 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Harshman v. DePhillips12/10/2004
n 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: "This serves only to support our holding that by failing to preserve their contribution rights in the original action, defendants have effectively waived those rights." Henry v. St. John's Hospital, 138 Ill. 2d 533, 547 (1990).
In Mann v. Rowland, 342 Ill. App. 3d 827 (2003), a defendant in a federal court action for attorneys fees sought to assert a counterclaim for malpractice, but was denied leave to file the claims because discovery in the original action had closed. 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 "did raise these same causes of action in the federal fees case but not until after the discovery deadline in the case had closed," and concluding that " ts failure to abide by the time requirements of the district court does not entitle it to a second 'bite at the apple' in this court." Mann, 342 Ill. App. 3d at 838, quoting Peregrine Financial Group, Inc. v. Ambuehl, 309 Ill. App. 3d 101, 109 (1999).
In our view, these precedents indicate that the magistrate's denial of leave to file Harshmans's 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's contribution claim against DePhillips.
Certified question answered in the negative and cause remanded..
FITZGERALD-SMITH, P.J., and O'MARA FROSSARD, J., concur.
|