Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. O'Brien, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Wyeth Laboratories, Inc. (Wyeth), appeals from the orders of the Cook County circuit court which dismiss with prejudice its counterclaim against St. Bernard's Hospital (St. Bernard) for failure to state a claim for indemnification, denied its motion for leave to file an amended counterclaim against St. Bernard, and denied its motion for leave to file a counterclaim against Dr. Dela Cruz (Dela Cruz). Wyeth raises three issues for review.
First, Wyeth contends that its counterclaims against St. Bernard and Dela Cruz stated a claim for partial indemnification based upon the doctrine of equitable apportionment.
In addition, although Wyeth concedes in this appeal that it cannot seek contribution from St. Bernard and Dela Cruz since the plaintiff's alleged injury occurred prior to March 1, 1978, the applicable date of Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 374 N.E.2d 437, and the Contribution Among Joint Tortfeasors Act (the Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.), Wyeth contends that in light of recent Illinois Supreme Court decisions it nevertheless should be permitted to apply the principles of comparative fault on which Skinner and the Act are founded to its indemnity claims. As we understand Wyeth's argument, it seeks, essentially, neither contribution per se nor indemnity per se, but rather a hybrid of these two. For purposes of differentiation and clarity, we will characterize this theory as one of "comparative indemnification."
In that context, then, Wyeth's second contention is that its counterclaims against St. Bernard and Dela Cruz stated a claim for such "comparative indemnification" to the extent that St. Bernard and Dela Cruz allegedly engaged in actively negligent and careless conduct for which Wyeth might be held liable under a theory of strict product liability or negligence.
Wyeth's final argument is that its counterclaims against St. Bernard and Dela Cruz stated a claim for "comparative indemnification" to the extent that St. Bernard and Dela Cruz allegedly engaged in wilful and wanton misconduct for which Wyeth might be held liable under a theory of strict product liability or negligence.
This action began when the parents of Marcus Batteast filed a complaint in several counts on his behalf. The pleading sought recovery for severe and irreparable brain damage he allegedly sustained as a result of his ingestion of the drug aminophylline (manufactured by Wyeth) while he was a patient at St. Bernard and under the care of Dela Cruz. It alleged that Marcus was 2 1/2 years old at the time of his stay in the hospital, from approximately February 5 through February 10, 1976. According to the complaint, his ingestion of the drug by suppository caused him to go into convulsions and eventually slip into a coma; this in turn resulted in brain damage such that he would never develop beyond his capacity at the time the injury was sustained.
Marcus' parents first filed suit against St. Bernard and Dela Cruz (and others not parties to this appeal) on June 29, 1977. As subsequently amended on June 11, 1982, the complaint alleged inter alia that the hospital's mistreatment of Marcus was wilful and wanton (count I) and negligent and careless (count II), and that Dela Cruz' mistreatment of Marcus was negligent and careless (count III).
The Batteasts' complaint against Wyeth (and others not parties to this appeal) was filed on July 18, 1980. As amended on November 5, 1982, it sought damages from Wyeth based on strict product liability for inadequate product packaging and marking (count I), wilful and wanton failure to adequately warn of adverse side effects (count II), and negligent failure to adequately warn of adverse side effects (count III).
Wyeth filed a third-party complaint against St. Bernard on February 9, 1981. In it Wyeth requested full or partial indemnification for any damages assessed against Wyeth on the ground that the hospital negligently administered the drug aminophylline to Marcus and negligently cared for him when he began to have adverse reactions to the drug. Subsequent to Wyeth's filing of this complaint the trial court consolidated the Batteasts' claims against Wyeth, St. Bernard, and Dela Cruz. Wyeth's third-party action essentially became a counterclaim by virtue of this consolidation, and it will be referred to as such throughout this opinion for the sake of clarity.
St. Bernard filed a motion to dismiss the counterclaim for failure to state a claim on May 26, 1983. The trial court granted the motion and dismissed the counterclaim with prejudice on August 22. The court determined that Wyeth could not recover from St. Bernard based on a theory of contribution because the child's injury occurred before March 1, 1978, and thus did not fall within the purview of Skinner and the Contribution Act. It further found that Wyeth could not recover under the doctrine of equitable apportionment because the injury sustained was indivisible. Lastly, it held that Wyeth could not recover based upon indemnification because of its negligent acts, if any, would be active as a matter of law and because its liability based on strict product liability, if any, would preclude its recovery from a downstream user of its products as a matter of law.
A few weeks later Wyeth sought leave to file an amended counterclaim against St. Bernard and a counterclaim against Dela Cruz. In both of these documents Wyeth sought indemnification based upon contribution (count I), equitable apportionment (count II), and "comparative indemnification" (as we have denominated the theory) for the parties' negligent or wilful and wanton misconduct as compared to Wyeth's liability, if any, based upon strict product liability or negligence (count III). Although Wyeth stated in greater detail the conduct of St. Bernard and Dela Cruz which it claimed to amount to either negligent or wilful and wanton behavior, it did not otherwise substantially deviate from the counterclaim which the trial court had dismissed with prejudice. The trial court denied leave to file both ...