Harshman v. DePhillips

• Court: Appellate Court of Illinois
• Citation: Harshman v. DePhillips, 820 N.E.2d 1164, 354 Ill. App.3d 429, 290 Ill.Dec. 97 (Ill. App. 2004)
• Decision Date: 10 December 2004
• Docket Number: No. 1-03-3169.,1-03-3169.
• Parties: Clinton HARSHMAN, Blachowske Truck Lines, Inc., and Dahl Trucking, Inc., Plaintiffs-Appellees, v. George E. DePHILLIPS, Defendant-Appellant.

820 N.E.2d 1164

354 Ill. App.3d 429

290 Ill.Dec. 97

Clinton HARSHMAN, Blachowske Truck Lines, Inc., and Dahl Trucking, Inc., Plaintiffs-Appellees, v. George E. DePHILLIPS, Defendant-Appellant.

No. 1-03-3169.

Appellate Court of Illinois, First District, Sixth Division.

December 10, 2004.

Pretzel & Stouffer, Chartered, Chicago (Robert Marc Chemers and Scott L. Howie, of counsel), for Appellant.

Phillips Law Offices, Chicago (Thomas L. O'Carroll, of counsel), for Appellees.

Justice McNULTY delivered the opinion of the court:

This is a permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (134 Ill.2d R. 308). Defendant George DePhillips appeals from the denial of his motion to dismiss a claim for contribution filed against him by plaintiffs Clinton Harshman, Blachowske Truck Lines, Inc. and Dahl Trucking, Inc. (collectively, Harshman). The circuit court certified for appeal the question: "[m]ay 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?" We believe that, on the record presented here, the certified question must be answered in the negative.

Background

In October 1999 LaVerne Peterson and Mary Peterson (the Petersons) filed suit in Lake County, Indiana, superior court, seeking damages from Harshman for injuries allegedly arising from a March 23, 1999, collision in Gary, Indiana, between their car and his truck. As a result of her injuries, LaVerne Peterson received medical treatment from DePhillips, including a four-level spine disectomy and fusion.

The Petersons asserted no claims against DePhillips in the original suit. The action was removed to the United States District Court for the Northern District of Indiana.

According to pleadings filed by Harshman, his claim for contribution arose from the January 15, 2001, deposition of Dr. Gary Skaletsky, in which Skaletsky testified that DePhillips' treatment was unnecessary and actually worsened the injuries LaVerne sustained in the collision. On January 29, 2001, Harshman moved to extend discovery, to continue the trial date and for leave to file a third-party complaint for contribution against DePhillips. Discovery was scheduled to close on January 31, 2001, and trial was scheduled for March 26, 2001.

The United States District Court magistrate presiding over the matter ruled that reopening discovery, postponing the scheduled trial date, and introducing the new issues of DePhillips' alleged negligence would be unduly prejudicial to the Petersons and accordingly denied Harshman's motion. The magistrate advised Harshman that under Illinois law, "a contribution claim may be brought in a separate action even if not filed while the underlying action is still pending."

Harshman did not appeal the denial of his motion. Instead, he filed the contribution claim as a separate action in the circuit court of Cook County. Judgment in the Indiana action was entered against Harshman for $1,471,350. In Illinois, DePhillips moved for the circuit court to dismiss the action based on Section 5 of the Joint Tortfeasor Contribution Act (740 ILCS 100/5 (West 1998)). The circuit court denied the motion to dismiss, but certified the aforementioned question for appeal.

Analysis

Section 5 of the Joint Tortfeasor Contribution Act (Contribution Act) provides that "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 1998). The supreme court has definitively interpreted the language of the Act to disallow the pursuit of contribution claims in separate actions where another action regarding the matter has been previously filed. "[A] party seeking contribution must assert a claim by counterclaim or by third-party claim in the [pending action]." Laue v. Leifheit, 105 Ill.2d 191, 196, 85 Ill.Dec. 340, 473 N.E.2d 939 (1984). "One jury should decide both the liability to the plaintiff and the percentages of 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, 105 Ill.2d at 196-97,85 Ill.Dec. 340,473 N.E.2d 939. The supreme court has consistently reiterated this construction of section 5 of the Contribution Act. "The Laue court's construction of section 5 of the Contribution Act leads us to conclude that anytime a joint tortfeasor fails to bring his contribution claim in the original action, any claim to contribution is thereafter a nullity." Henry v. St. John's Hospital, 138 Ill.2d 533, 546, 150 Ill.Dec. 523, 563 N.E.2d 410 (1990); see also Hayes v. Mercy Hospital & Medical Center, 136 Ill.2d 450, 460, 145 Ill.Dec. 894, 557 N.E.2d 873 (1990).

Harshman argues that Laue should not be interpreted as a complete bar to the pursuit of contribution claims not filed during the pendency of a prior-filed action and cites Cook v. General Electric Co. 146 Ill.2d 548, 167 Ill.Dec. 957, 588 N.E.2d 1087 (1992), and Anderson v. Alberto-Culver USA, Inc., 337 Ill.App.3d 643, 273 Ill.Dec. 404, 789 N.E.2d 304 (2003), as support for this argument. We find his reliance on these precedents to be misplaced. In each case, the contribution plaintiff proceeded in accordance with the directive of Laue by filing its contribution claim in the original action. In Cook, the supreme court held that this mandate did not preclude the possibility of separate trials in the event that severance was dictated by forum non conveniens analysis. Cook, 146 Ill.2d at 556, 167 Ill.Dec. 957, 588 N.E.2d 1087. In Anderson, this court held that Laue did not prohibit a trial judge from directing separate, nonconcurrent jury deliberations on original wrongful death claims and related contribution claims in a complex action. Anderson, 337 Ill.App.3d at 664, 273 Ill.Dec. 404, 789 N.E.2d 304. Cook and Anderson thus confirm that a trial judge retains discretion to sever the trial of a contribution claim from that of the original action; but neither case suggests a departure from the requirement that the contribution claim must initially be filed during the pendency of the original cause.

Harshman next argues that he met the requirements of the Contribution Act as interpreted by Laue by moving for leave of court to file a third-party complaint against DePhillips. In our view, this argument is unsupported by the plain language of Laue, which unequivocally directs that the contribution plaintiff not merely "assert" his claim, but that he assert it in the original action "by counterclaim or by third-party claim in that action." Laue, 105 Ill.2d at 196, 85 Ill.Dec. 340, 473 N.E.2d 939. We are unaware of any Illinois precedent that...