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Bristow v. Griffitts Construction Co.





Appeal from the Circuit Court of Sangamon County; the Hon. Raymond L. Terrell, Judge, presiding. PRESIDING JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 13, 1986.

The plaintiffs, Sandra and Ronald Bristow and Grace and Wilbur Landers, brought a negligence action against James Pearce and his employer, Griffitts Construction Company. The complaint alleged Pearce's negligence caused a trailer, which he was pulling with a pickup truck, to break loose and collide with a vehicle driven by Edward Petrosky. Grace Landers and Sandra Bristow were injured when Petrosky's vehicle collided with theirs. The plaintiffs sought damages for personal injuries and loss of consortium. They sought recovery from Griffitts Construction based solely on the negligence of Pearce through the doctrine of respondeat superior. On August 13, 1984, the plaintiffs executed a covenant not to sue Pearce in exchange for $20,000. Griffitts Construction moved for summary judgment, contending the covenant not to sue had discharged its liability. The trial court denied the defendant's motion but certified the following question for appeal under Supreme Court Rule 308 (87 Ill.2d R. 308): Whether, after enactment of "An Act in relation to contribution among joint tortfeasors" (Act) (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.), a covenant not to sue in favor of an employee extinguishes the plaintiffs' right to seek recovery from the employer whose liability is solely derivative? We granted the defendant's leave to appeal.

In Holcomb v. Flavin (1966), 34 Ill.2d 558, 216 N.E.2d 811, the supreme court adopted the rule that execution of a covenant not to sue an employee extinguishes any claim against the employer based on the doctrine of respondeat superior. The court stated that the rationale for the rule rested either upon the theory that such a result would avoid circuitry of action or that exoneration of the servant removes the foundation upon which to impute negligence to the master. (34 Ill.2d 558, 563, 216 N.E.2d 811, 814.) In Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298, 312 N.E.2d 259, the court held a covenant not to sue an employee did not bar an action against the employer for vicarious liability where the instrument contained an express reservation of the covenantor's right to proceed against the employer. In Edgar County, then, the employer remained liable despite the possible circuitry of action and the fact that the employer's liability rested upon the employee's negligence.

We believe the real rationale underlying Holcomb v. Flavin (1966), 34 Ill.2d 558, 216 N.E.2d 811, is revealed in the following portion of the court's opinion:

"In the case at bar the trial court recognized that if the defendants would have to respond in damages, they could sue their alleged employee, the covenantee, for the amount they had to pay. The employee would then have to respond in the very damages which the covenant was supposed to guard against." (34 Ill.2d 558, 565, 216 N.E.2d 811, 815.)

Unless the covenant not to sue released the employer from liability, the employee would remain liable for indemnification and would derive no benefit from the covenant. In Edgar County, the employee expressly agreed to this result. In the present case, the covenant did not contain a reservation of rights against the employer.

• 1 The plaintiffs assert section 2(c) of the Act abrogated the rule of Holcomb. Section 2(c) provides:

"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 release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater." (Ill. Rev. Stat. 1983, ch. 70, par. 302(c).)

Statutes in derogation of the common law are strictly construed in favor of persons sought to be subjected to their operation. (In re W.W. (1983), 97 Ill.2d 53, 454 N.E.2d 207.) The common law is not to be deemed abrogated by statute unless it clearly appears that was the legislative intent. Lites v. Jackson (1979), 70 Ill. App.3d 374, 387 N.E.2d 1118.

The plaintiffs contend the covenant at issue falls within the plain language of section 2(c). In determining the legislative intent, courts should first consider the statutory language. (People v. Boykin (1983), 94 Ill.2d 138, 141, 445 N.E.2d 1174, 1175.) Statutory terms will be given their plain and ordinary meaning unless to do so would defeat the legislative intent. Pioneer Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App.3d 414, 419, 444 N.E.2d 211, 214.

The resolution of this case depends upon the meaning of the word "tortfeasors" as used in section 2(c). The plaintiffs maintain the word is synonymous with the phrase "one or more persons liable in tort arising out of the same injury." A tortfeasor has also been defined as a "wrong-doer; one who commits or is guilty of a tort." (Black's Law Dictionary 1335 (5th ed. 1979).) Under the doctrine of vicarious liability, an employer is held liable to a third party even when the employer is free from all fault. The doctrine is justified as a deliberate allocation of risk. The employer, having engaged in a business and seeking to profit from it, is better able to foresee harm caused by the negligence of his employees and to insure against it than the innocent third party. (Prosser & Keeton, Torts sec. 69, at 499-501 (5th ed. 1984).) Thus, the employer is held liable as a matter of policy, but he is not a wrongdoer. The liability of the master and servant for the acts of the servant is deemed that of one tortfeasor and is a consolidated or unified one. (Towns v. Yellow Cab Co. (1978), 73 Ill.2d 113, 124, 382 N.E.2d 1217, 1221.) The master, therefore, would not be "any of the other tortfeasors."

Our act is based upon the Uniform Contribution Among Tortfeasors Act (see 12 Uniform Laws Annotated 57 through 107 (1975)). (Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill.2d 196, 199, 461 N.E.2d 361, 363.) We note that courts from other jurisdictions construing the Uniform Act have reached contrary conclusions on the issue before us. (Compare Alaska Airlines, Inc. v. Sweat (Alaska 1977), 568 P.2d 916, with Craven v. Lawson (Tenn. 1976), 534 S.W.2d 653.) In Alaska Airlines, the court held the plain language of the Uniform Act included situations involving vicarious liability. The court held a party who is vicariously liable is "one liable in tort for the same injury" even if he is not technically a "tortfeasor." (Alaska Airlines, Inc. v. Sweat (Alaska 1977), 568 P.2d 916, 929.) The covenant in Alaska Airlines expressly stated the settlement did not include a release of the vicariously liable party. In Craven, the court reasoned that the Uniform Act did not purport to intrude where a right to indemnity, not contribution, existed.

The defendant argues our act likewise was not intended to apply at all to situations involving indemnity. The defendant asserts the Act as a whole demonstrates the legislature's concern with contribution, not indemnity. A statute should be evaluated as a whole, and each provision should be construed in connection with every other section and in light of the statute's general purposes. (Miller v. Department of Registration & Education (1979), 75 Ill.2d 76, 387 N.E.2d 300.) In passing the Act, the legislature intended to codify the supreme court's decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 374 N.E.2d 437, which removed the common law bar against contribution between joint tortfeasors. (Doyle v. Rhodes (1984), 101 Ill.2d 1, 461 N.E.2d 382.) The Act envisions the sharing of liability between two culpable defendants. (101 Ill.2d 1, 17, 461 N.E.2d 382, 390.) It focuses on the culpability of the parties rather than the precise legal means by which the plaintiff is ultimately able to make each defendant compensate him for his loss. 101 Ill.2d 1, 14, 461 N.E.2d 382, 390.

The supreme court specifically addressed section 2(c) in Alsup. The court held tortfeasors, other than the one or ones who bargained for the release, must be specifically identified in the release in order for it to discharge their liability. The court noted one purpose of the Act was to abrogate the common law rule that release of one joint tortfeasor released all. The court concluded this purpose ...

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