Harshman v. Dephillips

• Decision Date: 17 February 2006
• Docket Number: No. 99805.,99805.
• Citation: 844 N.E.2d 941
• Parties: Clinton HARSHMAN et al., Appellants, v. George E. DePHILLIPS, Appellee.
• Court: Illinois Supreme Court

844 N.E.2d 941

Clinton HARSHMAN et al., Appellants, v. George E. DePHILLIPS, Appellee.

No. 99805.

Supreme Court of Illinois.

February 17, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas L. O'Carroll and Terrence M. Quinn, of Phillips Law Offices, Chicago, for appellants.

Robert Marc Chemers, Timothy A. Weaver, Scott L. Howie, and Christine J. Iversen, of Pretzel & Stouffer, Chrtd., for appellee.

Justice GARMAN delivered the judgment of the court, with 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 5/2-619 (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 "asserted * * * 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 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 "[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, 85 Ill.Dec. 340, 473 N.E.2d 939 (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 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): "May 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, 290 Ill.Dec. 97, 820 N.E.2d 1164. 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, 290 Ill.Dec. 97, 820 N.E.2d 1164, quoting Laue, 105 Ill.2d at 196, 85 Ill.Dec. 340, 473 N.E.2d 939. 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, 290 Ill.Dec. 97, 820 N.E.2d 1164. 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, 290 Ill.Dec. 97, 820 N.E.2d 1164. Relatedly, the court refused to create an exception to section 5 to accommodate plaintiffs. 354 Ill.App.3d at 432-33, 290 Ill.Dec. 97, 820 N.E.2d 1164. 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, 290 Ill.Dec. 97, 820 N.E.2d 1164. Accordingly, the appellate court concluded that plaintiffs' contribution claim against defendant was not permitted by Illinois law. 354 Ill.App.3d at 433, 290 Ill.Dec. 97, 820 N.E.2d 1164.

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. Skaletsky 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...