Appeal from the Circuit Court of McLean County; the Hon. James
A. Knecht, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
The issue is whether a default judgment against one group of tortfeasors in one action bars a separate action against another group of tortfeasors who were originally joined in the first action but later were dismissed without prejudice where all of the tortfeasors are alleged to be jointly and severally liable for plaintiffs' injuries caused by exposure to asbestos. In the cross-appeal we consider whether suits alleging intentional torts against employers, whose business involves the use of asbestos material, are barred by the exclusive remedy provisions of the Workers' Occupational Diseases Act. (Ill. Rev. Stat. 1981, ch. 48, pars. 172.40, 172.46.) We reverse the order of summary judgment in the direct appeal, affirm the denial of defendants' motion to dismiss in the cross-appeal, and deny both motions which we have taken with the case.
On May 19, 1980, plaintiffs, John Handley et al., brought suit in the circuit court of McLean County (80-L-93) against defendants Owens-Corning Fiberglas Corporation and North American Asbestos Corporation, and other defendants not parties to this appeal, seeking compensatory and punitive damages for injuries they or their decedents received as a result of exposure to asbestos while employed by Unarco Industries and its successor, Owens-Corning Fiberglas Corporation, at a plant in Bloomington, Illinois. The defendants named in the action were the employers, suppliers, and distributors of asbestos products. Plaintiffs' complaint pleaded various theories of recovery and sought to hold the defendants jointly and severally liable on individual claims and claims brought on behalf of deceased employees' estates.
Prior to bringing suit in case No. 80-L-93, on December 29, 1978, Delora Stewart, individually, and on behalf of all others similarly situated, sued all of the same defendants in this appeal in case No. 78-L-201, also seeking to hold the defendants jointly and severally liable for injuries received by plaintiffs, and others similarly situated, from exposure to asbestos at the Bloomington plant. Also on December 29, 1978, Delora Stewart, Vernadine Thacker and Betty Redman, individually, and as representatives of their decedent's estates, as well as on behalf of all others similarly situated, brought suit in case No. 78-L-202 against the defendants in this appeal. Again, the complaint pleaded various theories of recovery and sought to hold the defendants jointly and severally liable for damages under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 1), the Survival Act (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 27-6), and under section 15 of "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1981, ch. 40, par. 1015). All of the plaintiffs in these last two suits are plaintiffs in the instant cause No. 80-L-93.
A number of the defendants were served with process in Nos. 78-L-201 and 78-L-202 but did not appear, and on June 19, 1979, an order of default was entered, on plaintiffs' motion, against Cape Industries, Ltd., EGNEP, Ltd., and Cape Asbestos Fibers, Ltd. (Cape group), in Nos. 78-L-201 and 78-L-202 on behalf of the named plaintiffs in those suits and all others similarly situated. Shortly after the default order had been entered, plaintiffs in Nos. 78-L-201 and 78-L-202 dismissed without prejudice defendants North American Asbestos Corporation, Owens-Corning Fiberglas Corporation, and other defendants not parties to this appeal. Causes Nos. 78-L-201 and 78-L-202 then proceeded to trial on damages against the Cape group which had been defaulted; all of the plaintiffs in this suit (80-L-93) participated in the trial on damages; and a judgment was entered in favor of the named plaintiffs in this suit against the defaulters, assessing specific amounts of damages for individual claims and claims brought on behalf of the decedents' estates. Most of the plaintiffs who appeared at the damage trial were neither named plaintiffs in Nos. 78-L-201 and 78-L-202 nor were they members of any certified class, although all of them were represented by the same counsel.
Because plaintiffs had taken default judgments and participated in the trial on damages, defendants North American Asbestos Corporation and Owens-Corning Fiberglas Corporation, among others, moved for summary judgment in this case. The trial court had granted a similar motion for summary judgment in a companion case and granted these summary judgment motions adopting the defendants' reasoning. Defendants argued that the plaintiffs could not bring several lawsuits against the same defendants seeking recovery on a theory of joint and several liability — proceeding to trial and obtaining judgments against those defendants who defaulted, and thereafter pursuing a separate judgment in a separate lawsuit against other defendants who had been voluntarily dismissed without prejudice from the first suit — when all suits alleged an indivisible injury to plaintiffs and sought to hold the defendants jointly and severally liable. The trial court reasoned that a plaintiff who seeks recovery in a single case against multiple defendants who are alleged to be jointly and severally liable for a wrong may default any defendant who does not answer but should not prove up damages against the defaulted defendant until liability has been established as to all defendants. The trial court held that if plaintiffs choose to prove up damages and obtain a money judgment against defaulted defendants, plaintiffs could not then seek a money judgment against other alleged joint tortfeasors who were named in the original action. The court stated that Illinois law was old on this issue but suggested that taking of a judgment against one joint tortfeasor in a case where several are sued operates to discontinue the suit as to all the other defendants. To permit otherwise, the trial court reasoned, would be to permit several judgments rather than a single judgment for the whole of the injury to the plaintiff. The trial court found persuasive the reasoning of In re Uranium Antitrust Litigation (7th Cir. 1980), 617 F.2d 1248, which sets forth the procedure to be followed in a case where multiple defendants are sued on a theory of joint and several liability and some default. The trial court concluded that "[t]he Plaintiff alleged a single, unified `damage' on a number of theories of liability against a number of Defendants. The Plaintiff then elected to proceed against [the defaulters] and obtained a default money judgment against them. In so doing, Plaintiff abandoned, as a matter of law, her claims against the other alleged joint tortfeasors."
• 1 Both in the trial court and on appeal, defendants cite various authorities for the rule that a plaintiff cannot continue a cause of action as to a joint and several tortfeasor when he has already received a money judgment against another tortfeasor in the same suit, most notably Davis v. Taylor (1866), 41 Ill. 405. Defendants argue that once plaintiffs recovered a money judgment against the defaulted Cape group in Nos. 78-L-201 and 78-L-202 they were barred from maintaining an action against them since the lawsuits alleged that all defendants were jointly and severally liable for plaintiffs' injuries. We do not take issue with the Davis rule as stated by the defendants, but we find it inapplicable here and accordingly reverse the order of summary judgment and remand for further proceedings.
We begin first with the principal authority relied upon by the defendants, the case of Davis. In Davis, Taylor brought an action in trover against three defendants to recover damages for the value of personal property which was allegedly taken by the defendants. Taylor recovered a verdict and judgment was rendered in his favor against all of the defendants except Sarah Young who had been served with process but not included in the judgment. On appeal, the defendants argue that under the common law "unit judgment rule" which required the trial court to enter one judgment disposing of the claims against all of the defendants, the court erred in entering judgment against the defendants without including defendant Young in the judgment. The supreme court disagreed and stated:
"It is also urged, that Sarah B. Young was served with process, and that no judgment was rendered against her. It was held, in Dow v. Rattle, 12 Ill. 373, which was an action of assumpsit, to be error to render final judgment against part of the defendants, without disposing of the case as to the others. On the authority of this case, the same thing was said in an action of replevin in the case of Barbour v. White, 37 Ill. 164. There were, however, other grounds for reversing the last named case, and, on further considering this point, we are of opinion, that the rule should not be applied to actions of tort. There is no reason for thus applying it, because there is no contribution among wrong-doers. Taking a judgment against a portion of the defendants amounts to a dismissal of the case as to the residue, and, in actions ex delicto, this may be done." (Emphasis added.) 41 Ill. 405, 409.
Applying the Davis rule here, defendants suggest that taking a judgment against a portion of the defendants (Cape defendants) in Nos. 78-L-201 and 78-L-202 amounted to a dismissal of the case as to the residue (defendants-appellees). In reply, plaintiffs argue, inter alia, that Davis is inconsistent with the general rule that an unsatisfied judgment against one tortfeasor does not bar a further action against another tortfeasor, that the defendants were voluntarily dismissed from Nos. 78-L-201 and 78-L-202 before a money judgment was entered in those cases and thus were not residue defendants as stated in Davis, and that the judgments in those cases are void because of jurisdictional defects. For reasons given below, we agree with plaintiffs that Davis is inapplicable to the situation here since defendants were not in the residue at the time the money judgments were entered.
To properly understand the Davis court's opinion as it applies the unit judgment rule, we first look to that doctrine as it heretofore existed and the requirements it imposed in obtaining a judgment against "joint" obligors. At common law, a judgment against joint defendants was regarded as an entirety which had to stand or fall as an entirety whether the liability which gave rise to the judgment was joint or joint and several. (Chmielewski v. Marich (1954), 2 Ill.2d 568, 119 N.E.2d 247.) Thus, it was held that if a plaintiff sued multiple defendants alleging a joint liability, the verdict and judgment had to be against all or none of the defendants (Davidson v. Bond (1850), 12 Ill. 84; Kingsland v. Koeppe (1891), 137 Ill. 344, 28 N.E. 48), and that if several defendants were sued jointly for the same debt, it was error to render a judgment against fewer than all of the defendants in the action. (Dow v. Rattle (1851), 12 Ill. 373.) It was even held that a trial court could not grant a post-trial motion of one defendant who was alleged to be jointly liable without vacating the judgment against all the other jointly liable defendants. See Fredrich v. Wolf (1943), 383 Ill. 638, 50 N.E.2d 755; Frow v. De La Vega (1872), 82 U.S. 552, 21 L.Ed. 60.
The unit judgment rule was the concern of the Davis court since the facts indicated that one of the defendants (Young) had been served with process but no judgment had been entered against her. The court in Davis stated that the unit judgment rule was not applicable to actions in tort, and then in paying homage to the rule that it had just found inapplicable, stated that, in any event, taking a judgment against a portion of defendants amounted to a dismissal of the case as to the residue, thus satisfying the requirement that the judgment had to dispose of all of the defendants.
As for the present applicability of the unit judgment rule, it was overruled in Chmielewski v. Marich (1954), 2 Ill.2d 568, 119 N.E.2d 247, leaving the court to comment that "[w]hatever may have been the considerations which prompted the original adoption of the broad common-law [unit judgment] rule, we have been unable to discover any which are now relevant." (2 Ill.2d 568, 576, 119 N.E.2d 247, 251.) It is now clear that more than one judgment may be rendered in the same case and the fact that any order or judgment is joint does not deprive the court of the power to set it aside as to fewer than all of the parties. (Ill. Rev. Stat. 1981, ch. 110, par. 2-1301.) Under Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)), moreover, a judgment against fewer than all of the parties to a suit, as in Davis, does not operate as a judgment in favor of the residue, but the judgment is simply not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights and liabilities of all the parties.
Taken with an understanding of the unit judgment rule, the Davis court's dicta that a judgment against fewer than all the defendants amounts to dismissal by operation of law satisfied the rule that the judgment had to dispose of all the parties to the action. The unit judgment rule was later overruled and any dicta about the implied dismissal of residue defendants has, we believe, taken the same path. Nevertheless, we do not need to decide that issue here since it is clear that an essential prerequisite for that rule has not been satisfied since, at the time that a money judgment was entered in Nos. 78-L-201 and 78-L-202, there was no residue of defendants as to whom an implied dismissal could operate. The defendants in this appeal had been voluntarily dismissed by plaintiffs without prejudice before any final judgment had been entered ...