{ "id": 3531274, "name": "WILLIAM J. CARTER, Adm'r of the Estate of Tiffany Leah Carter, Deceased, and Ex'r of the Estate of Beverly I. Carter, Deceased, Plaintiff and Counterdefendant-Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant and Counterplaintiff-Appellant", "name_abbreviation": "Carter v. Chicago & Illinois Midland Railway Co.", "decision_date": "1986-01-09", "docket_number": "No. 4\u201485\u20140297", "first_page": "25", "last_page": "29", "citations": [ { "type": "official", "cite": "140 Ill. App. 3d 25" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "400 N.E.2d 934", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 168", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3230125 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0168-01" ] }, { "cite": "458 N.E.2d 622", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "628" } ], "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 937", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592746 ], "pin_cites": [ { "page": "946" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0937-01" ] }, { "cite": "445 N.E.2d 1189", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 812", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5435027 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0812-01" ] }, { "cite": "106 Ill. 2d 17", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "474 N.E.2d 458", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 431", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3493003 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0431-01" ] }, { "cite": "473 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "942" } ], "opinion_index": 0 }, { "cite": "105 Ill. 2d 191", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142201 ], "weight": 2, "pin_cites": [ { "page": "196-97" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0191-01" ] } ], "analysis": { "cardinality": 452, "char_count": 8543, "ocr_confidence": 0.767, "pagerank": { "raw": 1.6967916390100195e-07, "percentile": 0.7001423635123128 }, "sha256": "d5a53df9a92c6280e1d18a832d6b02ff25ee6a6f173fd9ff34dad37bc6dde182", "simhash": "1:93cfbb0665559c6a", "word_count": 1419 }, "last_updated": "2023-07-14T21:56:30.289204+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM J. CARTER, Adm\u2019r of the Estate of Tiffany Leah Carter, Deceased, and Ex\u2019r of the Estate of Beverly I. Carter, Deceased, Plaintiff and Counterdefendant-Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant and Counterplaintiff-Appellant." ], "opinions": [ { "text": "JUSTICE WEBBER\ndelivered the opinion of the court:\nThe defendant-counterclaimant, Chicago & Illinois Midland Railway Company (railway), appeals from an order of the circuit court of Menard County which dismissed its counterclaim for contribution against William J. Carter, as administrator of the estate of Beverly I. Carter, deceased. We find that the recent opinion of the supreme court in Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939, is controlling and thus affirm.\nThe plaintiff, as executor of the estate of his wife, Beverly Carter, and as administrator of the estate of his daughter Tiffany Carter, brought wrongful death actions against the railway in the circuit court of Menard County. A jury awarded him $120,000 in damages on account of the death of Beverly, but reduced that award by 90% on comparative negligence principles. The jury also awarded him $5,000 on account of the death of Tiffany. That award was not reduced.\nPost-trial motions were filed. The trial court denied the railway\u2019s motion as to Beverly\u2019s estate, but granted a new trial on plaintiff\u2019s motion on damages only as to Tiffany\u2019s estate, holding that the $5,000 was inadequate. The court also made the requisite finding under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)), and the judgment as to Beverly\u2019s estate was appealed to this court. That judgment was affirmed. Carter v. Chicago & Illinois Midland Ry. Co. (1985), 130 Ill. App. 3d 431, 474 N.E.2d 458; appeal denied (1985), 106 Ill. 2d 17.\nMeanwhile, during the pendency of the appeal in Beverly\u2019s estate and prior to the retrial on damages only in Tiffany\u2019s estate, the railway filed a counterclaim seeking contribution from Beverly\u2019s estate for any damages awarded to Tiffany\u2019s estate on retrial. On motion of Tiffany\u2019s estate the counterclaim was severed and a subsequent motion of Beverly\u2019s estate to vacate the severance was denied. The retrial was held commencing November 13, 1984, and on that date Beverly\u2019s estate filed a motion to dismiss the counterclaim. That motion was taken under advisement by the trial court pending the outcome of the retrial.\nOn retrial a jury returned a verdict of $200,000 in favor of Tiffany\u2019s estate on which the trial court entered judgment. That judgment is the subject of a separate appeal now pending in this court.\nOn March 28, 1985, the trial court dismissed the counterclaim, relying upon the opinion in Laue which was handed down on November 30, 1984. The basis of the trial court\u2019s judgment was that the counterclaim was not filed in a \u201cpending action.\u201d This appeal followed.\nA chronology of events is significant to our affirmance. A brief synopsis of the salient dates follows:\nComplaint filed February 10, 1982\nTrial as to both estates January 9,1984\nNew trial on damages as to Tiffany\u2019s estate ordered March 27, 1984\nNotice of appeal as to Beverly\u2019s estate filed' April' 10, 1984\nRetrial as to Tiffany\u2019s estate scheduled for November 1984 March 27,1984\nCounterclaim filed September 26, 1984\nMotion to sever counterclaim allowed October 26, 1984\nMotion to vacate severance denied Retrial as to Tiffany\u2019s estate November 13,1984 November 13, 1984\nLaue opinion filed November 30, 1984\nCounterclaim dismissed March 28, 1985\nThe root question to be decided is whether or not the counterclaim was filed in a \u201cpending action\u201d as provided in section 5 of \u201cAn Act in relation to contribution among joint tortfeasors\u201d (Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, par. 305). That section provides:\n\u201cA cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.\u201d\nIn Laue the supreme court interpreted section 5. It held that where no action is initiated by the injured party, a claim for contribution may be asserted by a separate action before or after payment. However, if an action is pending, the contribution claim must be asserted by counterclaim or third-party complaint in the pending action.\nThe railway asserts that since its counterclaim was filed prior to the commencement of the new trial on damages only in Tiffany\u2019s estate, it was filed in a \u201cpending action\u201d within the meaning of the statute. We do not agree, and note parenthetically that the railway delayed six months before such filing.\nA new trial is a proceeding de novo (Travelers Insurance Co. v. Robert R. Anderson Co. (1983), 112 Ill. App. 3d 812, 445 N.E.2d 1189), but a new trial on damages only is limited to just that: damages only. In order to assert a claim for contribution against Beverly\u2019s estate, the railway would need to show that the estate is \u201cliable in tort\u201d for the wrongful death of Tiffany. (Ill. Rev. Stat. 1983, ch. 70, par. 302.) Questions of liability have no place in a new trial limited to damages only.\nIn Laue, the supreme court stated the rationale for the requirement of \u201cpending action\u201d as follows:\n\u201cIn addition to the fact that the statutory language of section 5 clearly requires the filing of an action for contribution in the original action, there are strong public policy reasons for such a requirement. One jury should decide both the liability to the plaintiff and the percentages of liability among the defendants, so as to avoid a multiplicity of lawsuits in an already crowded court system and the possibility of inconsistent verdicts. Requiring the parties to litigate the matter in one suit will also save court time and attorney fees.\u201d (Laue v. Leifheit (1984), 105 Ill. 2d 191, 196-97, 473 N.E.2d 939, 942.)\nThese strong public policy reasons enunciated in Laue support the position that a \u201cpending action\u201d is a pending action in which the issues of liability are to be determined. The railway should have filed its claim for contribution in the original action so that the liability of the railway, and the percentages of liability between Beverly\u2019s estate and the railway as to Tiffany\u2019s estate could have been determined at the original trial.\nAlthough we do not rest our decision on the point, it should be noted that the railway sought in its counterclaim the same percentage of contribution (90%) as the jury found to be the contributory negligence of Beverly. This was improper. In the appellate opinion in Laue (Laue v. Leifheit (1983), 120 Ill. App. 3d 937, 946, 458 N.E.2d 622, 628), the court noted that Leifheit\u2019s \u201cliability \u2018in tort\u2019 has never been established; only her lack of due care for her own safety.\u201d The appellate court noted that a finding of comparative negligence does not automatically convert the percentage of comparative negligence into the same percentage of contribution. The supreme court left this aspect of the appellate opinion intact.\nFinally, the railway argues that the trial court abused its discretion in severing the counterclaim. It bases the argument on the fact that all parties and the trial court assumed that the counterclaim would be tried at a later date and the Laue decision intervened to discredit the assumption. It holds this state of affairs to be inequitable.\nThe decision to sever must be viewed in the context of affairs as they stood at the time of the order. The new trial had been allowed and allotted six months before the filing of the counterclaim and the trial date was only six weeks away. The trial court\u2019s stated reason for the severance was to' avoid unreasonable delay of the new trial. Neither the trial court nor the parties could predict the decision in Laue, although the possibility of affirmance was always present. Such a possibility should not be the basis for trial delay. A severance is a matter of discretion and will not be overturned except for an abuse of that discretion. (Woodward v. Mettille (1980), 81 Ill. App. 3d 168, 400 N.E.2d 934.) We find no abuse here.\nIn any event, in view of the interpretation we have given a \u201cpending action,\u201d the counterclaim was not properly filed in the first place.\nThe order of the circuit court of Menard County is affirmed.\nAffirmed.\nGREEN and MORTHLAND, JJ., concur.", "type": "majority", "author": "JUSTICE WEBBER" } ], "attorneys": [ "Graham & Graham, of Springfield (Charles E. Holt, of counsel), for appellant.", "Heyl, Royster, Voelker & Allen, of Springfield (John A. Ess and Kevin L. Mechler, of counsel), for appellee." ], "corrections": "", "head_matter": "WILLIAM J. CARTER, Adm\u2019r of the Estate of Tiffany Leah Carter, Deceased, and Ex\u2019r of the Estate of Beverly I. Carter, Deceased, Plaintiff and Counterdefendant-Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant and Counterplaintiff-Appellant.\nFourth District\nNo. 4\u201485\u20140297\nOpinion filed January 9, 1986.\nGraham & Graham, of Springfield (Charles E. Holt, of counsel), for appellant.\nHeyl, Royster, Voelker & Allen, of Springfield (John A. Ess and Kevin L. Mechler, of counsel), for appellee." }, "file_name": "0025-01", "first_page_order": 47, "last_page_order": 51 }