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06/25/96 LINDA FUNES AND RICKY FUNES v. B&B

June 25, 1996

LINDA FUNES AND RICKY FUNES, PLAINTIFFS,
v.
B&B EQUIPMENT, INC, HYTROL CONVEYOR COMPANY, INC., AND ALLEN-BRADLEY COMPANY, DEFENDANTS. B&B EQUIPMENT, INC., DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT, V. BALL-INCON GLASS PACKAGING CORP., THIRD-PARTY DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, COUNTY DEPARTMENT, LAW DIVISION. NO. 92 L 10660. THE HONORABLE GARY L. BROWNFIELD, JUDGE PRESIDING.

Released for Publication August 13, 1996.

The Honorable Justice Scariano delivered the opinion of the court: Hartman, P.j., and DiVito, J., concur.

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

After Linda Funes sustained injuries while working at the Ball-Incon Glass Packaging Corporation ("Ball-Incon"), she sought damages for personal injuries and her husband, Ricky Funes, sought damages for loss of consortium in this products liability action which they brought against the above captioned defendants.

On July 22, 1993, defendant B&B Equipment, Inc., the manufacturer of the casepacker machine operated by Linda, filed a third-party complaint against Ball-Incon seeking unlimited contribution in the event that plaintiffs obtained a judgment against it. On September 9, 1993, the trial granted Ball-Incon's motion to strike the ad damnum clause of B&B's third-party complaint, and required it to file an amended complaint limiting the contribution sought against Ball-Incon to an amount not to exceed its workers' compensation liability. B&B did not object to this order and filed its third-party amended complaint.

In October 1994, Linda and Ball-Incon entered into a settlement agreement wherein Linda received a lump-sum in satisfaction of her workers' compensation claim, and Ball-Incon "waived all of its right to reimbursement pursuant to section 5(a) & 5(b) of the workers' compensation act from petitioner's third party action."

On February 16, 1995, Ball-Incon moved for a finding that the settlement agreement had been entered into in good faith and that B&B's third party complaint for contribution against it be dismissed, arguing that its contribution was limited to its liability under the Worker's Compensation Act which had been satisfied when it settled with Linda.

B&B responded that notwithstanding Ball-Incon's settlement with Linda, its claim should not be dismissed because its contribution action for Ricky's loss of consortium claim was not affected by Ball-Incon's workers' compensation liability to Linda, and because Ball-Incon could not rely on its settlement with Linda since no consideration had been paid to Ricky.

On May 17, 1995, the trial court dismissed B&B's contribution action against Ball-Incon. This appeal followed.

Ball-Incon's first claim is that B&B has waived review of the trial judge's September 9, 1993 order, and cannot now raise the issue that its contribution claim is not limited by Ball-Incon's workers' compensation liability, because B&B had not appealed the trial court's order dismissing its original third-party complaint seeking unlimited damages but filed, instead, its amended third-party complaint seeking damages limited to Ball-Incon's workers' compensation liability.

Generally, once an amended pleading is filed, allegations contained in the prior pleading and objections to the trial court's ruling on that pleading are deemed waived, as it "ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn. [Citation.]" Pfaff v. Chrysler Corp., 155 Ill. 2d 35, 61, 610 N.E.2d 51, 63, 182 Ill. Dec. 627 (1992); Bowman v. County of Lake, 29 Ill. 2d 268, 272, 193 N.E.2d 833 (1963).

However, although prior pleadings may "in some instances remain[] part of the record even after the filing of an amendment thereto" Burdin v. Jefferson Trust & Savings Bank, 133 Ill. App. 2d 703, 708, 269 N.E.2d 340 (1971), they are deemed abandoned when "the substance, theory, or format of the original complaint [has] been abandoned." Arnold v. Chicago Ridge, 181 Ill. App. 3d 778, 782, 537 N.E.2d 823, 130 Ill. Dec. 494 (1989), appeal denied, 126 Ill. 2d 557, 541 N.E.2d 1104. But where a trial judge makes clear "that he would not entertain" a complaint based upon one theory, this court has found that the plaintiffs did not waive review of his ruling by failing to plead the unacceptable theory in the alternative in the amended complaint. Enlow v. Illinois Central Railroad Co., 103 Ill. App. 2d 269, 277, 243 N.E.2d 847, 851 (1968) (finding plaintiff did not waive review of trial judge's dismissal of ordinary negligence claim where amended complaint was grounded on willful and wanton misconduct because "it seems clear in the context of the trial judge's statements that he would not entertain a complaint that was not based on willful and wanton misconduct").

We are aware that our supreme court declined to follow Enlow in Foxcroft Townhome Owners Association v. Hoffman Rosner Corp., 96 Ill. 2d 150, 449 N.E.2d 125, 70 Ill. Dec. 251 (1983). However, Foxcroft involved allegations in a former complaint not incorporated into the amended complaint, and the court premised its conclusion on the policy interests of ensuring "that the trial judge will be aware of points in issue" as a trial progresses, and that a defendant be notified of the allegations against him and the theories of recovery advanced by ...


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