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11/13/95 JERRY W. CHRISTENSEN AND SAMANTHA

November 13, 1995

JERRY W. CHRISTENSEN AND SAMANTHA CHRISTENSEN, PLAINTIFFS,
v.
NORTHERN ILLINOIS GAS COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (LOUIS RUFFOLO, D/B/A/ LOUIS RUFFOLO AND SON CONSTRUCTION COMPANY, THIRD-PARTY DEFENDANT-APPELLEE; BAXTER AND WOODMAN ENGINEERS, INC., AND THE VILLAGE OF SOUTH ELGIN, DEFENDANTS).



Appeal from the Circuit Court of Kane County. No. 89-L-0202. Honorable Patrick J. Dixon, Judge, Presiding. This Opinion Substituted on Denial of Rehearing for Withdrawn Opinion of September 28, 1995, Previously

The Honorable Justice Doyle delivered the opinion of the court: Thomas and Rathje, JJ., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Third-party plaintiff, Northern Illinois Gas Company (NIGAS), appeals from the dismissal of count II of its second amended third-party complaint against third-party defendant, Louis Ruffolo, d/b/a Louis Ruffolo & Son Construction Company (Ruffolo). In count II of the third-party complaint, NIGAS sought contribution from Ruffolo for an underlying loss of consortium claim filed by the spouse of an injured Ruffolo employee who had received workers' compensation benefits. The trial court based its ruling on Schrock v. Shoemaker (1994), 159 Ill. 2d 533, 203 Ill. Dec. 787, 640 N.E.2d 937. Both NIGAS and Ruffolo rely on Schrock to support their positions. Therefore, we must determine how Schrock applies to this case.

In this case, Jerry W. Christensen (Jerry) was injured in a construction accident on October 21, 1988. Jerry filed a workers' compensation claim against Ruffolo, his employer, pursuant to the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1992)). Ruffolo paid workers' compensation benefits to Jerry.

At the same time as Jerry's workers' compensation claim against Ruffolo, plaintiffs in this case, Jerry and his wife, Samantha Christensen (Samantha), filed an amended five-count complaint against defendants NIGAS, Baxter & Woodman Engineers, Inc. (Baxter), and the Village of South Elgin (Village). In the first four counts of the complaint, Jerry individually sought damages for his personal injuries. In count V of the complaint, Samantha individually sought damages for loss of consortium.

NIGAS subsequently filed a second amended third-party complaint (third-party complaint) against Ruffolo. Count II of the third-party complaint sought contribution from Ruffolo pursuant to the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West 1992)) for any judgment against NIGAS with respect to Samantha's loss of consortium claim against NIGAS. Count II of the third-party complaint is the subject of this appeal.

After NIGAS settled with plaintiffs, Ruffolo motioned to dismiss the third-party complaint. In its motion, Ruffolo argued that its obligation for contribution could be no more than the amount of its workers' compensation liability. Ruffolo agreed to waive its workers' compensation lien and sought dismissal of the third-party complaint on the ground that its waiver of the lien acted as a good-faith resolution of its contribution liability.

The trial court ordered the dismissal of the third-party complaint based on Ruffolo's stipulation to waive its workers' compensation lien. NIGAS later settled with Baxter and the Village on its cross-complaint against them, and then appealed from the trial court order.

The sole issue on appeal is whether a third-party contribution action against an employer who has paid workers' compensation benefits to an injured employee is subject to dismissal upon a waiver of the workers' compensation lien by the employer, when the underlying claim is for loss of consortium by the employee's spouse who did not directly receive workers' compensation benefits from the employer.

Our supreme court addressed a somewhat similar issue in Schrock v. Shoemaker (1994), 159 Ill. 2d 533, 203 Ill. Dec. 787, 640 N.E.2d 937. In Schrock, the plaintiff, who was widowed when her husband died after falling from a scaffold while working, brought suit under the Structural Work Act (740 ILCS 150/0.01 et seq. (West 1992) (repealed by Pub. Act 89-2, eff. February 14, 1995)) for loss of consortium. (159 Ill. 2d at 535.) The plaintiff's suit was against the owners of the land on which her husband had been working when he fell. The owners of the land then filed a third-party suit against the decedent's employer seeking contribution. 159 Ill. 2d at 535.

The employer motioned to intervene in the original structural work action in order to establish a lien based on the workers' compensation benefits the employer had paid and continued to pay to the plaintiff for the death of her husband. Alternatively, the employer motioned for summary judgment on the pleadings on the ground that, under Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 166 Ill. Dec. 1, 585 N.E.2d 1023, its contribution liability was limited to its liability under the workers' compensation statute which liability had been exhausted by its payment of workers' compensation benefits to the plaintiff. Schrock, 159 Ill. 2d at 535-36.

The trial court denied both of the employer's motions. The employer's interlocutory appeal followed.

The appellate court affirmed the trial court. The appellate court held that the employer could be subjected to a third-party claim for contribution based on a loss of consortium claim, but that the employer's liability was limited to its liability under the Workers' Compensation Act. Schrock v. ...


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