Appeal from the Circuit Court of Winnebago County; the Hon.
Alford R. Penniman, Judge, presiding.
PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 27, 1982.
Whether a defendant who has been sued on the basis of negligence can recover contribution from the injured plaintiff's employer who is charged with negligence as well as a wilful violation of a safety act forms the principal issue in this appeal.
The plaintiff, Charles L. Doyle, was employed as a highway flagman by the third-party defendant, Rein, Schultz & Dahl, a road contractor. The employee sued the defendant Kathleen C. Rhodes to recover damages for personal injuries received when the Rhodes car struck him. Rhodes answered and filed a third-party complaint against the contractor which, as amended, sought contribution under section 2(a) of "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1981, ch. 70, par. 302(a)), based on both the third-party defendant's negligence and its alleged violation of the sections 1, 2, and 4 of "An Act to protect workers and the general public from injury or death during construction or repair of bridges and highways within the State of Illinois" (Ill. Rev. Stat. 1981, ch. 121, pars. 314.1, 314.2, 314.4). The trial court struck the third-party complaint as amended and further ordered that there was no just reason to delay enforcement or appeal under Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)).
"An Act in relation to contribution among joint tortfeasors" provides, as material:
"Except as otherwise provided in this Act, where 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. 1981, ch. 70, par. 302(a).
Sections 5(a) and 11 of the Workers' Compensation Act provide as applicable:
"No common law or statutory right to recover damages from the employer * * * for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act." Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).
"The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer." Ill. Rev. Stat. 1981, ch. 48, par. 138.11.
The trial judge dismissed the third-party complaint on the basis that the contribution act did not permit the suit because the thirdparty plaintiff and the defendant were not both liable in tort to the plaintiff in view of the exclusivity provisions of the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, pars. 138.5(a), 138.11); and that, while the third-party plaintiff might be entitled to indemnity against the employer (Miller v. DeWitt (1967), 37 Ill.2d 273, 292), no cause of action at common law was stated since, as a matter of law, the third-party plaintiff was actively negligent and the road contractor's conduct was passive.
The third-party plaintiff contends that the Workers' Compensation Act does not bar an action for contribution under the statute and that the immunity that one potential tortfeasor may assert in an original action by the plaintiff does not bar a third-party action for contribution against another party at fault in the same occurrence. She also contends that the court erred in finding her an active tortfeasor as a matter of law in view of her allegations charging wilful violation of the road construction injuries act.
The crux of the main dispute on the question of contribution under the statute is the meaning of the term "subject to liability in tort" as it appears in the contribution statute; and whether the legislative intent evinced in that act is broad enough to include an action by one tortfeasor against another partially at fault, even though because of a statutory immunity the employer is not liable to the employee except under the no-fault provisions of the Workers' Compensation Act.
We have recently ruled that a tortfeasor may be "subject to liability in tort" and entitled to pursue a third-party action for contribution against a spouse of the claimant even though an immunity against suit has been provided by statute in any direct suit between the spouses. (Wirth v. City of Highland Park (1981), 102 Ill. App.3d 1074, 1081.) We have held that the same result follows when the immunity involves the relationship between a parent and a child. (Larson v. Buschkamp (1982), 105 Ill. App.3d 965, 970-71.) In both instances we noted the legislative history of the contribution statute. This stated that the right to contribution is founded upon the doctrine of unjust enrichment, creates a separate right of restitution rather than a derivative right, "and thus is not barred by any common law or statutory immunity which would preclude the ...