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01/16/87 Lyle S. Welch, Indiv. and v. Clarence Stocks

January 16, 1987

LYLE S. WELCH, INDI

v.

AND AS SPECIAL ADM'R OF THE ESTATE OF CAROLYN SUE WELCH, DECEASED, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

CLARENCE STOCKS, COUNTY COMMISSIONER, ET AL., DEFENDANTS-COUNTERPLAINTIFFS AND THIRD-PARTY, PLAINTIFFS-APPELLANTS (THE STATE OF ILLINOIS ET



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

al., Third-Party Defendants and Appellees)

503 N.E.2d 1079, 152 Ill. App. 3d 1, 105 Ill. Dec. 73 1987.IL.33

Appeal from the Circuit Court of Williamson County; the Hon. Robert H. Howerton, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. JONES and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Third-party plaintiffs, Clarence Stocks, John Hamilton, William Mattingly, Vernon Wittenborn, and Williamson County, appeal from a judgment of the circuit court of Williamson County which dismissed their third-party complaint for contribution against the State of Illinois; the Illinois Department of Transportation, Division of Highways; and Alex Zedialis, an Illinois Department of Transportation traffic engineer, on the ground that it was barred by the doctrine of sovereign immunity. For the reasons which follow, we affirm the judgment and hold that dismissal of the third-party complaint is without prejudice to its being refiled in the Illinois Court of Claims.

Clarence Stocks, John Hamilton, and William Mattingly are each commissioners of Williamson County. Vernon Wittenborn is that county's superintendent of highways. They, along with the county, were sued for damages in Williamson County circuit court by Lyle S. Welch. Welch's suit arose from a collision which took place on October 2, 1982, in or near the intersection of Illinois State Route 37 and County Road 241 in Williamson County between a car driven by Welch's wife and an automobile driven by Melvin Walker. Welch, who was riding in the car with his wife, was injured in the collision, and his wife was killed. Welch's suit, brought on behalf of himself and his deceased wife's estate, essentially seeks to impose liability for the collision on Stocks, Hamilton, Mattingly, Wittenborn, and Williamson County (hereinafter referred to collectively as the county) on the grounds that they were negligent in failing to place and maintain at the collision site the traffic signs required by law.

The county counterclaimed against Welch. It also filed a third-party complaint for contribution against the State of Illinois; the Illinois Department of Transportation, Division of Highways; and Alex Zedialis (hereinafter referred to collectively as the State) pursuant to the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, pars. 301 through 305). In its third-party complaint, the county charged that the State was a joint tortfeasor whose negligence proximately contributed to the injuries alleged by Welch in his complaint. The State filed a timely motion to dismiss this third-party complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), arguing that it was not subject to suit in circuit court under the doctrine of sovereign immunity. The State's motion was granted. The circuit court found no just reason for delaying an appeal (see 87 Ill. 2d R. 304), and its judgment is now before us for review.

In its arguments before the circuit court and now on appeal, the county has asserted that its third-party complaint against the State was proper under the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, pars. 301 through 305). Section 2(a) of that Act provides:

"Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right to contribution among them, even though judgment has not been entered against any or all of them." (Ill. Rev. Stat. 1985, ch. 70, par. 302(a).)

The State does not deny that it may be subject to contribution under this provision. Rather, its position is simply that any right which the county might have to contribution against it cannot be enforced in circuit court. We agree.

The procedures for enforcement of a claim for contribution are set forth in section 5 of the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, par. 305). That section provides simply that 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." As the county correctly points out, this statute has been interpreted by our supreme court to mean that where there is a pending action, the party seeking contribution must assert its claim by counterclaim or by third-party claim in that action. (Laue v. Leifheit (1984), 105 Ill. 2d 191, 196, 473 N.E.2d 939, 941-42.) The county argues that under this interpretation, it had no alternative but to bring its third-party complaint in circuit court, where the main action was pending, and that by dismissing the third-party claim, the circuit court deprived it of its right to seek contribution from the State at all. In the county's view, such a result is contrary to the intent of the contribution statute, which, as our supreme court has recognized, is "to reach anyone who is culpable regardless of whether they have been immunized from a direct tort action by some special defense or privilege." Doyle v. Rhodes (1984), 101 Ill. 2d 1, 9, 461 N.E.2d 382, 386.

What the county fails to appreciate is that in reaching its interpretation of section 5 in Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939, our supreme court was not dealing with a situation where, as here, contribution is sought from the State. Because the State is involved, different considerations must be taken into account. Under section 4 of article XIII of the 1970 Illinois Constitution, the doctrine of sovereign immunity was abolished "except as the General Assembly may provide by law." Acting under the authority of this provision, however, the General Assembly retained sovereign immunity by enacting legislation which states: "Except as provided in the 'Illinois Public Labor Relations Act' . . ., or except as provided in 'AN ACT to Create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein ...


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