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10/20/97 RICHARD KOZAK AND KATHY KOZAK v. SHAKIR

October 20, 1997

RICHARD KOZAK AND KATHY KOZAK, PLAINTIFFS-APPELLEES,
v.
SHAKIR MOIDUDDIN AND STEPHEN REMBOS, DEFENDANTS (STEPHEN REMBOS, THIRD-PARTY PLAINTIFF; YELLOW FREIGHT SYSTEM, INC., INTERVENOR AND THIRD-PARTY DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Cook County. Honorable Alfred J. Paul, Judge Presiding.

As Modified on Denial of Rehearing December 22, 1997.

The Honorable Justice Gallagher delivered the opinion of the court. Campbell, P.j., and Buckley, P.j., concur.

The opinion of the court was delivered by: Gallagher

MODIFIED UPON DENIAL OF REHEARING

The Honorable Justice GALLAGHER delivered the opinion of the court:

In June of 1994, plaintiffs, Richard and Kathy Kozak, filed suit against defendants Shakir Moiduddin (a medical doctor) and Stephen Rembos (a podiatrist) for damages resulting from negligent medical treatment Richard received after he incurred a foot injury while at work in 1992. Richard Kozak's employer, Yellow Freight System, Inc., intervened in the action and claimed a lien, pursuant to the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1992)), against any recovery the Kozaks ultimately obtained. Before plaintiffs filed their suit, Yellow Freight had settled Mr. Kozak's workers' compensation claim for over $290,000. Once Yellow Freight intervened, defendant Dr. Rembos *fn1 filed a third-party contribution action against Yellow Freight. Yellow Freight successfully moved to dismiss the third-party complaint pursuant to section 2-615 of the Code of Civil Procedure (725 ILCS 5/2-615 (West 1992)), asserting that the negligent treatment of Kozak's preexisting injury was not the same injury for contribution purposes. Plaintiffs then filed a motion to dismiss Yellow Freight's intervention pursuant to section 2-619 of the Code of Civil Procedure (725 ILCS 5/2-619 (West 1992)), charging that Yellow Freight's position in the third-party action judicially estopped Yellow Freight from asserting its lien in the present litigation. The trial court agreed and granted plaintiffs' motion. Third-party defendant Yellow Freight brings this appeal, contending that the trial court's holding--that Yellow Freight is not a joint tortfeasor for contribution purposes--does not preclude Yellow Freight from asserting its lien for payments it previously made under the Workers' Compensation Act.

On June 6, 1992, Mr. Kozak sustained a crushing injury to his left foot and ankle during the course of his employment at Yellow Freight. Medical personnel at Palos Community Hospital treated and released plaintiff later that day. Defendant Moiduddin treated plaintiff on June 8 and 11, 1992. Plaintiff then received further treatment from defendant Rembos on June 13, 1992, and at other times thereafter. According to plaintiffs, Rembos negligently performed several surgical procedures on plaintiff's foot and ankle. Allegedly, the treatment of his injured foot and ankle caused Kozak to develop reflexive sympathetic dystrophy (RSD), which manifests itself through extreme pain and loss of mobility.

On April 8, 1994, Yellow Freight agreed to settle plaintiff's workers' compensation claim for $297,955.01, including $66,587.87 for medical expenses, $36,052.14 for plaintiff's temporary total disability and $190,000 for plaintiff's permanent partial disability. Shortly after Mr. Kozak settled his workers' compensation claim, plaintiffs filed the present medical malpractice suit against the defendant doctors. Plaintiff Richard Kozak seeks to recover damages for pain and suffering, loss of mobility, disability, disfigurement, loss of earnings and earning capacity, as well as past and future medical expenses. Plaintiff Kathy Kozak seeks to recover damages for the loss of consortium she sustained as a result of the defendant doctors' allegedly negligent treatment.

Yellow Freight first sought to intervene in this action on October 5, 1994, claiming a lien against any funds recovered by Mr. Kozak in his medical malpractice suit. In May 1995, Dr. Rembos attempted to join Yellow Freight as a third-party defendant under the Joint Tortfeasor Contribution Act (740 ILCS 100/2 (West 1992)). Yellow Freight subsequently filed its section 2-615 motion to dismiss the third-party complaint, arguing that, for purposes of the Joint Tortfeasor Contribution Act, the initial injury Mr. Kozak received while employed at Yellow Freight was separate and distinct from the injury caused by the doctors' negligent treatment. The trial court granted Yellow Freight's motion and dismissed the third-party complaint on June 30, 1995.

On August 23, 1995, plaintiffs filed a motion seeking to dismiss Yellow Freight as an intervenor. In their motion, plaintiffs asserted that if Kozak's workplace injury was separate and distinct from his malpractice injury, then Yellow Freight had no right to maintain a workers' compensation lien on his malpractice recovery. The trial court granted plaintiffs' motion and held that, in light of Yellow Freight's response to Dr. Rembos' third-party action, the doctrine of judicial estoppel applied to bar Yellow Freight from asserting its workers' compensation lien against any recovery Kozak obtained as a result of his medical malpractice injury.

Third-party defendant Yellow Freight argues on appeal that the trial court erred when it concluded that the doctrine of judicial estoppel applied to the present case. Our review of a dismissal pursuant to section 2-619 is de novo. Lohman v. Bemis, 289 Ill. App. 3d 139, 140, 680 N.E.2d 819, 820, 223 Ill. Dec. 869 (1997). In general, the following five elements are necessary to justify application of the judicial estoppel doctrine: (1) two positions must be taken by the same party; (2) the positions must be taken in separate judicial or quasi-judicial proceedings; (3) the party must intend the trier of fact to accept the truth of the facts alleged in support of the positions; (4) the party must have successfully maintained the first position and received some benefit in the first proceeding; and (5) the positions must be totally inconsistent. Bidani v. Lewis, 285 Ill. App. 3d 545, 550, 675 N.E.2d 647, 650, 221 Ill. Dec. 452 (1996); Galena Park Home v. Krughoff, 183 Ill. App. 3d 206, 208, 538 N.E.2d 1366, 1367, 131 Ill. Dec. 810 (1989). Because Yellow Freight did not intend for the trier of fact to rely upon any factual allegations in support of its motion to dismiss the third-party action, we hold that the trial court erred in dismissing Yellow Freight as an intervenor in the present case.

Initially, we note that Yellow Freight moved to dismiss the third-party complaint against it pursuant to section 2-615 of the Code of Civil Procedure. Dismissal under section 2-615 is appropriate only when it clearly appears that no set of facts could ever be proved under the pleadings that would entitle the plaintiff (here, third-party plaintiff Dr. Rembos) to recover. Lockwood v. Standard & Poor's Corp., 289 Ill. App. 3d 195, 195-96, 682 N.E.2d 131, 132, 224 Ill. Dec. 570 (1997). It is axiomatic that, when ruling upon such a motion, the court must take as true all well-pled facts of the complaint and draw all reasonable inferences therefrom in favor of the nonmovant. Douglas Theater v. Chicago Title & Trust, 288 Ill. App. 3d 880, 883, 681 N.E.2d 564, 566, 224 Ill. Dec. 249 (1997).

In its motion to dismiss, Yellow Freight correctly argued that, as a matter of law, if a doctor negligently treats a preexisting injury, he has committed a tort that is separate and distinct from the tort allegedly committed by the first wrongdoer, and they are not joint tortfeasors. Patton v. Carbondale Clinic, S.C., 161 Ill. 2d 357, 366, 641 N.E.2d 427, 432, 204 Ill. Dec. 203 (1994), rev'g 241 Ill. App. 3d 149, 608 N.E.2d 688, 181 Ill. Dec. 615 (1993); Cram v. Showalter, 140 Ill. App. 3d 1068, 1072, 489 N.E.2d 892, 895, 95 Ill. Dec. 330 (1986); Borowski v. Von Solbrig, 14 Ill. App. 3d 672, 683, 303 N.E.2d 146, 154 (1973), aff'd, 60 Ill. 2d 418, 328 N.E.2d 301 (1975); but cf. O'Keefe v. Greenwald, 214 Ill. App. 3d 926, 933-34, 574 N.E.2d 136, 140, 158 Ill. Dec. 342 (1991) (outside of the joint tortfeasor context, a release of the original tortfeasor may operate to release subsequent medical malpractice defendants). Yellow Freight further argued that the Joint Tortfeasor Contribution Act provides for a right of contribution only "where 2 or more persons are subject to liability in tort arising out of the same injury " (emphasis added). 740 ILCS 100/2(a) (West 1992). This argument was incorrect. Patton, 161 Ill. 2d at 368, 641 N.E.2d at 432 (Joint Tortfeasor Contribution Act "applies not only to joint tortfeasors, but to concurrent and successive tortfeasors as well"). Nevertheless, the trial court agreed with Yellow Freight and held that Rembos could prove no set of facts entitling him to recover. Therefore, Yellow Freight offered no factual allegations to the trier of fact in its motion to dismiss; instead, the third-party defendant merely argued that, even accepting as true all of Rembos' well-pled facts, the third-party complaint was insufficient at law.

Unhappily, it appears as if the trial court may have erred in dismissing the third-party plaintiff's contribution action. However, neither party has placed the propriety of that order before this court. Moreover, the record demonstrates that Yellow Freight never relied upon any factual allegations in support of its section 2-615 motion. Thus, one condition generally necessary to establish judicial estoppel--that a party must intend the trier of ...


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