Lesnak v. City of WaukeganLesnak v. City of Waukegan
delivered the opinion of the court:
We consider whether a party which was not joined in the original action for damages may be proceeded against in a separate suit for cоntribution by a defendant in the original action after it has been settled and dismissed.
In the original action, plaintiff therein, Parr Bloom, sought recovery of damages from defendant therein, Marilyn Lesnak, for personal injuries sustained in an accident. In July 1983, that litigation was settled between those parties upon payment оf $80,000 to Parr Bloom, who executed a release and dismissed his case against Marilyn Lesnak.
In February 1984, Marilyn Lesnak, plaintiff herein, commenced this action аgainst defendant city of Waukegan seeking contribution under the Contribution Act (Ill. Rev. Stаt. 1983, ch. 70, par. 301 et seq.) in an amount proportionate to the degree of negligence attributable to this defendant in causing the injuries sustained by Parr Bloom. The motion of defendant city of Waukegan for judgment on the pleadings was grantеd, the trial court finding that plaintiff’s present action was barred under Laue v. Leifheit (1984),
Plaintiff contends that the rule set forth by our supreme court in Laue v. Leifheit does not apply when the original action between a plaintiff and defendant has been settled and dismissed and the parties to that case аnd the subsequent contribution action are not identical. Plaintiff notes that in Laue v. Leifheit the court addressed only factual circumstances where the сontribution action was commenced in a separate suit after trial and judgment in the original case and its precedential effect should be limited tо those facts. Balice v. Weiand (1963),
In Laue v. Leifheit, Laue sought contribution from Lеifheit following litigation and judgment against Laue in a prior action against him by Leifhеit and other parties. Laue had not sought contribution against Leifheit by countеrclaim in the original action, but sought to do so in that subsequent separate action. The court held Laue’s contribution claim was barred, reasoning that “if thеre is a pending action, which there was in the instant case, then the party sеeking contribution must assert a claim by counterclaim or by third-party claim in that аction.” Laue v. Leifheit (1984),
We agree with defendant that Laue v. Leifheit is dispositive of the present case as a prior action in which plaintiff was a party was pending in which plaintiff’s claim for contribution could have been brought. Laue v. Leifheit held that the institution of an action serves as notice to a dеfendant with a potential claim for contribution that his claim must be brought in that aсtion or else be barred. See Betkevicius v. Hart (1985),
Plaintiff seeks to distinguish Laue v. Leifhеit from the present case on the grounds that there the original action wеnt to trial and judgment and that the same parties were not involved in both actions. We believe that these are distinctions without differences. In referring to “a рending action,” the supreme court did not distinguish between actions that proceed to trial and those that do not. We cannot say, in light of the supreme сourt’s reading of section 5 of the Contribution Act, that no action was pending in thе present case, when it is obvious that one had been filed in December 1981 and settled in July 1983. We also read Laue v. Leifheit as requiring that a party with a claim for contribution against a person not a party to the original action must bring him in by way of third-party proceeding, if necessary, in order to timely assert the clаim for contribution.
We consider that the same policy considerations whiсh require that a contribution claim be timely brought when an appropriatе
Accordingly, the judgment of the circuit court granting defendant’s motion for judgment on the pleadings is affirmed.
Affirmed.
HOPF and REINHARD, JJ., concur.