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08/24/87 William A. Stephens, v. Richard L. Cozadd Et Al.

August 24, 1987





512 N.E.2d 812, 159 Ill. App. 3d 452, 111 Ill. Dec. 423 1987.IL.1233

Appeal from the Circuit Court of Fulton County; the Hon. Charles H. Wilhelm, Judge, presiding.


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


This case comes before this court as a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) and concerns perceived conflicts between contributory theory and certain immunities.

Defendant and third-party plaintiff Richard Cozadd was driving a tractor trailer owned by his employer, Gerald Link, when he struck the rear of the plaintiff's vehicle while it was stopped on a bridge. William Stephens, the plaintiff herein, had stopped his vehicle because his lane of traffic was blocked by road repair work being completed by Illinois Department of Transportation employees. Lyle Wardell was employed as a flagman and was a member of the maintenance crew repairing the road at the time of the accident. In his complaint, the plaintiff alleged that Cozadd operated the tractor trailer in a negligent manner and caused the plaintiff's injuries. Cozadd and Link filed a third-party complaint for contribution against Wardell, and alleged negligence in performance of his duty to control the traffic on the bridge while the repairs were being completed. Specifically, they claimed that Wardell failed to post warning signs and failed to use a warning flag.

On behalf of Wardell, the State filed a motion to dismiss the third-party complaint. In support of its motion, the State maintained that although the action was nominally against Wardell, the State was the real party against which relief was sought, so the suit could not be pursued in circuit court because of the State's sovereign immunity (Ill. Rev. Stat. 1985, ch. 127, par. 801). Alternatively, the State maintained that Wardell could not be charged with individual liability based on any negligence because he was protected by the common law doctrine of public officials' immunity. The trial court denied the motion to dismiss. In its memorandum opinion, the court seemed to agree that the action was in reality a suit against the State. However, the court apparently interpreted the State's position to be that the contribution action could only be brought in the Court of Claims after an adverse judgment against Cozadd and Link was entered in the original action. The court noted that Laue v. Leifheit (1984), 105 Ill. 2d 191, required contribution actions to be brought during the pendency of the action initiated by the injured party, and found that if the State's position were adopted, the third-party plaintiffs would be barred from later filing the contribution action in the Court of Claims. After observing that several recent cases found that the right of contribution took precedence over various immunities, the court determined that the State's claim of immunity must fall and that the third parties' complaint for contribution stated a cause of action. The assertion that Wardell was protected by public officials' immunity was not discussed in the memorandum opinion.

Finding that the issue involved a question of law as to which there is substantial ground for difference of opinion, the court certified the following question:

"[Whether] statutory immunity in the case of the State and its employee, and the common law immunity, as to the employee of the State ("official immunity"), acts [sic] as a bar to an action for contribution by a joint tortfeasor."

The original action named as plaintiff Lyle Wardell individually, not in his capacity as a State employee, but, as previously noted, it appears that the court accepted the State's assertion that the action was only nominally against Wardell and was in reality against the State. However, because the certified question asks whether either sovereign immunity or public officials' immunity bars a contribution action, we will discuss the impact of both types of immunity.

Section 5 of the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, par. 305) provides that an action for contribution "may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action." As the trial court correctly observed, the supreme court has interpreted the statute to mean that when a tort action is pending, the party seeking contribution must assert its claim by counterclaim or by a third-party claim in that action. (Laue v. Leifheit (1984), 105 Ill. 2d 191, 196.) However, in Laue, contribution was not sought from the State. In Welch v. Stocks (1986), 152 Ill. App. 3d 1, appeal denied (1987), 114 Ill. 2d 559, when the third-party plaintiff filed an action for contribution against the State, the court distinguished Laue and found that the principles of sovereign immunity must be taken into account. We agree.

Illinois law states that except as provided in the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, par. 1601 et seq.) and in the Court of Claims Act (Ill. Rev. Stat. 1985, ch. 37, par. 439.1 et seq.), "the State of Illinois shall not be made a defendant or a party in any court." (Ill. Rev. Stat. 1985, ch. 127, par. 801.) Under the Court of Claims Act, the Court of Claims is given exclusive jurisdiction to hear and determine "[all] claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit." (Ill. Rev. Stat. 1985, ch. 37, par. 439.8 (d).) After examining these relevant provisions, the Welch court concluded that when contribution is sought from the State, jurisdiction over the third-party contribution action lies exclusively with the Court of Claims and the State cannot be made a party to the proceedings pending in the circuit court. (Welch v. Stocks (1986), 152 Ill. App. 3d 1, 5.) We believe the Welch court was correct and we therefore adopt the reasoning and result it reached. Accordingly, to answer the first portion of the certified question, the doctrine of sovereign immunity acts as a bar to a contribution action against the State in the circuit court. However, third-party plaintiffs are free to pursue the action in the Court of Claims, which is the forum with exclusive jurisdiction over claims against the State.

This result eliminates the perceived conflict between the Contribution Act and the principles of sovereign immunity and gives effect to the legislative intent expressed in all of the relevant statutory provisions. When two legislative schemes do not seem completely compatible, they should be interpreted so that meaning and effect is given to each statute. (Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27.) Thus, our result is also consistent with ...

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