{ "id": 5148332, "name": "JOHN PAVELICH, Plaintiff, v. ALL AMERICAN HOMES, INC., et al., Defendants (Highland Meadows Subdivision, Counterplaintiff-Appellant; John Pavelich Construction Company, Inc., Counterdefendant-Appellee)", "name_abbreviation": "Pavelich v. All American Homes, Inc.", "decision_date": "1992-12-31", "docket_number": "No. 2\u201492\u20140378", "first_page": "173", "last_page": "178", "citations": [ { "type": "official", "cite": "239 Ill. App. 3d 173" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "166 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5069893 ], "pin_cites": [ { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0745-01" ] }, { "cite": "131 Ill. 2d 308", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569838 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/131/0308-01" ] }, { "cite": "122 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549800 ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0448-01" ] }, { "cite": "101 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160770 ], "weight": 2, "pin_cites": [ { "page": "14" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0001-01" ] }, { "cite": "211 Ill. App. 3d 205", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2527729 ], "pin_cites": [ { "page": "209-10" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0205-01" ] }, { "cite": "216 Ill. App. 3d 843", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5289361 ], "weight": 2, "pin_cites": [ { "page": "860" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0843-01" ] }, { "cite": "146 Ill. 2d 155", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597125 ], "weight": 7, "pin_cites": [ { "page": "160" }, { "page": "160" }, { "page": "160" }, { "page": "156" }, { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0155-01" ] } ], "analysis": { "cardinality": 499, "char_count": 11371, "ocr_confidence": 0.752, "pagerank": { "raw": 1.1037733116566016e-07, "percentile": 0.5690150275170482 }, "sha256": "ea7ce1c50a43ab3e27c0b7831317e149fcfe01563a3007a9014a8b274d44ccee", "simhash": "1:3baf133cd1881477", "word_count": 1779 }, "last_updated": "2023-07-14T16:51:04.850958+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "GEIGER and DOYLE, JJ., concur." ], "parties": [ "JOHN PAVELICH, Plaintiff, v. ALL AMERICAN HOMES, INC., et al., Defendants (Highland Meadows Subdivision, Counterplaintiff-Appellant; John Pavelich Construction Company, Inc., Counterdefendant-Appellee)." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nThis appeal involves a contribution claim brought against John Pavelich Construction Company, Inc. (Employer), by Highland Meadows subdivision (Third-Party Plaintiff). The claim arises out of a suit John Pavelich (Employee), president of John Pavelich Construction Company, Inc., filed against the Third-Party Plaintiff, among others, as a result of injuries he sustained while working as a carpenter on a construction site in the Highland Meadows subdivision. The Employee did not sue his Employer (his own company) and did not seek worker\u2019s compensation benefits. The sole issue on appeal is whether the trial court erred in granting the Employer\u2019s section 2\u2014619 (Ill. Rev. Stat. 1991, ch. 110, par. 2\u2014619) motion to dismiss Third-Party Plaintiff\u2019s contribution claim. The trial court ruled that where no worker\u2019s compensation benefits have been paid, the Third-Party Plaintiff could not request contribution from the Employer in an amount reflecting the Employer\u2019s pro rata share of the liability because Kotecki limited such contribution to an amount not greater than the worker\u2019s compensation liability of the employer. (Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155; Ill. Rev. Stat. 1991, ch. 110, par. 2-619.) We reverse and remand.\nOn June 27, 1991, plaintiff filed an amended complaint alleging that he was injured while working as a carpenter for the Employer at a construction site located in the Highland Meadows subdivision in Zion. The complaint names All American Homes, Inc., Galaxy Homes, Inc., Precision Industrial Contractors and Highland Meadows subdivision (Third-Party Plaintiff) as defendants. On October 3, 1991, the Third-Party Plaintiff filed a third-party complaint against the Employer under the Joint Tortfeasor Contribution Act (Contribution Act) (111. Rev. Stat. 1991, ch. 70, par. 301 et seq.). The third-party complaint asked the trial court to grant contribution in favor of the Third-Party Plaintiff and against the Employer in an amount commensurate with the Employer\u2019s pro rata share of liability.\nOn January 13, 1992, the Employer filed a motion to dismiss the Third-Party Plaintiff\u2019s contribution action pursuant to section 2\u2014619. (Ill. Rev. Stat. 1991, ch. 110, par. 2\u2014619.) In its motion, the Employer argued that a third-party plaintiff cannot seek contribution from an employer in the absence of a claim or settlement of a plaintiff\u2019s grievance against that employer under the Workers\u2019 Compensation Act. (Ill. Rev. Stat. 1991, ch. 48, par. 138.5 et seq.) According to the Employer, a third-party complaint for contribution cannot be had in the absence of a determination of the employer\u2019s worker\u2019s compensation liability.\nIn the alternative, the Employer asked that the third-party complaint be altered to reflect a requested contribution \u201cin an amount not greater than the workers\u2019 compensation liability of the third-party defendant.\u201d The Employer argued that this request would better conform to the law identified in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155.\nThe trial court agreed and entered an order dismissing the Third-Party Plaintiff\u2019s contribution action in its entirety with prejudice. In support of its determination, the court found that, pursuant to Kotecki, the existence of an employer\u2019s lien is a condition necessary for the imposition of a contribution action against that employer. To summarize the trial court\u2019s reasoning, an employer\u2019s worker\u2019s compensation liability (and the resultant lien) could only be determined by the Industrial Commission pursuant to the Workers\u2019 Compensation Act. Absent such a determination, an employer cannot be held liable for amounts determined by a trial court in the context of a contribution action. Thus, a third-party complaint for contribution directed against an employer of the original plaintiff cannot be had where the employer\u2019s worker\u2019s compensation liability had not been determined through proper avenues. We disagree.\nA trial court should not dismiss a cause of action under section 2\u2014619 unless it clearly appears that no set of facts can be proved which would entitle a plaintiff to recover. (People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843.) On appeal, the standard is whether the complaint alleged facts sufficient to state a cause of action. (Knecht, 216 Ill. App. 3d at 860.) Since this motion comes to us on the pleadings, all well-pleaded facts and inferences are deemed admitted by the moving party. Copass v. Illinois Power Co. (1991), 211 Ill. App. 3d 205, 209-10.\nThe sole question on review is whether the Third-Party Plaintiff has alleged facts sufficient to state a cause of action for contribution against the Employer. We determine it has. The general rule is that, under the Contribution Act, an employer, though immune from a suit in tort by its employee, cannot bar a claim for contribution asserted by a defendant liable to the injured employee. (Kotecki, 146 Ill. 2d at 160; Doyle v. Rhodes (1984), 101 Ill. 2d 1, 14.) However, the third-party plaintiff\u2019s right to contribution is limited to an amount not greater than the worker\u2019s compensation liability of that employer. Kotecki, 146 Ill. 2d at 160.\nThe instant case is one of first impression because allegedly no worker\u2019s compensation claim has been made by plaintiff. Thus, we can fairly state that the limitation on the nature and extent of recovery on the Third-Party Plaintiff\u2019s contribution claim is uncertain. The Employer mistakenly equates this uncertainty with a finding that its worker\u2019s compensation liability is \u201czero.\u201d Reasoning from this mistaken premise, the Employer and the trial court erroneously conclude that a contribution cause of action cannot survive.\nWe determine that an uncertain worker\u2019s compensation liability is not grounds to dismiss a third-party contribution cause of action. First, as stated above, a third party has a right to make a contribution claim against a joint tort-feasor. This right is codified in our State statutes (Ill. Rev. Stat. 1991, ch. 70, par. 302(a)), and it applies against employers regardless of the Workers\u2019 Compensation Act (Kotecki, 146 Ill. 2d at 160; Doyle, 101 Ill. 2d at 14). In our view, an employee\u2019s failure to file a worker\u2019s compensation claim should not act as a bar to a defendant\u2019s .right to contribution and should not undermine the policy of the Contribution Act which seeks to allocate liability among culpable parties. (Hall v. Archer-Daniels-Midland Co. (1988), 122 Ill. 2d 448.) Indeed, to allow the result the Employer seeks would condone the conduct of employers and employees who may conspire to place the entire burden of liability upon a defendant who may only be partially culpable.\nSecond, the employer has failed to sustain its burden of proof regarding its affirmative defense as to limited liability. In Kotecki, the precise question was \u201cwhether an employer, sued as a third-party defendant in a product liability case, is liable for contribution in an amount greater than its statutory liability under the Workers\u2019 Compensation Act.\u201d (Emphasis added.) Kotecki, 146 Ill. 2d at 156.\nAs we have indicated, this question assumes that worker\u2019s compensation liability is in effect. Thus, once an employer\u2019 worker\u2019s compensation liability is set, the limits of a contribution claim will also be set.\nHowever, if the Workers\u2019 Compensation Act is not engaged, the limits of recovery for a contribution claimant should not be limited. Courts have reasoned that an employer will be liable in tort to a plaintiff until the defense of exclusive remedy under the Workers\u2019 Compensation Act is raised, and, thus, that same employer is potentially liable for a contribution claim. (Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308; Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 750.) Here, the pleadings indicate that the Workers\u2019 Compensation Act has not been engaged by either the employee or his employer.\nThe burden is on the employer to establish its limits of contribution liability. Because in this case no worker\u2019s compensation claim has been filed, we fail to see how the employer can sustain its burden of proof regarding the limits of its liability. Moreover, the filing of a claim without proof of liability is equally useless in helping to determine liability limits. Kotecki states that the issue is \u201cwhether the employer will be forced to pay too much, thereby losing the protection that the Workers\u2019 Compensation Act is supposed to provide.\u201d (Kotecki, 146 Ill. 2d at 163.) This concern that the employer will pay \u201ctoo much\u201d implies that a worker\u2019s compensation claim has been filed and some liability thereunder has accrued or will accrue. Thus, the Workers\u2019 Compensation Act is only supposed to provide protections against paying \u201ctoo much\u201d where the Act is applicable and has been engaged. To invoke the protections available under the Workers\u2019 Compensation Act where its coverage has not been established and is, at best, speculative would be unfair to the party seeking contribution. A contribution claim should not be dismissed by the mere assertion that liability is limited to worker\u2019s compensation limits. In our view, the protections identified by Kotecki should only be available to employers who establish that a worker\u2019s compensation claim has been filed and that some liability thereunder has accrued or will accrue.\nTherefore we reverse the judgment of the circuit court of Lake County and hold that the Third-Party Plaintiff alleged sufficient facts to state a cause of action against the Employer. The Employer\u2019s motion assumes that the Third-Party Plaintiff\u2019s contribution recovery will exceed the relevant worker\u2019s compensation liability. However, the Third-Party Plaintiff should not be denied its right to contribution where the employer has not shown the extent of its liability under the Workers\u2019 Compensation Act. Until such proof is presented by the Employer, the Third-Party Plaintiff may seek contribution for pro rata liability as it would in any other tort suit. An undefined liability is not to be equated with the absence of liability, especially when the issue is raised as an affirmative defense.\nTo hold otherwise could force defendant, the Third-Party Plaintiff, to pay more than its pro rata share of the common liability. It would also allow the employer complete immunity from contribution without any showing of actual liability under the Workers\u2019 Compensation Act, a situation contrary to the facts of Koteoki, where the immunity granted implicitly rested upon the existence of worker\u2019s compensation liability.\nFor the above reasons, the judgment of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nGEIGER and DOYLE, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Joseph G. Skryd, of Wylie, Mulherin, Rehfeldt & Varchetto, EC., of Wheaton (Stephen A. Rehfeldt, of counsel), for appellant.", "Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegen (Michael K. Noonan, of counsel), for appellee." ], "corrections": "", "head_matter": "JOHN PAVELICH, Plaintiff, v. ALL AMERICAN HOMES, INC., et al., Defendants (Highland Meadows Subdivision, Counterplaintiff-Appellant; John Pavelich Construction Company, Inc., Counterdefendant-Appellee).\nSecond District\nNo. 2\u201492\u20140378\nOpinion filed December 31, 1992.\nJoseph G. Skryd, of Wylie, Mulherin, Rehfeldt & Varchetto, EC., of Wheaton (Stephen A. Rehfeldt, of counsel), for appellant.\nSullivan, Smith, Hauser & Noonan, Ltd., of Waukegen (Michael K. Noonan, of counsel), for appellee." }, "file_name": "0173-01", "first_page_order": 193, "last_page_order": 198 }