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Bryant v. Perry

OPINION FILED NOVEMBER 26, 1986.

KIMBERLY K. BRYANT ET AL., PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES,

v.

FRED L. PERRY ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS.



Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

Defendants, Fred L. Perry and United McGill Company, appeal from the trial court's order dismissing their countercomplaint against the plaintiff-counterdefendant, Kimberly K. Bryant.

Plaintiff, Kimberly K. Bryant (hereinafter Kimberly), individually and as next friend for her minor daughter, Christina Bryant (hereinafter Christina), brought suit against defendants, Fred L. Perry, United McGill Company, and E.L. Murphy Trucking Company (hereinafter defendants), for personal injuries incurred by both of them in an accident involving a car driven by Kimberly in which Christina was a passenger and a truck driven by Perry, who was employed by McGill. Murphy was later dismissed as a party defendant. The defendants filed a counterclaim against Kimberly seeking contribution. The same law firm represented Kimberly, individually, and on behalf of Christina. Another law firm represented her as a counterdefendant.

Prior to the trial date, Kimberly, on behalf of Christina, sought the court's approval of a settlement of $20,000 between Kimberly, as counterdefendant, and plaintiff Kimberly, as next friend of Christina. Over the objection of the defendants, the settlement, which included dismissal of Kimberly as a counterdefendant, was approved. This appeal followed.

The sole issue raised on appeal is whether the trial court erred in determining that the settlement between Kimberly as plaintiff on Christina's behalf and Kimberly as counterdefendant was a good-faith settlement under the Contribution Act.

The Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.) provides in pertinent part as follows:

"(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 release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.

(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor." Ill. Rev. Stat. 1985, ch. 70, pars. 302(c), (d).

The defendants contend first that the settlement in this case was not in good faith because it lacked consideration.

Defendants rely on LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App.3d 729. In that case plaintiff sued defendant, Amsted, the building owner, for violations of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.). Defendant Amsted filed a third-party complaint against plaintiff's employer, Montgomery. Plaintiff reached a settlement with Montgomery, who was then dismissed from the lawsuit. After a jury trial, plaintiff was awarded $100,000 in damages. Defendant appealed alleging, inter alia, that the complaint against Montgomery should not have been dismissed since a release could not have been given in good faith without consideration. The appellate court found that since it was undisputed that plaintiff's injuries occurred while he was performing duties within the scope of his employment, his relief against his employer was limited to the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, pars. 138.5(a), 138.11). Therefore, plaintiff had no rights outside of the Workers' Compensation Act which he could relinquish, and the settlement lacked consideration. The appellate court held that the contribution count against Montgomery must be reinstated.

Defendants raise a similar argument here. Kimberly and Christina are mother and daughter. Under the doctrine of parental immunity, Christina could not maintain an action against Kimberly. See Wilkosz v. Wilkosz (1984), 124 Ill. App.3d 904.

Kimberly argues that the result in LeMaster is "unfair and simply doesn't make sense." She relies on two decisions based upon the Florida contribution statute, which is quite similar to Illinois', Fuquay v. General Motors Corp. (M.D. Fla. 1981), 518 F. Supp. 1065, and Dudley Sports Co. v. Berry (Fla. App. 1981), 407 So.2d 335. In Dudley the minor plaintiff sued defendants, manufacturer and distributor of a baseball pitching machine which caused him personal injuries. The defendants filed a counterclaim against the minor's parents. The court upheld a settlement between the minor and his parents despite the bar of the doctrine of parental immunity on the basis that either the parents were joint tortfeasors from whom contribution could be sought, or if they were not joint tortfeasors, then no right of contribution existed as to the parents.

Before this court can reach the issue of the existence or nonexistence of consideration, we must first address the meaning of the Contribution Act in light of our supreme court's decision in Hopkins v. Powers (1986), 113 Ill.2d 206. In that case, plaintiff had consumed alcoholic beverages at defendant's tavern. He was later involved in an automobile accident causing personal injuries and property damage. He settled with various claimants and then filed suit against the defendant seeking contribution for that portion of the total settlement proportionate to the relative culpability of himself and the defendant. Citing the long-standing rule in Illinois that a purveyor of intoxicating beverages may be held liable only under the provisions of the Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 94 et seq.), and that liability so imposed is sui generius and exclusive, our supreme court held that the defendant was not liable in tort. Because the defendant was not liable in tort, it was held that plaintiff as a matter of law could not maintain an action for contribution under the Contribution Act.

• 1 This court has previously held that the parental-immunity doctrine does not bar a contribution action against a parent. (See Larson v. Buschkamp (1982), 105 Ill. App.3d 965.) The parental-immunity doctrine, unlike the Dramshop Act, was created by the ...


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