Rivard v. Chicago Firefighters Union, Local No. 2

• Decision Date: 04 June 1986
• Docket Number: No. 2,D,82-3130 and 84-1283,Nos. 82-3094,2,s. 82-3094
• Parties: , 98 Ill.Dec. 634, 122 L.R.R.M. (BNA) 2493 April RIVARD, and Robert Oliver, Administrator of the Estate of Latrice Louise Rivard, Deceased, Plaintiffs-Appellants, and Cross-Appellees, v. CHICAGO FIREFIGHTERS UNION, LOCAL NO. 2, Frank Muscare, as President, William Reddy, as First Vice-President, Frank Murphy, as Second Vice-President, all of Chicago Firefighters Union, Defendants-Appellees, and Bonnell CARTER, Administrator of Estates of Martha Carter, Caenezell Carter, Harvey Carter and Henry Carter, Deceased, and Harvey Teague and Martha Teague, as Administrators of the Estate of Harvey Teague II, Deceased, Plaintiffs-Appellants, and Cross-Appellees, v. CHICAGO FIREFIGHTERS UNION, LOCAL NO. 2, International Association of Firefighters, A.F.L.-C.I.O., and Frank Muscare, as President of Chicago Firefighters Union, Localefendants-Appellees, and International Association of Firefighters, A.F.L.-C.I.O., Defendant-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 756

494 N.E.2d 756

145 Ill.App.3d 207, 98 Ill.Dec. 634,

122 L.R.R.M. (BNA) 2493

April RIVARD, and Robert Oliver, Administrator of the Estate

of Latrice Louise Rivard, Deceased, Plaintiffs-Appellants, and Cross-Appellees, v. CHICAGO FIREFIGHTERS UNION, LOCAL NO. 2, Frank Muscare, as

President, William Reddy, as First Vice-President, Frank

Murphy, as Second Vice-President, all of Chicago

Firefighters Union, Defendants-Appellees,

and

Bonnell CARTER, Administrator of Estates of Martha Carter,

Caenezell Carter, Harvey Carter and Henry Carter, Deceased,

and Harvey Teague and Martha Teague, as Administrators of

the Estate of Harvey Teague II, Deceased, Plaintiffs-Appellants, and Cross-Appellees, v. CHICAGO FIREFIGHTERS UNION, LOCAL NO. 2, International

Association of Firefighters, A.F.L.-C.I.O., and

Frank Muscare, as President of Chicago

Firefighters Union, Local No.

2, Defendants-Appellees,

and

International Association of Firefighters, A.F.L.-C.I.O.,

Defendant-Appellee and Cross-Appellant.

Nos. 82-3094, 82-3130 and 84-1283.

Appellate Court of Illinois First District, Third Division.

June 4, 1986.

Gordon & Gordon, Ltd., Chicago (Robert Langendorf, of counsel), for plaintiffs-appellants, and cross-appellees Carter, et al.

Gerald M. Sachs & Associates, Ltd., Chicago (Roger H. Williams, Tom Forgue, on briefs, of counsel), for plaintiffs-appellants, and cross-appellees Rivard, et al.

Cornfield and Feldman, Chicago (J. Dale Berry, Gilbert Feldman, Esq., of counsel), for defendants-appellees.

Mulholland & Hickey, Washington, D.C., Asher, Pavalon, Gittler, Greenfield and Segall, Ltd., Chicago (Michael S. Wolly, Joel A. D'Alba, of counsel), for defendant-appellee and cross-appellant.

Justice McGILLICUDDY delivered the opinion of the court:

Plaintiffs, April Rivard, Robert Oliver, Administrator of the Estate of Latrice Louise Rivard, deceased, and Bonnell Carter, Administrator of the Estate of Martha Carter, Caenezell Carter, Harvey Carter and Henry Carter, deceased, and Harvey Teague and Martha Teague, as Administrators of the Estate of Harvey Teague II, deceased, appeal from two orders of the circuit court of Cook County, Illinois, granting the motions to dismiss filed by the defendants, Chicago Firefighters Union, Local No. 2 (Local No. 2), International Association of Firefighters, AFL-CIO (International) and certain of their officers in a representative capacity. The plaintiffs filed two separate complaints seeking compensatory and punitive damages for deaths and injuries suffered in fires which occurred during a 1980 strike called by Local No. 2 against the city of Chicago. The actions were consolidated for defendants' motions to dismiss.

The trial court granted Local No. 2's motion to dismiss on the grounds that at common law, a voluntary unincorporated association cannot be sued in its own name or in a representative capacity in an action at law. (American Federation of Technical Engineers v. LaJeunesse (1976), 63 Ill.2d 263, 347 N.E.2d 712.) Defendant and cross-appellant International filed a special and limited appearance, and a motion to quash service of summons and to strike complaint. The motion to quash service of summons was denied. The trial court then construed International's motion to strike complaint as a motion to dismiss, which was granted. The court also found that International's special and limited appearance was thereby converted to a general appearance. The plaintiffs appeal the granting of defendants' motions to dismiss. International cross-appeals the conversion of its special and limited appearance to a general appearance.

While this appeal was pending, and in response to suggestions from the supreme court, the Illinois General Assembly amended the Code of Civil Procedure to allow voluntary unincorporated associations to sue and be sued in their own names. (Ill.Rev.Stat.1985, ch. 110, par. 2-209.1.) The issue presented for review in the instant appeal is whether section 2-209.1 can be applied retroactively to affect the actions in the underlying case.

Defendants first urge us to follow Brucato v. Edgar (1984), 128 Ill.App.3d 260, 83 Ill.Dec. 489, 470 N.E.2d 615, wherein this court held that section 2-209.1 was to be applied prospectively. The Brucato court based its decision on two points. First, the court found that the legislature, by allowing voluntary unincorporated associations to sue and be sued in their own names, had created new rights and obligations which did not exist previously. The court therefore held that section 2-209.1 was a substantive rather than a procedural change and could not be applied retroactively.

We disagree. It is true that in Illinois, the suability of voluntary unincorporated associations has traditionally been considered a substantive rather than a procedural issue. (Montgomery Ward & Co. v. Franklin Union, Local No. 4 (1944), 323 Ill.App. 590, 56 N.E.2d 476.) A review of other jurisdictions, however, indicates that the statutory changes which permit unincorporated associations to sue or be sued in their own names rather than in the names of all their members are viewed as a matter of procedural convenience. (See, e.g., Orser v. Vierra (1967), 252 Cal.App.2d 660, 60 Cal.Rptr. 708; Coleman v. Pokodner (1957), 6 Misc.2d 955, 163 N.Y.S.2d 161; Hromek v. Gemeinde (1941), 238 Wis. 204, 298 N.W. 587.) As the Supreme Court stated in United Mine Workers v. Coronado Coal Co. (1922), 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975:

" * * * [t]he suability of trades unions * * * is after all in essence and principle merely a procedural matter. As a matter of substantive law, all the members of the union * * * are liable to suit and recovery, and the only question is whether when they have voluntarily * * * created a self-acting body with great funds to accomplish their purpose, they may not be sued as this body, and the funds they have accumulated may not be made to satisfy claims for injuries unlawfully caused in carrying out their united purpose." (259 U.S. 344, 390-91, 42 S.Ct. 570, 576.)

For this reason, we also strongly disagree with defendants' argument that section 2-209.1 creates new liabilities because the common law acted as a practical bar to suits against unions for 60 years. What is impractical or difficult is not necessarily legally impossible. We object to the characterization as substantive the procedural shield behind which unions have been protected from suit for so many years.

The second basis for the Brucato decision was the legislative history of section 2-209.1. The determination whether a statutory amendment is to be applied retroactively or prospectively is primarily a question of legislative intent. (State Farm Mutual Automobile Ins. Co. v. Palmer (1984), 123 Ill.App.3d 674, 78 Ill.Dec. 951, 463 N.E.2d 129.) The Brucato court correctly noted that nothing in the statutory language or in the Historical and Practice Notes following it suggested that section 2-209.1 was to be applied retroactively. Our review of the relevant legislative history, however, indicates that Governor Thompson returned the bill in question with an amendatory veto, recommending that the provisions of the act be prospective and that its prospective nature be clearly stated in the statute. The legislature then addressed the governor's amendatory veto and the issue of retroactive application which is before this court.

Senator Bloom, the bill's sponsor, expressed his opinion that the act was clearly procedural in nature and noted that the overwhelming majority of other states have interpreted similar laws retrospectively. He then voiced his concern that should the act be applied prospectively, several pending cases would have to be dismissed and large classes of plaintiffs would be excluded from suit. The bill was then passed by the Senate, overriding the specific recommendations of the governor by a vote of 54-1-1. State of Illinois, 83rd General Assembly, Senate Transcription Debate, 35-38 (October 20, 1983).

Similarly, in...