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08/24/87 Arkansas Best Freight v. News Service

August 24, 1987

CORPORATION, PLAINTIFF-APPELLANT

v.

ILLINOIS NEWS SERVICE, INC., INTERVENING PETITIONER AND COUNTERDEFENDANT-APPELLEE (ARKANSAS BEST CORPORATION, PLAINTIFF-APPELLANT; NORMAN E. WELSH, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

ARKANSAS BEST FREIGHT SYSTEM, INC., n/k/a Arkansas Best

512 N.E.2d 1063, 159 Ill. App. 3d 775, 111 Ill. Dec. 522 1987.IL.1226

Appeal from the Circuit Court of Peoria County; the Hon. John A. Gorman and the Hon. Joe B. McDade, Judges, presiding.

Rehearing Denied September 24, 1987.

APPELLATE Judges:

PRESIDING JUSTICE BARRY delivered the opinion of the court. STOUDER and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

This appeal concerns the denial of two separate claims for contribution, one filed as a counterclaim and one as a separate action, and both arising out of a motor vehicle chain collision occurring on a rural highway south of Morton, Illinois, on February 19, 1981.

Shortly after dawn on a foggy morning a white van owned by Illinois News Service, Inc. , and driven by Sally G. Stone stopped in the southbound lane of Route 121 to wait for oncoming traffic to pass so it could turn left on to Allentown Road. A loaded tractor trailer owned by Arkansas Best Freight System, Inc. , and driven by Barry Orange was also traveling southbound when it came upon the INS vehicle. Orange braked and swerved to the left in an unsuccessful attempt to avoid striking the INS van. Orange's semitrailer struck head-on a van operated by Rudolph Lolling, who was transporting seven co-workers to Caterpillar Tractor Company. Lolling and his seven passengers were killed. Another vehicle involved was a pickup truck driven by Norman Welsh in which James Koch was a passenger. Koch died as a result of injuries received in the collision.

Representatives of the estates of the eight persons killed in the Lolling vehicle filed wrongful death claims against ABF. Four of these cases were settled between May 1982 and February 1983, and three others were tried solely on the issue of damages after ABF admitted liability. In a separate cause, Sally G. Stone filed a suit against ABF and its driver Barry Orange for injuries she sustained when the semitrailer struck the left rear of the van she was driving. INS intervened in Stone's lawsuit to protect its workers' compensation lien, and then in December of 1983, the court granted leave to ABF to file its counterclaim for contribution against INS for the settlement payments and the jury verdicts in the various wrongful death cases. The trial court granted motions to dismiss those counts which sought contribution from INS for the three cases where verdicts were obtained, and the court granted summary judgment to INS as to four counts which sought contribution for the settlement payments made without trial. ABF has appealed from those rulings.

In addition, on February 1, 1984, in a separate action Arkansas Best Corporation (AB Corp., apparently a successor to ABS) filed a complaint for contribution against Norman Welsh for the settlement paid the estate of James Koch. At the time the complaint was filed against Welsh, there was pending a personal injury action brought by Welsh against AB Corp. The AB Corp. settlement with the Koch estate included a cash payment of $290,000 on February 9, 1982, and 360 monthly payments of $2,000 beginning March 1, 1982. This settlement was negotiated without a lawsuit ever being filed by the Koch estate. In the contribution action, summary judgment was entered in favor of Welsh on the ground that AB Corp.'s cause of action was barred by the two-year statute of limitations governing contribution actions. AB Corp. has appealed from that judgment, and we have consolidated these two appeals.

The determinative issue is whether these claims for contribution can be pursued in actions separate from the underlying personal injury actions. Section 5 of "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1985, ch. 70, par. 305) (the Contribution Act) provides as follows:

"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."

The supreme court has interpreted this section authoritatively and broadly in Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 ...


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