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Guerrero v. Sebastian Contracting Corp.

March 27, 2001

IRMA GUERRERO, INDIVIDUALLY AND SPECIAL ADMINISTRATOR OF THE ESTATE OF REYNALDO GUERRERO, PLAINTIFF,
v.
SEBASTIAN CONTRACTING CORPORATION, DEFENDANT,
AND MARK MACKEY, JEFFREY SILVER, AND MICHAEL GREEN, DEFENDANTS/THIRD PARTY PLAINTIFFS/APPELLEES,
v.
L.B. HALL ENTERPRISES, INC., THIRD PARTY DEFENDANT/APPELLANT.



The opinion of the court was delivered by: Justice Gordon

Appeal from the Circuit Court of Cook County.

The Honorable Walter J. Kowalski, Judge Presiding.

Third party defendant L.B. Hall Enterprises, Inc. (Hall), appeals from an order of the Cook County circuit court entering judgment from a jury verdict in favor of third party plaintiffs Mark Mackey, M.D.; Michael Green, M.D.; and Jeffrey Silver, M.D. on their third party complaint for contribution against Hall. In addition, Hall appeals from the denial of its motions for directed verdict, for judgment notwithstanding the verdict, and for reconsideration. In the underlying action, plaintiff Irma Guerrero sued Sebastian Contracting (Sebastian) and Drs. Mackey, Green, and Silver (the defendant physicians) for damages arising from the injury and death of her husband, Reynaldo Guerrero, in a work-related accident. The defendant physicians subsequently filed a third party complaint for contribution against Hall, Reynaldo's employer. Plaintiff settled with defendant Sebastian for $500,000, and with the defendant physicians for $1.2 million. Prior to these settlements, Hall independently settled with plaintiff Irma Guerrero as to her claims against Hall under the Illinois Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1993)). The trial on third party plaintiffs' contribution complaint was held in September 1999.

Following the entry of judgment in favor of third party plaintiffs in the contribution action, Hall appealed to this court, arguing, inter alia, that third party plaintiffs' settlement with plaintiff Irma Guerrero failed to comply with section 2(e) of the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West 1993)) and that third party plaintiffs thus had no right to pursue a contribution action against Hall. For the reasons set forth below, we reverse the trial court's judgment in favor of third party plaintiffs as to their contribution claim, as well as the court's denials of Hall's motions for directed verdict, for judgment notwithstanding the verdict, and for reconsideration.

BACKGROUND

Plaintiff Irma Guerrero initially sued Sebastian alleging negligence and Structural Work Act violations in the injury and death of her husband, Reynaldo. The complaint was subsequently amended to include as defendants five physicians at the University of Illinois Hospital: Mark Mackey, Joseph Vitello, Michael Green, Jeffrey Silver, and Sushil Sabnis.

According to plaintiff's third amended complaint, defendant Sebastian, the general contractor for a project on West North Avenue in Chicago, subcontracted with third party defendant Hall for the installation of fireproofing materials at various locations in the building. On January 2, 1995, plaintiff's decedent, Reynaldo Guerrero, who was employed by Hall, was working on a rolling scaffold when the platform gave way, causing him to fall to the ground below. He sustained multiple internal and external injuries which resulted in his death on January 2, 1995. According to plaintiff, Sebastian's negligence and Structural Work Act violations were a proximate cause of the fall. Plaintiff also alleged medical malpractice against the defendant physicians, claiming that their failure to diagnose Reynaldo's life-threatening injury resulted in his death.

The defendant physicians subsequently filed a third party complaint for contribution against Hall, Reynaldo's employer, seeking contribution from Hall in the event that judgment was entered against the defendant physicians. Two of the defendant physicians, Joseph Vitello and Sushil Sabnis, were later voluntarily dismissed by plaintiff.

In mid-1999, plaintiff reached a settlement agreement with defendant Sebastian for $500,000 in consideration of a full release of claims. In her motion to approve this settlement, plaintiff noted that Hall had refused to waive its workers' compensation lien. Attached to plaintiff's motion was a copy of the earlier settlement of her workers' compensation claim against Hall. Under this settlement with the employer, which was approved in November 1995 by the Illinois Industrial Commission, Hall agreed to pay plaintiff $119,531.54 "in full settlement of any and all claims for compensation and other benefits on account of the alleged accident and subsequent death of said decedent on January 2, 1995." Under the terms of this agreement, plaintiff released Hall "from any and all claims under the Workers' Compensation Act of Illinois on account of said alleged accident and subsequent death of said decedent." As part of its order approving the Sebastian settlement, the trial court ordered plaintiff to satisfy Hall's workers' compensation lien from the Sebastian settlement proceeds.

In September 1999 the remaining defendant physicians, Mark Mackey, Michael Green, and Jeffrey Silver, settled with plaintiff for a total of $1.2 million. This "Settlement Agreement and Release" was entered into between plaintiff Irma Guerrero and "the Board of Trustees of the University of Illinois (the "University") on behalf of its trustees, officers, agents, employees, administrators, staff, affiliates and subsidiaries, including Mark Mackey, M.D., Michael Green, M.D., and Jeffery [sic] Silver, M.D. (the "Defendants")." It applied to "claims arising out of any medical care and treatment rendered to Reynaldo Guerrero during January of 1995 at University of Illinois Hospital." The agreement stated that in consideration of the agreed-upon payments, plaintiff:

"hereby completely releases and forever discharges Defendants and University from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, where based on tort, contract, or other theory of recovery, which the Claimant now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of the incident described in Recital A above, including, without limitation, any and all known or unknown claims for bodily and personal injuries to Claimant or any wrongful death claim of Reynaldo Guerrero's representative or heirs, which have resulted or may result from the alleged acts or omissions of the Defendants."

Hall is not named in the agreement as a released party.

As part of the foregoing settlement, which was approved by the trial court on September 8, 1999, the defendant physicians assigned their cause of action for contribution against Hall to plaintiff. In view of this assignment, plaintiff obtained leave to file an amended third party complaint showing her as the assignee of the defendant physicians "with full authority to prosecute this third party action."

A jury trial on the third party complaint for contribution began on September 21, 1999. On September 28, the jury returned a verdict apportioning responsibility in the case as follows: 45 percent to Hall, 45 percent to the defendant physicians, and 10 percent to Sebastian. The trial court entered judgment on the verdict "apportioning fault to L.B. Hall Enterprises in the amount of 45% of the funds paid in settlement ($1,200,000.00)." The court then reduced this figure to "the amount of workers' compensation paid, i.e., $123,829.63." *fn1 The court also ...


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