Highland v. Bracken

• Decision Date: 06 September 1990
• Docket Number: No. 4-90-0047,4-90-0047
• Citation: 560 N.E.2d 406,202 Ill.App.3d 625,148 Ill.Dec. 104
• Parties: , 148 Ill.Dec. 104 Michael HIGHLAND, Plaintiff, v. Mary BRACKEN, Defendant and Third-Party Plaintiff-Appellee (Steven D. Williams and City of Mattoon, an Illinois Municipal Corporation, Third-Party Defendants-Appellants).
• Court: United States Appellate Court of Illinois

Page 406

560 N.E.2d 406

202 Ill.App.3d 625, 148 Ill.Dec. 104

Michael HIGHLAND, Plaintiff, v. Mary BRACKEN, Defendant and Third-Party Plaintiff-Appellee (Steven D. Williams and City of Mattoon, an Illinois Municipal Corporation Third-Party Defendants-Appellants).

No. 4-90-0047.

Appellate Court of Illinois Fourth District.

Sept. 6, 1990.

Richard F. Record, Jr., Mark R. Karpus, Craig & Craig, Mattoon, for Steven Williams and City of Mattoon.

Janett S. Winter-Black, Dilsaver, Nelson & Winter-Black, Mattoon, for Mary Bracken.

Justice McCULLOUGH delivered the opinion of the court:

Third-party defendants, Steven Williams and the City of Mattoon (hereinafter referred to as third-party defendants), appeal a trial court's order denying a motion for summary judgment regarding a third-party contribution action. Third-party defendants contend the contribution action was barred by the one-year statute of limitations contained in section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act (Immunity Act) (Ill.Rev.Stat.1987, ch. 85, par. 8-101).

On May 20, 1987, defendant, Mary Bracken, travelled on a green light west through an intersection, colliding with a fire truck going north. The plaintiff, Michael Highland, was a passenger on the fire truck at the time of the collision. Highland then brought suit against Bracken. The original complaint was filed on April 19, 1989. Bracken's answer of June 15, 1989, included a third-party complaint against third-party defendants, seeking contribution pursuant to section 13-204 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1987, ch. 110, par. 13-204) and the Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill.Rev.Stat.1987, ch. 70, pars. 301 through 305). Count I of the third-party complaint alleged ordinary negligence, and count II alleged wilful and wanton negligence. On January 4, 1990, the court granted third-party defendants' motion for summary judgment in regard to count I of Bracken's complaint, but denied summary judgment for count II. The court allowed this interlocutory appeal under Supreme Court Rule 308 (107 Ill.2d R. 308).

Third-party defendants contend that since the contribution action was filed more than one year after the injury occurred, the statute of limitations of the Immunity Act supersedes that of the Contribution Act and bars Bracken's cause of action for contribution. Third-party defendants further contend the cause of action for contribution accrues on the date the injury was received. Bracken argues the two-year statute of limitations included in the Contribution Act applies, and that the contribution cause of action does not accrue until payment is made or obligation for payment is incurred.

Relevant statutes include, first the Immunity Act:

"No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. For purposes of this Article, the term 'civil action' includes any action, whether based upon the common law or statutes or Constitution of this State." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 85, par. 8-101.)

The emphasis added denotes additional language amending that section (Ill.Rev.Stat.1985, ch. 85, par. 8-101), and the reduction of the time limit for commencing such action from two years to one. (Pub. Act 84-1431, eff. Nov. 25, 1986 (1986 Ill.Laws 3740).) Second, the Code:

"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." (Ill.Rev.Stat.1987, ch. 110, par. 13-204.)

Third, the Contribution Act:

"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." Ill.Rev.Stat.1987, ch. 70, par. 305.

The main issue in this case is whether the cause of action for contribution "accrues," for purposes of triggering the statute of limitations, at the time of injury, or whether it remains inchoate until the occurrence of certain other events. Black's Law Dictionary defines "accrue" as to vest or to mature. (Black's Law Dictionary 19 (5th ed. 1979).) "[A] cause of action accrues when facts exist which authorize one party to maintain an action against another." (Meeker v. Summers (1979), 70 Ill.App.3d 528, 529, 26 Ill.Dec. 919, 920, 388 N.E.2d 920, 921.) Furthermore, "the statute of limitations begins to run from, and not until, the time that the cause of action * * * accrues." (Schreiber v. Hackett (1988), 173 Ill.App.3d 129, 131, 122 Ill.Dec. 914, 915, 527 N.E.2d 412, 413.) Accordingly, the accrual of a specific cause of action signals the beginning of the running of the statute of limitations, and the time of accrual varies for different causes of action depending on when the facts exist which allow and authorize that particular cause of action. While it is well settled that a cause of action for personal injury resulting from a tort accrues on the date of injury (Aetna Life & Casualty Co. v. Sal E. Lobianco & Son Co. (1976), 43 Ill.App.3d 765, 768, 2 Ill.Dec. 454, 456, 357 N.E.2d 621, 623), this is not necessarily so for a contribution action, which is itself a separate cause of action as indicated by section 5 of the Contribution Act.

A contribution action lies, for example, when (1) a payment is incurred or made in whole or in part on a common obligation, or something is done in the equivalent, so that this payment made by the joint obligor is in excess of his share of the common obligation (Harris v. Buder (1945), 326 Ill.App. 471, 475-76, 62 N.E.2d 131, 133); or (2) the party bringing the contribution action is sued by a complaining party, giving him notice of the nature and the potential amount of the obligation necessitating the contribution action (Withall v. Capitol Federal Savings (1987), 155 Ill.App.3d 537 541, 108 Ill.Dec. 202, 205, 508 N.E.2d 363, 366).

Third-party defendants contend the date of accrual of a contribution action must be the date of injury, thereby barring third-party plaintiff's cause of action. We disagree. In White v. Touche Ross & Co. (1987), 163 Ill.App.3d 94, 114 Ill.Dec. 354, 516 N.E.2d 509, the court held the relevant date to determine whether to apply the Contribution Act was the date of injury, rather than the date the cause of action accrued. (White, 163 Ill.App.3d at 101, 114 Ill.Dec. at 358-59, 516 N.E.2d at 513-14.) In Stephens v. McBride (1983), 97 Ill.2d 515, 74 Ill.Dec. 24, 455 N.E.2d 54, the supreme court stated a cause of action for contribution may accrue "years after the accident has occurred." (Stephens, 97 Ill.2d at 522, 74 Ill.Dec. at 28, 455 N.E.2d at 58.) The supreme court has also held contribution actions must be brought during the pending action or it is barred (Laue v. Leifheit (1984), 105 Ill.2d 191, 196, 85 Ill.Dec. 340, 342-43, 473 N.E.2d 939, 941-42), and that "the right of contribution exists, although in inchoate form, from the time the person seeking recovery is injured." Rakowski v. Lucente (1984), 104 Ill.2d 317, 321, 84 Ill.Dec. 654, 656, 472 N.E.2d 791, 793.

Accordingly, contrary to the contentions of the third-party defendants, White and McBride suggest the date of injury and the date the cause of action for contribution accrues are not necessarily the same. Therefore, we find that while this right of contribution exists from the time of injury, it exists in inchoate form, and does not ripen, mature, vest, or accrue, until either payment is made, obligated, incurred, or an action is brought against the defendant. This analysis is consistent with Laue, and as such, the third-party defendants' contention in this regard is without merit.

This analysis is also consistent with section 2(a) of the Contribution Act, which states "where 2 or more persons are subject to liability in tort * * * there is a right of contribution among them, even though judgment has not been entered against any or all of them." (Ill.Rev.Stat.1987, ch. 70, par. 302(a).) The date on which this inchoate contribution right of action arises is relevant when the determination of the extent of injury is at issue, since " 'liability' is determined at the time of the injury out of which the right to contribution arises, and not at the time the action for contribution is brought." (Stephens, 97 Ill.2d at 520, 74 Ill.Dec. at 27, 455 N.E.2d at 57.) This date is also relevant when the injury occurred prior to the enactment of the Contribution Act, in which case the Contribution Act will not apply. (White, 163 Ill.App.3d at 101, 114 Ill.Dec. at 359, 516 N.E.2d at 514.) Conversely, the date the cause of action accrues is relevant in determining the time from which the relevant statute of limitations shall run. "[T]he statute of limitations appropriately runs from the time when the cause of action [for contribution] ripens but the naked right of contribution arises at an earlier time." Verson Allsteel Press Co. v. Major Spring & Manufacturing Co. (1982), 105 Ill.App.3d 419, 423, 61 Ill.Dec. 303, 306, 434 N.E.2d 456, 459.

Therefore, this is the critical distinction between the right to and the accrual of a contribution action which allows this third-party plaintiff to bring her action within the guidelines of the Contribution Act, the Immunity Act and the Laue decision. In this case, the right of contribution arose, but in inchoate form, at the time of the injury. The cause of action did not accrue for purposes of the statute of limitations until the date the action was filed against the third-party plaintiff. The cause of action for contribution was then no longer inchoate, and accrued or ripened on this date for purposes of the statute of limitations. The Immunity Act...