{ "id": 4820635, "name": "AMERICAN NATIONAL BANK AND TRUST COMPANY, Guardian of the Estate of Kennicki Freeman, et al. v. COLUMBUS-CUNEO-CABRINI MEDICAL CENTER et al. (Columbus-Cuneo-Cabrini Medical Center, Appellant; Dr. Mohammed Hafeez et al., Appellees)", "name_abbreviation": "American National Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center", "decision_date": "1992-12-04", "docket_number": "No. 72521", "first_page": "347", "last_page": "356", "citations": [ { "type": "official", "cite": "154 Ill. 2d 347" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "140 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3532120 ], "weight": 5, "year": 1984, "pin_cites": [ { "page": "198" }, { "page": "198" }, { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0191-01" ] }, { "cite": "127 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562821 ], "pin_cites": [ { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0767-01" ] }, { "cite": "131 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3435491 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0666-01" ] }, { "cite": "148 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3643474 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/1039-01" ] }, { "cite": "143 Ill. App. 3d 749", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5667239 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0749-01" ] }, { "cite": "147 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3605220 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0534-01" ] }, { "cite": "145 Ill. App. 3d 1092", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3536924 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/1092-01" ] }, { "cite": "187 Ill. App. 3d 872", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2666970 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0872-01" ] }, { "cite": "117 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545472 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/117/0162-01" ] }, { "cite": "139 Ill. App. 3d 289", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3567388 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0289-01" ] }, { "cite": "224 Ill. App. 3d 1083", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5252611 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/1083-01" ] }, { "cite": "123 Ill. 2d 275", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550759 ], "weight": 3, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0275-01" ] }, { "cite": "23 Loy. U. Chi. L.J. 407", "category": "journals:journal", "reporter": "Loy. U. Chi. L.J.", "year": 1992, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "151 Ill. 2d 108", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291744 ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0108-01" ] }, { "cite": "70 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5805433 ], "opinion_index": 0, "case_paths": [ "/ill-2d/70/0001-01" ] }, { "cite": "216 Ill. App. 3d 494", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5290183 ], "weight": 8, "pin_cites": [ { "page": "500, 501" }, { "page": "500" }, { "page": "501" }, { "page": "501-02" }, { "page": "502" }, { "page": "500" }, { "page": "503-04" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0494-01" ] }, { "cite": "123 Ill. 2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551099 ], "weight": 6, "pin_cites": [ { "page": "255" }, { "page": "255" }, { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0245-01" ] }, { "cite": "113 Ill. 2d 26", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173026 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "27" }, { "page": "28" }, { "page": "30" }, { "page": "31-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0026-01" ] } ], "analysis": { "cardinality": 736, "char_count": 15586, "ocr_confidence": 0.797, "pagerank": { "raw": 4.732620935631887e-07, "percentile": 0.9295354671256896 }, "sha256": "c67087c90bb8b06ad20d8ab72b1b7f77093dd0f17b1d0bf60a07a8ed80baee16", "simhash": "1:70b2558330004680", "word_count": 2431 }, "last_updated": "2023-07-14T21:56:08.023695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "AMERICAN NATIONAL BANK AND TRUST COMPANY, Guardian of the Estate of Kennicki Freeman, et al. v. COLUMBUS-CUNEO-CABRINI MEDICAL CENTER et al. (Columbus-Cuneo-Cabrini Medical Center, Appellant; Dr. Mohammed Hafeez et al., Appellees)." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nWe answer today a question which remained unresolved after Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 27, and Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 261: whether \u201cAn Act in relation to contribution among joint tortfeasors\u201d (Contribution Act) (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.) effectively abolished actions for common law implied indemnity for situations involving vicarious liability. We conclude it did not.\nBACKGROUND\nThe question arises here pursuant to a medical malpractice action brought on the behalf of Kennicki Freeman, a young boy who suffered profound and irreversible brain damage due to oxygen deprivation during surgery at Columbus-Cuneo-Cabrini Medical Center (Medical Center). The initial complaint, filed by Sherron Freeman, Kennicki\u2019s mother, as guardian, alleged a single count against the Medical Center. In subsequent amendments, Dr. James Bransfield, the surgeon, Dr. Mohammed Hafeez, the anesthesiologist, Julia Lester, the nurse anesthetist, and Anesthesia Associates of Lake Shore, Ltd., the provider of anesthesia services at the Medical Center, were added as defendants. Sherron Freeman joined as co-plaintiff.\nThe Medical Center filed a counterclaim in two counts against Hafeez, Lester, and Anesthesia Associates of Lake Shore, Ltd. (collectively, the Anesthesia defendants). Count I alleged that, if the Medical Center were found vicariously liable for the acts of the Anesthesia defendants as its agents, the Medical Center would be entitled to indemnification. Alternatively, count II sought contribution in the full amount of any judgment against the Medical Center.\nPursuant to a settlement reached between plaintiffs and the Anesthesia defendants, the Anesthesia defendants were dismissed from the primary suit. The circuit court determined the settlement to be in good faith (see Ill. Rev. Stat. 1985, ch. 70, par. 302(c)). The circuit court thereafter dismissed the Medical Center\u2019s counterclaim, concluding that the Contribution Act abolished common law implied indemnity.\nThe Medical Center filed an interlocutory appeal (134 Ill. 2d R. 304), and the appellate court affirmed (216 Ill. App. 3d 494). This appeal followed (134 Ill. 2d R. 315).\nThe Action Against the Medical Center\nAlthough it is the dismissal of the Medical Center\u2019s counterclaim that gives rise to the issue presented, it is important to clarify the pending allegations against the Medical Center. The Medical Center\u2019s liability affects our ultimate disposition.\nSubsequent to Sherron Freeman\u2019s complaint, a second-amended complaint was filed by the American National Bank and Trust Company as guardian of Kennicki Freeman\u2019s estate. Sherron Freeman remained a co-plaintiff. Like the initial complaint, the second-amended complaint alleged negligence against each defendant for conduct related to the surgery. Against the Medical Center, however, two new and different allegations were added. It was alleged that the Medical Center was negligent in permitting unqualified anesthesiologists to provide anesthesia and otherwise failed to provide quality anesthesia care.\nThe issue of whether the Contribution Act abolished common law implied indemnity arises here only because of the Medical Center\u2019s potential vicarious liability. Disposition of that issue would not resolve any issue regarding whether the Medical Center might be entitled to contribution as a result of direct liability.\nHowever, subsequent to the Medical Center\u2019s appeal to the appellate court, a third-amended complaint was filed. The appellate court allowed the record to be supplemented with that complaint. The third-amended complaint alleges only derivative liability against the Medical Center for the conduct of Hafeez, Lester, \u201cand others\u201d respecting presurgery and surgery procedures. In light of those pending allegations, it would appear that the only remaining issue with regard to the Medical Center\u2019s liability concerns the viability of common law implied indemnity after the Contribution Act.\nDISCUSSION\nWe need not here review the doctrine of common law implied indemnity. In the wake of Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, and its codification in the Contribution Act, this court has taken the opportunity to do so on several occasions, tracing the \u201cmetamorphosis\u201d (Allison, 113 Ill. 2d at 28) of the doctrine from its restitutionary roots. We refer specifically to Dixon v. Chicago & North Western Transportation Co. (1992), 151 Ill. 2d 108, Allison, 113 Ill. 2d 26, and Frazer, 123 Ill. 2d 245, and direct attention to those cases in lieu of repetition here. For purposes of this opinion, we believe it necessary only to keep in mind that implied indemnity, as a means to ameliorate the harshness of the rule which prohibited contribution, evolved from two different theories, one based on tort principles and one based on quasi-contract principles. See Kandaras & Kelley, New Developments in the Eli nois Law of Contribution Among Joint Tortfeasors, 23 Loy. U. Chi. L.J. 407, 441 (1992).\nThe theory based on tort principles gave rise to \u201cequitable\u201d implied indemnity. (Allison, 113 Ill. 2d at 30.) The rationale for the doctrine of equitable implied indemnity rested on the injustice in allowing a more culpable or \u201cactive\u201d tortfeasor to escape liability at the unilateral choice of the plaintiff. (See 23 Loy. U. Chi. L.J. at 441. ) However, in Allison, this court rejected the \u201cactive/passive\u201d negligence doctrine born of that theory, reasoning that implied indemnity based on relative fault no longer served a valid purpose after the Contribution Act. (Allison, 113 Ill. 2d at 31-32; 23 Loy. U. Chi. L.J. at 442. ) Later, in Frazer and Thatcher v. Commonwealth Edison Co. (1988), 123 Ill. 2d 275, this court found no reason to preclude comparison of the negligence of one tortfeasor with the strict liability of another, expanding upon the nature of culpable conduct to which the Act reached. In short, in view of the scope of the Contribution Act, reason to support implied indemnity based on tort principles of relative blameworthiness has ceased to exist.\nHowever, the theory supporting implied indemnity in a quasi-contractual context is supported by a fundamentally different premise. (Frazer, 123 Ill. 2d at 255.) That premise recognizes that the law may impose upon a blameless party liability derivatively through another\u2019s conduct. (Frazer, 123 Ill. 2d at 255.) Thus, as this court has acknowledged, reason may exist to continue to recognize the viability of implied indemnity where a principal is vicariously liable for the conduct of an agent or for the nondelegable acts of an independent contractor. 23 Loy. U. Chi. L.J. at 443; see Frazer, 123 Ill. 2d at 261.\nThe appellate court here concluded that continued recognition of implied indemnity based on a pretort principal-agent relationship subverted the Contribution Act\u2019s goals of eliminating inequity between joint tortfeasors and of encouraging settlement. (216 Ill. App. 3d at 500, 501.) The court was persuaded by the difficulty in defining pretort relationships (216 Ill. App. 3d at 500) and because parties in a traditional principal-agent relationship remain free to provide for indemnity by contract (216 Ill. App. 3d at 501).\nThe court viewed the terms of the Contribution Act to be compatible with the aim of indemnification. (216 Ill. App. 3d at 501-02.) Specifically, under the Act, a tortfeasor is entitled to contribution beyond that tortfeasor's pro rata share of common liability based on relative fault. (See Ill. Rev. Stat. 1985, ch. 70, pars. 302, 303.) Thus, in cases of vicarious liability based on a principal-agent relationship, the Act could accommodate a finding of 0% liability against the blameless principal and 100% liability against the agent at fault in fact. (216 Ill. App. 3d at 502.) The court therefore concluded that the Contribution Act \u201csupersede]\u201d common law implied indemnity for vicarious liability based on such relationships. 216 Ill. App. 3d at 500.\nThe Anesthesia defendants urge us to affirm that conclusion, directing us to the \u201ctide of authority\u201d represented by appellate decisions in agreement both directly and in dicta. See Mid-America Bank & Trust Co. v. Commercial Union Insurance Co. (1992), 224 Ill. App. 3d 1083; Heinrich v. Peabody International Corp. (1985) , 139 Ill. App. 3d 289, aff\u2019d in part & rev\u2019d in part (1987), 117 Ill. 2d 162; Cleggett v. Zapianin (1989), 187 Ill. App. 3d 872; Frazer v. A.F. Munsterman, Inc. (1986) , 145 Ill. App. 3d 1092, aff\u2019d (1988), 123 Ill. 2d 245; Thatcher v. Commonwealth Edison Co. (1986), 147 Ill. App. 3d 534, aff\u2019d (1988), 123 Ill. 2d 275; 535 North Michigan Condominium Association v. BJF Development, Inc. (1986), 143 Ill. App. 3d 749; Hanlon v. Airco Industrial Gases (1986), 148 Ill. App. 3d 1039; Holmes v. Sahara Coal Co. (1985), 131 Ill. App. 3d 666; Morizzo v. Laverdure (1984), 127 Ill. App. 3d 767, 775 (Downing, J., specially concurring).\nThis court has before indicated its disagreement with the conclusion that the Contribution Act abolished all forms of common law implied indemnity. (See Thatcher, 123 Ill. 2d at 279.) The right to contribution is set out in sections 2 and 3 of the Contribution Act. Section 2(b) provides that contribution is available only to a tortfeasor who has paid more than his \u201cpro rata share of the common liability.\u201d (Ill. Rev. Stat. 1985, ch. 70, par. 302(b).) Section 3 equates a tortfeasor\u2019s \u201cpro rata share\u201d with \u201crelative culpability.\u201d (Ill. Rev. Stat. 1985, ch. 70, par. 303.) There is nothing in either of those sections to suggest the abolishment of implied indemnity in the quasi-contractual context. (23 Loy. U. Chi. L.J. at 447.) That is so, commentators have observed, because:\n\u201cIn the quasi-contractual relationship, *** one cannot speak of the indemnitee\u2019s pro rata share as somehow distinct from the indemnitor\u2019s. The pro rata share for a party who is vicariously liable is that amount charged to its indemnitor. Thus, when the indemnitee is forced to pay for the plaintiff\u2019s injuries, the indemnitee\u2019s entire payment exceeds its pro rata share of fault for the injuries.\u201d 23 Loy. U. Chi. L.J. at 448.\nAdmittedly, in a true action for indemnification arising from vicarious liability, application of the theory of contribution should achieve a result identical to that of implied indemnity \u2014 apportionment to the indemnitor of 100% of the fault for the plaintiff\u2019s injuries. (23 Loy. U. Chi. L.J. at 448.) However, merely because the Contribution Act may, in that sense, accommodate a theory of implied indemnity is no reason to conclude that the Act abolished the doctrine in the quasi-contractual context.\nThe statutory contribution scheme is premised on fault-based considerations. As such, it is theoretically \u201cill-suited to the task of addressing\u201d quasi-contractual relationships. (23 Loy. U. Chi. L.J. at 448.) In cases of vicarious liability, there is only a basis for indemnity, not for apportionment of damages as between the principal and agent (Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 198, citing W. Keeton, Prosser & Keeton on Torts \u00a752, at 346 (5th ed. 1984)). Only the agent is at fault in fact for the plaintiffs injuries. (See Bristow, 140 Ill. App. 3d at 198.) The viability of implied indemnity in the quasi-contractual situation insures that a blameless principal cannot be found legally accountable. We therefore hold that common law implied indemnity was not abolished by the Contribution Act in quasi-contractual relationships involving vicarious liability.\nWe do not believe that that conclusion undermines the Contribution Act\u2019s goal of encouraging settlement. The concern arises in view that a good-faith settlement under the Act does not discharge \u201cother tortfeasors\u201d from liability unless its terms so provide. (Ill. Rev. Stat. 1985, ch. 70, par. 302.) The point is that, if implied indemnity against an agent is not barred by a plaintiffs settlement with the agent, there is little to encourage the agent\u2019s desire to settle. (23 Loy. U. Chi. L.J. at 446.) Yet, if implied indemnity is precluded by such a settlement in which the plaintiff retains all legal claims against the principal, the settlement defeats the purpose of retaining implied indemnity. 23 Loy. U. Chi. L.J. at 446-47.\nReconciliation of those concerns begins, again, with recognition that the Contribution Act is addressed only to the relative culpability of tortfeasors at fault in fact. In a case of vicarious liability in the quasi-contractual context, the principal simply cannot be one of the \u201cother tortfeasors\u201d to which section 3 of the Contribution Act refers. (Bristow, 140 Ill. App. 3d at 198.) The principal is blameless.\nCommentators have suggested that the approach of the appellate court in Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, provides a means to rationally reconcile concerns regarding the effect of settlements in the quasi-contractual context given viability of implied indemnity. (23 Loy. U. Chi. L.J. at 447.) That approach simply recognizes that any settlement between the agent and the plaintiff must also extinguish the principal\u2019s vicarious liability. (Bristow, 140 Ill. App. 3d 191; 23 Loy. U. Chi. L.J. at 447.) We adopt that approach. We direct that, in such cases, an order should be entered to reflect the extinguishment of the principal\u2019s vicarious liability. To the extent that the principal\u2019s potential liability is solely derivative, the order should dismiss the principal from the action.\nParenthetically, we also agree with those commentators that settlements between the principal and the plaintiff merit different consideration. (23 Loy. U. Chi. L.J. at 447 n.272.) Such a settlement has the effect of creating, in the blameless principal, an interest indistinguishable from the contribution interests of the \u201cother tortfeasors\u201d at fault in fact. (23 Loy. U. Chi. L.J. at 447 n.272.) The Contribution Act should therefore apply. The release of the agent from liability to the plaintiff, as well as preservation of the principal\u2019s implied indemnity claim, depends, then, on the agent\u2019s being named in the settlement. 23 Loy. U. Chi. L.J. at 447 n.272.\nWe therefore conclude the Medical Center\u2019s counterclaim should not have been dismissed on the basis that the Contribution Act abolished common law implied indemnity in quasi-contractual situations. Accordingly, we reverse the appellate and circuit courts\u2019 determination of that issue. We direct that, on remand, the circuit court enter an appropriate order. Our disposition makes it unnecessary to address issues respecting the circuit court\u2019s determination that the settlement was in good faith (see 216 Ill. App. 3d at 503-04).\nThe judgments of the circuit and appellate courts are reversed and the cause is remanded with directions.\nReversed and remanded, with directions.", "type": "majority", "author": "JUSTICE FREEMAN" } ], "attorneys": [ "Charles E. Reiter III, Douglas C. Rose, Stephen L. Ruff, Jr., John J. Reidy and Todd M. Porter, of Ruff, Weidenaar & Reidy, Ltd., of Chicago, for appellant.", "Hinshaw & Culbertson, of Chicago (Joshua G. Vincent and Bruce L. Carmen, of counsel), for appellees." ], "corrections": "", "head_matter": "(No. 72521.\nAMERICAN NATIONAL BANK AND TRUST COMPANY, Guardian of the Estate of Kennicki Freeman, et al. v. COLUMBUS-CUNEO-CABRINI MEDICAL CENTER et al. (Columbus-Cuneo-Cabrini Medical Center, Appellant; Dr. Mohammed Hafeez et al., Appellees).\nOpinion filed December 4, 1992.\nModified on denial of rehearing February 1, 1993.\nRehearing denied March 29, 1993.\nCharles E. Reiter III, Douglas C. Rose, Stephen L. Ruff, Jr., John J. Reidy and Todd M. Porter, of Ruff, Weidenaar & Reidy, Ltd., of Chicago, for appellant.\nHinshaw & Culbertson, of Chicago (Joshua G. Vincent and Bruce L. Carmen, of counsel), for appellees." }, "file_name": "0347-01", "first_page_order": 357, "last_page_order": 366 }