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Block v. Pepper Construction Co.

March 31, 1999

PATRICIA BLOCK, INDIV. AND AS GUARDIAN OF THE PERSON AND THE ESTATE OF THE DISABLED PERSON, CLIFFORD BLOCK, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
PEPPER CONSTRUCTION COMPANY, CONTEMPORARY PRECAST PRODUCTS, KAMM LEASING COMPANY, DEFENDANTS-APPELLEES AND CROSS-APPELLEES (CONTEMPORARY PRECAST PRODUCTS AND KAMM LEASING COMPANY, THIRD-PARTY PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES, CONCRETE ERECTORS, LTD., THIRD-PARTY DEFENDANT-APPELLEE AND CROSS-APPELLANT).



Appeal from the Circuit Court of Cook County. No. 94 L 3831 Honorable Michael J. Murray, Judge Presiding. Honorable Michael C. Zissman, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

Clifford Block sustained severe injuries while employed as a construction foreman for third-party defendant Concrete Erectors, Ltd. (Concrete). Thereafter, plaintiff Patricia Block entered into a settlement agreement with defendants Pepper Construction Company, Contemporary Precast Products, and Kamm Leasing Company(collectively referred to as the settling defendants). In the agreement, the settling defendants assigned to plaintiff their right-of-contribution causes of action against Concrete. By order dated February 9, 1998, the trial court dismissed plaintiff's contribution action, finding that the right of contribution on the part of the settling defendants cannot be assigned to plaintiff based on the Joint Tortfeasor Contribution Act (Act) (740 ILCS 100/0.01 et seq. (West 1994)).

On appeal, plaintiff asserts that an assignment of a contribution action in a settlement agreement is valid, as a matter of law, and, therefore, the trial court erred in dismissing the contribution action. On cross-appeal, the issue raised is whether the contribution action is barred by the statute of limitations. We agree with plaintiff that a contribution action generally can be assigned. However, we hold that the contribution action in the present case is time-barred and, therefore, affirm the dismissal of the contribution action.

The facts are not in dispute. The underlying action arose in November 1988 when Clifford Block suffered severe injuries in a construction accident. After plaintiff filed her initial complaint against six named defendants, the trial court granted summary judgment in favor of the defendants. On direct appeal, this court reversed the summary judgment orders as to three of the defendants, i.e., the three settling defendants in the instant appeal, and remanded the matter. See Block v. Lohan Associates, Inc., 269 Ill. App. 3d 745 (1993). On March 30, 1994, the case was reinstated in the trial court. On May 27, 1994, defendants Kamm and Contemporary filed a contribution action against Concrete. On August 16, 1994, the trial court entered an order denying Concrete's section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 1994)) the contribution action filed by Kamm and Contemporary.

In September 1994, plaintiff and the settling defendants entered into a settlement agreement, subject to court approval. On September 8, 1994, plaintiff executed a general release, stating, in pertinent part, that she released the three settling defendants from all actions in exchange for a cash payment ($4.5 million), a structured settlement ($500,000) and an assignment of their contribution action. The release specifically includes:

"an assignment of the causes of action of PepperConstruction Company, Contemporary Precast Products andKamm Leasing Company for contribution against ConcreteErectors, Ltd., or, in the event said assignment shouldbe held invalid, then including the authorization of plaintiffs to prosecute said causes of action forcontribution, at plaintiffs' own expense, for thebenefits of defendants ***, while reserving toplaintiffs the right to dismiss said contributionaction or to vacate or forgive a judgment in saidcontribution action at any and all times as a part ofany negotiated settlement of the worker's compensationlien, and the approval of this settlement by theCircuit Court of Cook County having been sought andobtained."

By order dated September 7, 1994, the trial court approved the settlement. In this order, the court expressly reserved "ruling on whether the settlement is a good faith settlement as to the third-party defendant, Concrete."

On September 20, 1994, the trial court entered an order dismissing the three settling defendants with prejudice from plaintiff's cause of action, "the matter having been fully compromised and settled" and "over the objection of Concrete Erectors." The order further stated that the contribution action "shall continue subject to further order of the court."

On May 14, 1996, Concrete filed a brief on its motion to dismiss. Concrete argued two points: (1) the settlement did not create a right of contribution against Concrete that could be assigned or revert to settling defendants when the assignment fails, and (2) the contribution action should be dismissed as time-barred.

On February 9, 1998, in open court, the trial Judge stated:

"[T]he issue before the court is whether the right ofcontribution on the part of the third-party plaintiffs canbe assigned to the plaintiff under the Joint Tort FeasorContribution Act. Section 2B of that Act provides the rightof contribution exists only in favor of a tort feasor who[has] paid more than his pro rata share of the common liability. In the Court's mind that is the same as sayingthat the right of contribution may not be assigned to theplaintiff. And so I am going to grant the motion to dismissthe third-party complaint." By order dated the same day, the trial court granted Concrete's section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 1994)) the contribution complaint with prejudice. Plaintiff appeals this order.

We apply a de novo standard of review to a dismissal pursuant to section 2-619. Kozak v. Moiduddin, 294 Ill. App. 3d 365, 367 (1997).

The specific inquiry on appeal is whether a right of contribution can be assigned. On the one hand, plaintiff asserts that an assignment of the contribution action is valid, as a matter of law, and comports with the Act. Concrete, however, argues that the attempted ...


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