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12/07/94 JAMES MAHER v. CHICAGO PARK DISTRICT

December 7, 1994

JAMES MAHER, PLAINTIFF-APPELLEE,
v.
CHICAGO PARK DISTRICT, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Sidney A. Jones, Judge Presiding.

Rehearing Denied January 24, 1995 and Released for Publication February 16, 1995..

Justice Cerda delivered the opinion of the court: Tully, P.j., and Rizzi, J., concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Defendant, Chicago Park District, appeals from the circuit court of Cook County's denial of its motion to reduce an arbitration award against the park district by the amount of the prehearing settlement received by plaintiff, James Maher, from Earth, Inc., a co-defendant. The park district argues on appeal that it was entitled to such a setoff under the Joint Tortfeasor Contribution Act (the Act) (740 ILCS 100/2(c) (West 1993)). We reverse.

Plaintiff's second amended complaint alleged the negligence of defendants Earth, Inc., Donald Geib, and D & K Trucking, Inc., and wilful and wanton conduct of the park district. The following were the relevant allegations. The park district hired Earth and D & K to repair baseball fields. Earth's and D & K's trucks drove on a wet baseball field and created tire depressions. On May 3, 1991, plaintiff sustained injuries as a result of stepping into one of the depressions while playing baseball.

Plaintiff signed a covenant not to sue Earth on June 24, 1992, and filed a petition for a finding that his settlement with Earth in the amount of $4,000 was in good faith. On July 28, 1992, the trial court gave leave to dismiss Earth.

Plaintiff filed a third amended complaint against Geib, D & K, and A. Brokers alleging negligence in connection with the repairs. Plaintiff again alleged the wilful and wanton conduct of the park district.

A hearing was held pursuant to the circuit court of Cook County's mandatory arbitration program on February 10, 1993. The arbitrators awarded $5,000 to plaintiff against the park district. The trial court entered judgment on the award on March 26, 1993.

On March 31, 1993, the park district filed with the trial court a motion to reduce the judgment amount. Defendant argued that it was entitled to a setoff in the amount of the settlement. The trial court denied the motion to reduce judgment, and the park district filed a timely appeal.

The park district primarily makes the following arguments on appeal. It was entitled to a setoff of $4,000 against the $5,000 judgment pursuant to the Act because the $4,000 was received in settlement from a joint tortfeasor. The Act did not require that a defendant file a contribution action against a codefendant in order to obtain a setoff in the amount of the codefendant's settlement. The park district did not want to reject the award.

Plaintiff responded primarily as follows. The park district waived its right of setoff because it did not present the setoff claim to the arbitrators and because it failed to reject the award. The park district had no right of setoff from a negligent tortfeasor because the park district was guilty of wilful and wanton misconduct.

We first find that the failure of the park district to raise the issue of setoff before the arbitrators did not waive the issue. Although Supreme Court Rule 90(a) states that the arbitrators have the power to decide the law (145 Ill. 2d R. 90(a)), the committee comments to the rule state that ancillary issues must be resolved by the court (145 Ill. 2d R. 90(a), Committee Comments, at lxiv). Supreme Court Rule 90(a) states in part:

"The arbitrators shall have the power to administer oaths and affirmations to witnesses, to determine the admissibility of evidence and to decide the law and the ...


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