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03/27/89 Catherine Heneghan, Adm'r v. Kazimierz Sekula

March 27, 1989

CATHERINE HENEGHAN, ADM'R OF THE ESTATE OF JOHN HENEGHAN, DECEASED, ET AL., PLAINTIFFS

v.

KAZIMIERZ SEKULA, DEFENDANT AND THIRD-PARTY, PLAINTIFF-APPELLANT (STEVEN F. DELNEKY ET AL., THIRD-PARTY DEFENDANTS-APPELLEES)

THIS IS AN APPEAL FROM THE DISMISSAL OF A CONTRIBUTION ACTION AS TIME BARRED BY THE MEDICAL MALPRACTICE STATUTE OF REPOSE. (ILL. RE

v.

STAT. 1983, CH. 110, PAR. 13-212.) IN ADDITION TO THE NAMED PARTIES, BRIEFS HAVE BEEN SUBMITTED BY AMICUS CURIAE, THE ILLINOIS TRIAL LAWYERS ASSOCIATION. WE AFFIRM.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

536 N.E.2d 963, 181 Ill. App. 3d 238, 129 Ill. Dec. 913 1989.IL.399

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

On June 25, 1980, Catherine Heneghan and Maureen Jamieson filed a complaint against defendant and third-party plaintiff Kazimierz Sekula for the wrongful death of John Heneghan. On June 9, 1983, Catherine Heneghan filed a separate complaint against Northwest Hospital and four doctors, including Marvin H. Weiss and Steven F. Delneky, alleging medical malpractice. On June 23, 1983, an order was entered dismissing the complaint against Sekula based upon a purported settlement.

On November 9, 1983, Catherine Heneghan's suit against Dr. Delneky and Dr. Weiss was dismissed as untimely pursuant to the two-year statute of limitations contained in section 13-212 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 13-212). On February 10, 1984, the plaintiffs in Heneghan v. Sekula moved to vacate the June 23, 1983, order dismissing that case. The trial court granted the motion to vacate.

On December 18, 1985, Sekula filed a third-party complaint asserting a right to contribution against Northwest Hospital, Dr. Delneky and Dr. Weiss. All three third-party defendants moved to dismiss on the basis that the medical malpractice statute of repose (Ill. Rev. Stat. 1983, ch. 110, par. 13-212) barred the action for contribution. The trial court granted the motions based on the medical malpractice statute of repose and Sekula now brings this appeal.

Sekula contends that the applicable statute of limitations for a third-party claim brought under the Contribution Act (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.) is contained in section 13-204 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-204), rather than section 13-212. At the time Sekula filed his third-party action, section 13-204 provided in relevant part:

"No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party's pro rata share more than 2 years after the party seeking contribution has made such payment towards discharge of his or her liability." Ill. Rev. Stat. 1983, ch. 110, par. 13-204.

Section 13 -- 212 provided as follows:

"No action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death except as provided in Section 13-215 of this Act." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 13-212.

Sekula contends that section 13 -- 204 is a more specific statute than section 13 -- 212 and therefore, pursuant to Sierra Club v. Kenney (1981), 88 Ill. 2d 110, 126, 429 N.E.2d 1214, it should prevail over section 13 -- 212, which he asserts is a more general provision. He submits that the medical malpractice statute of repose contains only a general provision barring actions against doctors, dentists, nurses and hospitals and does not specifically bar actions for contribution. He further contends that if the Illinois legislature had intended the medical malpractice repose statute to apply to contribution actions, it would either have done so specifically or amended section 13 -- 204 to so provide.

Sekula cites Natural Products Co. v. County of Du Page (1924), 314 Ill. 74, 80-81, 145 N.E. 298, in which the court noted that where a specific statute conflicts with a general one, the former is treated as an exception to the latter and controls. He argues that in the instant case, an action brought for contribution has a specific ...


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