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02/06/97 ALFRED RAMSEY v. DAVID J. MORRISON

February 6, 1997

ALFRED RAMSEY
v.
DAVID J. MORRISON, APPELLEE (RICKY BAKER ET AL., APPELLANTS).



The Honorable Justice Bilandic delivered the opinion of the court. Justice Harrison, concurring in part and dissenting in part.

The opinion of the court was delivered by: Bilandic

JUSTICE BILANDIC delivered the opinion of the court:

The primary issues in this appeal concern the application of this court's decision in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 166 Ill. Dec. 1, 585 N.E.2d 1023 (1991). We are asked to determine: (1) whether a third party sued by an injured employee may recover contribution from a coemployee who is immune from a direct suit by the employee under section 5(a) of the Workers' Compensation Act (820 ILCS 305/5(a) (West 1992)), and (2) how an employer's contribution liability under Kotecki is calculated with relation to the attorney fees and costs provision of section 5(b) of the Workers' Compensation Act (820 ILCS 305/5(b) (West 1992).

FACTS

On April 10, 1991, third-party defendant Ricky Baker was driving a truck northbound on a two-lane roadway when he collided with a southbound vehicle driven by the defendant, David Morrison. The plaintiff, Alfred Ramsey, was a passenger in Ricky Baker's truck and he sustained a broken jaw as a result of the collision. Both the plaintiff and Ricky Baker were employees of third-party defendant Tony Baker, d/b/a Baker's Auto Repair, who is also Ricky's father. The parties stipulated that both the plaintiff and Ricky Baker were acting within the scope of their employment at the time of the accident.

The plaintiff received compensation for his injury under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1992)) from his employer, Tony Baker, d/b/a Baker's Auto Repair. On September 20, 1991, the plaintiff filed suit against David Morrison in the circuit court of Madison County, charging that Morrison's negligence caused the collision. Morrison thereafter filed a third-party complaint for contribution against Ricky Baker, alleging that Ricky Baker's negligence caused the collision. This third-party complaint incorrectly alleged that Ricky Baker was the employer of the plaintiff. Subsequently, however, Morrison filed an amended third-party complaint adding a claim for contribution against Tony Baker, as the plaintiff's employer. The amended third-party complaint retained the claim for contribution against Ricky Baker, the plaintiff's coemployee. The complaint charged that Ricky Baker's negligence caused the collision, and that Tony Baker, as Ricky Baker's employer, was vicariously liable for Ricky Baker's negligence.

Tony Baker moved to dismiss the amended third-party complaint on the ground that it was untimely filed. The trial court denied the motion. The record also contains an order denying Ricky Baker's motion to dismiss the third-party complaint, although the record does not contain a motion to dismiss filed by Ricky Baker.

The case proceeded to trial before a jury between April 4 and 8, 1994. At trial, differing accounts of the accident were presented by the plaintiff, Ricky Baker, and Morrison. However, a Madison County deputy sheriff who investigated the accident testified that both Morrison's and Ricky Baker's vehicles had gone over the center line of the road before the collision.

On April 8, 1994, the jury returned a verdict in favor of the plaintiff and against the defendant, Morrison, assessing the plaintiff's damages at $70,708.49. The jury also found in favor of Morrison and against Ricky and Tony Baker on Morrison's third-party complaint. The jury apportioned liability as follows: 50% to Morrison and 50% to Ricky and Tony Baker. The trial judge issued an order adjudicating the employer's liability under the Workers' Compensation Act at $27,457.36.

All parties except the plaintiff filed post-trial motions. The defendant, Morrison, also filed a separate motion for judgment on his contribution verdicts against Ricky and Tony Baker. Ricky Baker's post-trial motion argued, inter alia, that he could not be liable for contribution to Morrison because he was immune as the plaintiff's coemployee. The trial judge agreed and entered judgment in favor of Ricky Baker. Tony Baker's post-trial motion argued, inter alia, that his motion to dismiss Morrison's third-party action on the ground of timeliness should have been granted. The trial court granted Tony Baker's motion on this basis and entered judgment in his favor. Based upon these rulings, Morrison's motion for judgment on his contribution verdicts was denied. The trial court did, however, rule conditionally on the issue of the limit of employer Tony Baker's contribution liability, pursuant to section 2-1202(f) of the Code of Civil Procedure (735 ILCS 5/2-1202(f) (West 1992)). The trial court resolved this issue by holding that the workers' compensation benefits paid to the plaintiff by the employer constituted the full extent of the employer's liability, and the employer should pay nothing further to the plaintiff or to Morrison. The court also determined, however, that the plaintiff was entitled to collect 25% of that amount for his attorney fees pursuant to section 5(b) of the Workers' Compensation Act (820 ILCS 305/5(b) (West 1992)). The trial court therefore held that the amount of the set-off Morrison was entitled to receive as a result of his contribution judgment against the employer would be reduced by 25% for the section 5(b) fees, to equal 75% of the workers' compensation benefits paid.

Morrison appealed, and the appellate court reversed. 276 Ill. App. 3d 111, 658 N.E.2d 843, 213 Ill. Dec. 94. The appellate court held first that the trial court abused its discretion in granting the employer's post-trial motion to dismiss Morrison's third-party action, finding no prejudice to the employer resulting from the timing of the third-party complaint. The appellate court also held that the trial court abused its discretion in granting coemployee Ricky Baker's post-trial motion to dismiss. The appellate court concluded that a coemployee's immunity under the Workers' Compensation Act does not bar an action for contribution against him. Last, the appellate court reversed the trial court's determination that Morrison's contribution judgment against the employer should be reduced by 25% for the attorney fees obligation under section 5(b). The court held that an employer's contribution liability is limited only to the amount of workers' compensation benefits paid, with no reduction for section 5(b) fees. The appellate court remanded the cause for reinstatement of the judgment in favor of Morrison and against Ricky and Tony Baker.

We granted the petitions for leave to appeal filed by the employer, Tony Baker, and by the coemployee, Ricky Baker, and consolidated the two cases for our review. 155 Ill. 2d R. 315. We now affirm in part and reverse in part the appellate court's judgment.

ANALYSIS

I

We first consider whether the trial court correctly dismissed Morrison's contribution action against Ricky Baker, the plaintiff's coemployee, on the ground that the coemployee was immune from liability. We hold that the trial court correctly dismissed Morrison's contribution action against the plaintiff's coemployee.

As noted, at the time of the accident, Ricky Baker and the plaintiff were employees of Baker's Auto Repair and were acting in the course of their employment. Under these circumstances, Ricky Baker, as a coemployee, is immune from a common law negligence suit by the plaintiff pursuant to section 5(a) of the Workers' Compensation Act. Section 5(a) provides, in pertinent part:

"No common law or statutory right to recover damages from the employer *** or the agents or employees of *** [the employer] for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act *** ." 820 ILCS 305/5(a) (West 1992).

This section operates to make workers' compensation benefits the exclusive remedy of an injured employee against a negligent coemployee acting in the course of his or her employment. Fregeau v. Gillespie, 96 Ill. 2d 479, 484, 71 Ill. Dec. 716, 451 N.E.2d 870 (1983); Rylander v. Chicago Short Line Ry. Co., 17 Ill. 2d 618, 628, 161 N.E.2d 812 (1959) (Workers' Compensation Act bars action by injured employee against coemployee based on coemployee's negligence in the course of his or her employment). The plaintiff has not attempted to directly sue the coemployee for his injuries. Rather, the plaintiff sued a third party, Morrison, who in turn sought contribution toward that liability from the coemployee. The issue here presented, then, is whether a third party sued by an injured employee may recover contribution from a coemployee who is immune from a direct suit by the plaintiff.

The right to contribution is premised on the notion that a party should not be forced to pay more than its proportionate share of a liability shared with another culpable party. The right to contribution, however, will occasionally clash with an immunity from direct suit possessed by the party from whom contribution is sought. This court in Doyle v. Rhodes, 101 Ill. 2d 1, 77 Ill. Dec. 759, 461 N.E.2d 382 (1984), held that a party's immunity from direct suit by the plaintiff may not necessarily immunize that party from a contribution claim by a defendant sued by the plaintiff. In Doyle, it was held that the immunity from suit by an injured employee granted to an employer under the Workers' Compensation Act did not preclude a contribution action against the employer by a third party sued by the employee. Doyle, 101 Ill. 2d at 14.

The right of contribution will not always prevail over the competing immunity. Rather, our courts balance the policy considerations supporting contribution against those supporting immunity to determine which doctrine should prevail in a particular case. See, e.g., Buell v. Oakland Fire Protection District Board, 237 Ill. App. 3d 940, 943-44, 178 Ill. Dec. 824, 605 N.E.2d 618 (1992) (balancing the policies underlying the statutory immunity granted to public rescue services versus those supporting contribution and holding that the immunity should prevail); Stephens v. Cozadd, 159 Ill. App. 3d 452, 458-59, 111 Ill. Dec. 423, 512 N.E.2d 812 (1987) (holding that the public policy considerations supporting public officials' immunity required that the immunity be applied to bar contribution actions as well as direct actions); Hartigan v. Beery, 128 Ill. App. 3d 195, 198-99, 83 Ill. Dec. 445, 470 N.E.2d 571 (1984) (holding that the policies underlying parent-child immunity were outweighed by the policies supporting contribution); Moon v. Thompson, 127 Ill. App. 3d 657, 659, 82 Ill. Dec. 831, 469 N.E.2d 365 (1984); Larson v. Buschkamp, 105 Ill. App. 3d 965, 969-71, 61 Ill. Dec. 732, 435 N.E.2d 221 (1982).

We performed such a balancing inquiry in the workers' compensation setting in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 166 Ill. Dec. 1, 585 N.E.2d 1023 (1991). In Kotecki, this court considered the amount of contribution which a third party sued by an injured employee could obtain from the plaintiff's employer. Kotecki, 146 Ill. 2d at 164-65. In addressing this issue, Kotecki acknowledged that there was an "underlying controversy between workers' compensation and contribution." Kotecki, 146 Ill. 2d at 162. This court identified the competing interests of the employer versus the third party as follows:

" 'If contribution or indemnity is allowed [from the employer], the employer may be forced to pay his employee-through the conduit of the third-party tortfeasor-an amount in excess of his statutory workers' compensation liability. This arguably thwarts the central concept behind workers' compensation, i.e., that the employer and employee receive the benefits of a guaranteed, fixed-schedule, nonfault recovery system, which then constitutes the exclusive liability of the employer to his employee. [Citation.] If contribution or indemnity is not allowed, a third-party stranger to the workers' compensation system is made to bear the burden of a full common-law judgment despite possibly greater fault on the part of the employer. This obvious inequity is further exacerbated by the right of the employer to recover directly or indirectly from the third party the amount he has paid in compensation regardless of the employer's own negligence. [Citations.] Thus, the third party is forced to subsidize a workers' compensation system in a proportion greater than his own fault and at a financial level far in excess of the workers' compensation schedule.' " Kotecki, 146 Ill. 2d at 162-63, quoting Lambertson v. Cincinnati Corp., 312 Minn. 114, 119-20, 257 N.W.2d 679, 684 (1977).

We struck a balance between these competing interests in Kotecki by allowing the third party to obtain contribution from the employer, but only up to the amount of the employer's worker's compensation liability. That balance substantially preserved the employer's immunity under the workers' compensation scheme by limiting the employer's liability for contribution. The third party's right to contribution, on the other hand, was only partially preserved. As we explained:

" '[This approach] allows the third party to obtain limited contribution, but substantially preserves the employer's interest in not paying more than workers' compensation liability. While this approach may not allow full contribution recovery to the third party in all cases, it is the solution we consider most consistent with fairness and the various statutory schemes ...


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