury action provides that the suit must be commenced within two years after the cause of action accrues. 735 ILCS 5/13-202 (West 1992). On January 31, 1985, Caballero filed the underlying personal injury action naming Rockford as a defendant. On September 27, 1985, Caballero's complaint was amended to add Allen as a defendant. The amended complaint alleges that Caballero was injured while employed by Vaughan, and charges Allen with product liability and negligence in designing and manufacturing the foot switch attached to the punch press that injured Caballero. Allen, however, did not seek leave to file a third-party complaint for contribution against Vaughan until February 1, 1991, more than five years and four...