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08/23/89 Daphne Cleggett, v. Jose Zapianin

August 23, 1989

DAPHNE CLEGGETT, PLAINTIFF

v.

JOSE ZAPIANIN, DEFENDANT AND THIRD-PARTY, PLAINTIFF-APPELLANT (ROBERT HARMEYER, THIRD-PARTY, DEFENDANT-APPELLEE; ROMAN WALCZYNSKI ET AL., THIRD-PARTY DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

543 N.E.2d 892, 187 Ill. App. 3d 872, 135 Ill. Dec. 324 1989.IL.1285

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

Rehearing Denied September 25, 1989.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. FREEMAN, P.J., and McNAMARA, J.,* concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Defendant and third-party plaintiff, Jose Zapianin (Zapianin), appeals from an order of the circuit court of Cook County which dismissed with prejudice his third-party complaint filed against Dr. Robert Harmeyer (Harmeyer). On appeal, Zapianin argues that the trial court erred when it held that the Contribution Act (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.) barred his action for implied indemnity based on equitable apportionment. We affirm.

In October 1979, Zapianin was involved in an automobile accident with plaintiff, Daphne Cleggett (Cleggett). Cleggett sustained personal injuries and was treated by Harmeyer. Cleggett filed a complaint against Zapianin seeking damages for the injuries sustained as a result of the accident. Zapianin filed a third-party complaint for implied indemnity based on equitable apportionment against Harmeyer and the other physician who treated Cleggett following the accident. The underlying case between Cleggett and Zapianin was settled and a release executed in April 1985. Neither Harmeyer nor any of the other third-party defendants were named in the release.

Harmeyer filed a motion to dismiss Zapianin's complaint based upon the Contribution Act, which provides in pertinent part:

"(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide . . ..

(e) A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement." (Ill. Rev. Stat. 1985, ch. 70, par. 302.)

The trial court initially denied Harmeyer's motion to dismiss. Harmeyer filed a motion for reconsideration based upon the case of Mayhew Steel Products, Inc. v. Hirschfelder (1986), 150 Ill. App. 3d 328, 501 N.E.2d 904. After reconsideration, the trial court dismissed Zapianin's third-party complaint with prejudice. This appeal followed.

The sole issue for decision on appeal is whether the trial court erred in dismissing Zapianin's complaint. Zapianin contends that the Contribution Act did not apply to his case at the time the release was executed. Zapianin further contends that because the Mayhew decision overruled past precedent and extinguished the implied indemnity based on equitable apportionment remedy, it should not be applied retroactively to bar his action. Because Zapianin's position is based on an inaccurate assessment of the law, we disagree.

In Heinrich v. Peabody International Corp. (1985), 139 Ill. App. 3d 289, 296, 486 N.E.2d 1379, 1384, this court held that the Contribution Act abolished the doctrine of implied indemnity in Illinois. In so ruling, we noted that although contribution and implied indemnity are separate causes of action, both doctrines impose duties which are quasi-contractual in nature. Since the Heinrich decision, the rule in Illinois has been that where the parties have not expressly contracted for indemnity, ...


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