{ "id": 3217494, "name": "CLINTON HARSHMAN et al., Plaintiffs-Appellees, v. GEORGE E. DePHILLIPS, Defendant-Appellant", "name_abbreviation": "Harshman v. DePhillips", "decision_date": "2004-12-10", "docket_number": "No. 1-03-3169", "first_page": "429", "last_page": "433", "citations": [ { "type": "official", "cite": "354 Ill. App. 3d 429" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 Ill. App. 3d 101", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349639 ], "year": 1999, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0101-01" ] }, { "cite": "342 Ill. App. 3d 827", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473938 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "831" }, { "page": "832" }, { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0827-01" ] }, { "cite": "159 Ill. App. 3d 725", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3610963 ], "year": 1987, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0725-01" ] }, { "cite": "337 Ill. App. 3d 643", "category": "reporters:state", "reporter": "Ill. 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GEORGE E. DePHILLIPS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McNULTY\ndelivered the opinion of the court:\nThis is a permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308). Defendant George DePhillips appeals from the denial of his motion to dismiss a claim for contribution filed against him by plaintiffs Clinton Harshman, Blachowske Truck Lines, Inc., and Dahl Trucking, Inc. (collectively, Harshman). The circuit court certified for appeal the question: \u201c[M]ay a contribution claim be brought in accordance with Illinois law in a separate proceeding if the party first attempted to bring the claim in the original proceedings in a separate jurisdiction and was denied leave by that court to file said contribution claim?\u201d We believe that, on the record presented here, the certified question must be answered in the negative.\nBackground\nIn October 1999 LaVerne Peterson and Mary Peterson (the Peter-sons) filed suit in Lake County, Indiana, superior court, seeking damages from Harshman for injuries allegedly arising from a March 23, 1999, collision in Gary, Indiana, between their car and his truck. As a result of her injuries, LaVerne Peterson received medical treatment from DePhillips, including a four-level spine disectomy and fusion.\nThe Petersons asserted no claims against DePhillips in the original suit. The action was removed to the United States District Court for the Northern District of Indiana.\nAccording to pleadings filed by Harshman, his claim for contribution arose from the January 15, 2001, deposition of Dr. Gary Skaletsky, in which Skaletsky testified that DePhillips\u2019 treatment was unnecessary and actually worsened the injuries LaVerne sustained in the collision. On January 29, 2001, Harshman moved to extend discovery, to continue the trial date and for leave to file a third-party complaint for contribution against DePhillips. Discovery was scheduled to close on January 31, 2001, and trial was scheduled for March 26, 2001.\nThe United States District Court magistrate presiding over the matter ruled that reopening discovery, postponing the scheduled trial date, and introducing the new issues of DePhillips\u2019 alleged negligence would be unduly prejudicial to the Petersons and accordingly denied Harshman\u2019s motion. The magistrate advised Harshman that under Illinois law, \u201ca contribution claim may be brought in a separate action even if not filed while the underlying action is still pending.\u201d\nHarshman did not appeal the denial of his motion. Instead, he filed the contribution claim as a separate action in the circuit court of Cook County. Judgment in the Indiana action was entered against Harshman for $1,471,350. In Illinois, DePhillips moved for the circuit court to dismiss the action based on section 5 of the Joint Tortfeasor Contribution Act (740 ILCS 100/5 (West 1998)). The circuit court denied the motion to dismiss, but certified the aforementioned question for appeal.\nAnalysis\nSection 5 of the Joint Tortfeasor Contribution Act (Contribution Act) provides that \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 740 ILCS 100/5 (West 1998). The supreme court has definitively interpreted the language of the Act to disallow the pursuit of contribution claims in separate actions where another action regarding the matter has been previously filed. \u201c[A] party seeking contribution must assert a claim by counterclaim or by third-party claim in [the pending] action.\u201d Laue v. Leifheit, 105 Ill. 2d 191, 196 (1984). \u201cOne 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.\u201d Laue, 105 Ill. 2d at 196-97. The supreme court has consistently reiterated this construction of section 5 of the Contribution Act. \u201cThe Laue court\u2019s construction of section 5 of the Contribution Act leads us to conclude that anytime a joint tortfeasor fails to bring his contribution claim in the original action, any claim to contribution is thereafter a nullity.\u201d Henry v. St. John\u2019s Hospital, 138 Ill. 2d 533, 546 (1990); see also Hayes v. Mercy Hospital 6 Medical Center, 136 Ill. 2d 450, 460 (1990).\nHarshman argues that Laue should not be interpreted as a complete bar to the pursuit of contribution claims not filed during the pendency of a prior-filed action and cites Cook v. General Electric Co., 146 Ill. 2d 548 (1992), and Anderson v. Alberto-Culver USA, Inc., 337 Ill. App. 3d 643 (2003), as support for this argument. We find his reliance on these precedents to be misplaced. In each case, the contribution plaintiff proceeded in accordance with the directive of Laue by filing its contribution claim in the original action. In Cook, the supreme court held that this mandate did not preclude the possibility of separate trials in the event that severance was dictated by forum non conveniens analysis. Cook, 146 Ill. 2d at 556. In Anderson, this court held that Laue did not prohibit a trial judge from directing separate, nonconcurrent jury deliberations on original wrongful death claims and related contribution claims in a complex action. Anderson, 337 Ill. App. 3d at 664. Cook and Anderson thus confirm that a trial judge retains discretion to sever the trial of a contribution claim from that of the original action; but neither case suggests a departure from the requirement that the contribution claim must initially be filed during the pendency of the original cause.\nHarshman next argues that he met the requirements of the Contribution Act as interpreted by Laue by moving for leave of court to file a third-party complaint against DePhillips. In our view, this argument is unsupported by the plain language of Laue, which unequivocally directs that the contribution plaintiff not merely \u201cassert\u201d his claim, but that he assert it in the original action \u201cby counterclaim or by third-party claim in that action.\u201d Laue, 105 Ill. 2d at 196. We are unaware of any Illinois precedent that has held this directive to be satisfied by the mere request for leave to file a complaint, and none has been cited by Harshman. We therefore adhere to the explicit language of Laue and hold that Harshman was required to actually file his contribution complaint as a third-party claim in the original action filed by the Petersons.\nHarshman also contends that an exception to the requirement of filing his contribution claim in the original action should be made because the magistrate\u2019s denial of his motion for leave to file prevented his compliance with the rule. On similar facts, Illinois reviewing courts have reached the opposite conclusion; finding that a trial court\u2019s denial of leave to file a third-party claim or counterclaim, rather than providing a basis for allowing such claims to be filed separately, instead operates to conclusively preclude further pursuit of such claims.\nIn Henry v. St. John\u2019s Hospital, 159 Ill. App. 3d 725, 734 (1987), a tort defendant was not allowed to file a contribution claim against a joint tortfeasor due to the prejudice to the other parties that would have resulted from allowance of the belated claim; the denial of leave to file was affirmed by the appellate court. The contribution claimant then attempted to assert the Contribution Act\u2019s protection of joint tortfeasors against payments in excess of their prorated share of liability by tendering only its prorated share of the unpaid damages to the plaintiff. Our supreme court held that any right to contribution had been foreclosed by the initial denial of leave to file the claim: \u201cThis serves only to support our holding that by failing to preserve their contribution rights in the original action, defendants have effectively waived those rights.\u201d Henry v. St. John\u2019s Hospital, 138 Ill. 2d 533, 547 (1990).\nIn Mann v. Rowland, 342 Ill. App. 3d 827 (2003), a defendant in a federal court action for attorney fees sought to assert a counterclaim for malpractice, but was denied leave to file the claims because discovery in the original action had closed. Mann, 342 Ill. App. 3d at 831. The defendant then attempted to raise the same malpractice claims against the attorneys in a subsequent state court proceeding. Mann, 342 Ill. App. 3d at 832. This court held that the claims were barred by the res judicata doctrine, noting that the defendant \u201cdid raise these same causes of action in the federal fees case but not until after the discovery deadline in the case had closed,\u201d and concluding that \u201c[i]ts failure to abide by the time requirements of the district court does not entitle it to a second \u2018bite at the apple\u2019 in this court.\u201d Mann, 342 Ill. App. 3d at 838, citing Peregrine Financial Group, Inc. v. Ambuehl, 309 Ill. App. 3d 101, 109 (1999).\nIn our view, these precedents indicate that the magistrate\u2019s denial of leave to file Harshman\u2019s contribution counterclaim weighs in favor of dismissal of his claims here and do not offer a basis for an exception to the requirements defined in Laue. We conclude that Illinois law does not allow Harshman\u2019s contribution claim against DePhillips.\nCertified question answered in the negative and cause remanded.\nFITZGERALD SMITH, PJ., and O\u2019MARA FROSSARD, J, concur.", "type": "majority", "author": "JUSTICE McNULTY" } ], "attorneys": [ "Pretzel & Stouffer, Chtrd., of Chicago (Robert Marc Chemers and Scott L. Howie, of counsel), for appellant.", "Phillips Law Offices, of Chicago (Thomas L. O\u2019Carroll, of counsel), for appellees." ], "corrections": "", "head_matter": "CLINTON HARSHMAN et al., Plaintiffs-Appellees, v. GEORGE E. DePHILLIPS, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201403\u20143169\nOpinion filed December 10, 2004.\nPretzel & Stouffer, Chtrd., of Chicago (Robert Marc Chemers and Scott L. Howie, of counsel), for appellant.\nPhillips Law Offices, of Chicago (Thomas L. O\u2019Carroll, of counsel), for appellees." }, "file_name": "0429-01", "first_page_order": 447, "last_page_order": 451 }