Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of DeKalb County,
the Hon. Rex F. Meilinger, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 1, 1985.
The 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). The circuit court of De Kalb County granted Laue's motion for judgment on the pleadings in the amount of $52,800. Leifheit appealed to the appellate court. The appellate court held that Laue's complaint was not barred by section 5 of the Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 305), but that the circuit court judgment should be reversed and the cause remanded for dismissal of the complaint for failure to state a cause of action. (120 Ill. App.3d 937.) Although the appellate court reversed in Leifheit's favor, she appealed to this court pursuant to our Rule 315(a) (87 Ill.2d R. 315(a)), on the issue of whether Laue's complaint for contribution was barred by section 5 of the Contribution Act.
The contribution action involved in this appeal stems from a prior action between the parties, wherein Nancy Leifheit and four members of her family joined as the plaintiffs to sue John C. Laue for negligence. Laue, the defendant in the original action, was driving a truck which collided with a car driven by Leifheit. In the original action, the jury returned verdicts against Laue, and all of the plaintiffs recovered damages for the personal injuries they had suffered in the collision. Nancy Leifheit's award of damages in the original action was reduced by 33 1/3%, which was the jury's assessment of Nancy Leifheit's comparative negligence in causing her own injuries.
After verdict and judgment in the original action, Laue filed a complaint for contribution against Nancy Leifheit for 33 1/3% of all the damages he had paid to Nancy Leifheit's four family members. Laue's motion for judgment on the pleadings was granted, and Nancy Leifheit was ordered to make contribution to Laue of 33 1/3% of all the damages in the original suit.
In the appellate court, Leifheit raised five issues: (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; and (5) whether the court erred in granting judgment on the pleadings.
The appellate court held that Laue's cause of action for contribution was not barred under Tisoncik v. Szczepankiewicz (1983), 113 Ill. App.3d 240, and that the issue of whether Laue's contribution action was barred under the Contribution Act was not waived by Leifheit since she had raised the issue of Laue's failure to file a counterclaim or third-party complaint for contribution in her motion to dismiss in the circuit court. (120 Ill. App.3d 937, 942.) The appellate court did, however, agree with Leifheit that she was improperly precluded from litigating the issues of her liability to her passengers. The appellate court held that the jury's finding that 33 1/3% of the combined negligence which caused the damage to Leifheit was attributable to her does not mean that she is therefore subject to liability in tort to her passengers in that percentage as well. The appellate court stated that, "for purposes of a contribution action, her liability `in tort' has never been established; only her lack of due care for her own safety." (120 Ill. App.3d 937, 946.) The appellate court further held that the circuit court had erred in denying Leifheit's motions to strike and dismiss because Laue's complaint failed to state a cause of action for contribution. (120 Ill. App.3d 937, 947.) The appellate court held that the circuit court had also erred in striking certain denials from Leifheit's answer. (120 Ill. App.3d 937, 948.) And lastly, the appellate court held that the circuit court should not have entered judgment on the pleadings because the pleadings did not establish Laue's right to contribution as a matter of law. 120 Ill. App.3d 937, 949.
In this court, Leifheit only raises one issue, whether Laue was barred under the Contribution Act from bringing his claim for contribution because he failed to assert this claim in the original action. Laue, in essence, cross-appeals, asserting that since the judgment in the original action established that Leifheit was 33 1/3% negligent, the doctrine of collateral estoppel would prevent Leifheit from relitigating the issue of her negligence to her passengers.
The appellate court held that Laue's action for contribution was not barred by section 5 of the Contribution Act. We agree that if Laue had brought his contribution action in the method prescribed in section 5, by counterclaim or third-party complaint in the original action, his action would not have been barred. However, since Laue failed to bring his contribution action in the prescribed method, he is barred from bringing it. Section 5 of the Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 305) provides:
"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." (Emphasis added.)
We interpret section 5 as the Appellate Court, First District, did in Tisoncik v. Szczepankiewicz (1983), 113 Ill. App.3d 240. In that case, the appellate court held that the language in section 5 providing that a contribution claim may be asserted by a "separate action before or after payment" covers 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. 113 Ill. App.3d 240, 245.
As this court stated in People v. Boykin (1983), 94 Ill.2d 138, 141:
"`The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature.' [Citations.] In determining the legislative intent, courts should consider first the statutory language. [Citation.] As noted by the State, where the language is clear `it will be given effect without resorting to other aids for construction.' [Citations.] Where the language is ambiguous, however, it is appropriate to examine the legislative history. [Citation.]" 94 Ill.2d 183, 141.
We believe it is clear from the statutory language in section 5 that if there is a pending action, which there was in the instant case, then the party seeking contribution must assert a claim by counterclaim or by third-party claim in that action.
In addition to the fact that the statutory language of section 5 clearly requires the filing of an action for contribution in the original action, there are strong public policy reasons for such a requirement. One jury should decide both the liability to the plaintiff and the percentages of liability among the defendants, so as to avoid a multiplicity of lawsuits in an already crowded court system and the possibility of inconsistent verdicts. Requiring the parties to litigate the matter in one suit will also save court time and attorney fees. If Laue had filed a counterclaim or third-party complaint for contribution in the original action, he would have denied any liability, yet asserted that if negligence were found on the part of the ...