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Scott Mcmackin and Tamara Mcmackin v. Weberpal Roofing

October 17, 2011

SCOTT MCMACKIN AND TAMARA MCMACKIN,
PLAINTIFFS,
v.
WEBERPAL ROOFING, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF- APPELLANT MCMACKIN CONSTRUCTION,
THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McHenry County. No. 07-LA-300 Honorable Thomas A. Meyer, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Bowman and Burke concurred in the judgment and opinion.

OPINION

¶ 1 Defendant and third-party plaintiff, Weberpal Roofing, Inc., appeals the dismissal of its third-party complaint for contribution against third-party defendant, McMackin Construction. On appeal, Weberpal argues: (1) the trial court erred by dismissing its third-party complaint for contribution; and (2) the trial court abused its discretion by finding that the agreement between McMackin Construction and the underlying plaintiffs, Scott and Tamara McMackin, was made in good faith. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Initially, we address McMackin Construction's request that we strike Weberpal's statement of facts contained in its appellate brief. McMackin Construction argues that it should be struck because it contains argument and is supported by citations to Weberpal's own pleadings and supporting memoranda. Illinois Supreme Court Rule 341(h)(6) (eff. Mar. 16, 2007) requires in part that the statement of facts contain "the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal." Although our review of Weberpal's statement of facts reveals that it does not comport with Rule 341(h)(6), Weberpal's violations of the rule do not hinder our review of the case. Thus, we need not strike Weberpal's statement of facts. See John Crane Inc. v. Admiral Insurance Co., 391 Ill. App. 3d 693, 698 (2009). However, we will disregard arguments and unsupported statements contained therein. We now provide the following relevant facts contained in the record.

¶ 4 The underlying plaintiffs in this case are Scott and Tamara McMackin (Scott), who filed suit on August 27, 2007, against Weberpal, alleging negligence after Scott was injured in August 2006 during the course of his employment with McMackin Construction. On May 13, 2009, Weberpal filed a third-party complaint against McMackin Construction, seeking contribution. On May 22, 2009, McMackin Construction filed an affirmative defense alleging that Scott had filed a workers' compensation claim and that its maximum liability in contribution was limited to the amount it paid Scott in benefits.

¶ 5 On August 12, 2009, the trial court entered an order stating that it had been advised by Scott and Weberpal that they had agreed to submit their case to mediation. On October 16, 2009, Weberpal filed a motion to dismiss Scott's complaint.

¶ 6 On October 26, 2009, Scott signed a "RELEASE OF ALL CLAIMS" (release)*fn1 in which Scott released Weberpal and McMackin Construction from any and all claims and causes of action arising from the August 2006 accident in which Scott was injured. The release provided that, at the time of its execution, Scott received $450,000 from Weberpal as consideration for the release.*fn2

¶ 7 The release provided, in pertinent part: "This release in no way releases McMackin Construction from any worker's compensation claims and/or third party contribution claims." The release also provided: "This release contains the entire agreement between the parties hereto, and are [sic] not a mere recital."

¶ 8 On November 14, 2009, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2008)), McMackin Construction filed a motion to dismiss Weberpal's complaint for contribution. In its motion, McMackin Construction alleged the following. Its employee, Scott, filed a workers' compensation claim against McMackin Construction, alleging that Scott sustained injuries in the course of his employment. Pursuant to the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2008)), McMackin Construction had paid Scott $134,797.27, to date. Scott filed a complaint against Weberpal, alleging negligence, and Weberpal filed a third-party complaint against McMackin Construction, seeking contribution. McMackin Construction and Scott entered into an agreement whereby McMackin Construction waived its workers' compensation lien against Scott's recovery of an award from his lawsuit against Weberpal. See 820 ILCS 305/5(b) (West 2008). Further, McMackin Construction alleged that, by waiving its lien under section 5(b) of the Workers' Compensation Act, it was relieved of any liability for contribution to Weberpal and, therefore, Weberpal's contribution complaint should be dismissed.

¶ 9 Weberpal's response to McMackin Construction's motion to dismiss alleged that: (1) the agreement between Scott and McMackin Construction did not "comport with the requirements of" section 2 of the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/2 (West 2008)); (2) the agreement was not made in good faith; and (3) allowing the agreement to stand would frustrate the purposes of the Contribution Act because it would allow Scott a double recovery. Weberpal's prayer for relief sought denial of McMackin Construction's motion to dismiss and requested "that the payment pursuant to the [agreement] entered into between [Scott] and Weberpal Roofing be offset by the amount of the Worker's Compensation lien waiver."

¶ 10 After a hearing*fn3 and arguments by counsel, the trial court granted McMackin Construction's motion to dismiss Weberpal's contribution action. Weberpal filed a notice of appeal.

¶ 11 II. ANALYSIS

¶ 12 A. Jurisdiction

ΒΆ 13 Initially, we address McMackin Construction's argument that this court lacks jurisdiction because Weberpal's notice of appeal was filed prematurely. Weberpal asserts that this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. ...


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