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07/14/97 DAVID LILLY v. MARCAL ROPE AND RIGGING

July 14, 1997

DAVID LILLY, PLAINTIFF-APPELLEE,
v.
MARCAL ROPE AND RIGGING, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT, V. GRANITE CITY STEEL CORPORATION, THIRD-PARTY DEFENDANT.



Appeal from the Circuit Court of Madison County. No. 90-L-719. Honorable A. A. Matoesian, Judge, presiding.

As Corrected August 1, 1997.

The Honorable Justice Chapman delivered the opinion of the court. Kuehn, P.j., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Chapman

The Honorable Justice CHAPMAN delivered the opinion of the court:

This personal injury case arises from the use of an American Hoist locomotive crane on December 18, 1989. The plaintiff, David Lilly, an employee at Granite City Steel, claimed that when one of the crane's pendant cables failed, he was severely injured. Lilly sued Marcal Rope and Rigging (Marcal) and Bethlehem Steel on both negligence and product liability theories. Lilly dismissed his cause of action against Bethlehem Steel at trial. Marcal filed a third-party complaint against Granite City Steel for contribution. The jury returned a verdict in Lilly's favor for $1,200,005. On the contribution action, the jury attributed 90% of the fault to Granite City Steel and 10% of the fault to Marcal.

Marcal raises two points on appeal. We will first address an issue of first impression: is a plaintiff's employer a "third party defendant who could have been sued by the plaintiff" under the provisions of the joint liability law, section 2-1117 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1117 (West 1994))? The second issue is whether the evidence supported the jury's verdict on the negligence and product liability counts.

Marcal asks that we reduce the judgment because section 2-1117 makes it severally liable since on the contribution action the jury found it only 10% responsible for Lilly's injuries. Lilly contends, however, that the jury's finding that Marcal was 10% responsible on the contribution action does not entitle Marcal to relief from joint liability because Granite City Steel was not "a third party defendant who could have been sued by the plaintiff" under the terms of section 2-1117. Therefore, Lilly contends, the jury's attribution of 90% of the fault to Granite City Steel under the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/2 (West 1996)) cannot be used to bring Marcal's responsibility below the 25% level contemplated by section 2-1117. The question which must be answered is whether Lilly's employer is included in the phrase "any third party defendant who could have been sued by the plaintiff" in the joint liability provision.

The pertinent portion of the first statute to be considered, section 2-1117 of the Code, the joint liability law, is:

"Any defendant whose fault *** is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff, shall be severally liable for all other damages." (Emphasis added.) 735 ILCS 5/2-1117 (West 1994).

The second statute involved is the exclusivity provision of the Workers' Compensation Act, section 5(a), which provides:

"No common law or statutory right to recover damages from the employer *** for injury or death sustained by any employee *** other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***." (Emphasis added.) 820 ILCS 305/5(a) (West 1996).

If we were to examine only these two statutes and the cases which have uniformly barred recipients of workers' compensation benefits from bringing a direct action against their employers because of the exclusive-remedy language of section 5(a) ( Wells v. Enloe, 282 Ill. App. 3d 586, 669 N.E.2d 368, 218 Ill. Dec. 425 (1996); Laird v. Baxter Health Care Corp., 272 Ill. App. 3d 280, 650 N.E.2d 215, 208 Ill. Dec. 758 (1994)), we would conclude that the employer is clearly not a "third party defendant who could have been sued by the plaintiff." However, Marcal contends that a third statute, the Contribution Act, and the supreme court's interpretation of it in Doyle v. Rhodes, 101 Ill. 2d 1, 461 N.E.2d 382, 77 Ill. Dec. 759 (1984), require the employer to be included within those "third party defendants who could have been sued by the plaintiff" under section 2-1117.

The relevant portion of the Contribution Act provides:

"Right of Contribution. (a) *** Where two or more persons are subject to liability in tort arising out of the same injury ***, there is a right of contribution among them." (Emphasis added.) 740 ILCS 100/2 (West 1996).

Marcal contends that since Doyle held that employers are within the class of those "subject to liability in tort" under the Contribution Act, it must follow that employers are within the class of those "who could have been sued by the plaintiff" under section 2-1117. We disagree with this contention for several reasons.

First, when the legislature passed section 2-1117, it did not use the phrase "subject to liability in tort." If the legislature had wanted to achieve the same result in section 2-1117 that it had provided for in the Contribution Act (and that the supreme court had specifically recognized in Doyle), it would have used the same language. When statutes are enacted after judicial opinions are published, it must be presumed that the legislature acted with knowledge of the prevailing case law. People v. Hickman, 163 Ill. 2d 250, 262, 644 N.E.2d 1147, 1153, 206 Ill. Dec. 94 (1994). Therefore, the defendant's attempt to extend Doyle to the language of section 2-1117 is less than persuasive.

The presumption of legislative knowledge of judicial opinions is of particular importance in this area both because of the multitude of Illinois Supreme Court cases that have recognized that section 5(a) prohibits suits by employees against employers and because of the language used in these cases:

"Section 5(a) bars a common law action by an employee against his employer for injuries received in the course of his employment and it also bars a statutory action against his employer for his wrongful death." (Emphasis added.) Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 13 Ill. 2d 460, 150 N.E.2d 141, 143 (1958).

Although the above quote is from 1958, similar language can be found in Illinois Supreme Court cases for the last 40 years. Ramsey v. Morrison, 175 Ill. 2d 218, 676 N.E.2d 1304, 222 Ill. Dec. 100 (1997); Page v. Hibbard, 119 Ill. 2d 41, 518 N.E.2d 69, 115 Ill. Dec. 544 (1987); Chmelik v. Vana, 31 Ill. 2d 272, 201 N.E.2d 434 (1964); O'Brien v. Rautenbush, 10 Ill. 2d 167, 139 N.E.2d 222 (1956).

The point that is made by these cases is that it is not just Doyle that the legislature is presumed to be aware of; it is also the other cases, all of which had held that an employer is not one who "could have been sued by the plaintiff." If the legislature had intended to include employers within the class of those who could have been sued by the plaintiff for purposes of the joint liability law, it clearly would have used the one phrase that would have insured their inclusion: "subject to liability in tort." The legislature's use of a different phrase, a phrase which has never been held to allow employers to be sued by injured employees, supports our conclusion that the legislature did not intend to include employers in that class in the joint liability law.

The second reason for our conclusion is found in a close reading of Doyle. We begin by examining the actual question that Doyle decided, which was not whether injured employees can sue ...


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