Appeal from the Circuit Court of Menard County; the Hon. Lyle
E. Lipe, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
The defendant-counterclaimant, Chicago & Illinois Midland Railway Company (railway), appeals from an order of the circuit court of Menard County which dismissed its counterclaim for contribution against William J. Carter, as administrator of the estate of Beverly I. Carter, deceased. We find that the recent opinion of the supreme court in Laue v. Leifheit (1984), 105 Ill.2d 191, 473 N.E.2d 939, is controlling and thus affirm.
The plaintiff, as executor of the estate of his wife, Beverly Carter, and as administrator of the estate of his daughter Tiffany Carter, brought wrongful death actions against the railway in the circuit court of Menard County. A jury awarded him $120,000 in damages on account of the death of Beverly, but reduced that award by 90% on comparative negligence principles. The jury also awarded him $5,000 on account of the death of Tiffany. That award was not reduced.
Post-trial motions were filed. The trial court denied the railway's motion as to Beverly's estate, but granted a new trial on plaintiff's motion on damages only as to Tiffany's estate, holding that the $5,000 was inadequate. The court also made the requisite finding under Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)), and the judgment as to Beverly's estate was appealed to this court. That judgment was affirmed. Carter v. Chicago & Illinois Midland Ry. Co. (1985), 130 Ill. App.3d 431, 474 N.E.2d 458; appeal denied (1985), 106 Ill.2d 17.
Meanwhile, during the pendency of the appeal in Beverly's estate and prior to the retrial on damages only in Tiffany's estate, the railway filed a counterclaim seeking contribution from Beverly's estate for any damages awarded to Tiffany's estate on retrial. On motion of Tiffany's estate the counterclaim was severed and a subsequent motion of Beverly's estate to vacate the severance was denied. The retrial was held commencing November 13, 1984, and on that date Beverly's estate filed a motion to dismiss the counterclaim. That motion was taken under advisement by the trial court pending the outcome of the retrial.
On retrial a jury returned a verdict of $200,000 in favor of Tiffany's estate on which the trial court entered judgment. That judgment is the subject of a separate appeal now pending in this court.
On March 28, 1985, the trial court dismissed the counterclaim, relying upon the opinion in Laue which was handed down on November 30, 1984. The basis of the trial court's judgment was that the counterclaim was not filed in a "pending action." This appeal followed.
A chronology of events is significant to our affirmance. A brief synopsis of the salient dates follows:
Complaint filed February 10, 1982 Trial as to both estates January 9, 1984 New trial on damages as to Tiffany's estate ordered March 27, 1984 Notice of appeal as to Beverly's estate filed April 10, 1984 Retrial as to Tiffany's estate scheduled for November 1984 March 27, 1984 Counterclaim filed September 26, 1984 Motion to sever counterclaim allowed October 26, 1984 Motion to vacate severance denied November 13, 1984 Retrial as to Tiffany's estate November 13, 1984 Laue opinion filed November 30, 1984 Counterclaim dismissed March 28, 1985
The root question to be decided is whether or not the counterclaim was filed in a "pending action" as provided in section 5 of "An Act in relation to contribution among joint tortfeasors" (Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, par. 305). That section provides:
"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."
In Laue the supreme court interpreted section 5. It held that where no action is initiated by the injured party, a claim for contribution may be asserted by a separate action before or after payment. However, if an action is pending, the contribution claim must be asserted by counterclaim or third-party complaint in the pending action.
The railway asserts that since its counterclaim was filed prior to the commencement of the new trial on damages only in Tiffany's estate, it was filed in a "pending action" within the meaning of the statute. We do not agree, and note parenthetically that the railway delayed six months before such filing.
• 1 A new trial is a proceeding de novo (Travelers Insurance Co. v. Robert R. Anderson Co. (1983), 112 Ill. App.3d 812, 445 N.E.2d 1189), but a new trial on damages only is limited to just that: damages only. In order to assert a claim for contribution against Beverly's estate, the railway would need to show that the estate is "liable in tort" for the wrongful death of Tiffany. (Ill. Rev. Stat. ...