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Perez v. Espinoza

OPINION FILED OCTOBER 23, 1985.

ENRIQUE PEREZ, PLAINTIFF,

v.

SALVADOR ESPINOZA, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (JOSEPH HARDESTY, THIRD-PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Samuel S. Berger, Judge, presiding.

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Salvador Espinoza, defendant and third-party plaintiff, brought this action seeking contribution from Joseph Hardesty, third-party defendant. The trial court granted Hardesty's motion to dismiss the complaint, and Espinoza appeals.

Plaintiff, Enrique Perez, filed a negligence action against Espinoza, Hardesty and the town of Cicero, seeking damages for injuries he sustained in an accident in Cicero involving automobiles driven by the individual defendants. Plaintiff was a passenger in the automobile operated by Espinoza.

Hardesty was dismissed as a defendant in plaintiff's action on the basis of a settlement agreement between him and plaintiff. Pursuant to the settlement agreement, plaintiff executed a covenant not to sue Hardesty in exchange for Hardesty's payment of $6,500. Pursuant to section 2-619 of the Illinois Code of Civil Procedure, Hardesty filed a motion to dismiss the third-party complaint on the ground that his settlement with plaintiff discharged him from liability for contribution. A copy of the covenant not to sue was attached to the motion as an exhibit. Hardesty's motion relied on subsections (c) and (d) of section 2 of "An Act in relation to contribution among joint tortfeasors" (hereinafter the Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, pars. 302(c), (d)), which provides, in substance, that a tortfeasor who settles with a claimant in good faith is discharged from all liability for any contribution to any other tortfeasor. The trial court dismissed the third-party complaint, and Espinoza filed an amended third-party complaint for contribution.

The amended third-party complaint alleges in relevant part: that plaintiff's injuries were proximately caused by the negligent acts or omissions of Hardesty; that if Espinoza should be found liable to plaintiff for damages, it will be, in part, because of the misconduct and negligent acts or omissions of Hardesty; that plaintiff's alleged special damages were $3,888; and that plaintiff has settled with Hardesty in the amount of $6,500 in return for a covenant not to sue. The amended third-party complaint further alleges:

"11. Third Party Defendant, JOSEPH HARDESTY, has settled for an amount less than his pro rata share of the common liability and that amount which he tendered in settlement was unreasonable when compared to the amount of Plaintiff's special damages and Co-Defendant Hardesty's probable liability. By any objective standard, the amount paid by Co-Defendant, JOSEPH HARDESTY, was inadequate and, therefore, not in good faith.

12. The Third Party Defendant, JOSEPH HARDESTY, owes the Third Party Plaintiff, SALVADOR ESPINOZA, the duty of contribution for a portion of any or all amounts for which the Third Party Plaintiff may be held liable to the Plaintiff in this action, which portion would be commensurate with the degree of misconduct attributable to the Third Party Defendant in causing plaintiff's injuries."

The prayer for relief of the amended third-party complaint asked judgment against Hardesty "for all sums that may be assessed against [Espinoza] in favor of the Plaintiff in such an amount, by way of contribution, as would be commensurate with the degree of misconduct attributable to [Hardesty] in causing Plaintiff's injuries."

Hardesty was permitted to have his motion to dismiss the original third-party complaint stand as his motion to dismiss the amended third-party complaint. After a hearing, the transcript of which has not been furnished by appellant in the record on appeal, the trial court entered an order dismissing the amended third-party complaint with prejudice. The order stated: "Based upon the record pleadings before the Court, and the arguments of all counsel, the Court concludes that as a matter of law, the settlement between Plaintiff and Joseph Hardesty was a good faith settlement." The order further provided that the motion to dismiss for failure to state a cause of action was sustained. It is undisputed that Hardesty did not file a motion to dismiss for failure to state a cause of action, and we consider the case as if that language did not appear in the order.

In his answers to interrogatories, plaintiff stated that he suffered a concussion and contusions on the back of his neck. As a result of the accident, plaintiff was hospitalized for five days, lost six weeks income, and was treated by a doctor for six weeks.

Espinoza contends on appeal that the trial court erred in dismissing the amended third-party complaint because he was entitled to a trial on the question of fact as to whether the settlement between Hardesty and plaintiff was in good faith.

• 1 We initially note that while Hardesty's motion to dismiss did not specifically recite that the settlement was in good faith, it did state that a settlement was reached and that under section 2 of the Contribution Act the settlement discharges Hardesty from any liability. This assertion sufficiently set forth Hardesty's affirmative defense of a good faith settlement.

Section 2 of the Contribution Act provides in relevant part:

"(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the ...


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