Kotecki v. Cyclops Welding Corp., 68568

Citation146 Ill.2d 155,585 N.E.2d 1023,166 Ill.Dec. 1
Decision Date18 April 1991
Docket NumberNo. 68568,68568
Parties, 166 Ill.Dec. 1, Prod.Liab.Rep. (CCH) P 12,812 Mark A. KOTECKI v. CYCLOPS WELDING CORPORATION, Appellee (Carus Chemical Company, Appellant).
CourtSupreme Court of Illinois

Page 1023

585 N.E.2d 1023
146 Ill.2d 155, 166 Ill.Dec. 1,
Prod.Liab.Rep. (CCH) P 12,812
Mark A. KOTECKI
v.
CYCLOPS WELDING CORPORATION, Appellee (Carus Chemical
Company, Appellant).
No. 68568.
Supreme Court of Illinois.
April 18, 1991.
Rehearing Denied Dec. 2, 1991.
Dissenting Opinion on Denial of
Rehearing of Justice Freeman
Feb. 5, 1992.

Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., La Salle (Michael T. Reagan and Robert M. Hansen, of counsel), for appellant.

Edward M. Rubin, of Johnson, Cusack & Bell, Ltd., Chicago (Thomas H. Fegan, of counsel), for appellee.

Bruce Robert Pfaff and Kathryn A. Bettasso, Chicago, for amicus curiae Illinois Trial Lawyers Association.

Justice THOMAS J. MORAN delivered the opinion of the court:

Mark A. Kotecki (Kotecki) brought an action in La Salle County for personal injury, allegedly caused by [146 Ill.2d 156] defendant Cyclops Welding Corporation's (Cyclops) negligence in the design and construction of an agitator, used on the premises of Carus Chemical Company (Carus), Kotecki's employer. Cyclops then filed a third-party complaint against Carus, seeking contribution. Carus moved to strike the ad damnum clause of the third-party complaint for contribution. The trial court denied the motion, but made the necessary findings for an interlocutory appeal according to Supreme Court Rule 308 (107 Ill.2d R. 308(a)). The appellate court denied Carus' petition for leave to appeal. Carus' petition for leave to appeal to this court was granted (107 Ill.2d R. 315). 127 Ill.2d 618, 136 Ill.Dec. 588, 545 N.E.2d 112.

The sole issue on appeal is whether an employer, sued as a third-party defendant in a product liability case, is liable for contribution in an amount greater than its statutory liability under the Workers' Compensation Act.

As this is an interlocutory appeal, all of the facts are gleaned from the pleadings. Kotecki, in his complaint, alleges that he sustained personal injury when he caught his hand in the motor of an agitator; that the injury occurred while he was acting in the scope of his employment with Carus; and that Cyclops negligently designed, constructed, and installed the agitator on the Carus property without sufficient guarding devices for the motor and drive system.

Cyclops then filed a third-party complaint against Carus, alleging various acts of negligence.

Page 1024

[166 Ill.Dec. 2] Cyclops thus sought contribution from Carus under the Contribution Act (Ill.Rev.Stat.1987, ch. 70, par. 301 et seq.), in an amount proportionate with the degree of fault attributable to Carus' culpability, if it is found liable to Kotecki at trial.

The third-party defendant, Carus, then filed a motion to strike the ad damnum clause of the third-party [146 Ill.2d 157] complaint, asserting that section 5 of the Workers' Compensation Act (Ill.Rev.Stat.1987, ch. 48, par. 138.5 et seq.), when read in conjunction with the Contribution Act, serves to limit the amount of liability of an employer to an amount no greater than the workers' compensation exposure of the employer. Cyclops filed a response, the motion was heard, and the trial court then denied the motion.

The trial judge found that the motion, and his subsequent ruling, involved a question of law as to which there was a substantial ground for difference of opinion, and that an immediate appeal from his order would materially advance the ultimate termination of this case. His order stated that the controlling question of law is as follows:

"Whether an employer sued as a third-party defendant in a products liability case is liable in contribution for any amount in excess of the employer's statutory liability under the Worker's Compensation Act."

Carus filed an interlocutory petition for leave to appeal, which the appellate court denied. Carus then filed a petition of leave to appeal to this court, which was allowed. The Illinois Trial Lawyers Association filed a brief, as amicus curiae, in support of Cyclops. The sole issue on review is the trial court's certified question.

Any discussion of the effect of workers' compensation on the Contribution Act must begin with Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437. In Skinner, the court held that a defendant manufacturer sued in strict tort liability had a right of contribution against the employer (whose conduct may have contributed to the injury) of an injured worker. The plaintiff, Rita Skinner, was injured while she was using an injection molding machine and she sued the machine's manufacturer under strict product liability. The manufacturer filed a third-party action [146 Ill.2d 158] against her employer for contribution, alleging negligence. This court found that the trial court's dismissal of the third-party action was error. (Skinner, 70 Ill.2d at 16, 15 Ill.Dec. 829, 374 N.E.2d 437.) It additionally found that there is a right of contribution among joint tortfeasors, and that the doctrine would apply prospectively only. Skinner, 70 Ill.2d at 16, 15 Ill.Dec. 829, 374 N.E.2d 437.

Following this court's decision in Skinner, the legislature passed the Contribution Among Joint Tortfeasors Act (Ill.Rev.Stat.1989, ch. 70, pars. 301 through 305) (Contribution Act). For the purposes of this case, the statute states in pertinent part:

"[W]here 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them." Ill.Rev.Stat.1989, ch. 70, par. 302(a).

In Doyle v. Rhodes (1984), 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382, the court had before it the issue of whether an employer could be liable to a manufacturer for contribution, in light of the Contribution Act. Doyle, a flagman on a road construction project, sued Rhodes, a motorist, for striking him with her car. Rhodes filed a third-party action seeking contribution from Doyle's employer. The trial court dismissed the third-party claim, but this court reversed that judgment. (Doyle, 101 Ill.2d at 19, 77 Ill.Dec. 759, 461 N.E.2d 382.) Thus in Doyle, the court was required to consider the effect that the Contribution Act had on Skinner. While recognizing that the Workers' Compensation Act gives an employer immunity from tort actions by its employees, this court, in Doyle, found that there is no bar to a claim for contribution from that employer by a defendant held liable to that employee. Doyle, 101 Ill.2d at 14, 77 Ill.Dec. 759, 461 N.E.2d 382.

Page 1025

[146 Ill.2d 159] [166 Ill.Dec. 3] The court also held that the Contribution Act "was intended to codify the Skinner decision, [and] not to diminish its scope." (Doyle, 101 Ill.2d at 8, 77 Ill.Dec. 759, 461 N.E.2d 382.) The court additionally found that the phrase in the Contribution Act, "subject to liability in tort" (Ill.Rev.Stat.1989, ch. 70, par. 302(a)), did not exempt employers who pay workers' compensation benefits to the injured employee from the Act. The court noted, in response to the employer's charge that the Contribution Act was ambiguous on this point, that:

"The language relied on by the employer is neither unambiguous nor should it be construed in the way the employer seeks to apply it. The Workers' Compensation Act provides employers with a defense against any action that may be asserted against them in tort, but that defense is an affirmative one whose elements--the employment relationship and the nexus between the employment and the injury--must be established by the employer, and which is waived if not asserted by him in the trial court. [Citations.] Thus, the plaintiff may recover a tort judgment against his employer for a work-related injury if the employer fails to raise the defense the Workers' Compensation Act gives him (see Rhodes v. Industrial Com. (1982), 92 Ill.2d 467, 471, 66 Ill.Dec. 83, 442 N.E.2d 509), and on occasion the employer may choose not to raise it in the hope that the plaintiff will be unable to prove negligence to a jury's satisfaction. The potential for tort liability exists until the defense is established." Doyle, 101 Ill.2d at 10-11, 77 Ill.Dec. 759, 461 N.E.2d 382.

In Doyle, the court also noted that it was not determining all of the issues concerning the interplay between the Workers' Compensation Act and the Contribution Act. The court specifically noted that it was not determining what effect its decision would have on the relevance of section 5(b) of the Workers' Compensation Act (Ill.Rev.Stat.1987, ch. 48, par. 138.5(b)), which allows the employer to recoup an amount of the compensation[146 Ill.2d 160] paid from the proceeds of any award, judgment or settlement fund, out of which the employee may be compensated by a third party. The court stated:

"The extent to which any right of contribution from the employer under the Contribution Act may impact upon this right of recoupment by the employer has not been raised by the parties in their pleadings and consequently not briefed. At...

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