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03/03/88 J. P. Woolard, v. United States Steel

March 3, 1988

J. P. WOOLARD, PLAINTIFF

v.

UNITED STATES STEEL CORPORATION ET AL., DEFENDANTS (P & S GRAIN COMPANY, INC., DEFENDANT-COUNTERPLAINTIFF;



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

United States Steel Corporation, Defendant and

Counterdefendant and Third-Party, Plaintiff-Appellee; Peabody Coal

Company, Third-Party, Defendant-Appellant)

No. 5-87-0233

520 N.E.2d 1144, 166 Ill. App. 3d 833, 117 Ill. Dec. 793 1988.IL.292

Appeal from the Circuit Court of Madison County; the Hon. A. A. Matoesian, Judge, presiding.

APPELLATE Judges:

JUSTICE KARNS delivered the opinion of the court. HARRISON, P.J., and WELCH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Peabody Coal Company was granted leave to appeal under Supreme Court Rule 308 (107 Ill. 2d R. 308) from the order of the circuit court of Madison County denying its motion to dismiss filed under section 2-619(a)(4) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(4)). The motion sought dismissal of the third-party complaint of appellee, United States Steel Corporation, because the third-party action was barred by principles of res judicata as a prior judgment in its favor involving the identical third-party action was entered in the circuit court of Madison County and became final when not reversed on appeal.

In 1979 plaintiff, J. P. Woolard, an employee of Peabody, filed a products liability action against United States Steel and P & S Grain Company alleging injuries caused by the use of anhydrous ammonia manufactured and supplied by defendants. In 1981 United States Steel filed a third-party action seeking contribution from Woolard's employer, Peabody, under the Contribution Act. Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq. (eff. Sept. 14, 1979).

In 1983, following discovery, United States Steel filed a motion for summary judgment alleging Woolard's action was time barred by the two-year statute of limitations. Peabody Coal also filed a motion for summary judgment against United States Steel arguing the same ground and the additional ground that even if plaintiff's action were not barred, because of application of the "discovery rule," his cause of action necessarily had to have arisen before the date the Contribution Act allowed an action for contribution to be brought.

On October 18, 1983, the trial court entered orders allowing the respective motions for summary judgment. Plaintiff Woolard then perfected an appeal against United States Steel. No appeal or cross-appeal was taken by United States Steel from the summary judgment entered on behalf of Peabody in the third-party action, and although Woolard's notice of appeal designated Peabody as an appellee, and subsequent pleadings were served on Peabody, in response to Peabody's special appearance this court entered the following order over the objection of United States Steel:

"As third-party defendant, Peabody Coal Company was not a party to the original action and no issues pertaining to the third party action have been preserved for review, third-party defendant ...


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