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11/21/95 ALFRED RAMSEY v. DAVID J. MORRISON

November 21, 1995

ALFRED RAMSEY, PLAINTIFF,
v.
DAVID J. MORRISON, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT, V. RICKY BAKER AND TONY BAKER, D/B/A BAKER'S AUTO REPAIR, THIRD-PARTY DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 91-L-1094. Honorable George J. Moran, Jr., Judge, presiding.

Petition for Leave to Appeal Allowed April 3, 1996.

The Honorable Justice Hopkins delivered the opinion of the court: Maag, P.j., and Kuehn, J., concur.

The opinion of the court was delivered by: Hopkins

JUSTICE HOPKINS delivered the opinion of the court:

Defendant and third-party plaintiff, David J. Morrison (Morrison), appeals from the trial court's order reconsidering and revoking leave to file Morrison's third-party complaint against the third-party defendants, Ricky Baker (Ricky) and Tony Baker, d/b/a Baker's Auto Repair (Tony), at the hearing on the parties' posttrial motion following a jury trial. At the jury trial, a verdict was entered in favor of plaintiff, Alfred Ramsey (Ramsey), and against Morrison in the amount of $70,708.49. The jury also considered Morrison's third-party complaint against Ricky and Tony and apportioned the judgment as follows: 50% to Morrison and 50% to Ricky and Tony.

At the posttrial motion hearing, Ricky and Tony sought reversal of a prior order entered in this case allowing Morrison leave to file a third-party contribution action against them, and they also sought to have the court limit their liability to the amount of the workers' compensation lien paid by Tony, as opposed to the 50% liability entered by the jury. The trial court reversed the prior order allowing Morrison leave to file his third-party complaint, in essence granting Ricky's and Tony's motion to dismiss the third-party complaint, which had been denied earlier in this case. The court also determined that if Ricky was liable for contribution, he was immune under the Workers' Compensation Act (820 ILCS 305/5(a) (West 1992)) because he was a coemployee of Ramsey and his contribution was zero. Further, the court determined that if Morrison's contribution action had been timely filed, Tony's liability under the Workers' Compensation Act would be the amount of the workers' compensation paid minus the 25% for attorney fees paid (i.e., $27,457.36 minus $6,864.34) rather than the 50% liability under the judgment. It is from this order that Morrison appeals.

Morrison raises the following issues on appeal: (1) whether the court abused its discretion in reconsidering and reversing the order allowing leave to file Morrison's third-party complaint against Tony; (2) whether the court abused its discretion in reconsidering and reversing the order allowing leave to file Morrison's third-party complaint against Ricky, when the court determined that Ricky was immune from liability for contribution because he was a coemployee of Ramsey; (3) whether the court erred in determining that the amount of Tony's liability to Morrison, if the third-party complaint was allowed, would be $20,593.02 rather than $27,457.36; and (4) whether the court erred in finding that Morrison was restricted by the Workers' Compensation Act in the amount he could receive from Ricky for contribution because Ricky was Ramsey's coemployee. We reverse and remand for the reasons set forth below.

Before discussing the issues presented, a brief synopsis of the facts is as follows. On April 10, 1991, Ricky Baker was driving his truck northbound on Pierce Lane, an unmarked two-lane roadway, when he collided with Morrison, who was travelling southbound. Ramsey was a passenger in Baker's truck at the time of the collision, and he suffered a broken jaw from the collision. Ramsey and Baker were both employed by Tony Baker, d/b/a Baker's Auto Repair, and were acting in the scope of their employment at the time of the accident. The evidence presented through the testimony of both parties' witnesses was contradicted and impeached as to where the parties' vehicles were prior to the collision. Michael Strong, the deputy sheriff for Madison County who conducted an investigation of the accident and who was the most unbiased witness to testify, stated that both parties were a little over the center line before collision. Thus, the jury found in favor of Ramsey but determined that Ricky and Morrison were each 50% liable, as both were negligent. The jury's verdict on the negligence action, finding for Ramsey and against Morrison, is not on appeal, and the only issues to be considered relate to the third-party complaint and the liability owed by Morrison and Ricky and Tony. With this background, we now consider the issues presented on appeal. Any other facts necessary to our determination will be set forth under the appropriate issue.

The first issue is whether the court abused its discretion at the posttrial hearing by reconsidering and reversing the prior order allowing Morrison to file his third-party complaint against Tony. Ramsey filed his negligence action against Morrison on September 20, 1991, and Morrison filed his answer to the complaint on October 28, 1991. On May 15, 1992, Morrison sought leave to file his third-party complaint against Ricky, which was granted by the court, and the third-party complaint was filed on June 10, 1992. Subsequently, on September 15, 1992, Morrison sought leave to file a third-party complaint against Tony, which was allowed, and that complaint was filed on September 26, 1992; however, summons was not issued until February 11, 1993, and it was served on February 29, 1993. Tony answered the third-party complaint on March 26, 1993, but Tony did not move to dismiss the third-party complaint until April 30, 1993. Also in the motion, Tony alternatively sought to continue trial. In the motion to dismiss, Tony raised the issue of the timeliness of the complaint. Tony's motion to dismiss was denied by the trial court on May 7, 1993, but his motion to continue trial was allowed, and trial was set for September 20, 1993. Various other motions to continue were filed by the parties, and trial in this cause did not begin until April 4, 1994. The record indicates that the only deposition for which Tony received notice was Thomas Garrett, Jr.; all other witnesses were deposed prior to Tony's entry into the case. However, Tony was represented by counsel and participated at trial. Following the entry of judgment on the jury's verdict, Tony filed a posttrial motion, in which he again raised the propriety of the trial court's ruling denying his motion to dismiss the third-party complaint, again raised the issue of the timeliness of the complaint, and alleged that he was prejudiced by the court allowing leave to file the third-party complaint. After considering Tony's posttrial motion, the court reversed the order denying Tony's motion to dismiss the third-party complaint, finding that Tony was prejudiced by the late filing of the complaint and noting that Tony was not given notice of the filing of Ramsey's cause of action against Morrison as required under section 5(c) of the Workers' Compensation Act (820 ILCS 305/5(c) (West 1992)) and that Morrison was aware that this notice was not in the record, further prejudicing Tony. We find that the court abused its discretion in reconsidering and reversing the denial of Tony's motion to dismiss and striking Morrison's third-party complaint against Tony.

It has been held by the supreme court that under the statute, a third-party contribution action must be filed during the pendency of the underlying action. ( Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939, 85 Ill. Dec. 340; Grimming v. Alton & Southern Ry. Co. (1990), 204 Ill. App. 3d 961, 562 N.E.2d 1086, 150 Ill. Dec. 283.) Even where a third-party contribution claim has been filed during the pendency of the underlying action, it has been held that the trial court abused its discretion in allowing the filing of the third-party action where the filing was not timely and the third-party defendant was prejudiced. ( Grimming, 204 Ill. App. 3d 961, 562 N.E.2d 1086, 150 Ill. Dec. 283; Long v. Friesland (1988), 178 Ill. App. 3d 42, 532 N.E.2d 914, 127 Ill. Dec. 85.) Factors which are included in the consideration as to whether a defendant was prejudiced by the late filing of the third-party complaint are the third-party plaintiff's explanation for the delay, the defendant's opportunity to participate in discovery, the defendant's representation at trial, and surprise to the defendant such that he was unable to prepare or present a defense or notify his insurance carrier. Grimming, 204 Ill. App. 3d 961, 562 N.E.2d 1086, 150 Ill. Dec. 283; Long, 178 Ill. App. 3d 42, 532 N.E.2d 914, 127 Ill. Dec. 85.

Here, there is no question that Morrison filed his third-party complaint during the pendency of the underlying cause of action; therefore, our consideration is restricted to whether the court abused its discretion in reversing the prior order denying Tony's motion to dismiss. We find that the court abused its discretion in reversing the prior order denying the motion to dismiss the third-party complaint. We also find that there was no evidence that Tony suffered prejudice in allowing Morrison to file his third-party complaint. Unlike the facts of Grimming and Long, where the third-party complaints were filed immediately prior to or during trial, Morrison filed his third-party complaint approximately a year and a half before trial commenced. Even given that Tony was not served the complaint until the end of February 1993, a year and one month before trial, there was more than adequate time for Tony to prepare and present a defense to the claim. Additionally, although Tony claims he was not presented an opportunity to participate in the depositions taken before he filed his answer, there was enough time for him to redepose any witness he chose. It must be presumed also that, even if he chose not to redepose the witnesses, which is what is indicated here, he at a minimum was able to receive copies of the depositions taken to see if there was anything helpful or harmful to his posture of the case. Tony was also represented by counsel at trial and was provided an opportunity to cross-examine witnesses and to present his case. We do not have anything in the record that indicates why Morrison delayed filing his third-party complaint, since there is no transcript of the hearing on the motion to dismiss that was conducted in May 1993. Therefore, we must presume that the trial court's original determination was correct.

In addition, the trial court's finding, implying that since Morrison was aware of the lack of notice of Ramsey's negligence cause of action, required under the Workers' Compensation Act, he was somehow responsible for this, was also erroneous. Section 5(b) of the Workers' Compensation Act (820 ILCS 305/5(b) (West 1992)) clearly sets out that it is the employee's responsibility to notify his employer of any action brought against a third-party for a work-related injury. The same reasoning this court applied in Thies v. Korte-Plocher Construction Co. (1994), 268 Ill. App. 3d 217, 644 N.E.2d 523, 205 Ill. Dec. 967, that a defendant cannot be made to stand in place of the employer for an "agreement to which they were not a party, to which they did not agree," can also be applied to an employee's responsibility and duty under the statute. ( Thies, 268 Ill. App. 3d at 221, 644 N.E.2d at 526 (quoting Corley v. James McHugh Construction Co. (1994), 266 Ill. App. 3d 618, 622-23, 639 N.E.2d 1374, 1377-78, 203 Ill. Dec. 555).) The notice provision was Ramsey's responsibility, not Morrison's, and Morrison cannot be held responsible for the lack of notice. Therefore, we find the trial court's reasoning, that the lack of notice to Tony of the negligence action brought by Tony's employee is somehow Morrison's responsibility, to be erroneous. For the foregoing reasons, we find that the trial court abused its discretion, and we reverse the trial court's order allowing the dismissal of the third-party complaint against Tony, and we thereby reinstate the third-party complaint and the jury's verdict on this complaint.

The next issue raised by Morrison is whether the trial court abused its discretion in reversing the prior order allowing the third-party complaint against Ricky because he is a coemployee of Ramsey. In its order, the trial court stated the following reasons for finding Ricky immune to contribution for liability:

"In Kotecki [v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, 166 Ill. Dec. 1,] the court was required to strike a balance between the Contribution Act, 740 ILCS 100/0.01 et seq. (1992)[,] and the Worker's [sic] Compensation Act, 820 ILCS 305/1 et seq. (1992). The court held that the grant of immunity under [section] 5(a) of the Worker's [sic] Compensation Act required the employer's liability under the Contribution Act to be limited to its liability under the Worker's [sic] Compensation Act. Kotecki, 585 N.E.2d at 1028. The same reasoning applies to Ricky Baker because he is entitled to precisely the same immunity as his employer under the Act. See 820 ILCS 305/5(a) (1992). However, although immunity extends to employers and their agents, payment ...


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