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Rakowski v. Lucente





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Brian B. Duff, Judge, presiding.


Leo Rakowski and his two passengers were involved in an accident with another automobile driven by James Lucente. Two weeks later Lucente executed and delivered a general release in favor of Rakowski. The next day Rakowski and the two passengers sued Lucente in the circuit court of Cook County for personal injuries they suffered in the accident.

Lucente then counterclaimed against Rakowski, seeking contribution for the injuries sustained by the passengers. Rakowski, contending that the general release barred the counterclaim for contribution as well as all other claims Lucente had against Rakowski, moved to dismiss the counterclaim. In opposition to that motion, Lucente filed an affidavit stating that he did not intend to give up his right to seek contribution from Rakowski, but intended only to release Rakowski from claims for injuries Lucente had suffered and damage to the automobile he was driving.

The circuit court dismissed Lucente's counterclaim and the appellate court affirmed (120 Ill. App.3d 715). We allowed Lucente's petition for leave to appeal (87 Ill.2d R. 315).

The material portions of the general release provided:

"For the sole consideration of Two Thousand two hundred ninety seven Dollars, * * * the undersigned hereby releases and forever discharges Leo Rakowski, his heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 7th day of Sept., 1981 at or near Grand and Mannheim, Franklin Park.

Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident." (Emphasis added.)

The question raised here is whether this release executed before any claim was asserted against Lucente released his right to contribution from Rakowski.

Lucente's position is that a release does not cover claims not yet in existence unless they are specifically mentioned. Because the release was executed before a claim was asserted by the passengers, any suit was filed by them, or any payment made to them, Rakowski was not liable for any contribution at the time of its execution. Consequently, he argues, the release did not cover any claims for contribution because no such claims had yet accrued.

Some jurisdictions support the position Lucente advances based on the theory that a release operates only on present rights and does not include rights which were not in existence at the time of the release unless they are specifically enumerated. Those jurisdictions regard contribution with respect to a claim not yet asserted at the time the release is executed as a right not in existence. See, e.g., Leitner v. Hawkins (1949), 311 Ky. 300, 223 S.W.2d 988, Restifo v. McDonald (1967), 426 Pa. 5, 230 A.2d 199, and Markey v. Skog (1974), 129 N.J. Super. 192, 322 A.2d 513.

The contrary view is that a release may include, without express reference thereto, a right of contribution for a claim not yet asserted because the right of contribution arises at the time of the concurrent negligent acts of the joint tortfeasors. The right of contribution exists in contingent or inchoate form until payment is made, and then the right accrues and ripens into a cause of action. Because the right of contribution exists from the time the negligent acts are committed, holding that they are within the contemplation of a broadly worded release does not do violence to the general rule that a release does not include rights not in existence unless they are specifically identified. See, e.g., Minneapolis, St. Paul & Sault Sainte Marie R.R. Co. v. City of Fond du Lac (7th Cir. 1961), 297 F.2d 583, 585 (applying the contribution law of Wisconsin and holding that right of contribution between joint tortfeasors arises at the time of the concurrent negligent acts); Brown v. Eakin (Del. Super. 1957), 50 Del. 574, 578, 137 A.2d 385, 387 (releasor barred from asserting claims for contribution even though they had not ripened at time release was signed); Norton v. Benjamin (Me. 1966), 220 A.2d 248, 253 (before a third-party complaint had been asserted, the right to contribution was inchoate and releasable); Al-Hazmi v. City of Waukegan (N.D. Ill. 1984), 579 F. Supp. 1441 (in Illinois the right of contribution arises at the time of the injury and exists, in inchoate form, before payment is made).

As the United States district court pointed out in Al-Hazmi, Illinois has adopted the position that the right of contribution exists, although in inchoate form, from the time the person seeking recovery is injured.

Nothing in the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.), as it has been applied by this court, lends support to Lucente's contentions. The statute provides that payment is not a condition precedent to a right of contribution.

"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." ...

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