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12/22/88 Patrick J. Mallaney Et Al. v. James R. Dunaway

December 22, 1988





Mallaney, Third-Party, Defendant-Appellee)

533 N.E.2d 1114, 178 Ill. App. 3d 827, 128 Ill. Dec. 26 1988.IL.1858

Appeal from the Circuit Court of Kankakee County; the Hon. Patrick M. Burns, Judge, presiding.


JUSTICE BARRY delivered the opinion of the court. SCOTT, J., concurs. JUSTICE HEIPLE, Dissenting.


The issue on appeal arises out of a third-party contribution claim filed by James Dunaway against Patrick Mallaney. Dunaway and Mallaney were operators of a car and a motorcycle, respectively, which collided at an intersection in Kankakee in October 1983. Mallaney and Sandra Horton, a passenger on Mallaney's motorcycle, sustained injuries as a result of the accident and filed suit against Dunaway, claiming damages as a result of his negligence. Horton chose not to sue Mallaney. Dunaway then filed his counterclaim against Mallaney for contribution. Prior to trial, Horton settled with Dunaway for $98,500 and released Dunaway, his mother and their insurance company as well as Mallaney and his insurer from any and all claims arising out of the accident. The release further recites that "part of the consideration for this settlement . . . is to preserve any claim or cause of action for contribution that James R. Dunaway, Margaret Dunaway and [their insurer], Economy Fire and Casualty Company, may have against Patrick J. Mallaney and Country Mutual Insurance Company, his insurer." A separate settlement was reached between Mallaney and Dunaway and Economy Fire and Casualty in which Mallaney accepted $10,000 for his injuries.

Prior to trial on the contribution action, Dunaway filed a motion in limine setting forth the procedural context of the suit and asserting that Mallaney planned to introduce evidence to prove that Horton's damages were substantially greater than the $98,500 she had settled for. According to the motion, Mallaney's trial strategy was to establish further that Dunaway's percentage of fault was much greater than Mallaney's. If the jury believed Mallaney's evidence, then by application of the Contribution Among Joint Tortfeasors Act (Act) (Ill. Rev. Stat. 1987, ch. 70, par. 302(b)), Mallaney could minimize or even avoid paying a share of the settlement. Dunaway prayed for an order prohibiting Mallaney from introducing evidence of Horton's damages and fixing $98,500 as the "common liability" for purposes of the Act. The trial court denied Dunaway's motion, and an appeal was perfected to this court pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).

The issue as framed for our consideration is: Whether, assuming that a defendant can unilaterally name a third-party defendant in a release and maintain an action for contribution against the third-party defendant when he was added without knowledge, consent or agreement, the amount for which a plaintiff settles her entire cause of action and gives a full release determines the common liability to be apportioned among joint tortfeasors. The parties agree that the issue as framed appears to be one of first impression. However, they direct our attention to several Illinois decisions which could be helpful here. We have reviewed those cases and will refer to those which we find most persuasive. Before doing so, we deem it provident to set forth relevant parts of the Contribution Act. Section 2 of the Act provides:

"(a) 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, . . . there is a right of contribution among them, even though judgment has not been entered against any or all of them.

(b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own pro rata share of the common liability.

(c) When a release . . . is given in good faith to one or more persons liable in tort arising out of the same injury . . ., it does not discharge any of the other tortfeasors from liability for the injury . . . 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 in the amount of the consideration actually paid for it, whichever is greater." Ill. Rev. Stat. 1987, ch. 70, par. 302.

It is within the context of the foregoing provisions that we must determine whether the "common liability" is limited to the amount the injured party has settled her entire cause of action for -- in this case, the $98,500 settlement received from Dunaway -- or whether Mallaney as a third-party defendant is entitled to establish in the trial of the contribution action that the injured party's damages exceeded that amount. Black's Law Dictionary 249 (5th ed. 1979) defines "common" as "[belonging] or shared equally by more than one." Among the definitions provided for "liability" are "condition of being actually or potentially subject to an obligation" and "that which one is under obligation to pay, or for which one is liable." (Black's Law Dictionary 823 (5th ed. 1979).) The parties do not dispute the concept of "common." Their arguments seem to focus on the concept of "liability."

In U.S. Home Corp. v. George W. Kennedy Construction Co. (N.D. Ill. 1985), 617 F. Supp. 893, the Federal district court observed that the sensible reading of the phrase "subject to liability in tort," as it appears in subsection (a) of the Act, connotes liability to the injured party. Likewise, it would appear that a sensible reading of the phrase "common ...

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