Appeal from the Circuit Court of De Kalb County; the Hon. Rex
F. Mellinger, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Plaintiff, John C. Laue, sued the defendant, Nancy J. Leifheit, for contribution under "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.) (the Contribution Act). Laue received a judgment of $52,800 and Leifheit appeals.
In a prior action based on negligence, the defendant here, Leifheit, joined with four other members of her family as plaintiffs, and all recovered from a truck operator, plaintiff here, John C. Laue, their respective damages for personal injuries suffered in a car-truck collision. Leifheit and Laue were the respective drivers. After verdict and judgment in that action, Laue filed the instant complaint for contribution by Leifheit to the damages paid by him to Leifheit's four family members. Laue filed a motion for judgment on the pleadings which was granted. Leifheit was ordered to make contribution to Laue of 33% of the damages which were paid by him to Leifheit's co-plaintiffs in the previous personal injury action. Thirty-three percent was the jury's assessment of Leifheit's comparative negligence in causing her own injuries in the prior action.
There are five issues on appeal: (1) whether Laue's separate complaint for contribution is barred by the Contribution Act and/or whether Leifheit waived this issue; (2) whether the doctrine of collateral estoppel precluded litigation of Leifheit's liability to her injured passengers; (3) whether the court erroneously denied Leifheit's motions to strike and dismiss the complaint; (4) whether the court erred in granting Laue's motion to strike explicit denials from Leifheit's answer; (5) whether the court erred in granting judgment on the pleadings.
• 1 Leifheit first contends Laue's failure to assert his claim for contribution during the pendency of the original action by way of counterclaim bars him from bringing the instant suit. In support, Leifheit cites a recent case which construes section 5 of the Contribution Act, Tisoncik v. Szczepankiewicz (1983), 113 Ill. App.3d 240. Section 5 provides:
"Sec. 5. Enforcement. 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. 1981, ch. 70, par. 305.
Tisoncik interprets that section to mean that a contribution claim may be asserted by a separate action before or after payment in situations where no suit is pending which was initiated by the injured party. However, "when there is a pending action, the contribution claim should be asserted `by counterclaim or by third-party claim' in that action." Tisoncik v. Szczepankiewicz (1983), 113 Ill. App.3d 240, 245.
The court pronounced its interpretation in the context of determining whether the sole remaining defendant against whom the jury's verdict was entered had standing to appeal the dismissal of its co-defendants, one by directed verdict and one at plaintiff's request. The court noted the general rule in Illinois that the only party who may appeal from a directed verdict in favor of a co-defendant is the plaintiff, and that the right to appeal exists only in favor of a party whose rights have been prejudiced by the judgment or decree appealed from. The court observed that the remaining defendant's right to contribution was not prejudiced by the court's dismissal of its co-defendant. The court determined that because defendant did not assert its right to contribution by counterclaim or third-party complaint in the cause below, the issues relevant to contribution were not resolved in that cause, thus defendant could not claim its interest in seeking contribution from the dismissed co-defendant was prejudiced and, therefore, had no standing to appeal the dismissal.
The Tisoncik court acknowledged the legislative history of the Act compiled by the Chicago Bar Association Civil Practice Committee wherein section 5 is described as being a restatement of Illinois law which gave the defendant the right to assume the posture that he is not liable at all, and to elect not to cross-claim lest he create the impression that he is liable. (Tisoncik v. Szczepankiewicz (1983), 113 Ill. App.3d 240, 245-46.) Nevertheless, the court observed that the legislative debates preceding passage of the Contribution Act evidenced the concern of the legislators about increased litigation as a result of the Act. Consequently, the court concluded "the language and punctuation used in section 5 clearly indicate the legislative intent that where there is a pending action, the cause of action for contribution among joint tortfeasors is to be asserted by a counterclaim or third-party complaint in the pending action." 113 Ill. App.3d 240, 246.
Our reading of the legislative debates in the House and Senate causes us to conclude that the Tisoncik interpretation gives unwarranted credence to the debate comments concerning increased litigation, and ignores the plain language of the statute.
The Act passed overwhelmingly in both the House (122 "aye," 6 "nay," 3 "present") and the Senate (39 "aye," 6 "nay," 5 "present"). Further, during his presentation of the bill, Representative Daniels was asked the following question:
"Kane: `Is this a separate action from the original suit?'
Daniels: `Yes, if [pause] if there is a dispute between [sic] the contribution, then there would be a separate action between the people that are responsible for the negligence or the damages or [pause] or monetary amount.'" Record of Proceedings of the 81st General Assembly, Reg. Session, 3rd reading in the House of S.B. 308, at 19 (June 14, 1979).
We conclude Laue's present cause of action for contribution is not barred, and that the Tisoncik interpretation is not applicable to the facts of this case and not controlling here. Further, we do not agree with Laue's contention that this issue was waived because the fact that Laue had not filed a counterclaim for contribution was raised in the pleadings below in Leifheit's motion to dismiss.
• 2 Leifheit next argues the doctrine of collateral estoppel was improperly applied here in granting Laue's motion for judgment on the pleadings. Briefly stated, collateral estoppel is invoked to prevent the relitigation of the same issue which was decided in a prior action and which issue is also material to the resolution of the present action. (Spiller v. Continental Tube Co. (1983), 95 Ill.2d 423, 433-34.) Leifheit points out these issues among others were determined in the prior action: (1) her conduct as an undue risk of harm to herself, (2) the causal relationship between her conduct and the injuries she sustained, and (3) the amount by which her damages should be reduced as attributable to her contributory negligence. She contends there are these different issues in the case at bar which should not ...