 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Harshman v. DePhillips12/10/2004
UNPUBLISHED
This 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: " 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?" We believe that, on the record presented here, the certified question must be answered in the negative.
Background
In October 1999 LaVerne Peterson and Mary Peterson (the Petersons) 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.
The 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.
According 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' 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.
The 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' alleged negligence would be unduly prejudicial to the Petersons and accordingly denied Harshman's motion. The magistrate advised Harshman that under Illinois law, "a contribution claim may be brought in a separate action even if not filed while the underlying action is still pending."
Harshman 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.
Analysis
Section 5 of the Joint Tortfeasor Contribution Act (Contribution Act) provides that "a 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." 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. " party seeking contribution must assert a claim by counterclaim or by third-party claim in the [pending action]." Laue v. Leifheit, 105 Ill. 2d 191, 196 (1984). "One jury should decide both the liability to the plaintiff and the percentages of liability among the defen
Page 1 2 3 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|