Heck v. Central Illinois Light Co.

• Decision Date: 15 October 1992
• Docket Number: No. 73094,73094
• Citation: 604 N.E.2d 939,178 Ill.Dec. 416,152 Ill.2d 401
• Parties: , 178 Ill.Dec. 416 Richard HECK et al., Appellants, v. CENTRAL ILLINOIS LIGHT COMPANY et al. (Central Illinois Light Company, Appellee).
• Court: Illinois Supreme Court

Page 939

604 N.E.2d 939

152 Ill.2d 401, 178 Ill.Dec. 416

Richard HECK et al., Appellants, v. CENTRAL ILLINOIS LIGHT COMPANY et al. (Central Illinois Light Company, Appellee).

No. 73094.

Supreme Court of Illinois.

Oct. 15, 1992.

Rehearing Denied Nov. 30, 1992.

W. Loren Thomson, Thomson & Weintraub, Bloomington, for appellants.

Gordon R. Broom, J. Todd Hayes, Burroughs, Simpson, Hepler, Broom & MacDonald Edwardsville, for appellee.

Justice CLARK delivered the opinion of the court:

The issue presented in this case is whether a defendant's contribution claim against a codefendant is considered a "counterclaim" within the meaning of section 2-1009 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1009), so as to prevent a plaintiff from voluntarily dismissing his cause of action without the defendant's consent. We hold that it is.

This case arises out of a November 16, 1988, multi-vehicle collision on Interstate 55, in McLean County. On that date, employees of defendant Central Illinois Light Company (Central) were performing maintenance work on power lines near Interstate 55. Plaintiff Richard Heck was driving his semi-tractor and trailer northbound on Interstate 55 when he stopped his vehicle due to Central's maintenance work. While Heck was stopped, defendant Randy Koch drove his vehicle into a passenger car and pushed that car into Heck's truck. As a result of this accident, Heck's trailer was destroyed and he sustained bodily injury. In addition, plaintiff Dennis Roberts, a passenger in Heck's vehicle, also sustained bodily injury.

On June 2, 1989, plaintiffs filed in the circuit court of McLean County a complaint against Central, Randy Koch and Donald Koch, d/b/a Koch Trucking, the owner of the vehicle driven by Randy Koch. For simplicity's sake, we will refer to Randy and Donald collectively as Koch. On January 11, 1990, Central filed a claim for contribution against Koch. On May 1, 1991, defendant Koch filed a claim for contribution against Central.

On May 20, 1991, plaintiffs filed a motion for voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1009). On May 22, 1991, Central filed an objection to the voluntary dismissal, claiming that under section 2-1009, plaintiffs could not voluntarily dismiss the cause without Central's consent. Over Central's objection, the trial court granted plaintiffs' motion to dismiss. Plaintiffs then refiled their action in Madison County on July 1, 1991, and the cause was consolidated with three other suits arising out of the same occurrence.

Central appealed the order granting the voluntary dismissal. The appellate court, with one justice dissenting, reversed the trial court's order dismissing the action. (223 Ill.App.3d 301, 165 Ill.Dec. 392, 584 N.E.2d 826.) We granted plaintiffs' petition for leave to appeal (134 Ill.2d R. 315).

Resolution of this case turns on the relationship between two provisions of the Code of Civil Procedure, namely the voluntary dismissal section (Ill.Rev.Stat.1987, ch. 110, par. 2-1009) and the counterclaim section (Ill.Rev.Stat.1987, ch. 110, par. 2-608). The voluntary dismissal section provides in pertinent part:

"s 2-1009. Voluntary dismissal. (a) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant's consent." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 110, par. 2-1009(a).)

Section 2-1009 is substantially the same as former section 52 of the Civil Practice Act as revised in 1955 (Ill.Rev.Stat.1955, ch. 110, par. 52). (See Ill.Ann.Stat., ch. 110, par. 2-1009, Historical & Practice Notes, at 416 (Smith-Hurd 1983).) In fact, the sentence dealing with counterclaims was included in former section 52 when it was originally enacted in 1933. See Ill.Rev.Stat.1935, ch. 110, par. 180.

The critical inquiry in this case is whether Central's contribution claim against Koch constitutes a counterclaim within the meaning of section 2-1009. In section 2-608 of the Code of Civil Procedure, the legislature defined "counterclaim" as follows:

"s 2-608. Counterclaims. (a) Any claim by one or more defendants against one or more plaintiffs, or against one or more codefendants, whether in the nature of setoff, recoupment, cross claim or otherwise, and whether in tort or contract, for liquidated or unliquidated damages or for other relief, may be pleaded as a cross claim in any action, and when so pleaded shall be called a counterclaim." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 110, par. 2-608.)

Section 2-608 is substantially the same as former section 38 of the Civil Practice Act as enacted in 1933. See Ill.Rev.Stat.1935, ch. 110, par. 166.

Despite the definition of "counterclaim" found in section 2-608, plaintiffs argue that "counterclaim," as used in section 2-1009, includes only a defendant's substantive claim against a plaintiff. In support of this position, plaintiffs point to the following statements from this court's decision in People v. American National Bank & Trust Co. (1965), 32 Ill.2d 115, 203 N.E.2d 897:

"[I]t would seem that in order for [a] plaintiff to be precluded from dismissing its own cause, an independent (even though it might arise out of the same transaction) substantive cause of action against plaintiff would be requisite. * * * Where, as here, the filed 'counterclaim' fails to state a cause of action against the plaintiff, he is not prevented thereby from taking a voluntary nonsuit." (Emphasis added.) (American National Bank, 32 Ill.2d at 119-20, 203 N.E.2d 897.)

(See also Ill.Ann.Stat., ch. 110, par. 2-1009, Historical & Practice Notes, at 416 (Smith-Hurd 1983) (quoting the above passage).) Plaintiffs argue that this interpretation became a part of the former section 52, and subsequently a part of section 2-1009. Plaintiffs rely on the rule of construction that "[w]hen a statute has been judicially considered, the sections that have been construed by the court keep their same meaning in any subsequent amendments, absent a clear legislative intent to the contrary." Harris Trust & Savings Bank v. Village of Barrington Hills (1989), 133 Ill.2d 146, 155, 139 Ill.Dec. 852, 549 N.E.2d 578.

We disagree, and find that plaintiffs' reliance on American National Bank is misplaced. In American National Bank the question of whether a counterclaim must be against a plaintiff in order to preclude the plaintiff from voluntarily dismissing his action was not at issue. Rather, the issue in American National Bank was whether the defendant's pleading stated a cause of action at all. Thus, the above quote is dicta and is not binding authority on the question at issue here. See People v. Palmer...