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03/14/96 RONALD L. DUNCAN AND KATHLEEN E. DUNCAN v.

March 14, 1996

RONALD L. DUNCAN AND KATHLEEN E. DUNCAN, PLAINTIFFS-APPELLANTS,
v.
CHURCH OF THE LIVING GOD, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, HARRY B. BURROUGHS, INDIVIDUALLY AND D/B/A HHB ARCHITECTURAL, INC., AN ILLINOIS CORPORATION, RAYMOND POWELL, INDIVIDUALLY AND D/B/A POWELL ENTERPRISES, AND RAYMOND M. BROADY, INDIVIDUALLY AND D/B/A URBAN DESIGN ARCHITECTS, DEFENDANTS, RAYMOND POWELL, D/B/A POWELL ENTERPRISES, AND CHURCH OF THE LIVING GOD, THIRD-PARTY PLAINTIFFS-APPELLANTS, V. STAALSEN CONSTRUCTION COMPANY, AN ILLINOIS CORPORATION, THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 89-L-10127. Honorable Arthur E. Sullivan Jr., Judge Presiding.

The Honorable Justice Theis delivered the opinion of the court: Cahill and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

This appeal arises out of the trial court's dismissal of a third-party action for contribution. On December 22, 1987, while working as a bricklayer on a renovation project for the Church of the Living God ("Church"), Ronald L. Duncan incurred injuries when the scaffold where he worked fell through its support, causing him to fall. Ronald filed claims for negligence and violation of the Structural Work Act (740 ILCS 150/0.01 et seq. (West 1992) (repealed by Pub. Act 89-2, eff. February 14, 1995)) against Church and Raymond Powell doing business as Powell Enterprises ("Powell"). Kathleen E. Duncan, Ronald's wife, sought recovery for loss of consortium. Powell was a member of Church's board of trustees and his business provided demolition and rubbish removal services on the construction site where Ronald was injured. Both Church and Powell filed third-party actions for contribution against Ronald's employer, Staalsen Construction Company ("Staalsen"). The trial court dismissed Church's and Powell's second-amended third-party complaints for contribution with prejudice based on Staalsen's waiver of its workers' compensation lien. Church, Powell and the Duncans now appeal.

On review, we must determine whether we have jurisdiction over the parties' appeals and whether the trial court properly dismissed the second-amended third-party complaints. Specifically, the appellants contend that Staalsen waived its right to assert the rule of Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 585 N.E.2d 1023, 166 Ill. Dec. 1 (1991), as an affirmative defense by purchasing liability insurance in excess of its liability under the Workers' Compensation Act. 820 ILCS 305/1 et seq. (West 1992). The appellants further maintain that the holding of Kotecki does not apply to claims under the Structural Work Act. 740 ILCS 150/0.01 et seq. (West 1992). Finally, the appellants contend that Staalsen's waiver of its workers' compensation lien does not discharge its liability to Kathleen Duncan on her claim for loss of consortium.

For the reasons which follow, we conclude that we have jurisdiction to consider the merits of the parties' appeals. We also conclude that the trial court properly dismissed the second-amended third-party complaints against Staalsen. Given the state of the record on appeal, we are unable to consider whether Staalsen's alleged purchase of insurance affects the availability of Kotecki as an affirmative defense. We also hold that Kotecki applies to actions under the Structural Work Act and that Kathleen Duncan's claim for loss of consortium is barred.

In order to reach the merits of the appeal, we are compelled to set forth the relevant procedural background. On September 29, 1993, Staalsen filed a motion to dismiss the third-party actions brought by Church and Powell. In its motion, Staalsen indicated that it paid Duncan $170,673.57 in worker's compensation. Also, Staalsen stipulated that it waived its workers' compensation lien, and therefore under the rule announced in Lannom v. Kosco, 158 Ill. 2d 535, 634 N.E.2d 1097, 199 Ill. Dec. 743 (1994), the third-party actions should be dismissed. In Lannom, the Illinois Supreme Court held that an employer is entitled to a dismissal of actions against it where the employer waives its lien. On January 14, 1994, the court dismissed the third-party actions against Staalsen, without prejudice.

On June 29, 1994, Church and Powell filed a joint motion for "reconsideration" asking the court for leave to file second-amended third-party complaints against Staalsen or, in the alternative, for a final order and a continuance of the trial. The record shows that Staalsen chose to stand on its September 29, 1993, motion to dismiss as its response to the second-amended third party complaint. Nothing in the record shows that the parties responded to Staalsen's motion to dismiss.

The bystander's report of proceedings in the supplemental record states that on July 6, 1994, a hearing was held on Church's and Powell's motion for reconsideration. On July 8, 1994, the trial court ruled on the motion as follows: (1) the plaintiffs are granted leave to file their response to the third-party plaintiffs' motion for reconsideration, (2) the third-party plaintiffs are granted leave to file their second-amended third-party complaints, (3) the third-party defendant's previously filed motion to dismiss shall stand as its response to the second-amended complaints, (4) the second-amended third-party complaints are dismissed with prejudice because the third-party defendant waived its workers' compensation lien pursuant to Lannom, (5) the purchase of liability insurance by Staalsen does not constitute a waiver of Kotecki, (6) there is no just reason to delay enforcement or appeal, and (7) the trial date is stricken.

Given the court's July 8 order, the primary issue before us is whether the trial court properly dismissed the second-amended third-party complaints with prejudice. First, however, we consider the issue of our jurisdiction over the parties' appeals. Both the third-party plaintiffs and the original plaintiffs filed separate notices of appeal pursuant to Supreme Court Rule 304(a). 134 Ill. 2d R. 304(a). Staalsen contests our jurisdiction over both.

The notice of appeal filed by Church and Powell states that they appeal from the trial court's July 8 order. Staalsen contends that Church and Powell have no right to appeal the July 8 order because they caused and consented to its entry. Based on the record, we find Staalsen's argument contrived. The bystander's report of proceedings indicates that the third-party plaintiffs prepared the order on appeal at the direction of the court. Further, the report states that Church and Powell did not consent to the dismissal of their second-amended third-party complaints. We conclude that Church and Powell have a right to appeal the July 8 order and we have jurisdiction over their appeal. See generally Zurich Insurance Co. v. Raymark Industries, Inc., 118 Ill. 2d 23, 55, 514 N.E.2d 150, 164, 112 Ill. Dec. 684 (1987).

We next examine our jurisdiction over the Duncans' appeal from the trial court's July 8 order. Staalsen argues that the Duncans have no standing to pursue the present appeal because the July 8 order did not pertain to them and they never filed a suit against Staalsen. Staalsen also contends that the Duncans are not entitled to relief on appeal because they failed to raise any issues before the trial court by way of a pleading as required by section 2-406(b) of the Illinois Code of Civil Procedure. 735 ILCS 5/2-406(b) (West 1992).

We reject Staalsen's argument that section 2-406(b) limits the Duncans' right to appeal. The purpose of section 2-406(b) is to avoid multiplicity of lawsuits and the reduplication of evidence. People v. Fiorini, 143 Ill. 2d 318, 574 N.E.2d 612, 158 Ill. Dec. 499 (1991); Mierzejwski v. Stronczek, 100 Ill. App. 2d 68, 241 N.E.2d 573 (1968). Any party to a case may seek appellate review from a final judgment which is adverse to his or her interests. St. Mary of Nazareth Hospital v. Kuczaj, 174 Ill. App. 3d 268, 270-71, 528 N.E.2d 290, 292, 123 Ill. Dec. 745 (1988). Whether a party is actually aggrieved does not determine his or her right to appeal. Kuczaj, 174 Ill. App. 3d at 270-71, 528 N.E.2d at 292. Also, a party has standing to appeal where he or she has some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. Corley v. James McHugh Construction Co., 266 Ill. App. 3d 618, 639 N.E.2d 1374, 203 Ill. Dec. 555 (1994).

We find that the Duncans arguably have demonstrated an interest in this appeal under the facts of this case. If the Duncans obtain a judgment in the underlying action, the presence or absence of Staalsen may affect the ability of defendants/third-party plaintiffs to satisfy the judgment. The Duncans' right to secure full compensation may be adversely affected if Church and Powell are unable to ...


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