Dissenting Opinion Upon Denial of Rehearing
JUSTICE FREEMAN,dissenting:
I must respectfully dissent from the decision of my colleagues to deny the petition for rehearing in this cause.
Notwithstanding my concurrence in the original opinion of this court in this case, I re-examined the issues presented in this appeal and the consequences and implications of our opinion in determining whether to vote to grant the petition for rehearing filed by the appellee, Cyclops. Upon doing so, I believe that the decision to limit the right of contribution from employers for workplace injuries suffered by their employees is in error and therefore dissent from the denial of the petition for rehearing.
The major, but not sole, reason why I believe this court should rehear this cause is the effect which a fact cited by the appellant, Cams, in the original appeal, viz., the enactment of the current Workers’ Compensation Act prior to the enactment of the Contribution Act, has upon this court’s determination of the issue presented. Although neither Cyclops nor the amicus curiae cited that fact or its effect upon our determination in the original appeal or in petitioning for a rehearing, I believe that fact absolutely obligates this court to grant the petition for rehearing in this cause.
Although the court’s opinion does not explicitly acknowledge it, what we were called upon to do in deciding the issue presented in this appeal, i.e., whether the Workers’ Compensation Act limits a product manufacturer’s right to contribution from an employer for the manufacturer’s liability to the latter’s employee, was to determine the legislature’s intent in enacting the Workers’ Compensation Act and the Contribution Act. See, e.g., State v. Mikusch (1990), 138 Ill. 2d 242.
In Mikusch, this court stated that: in order to regard apparently conflicting provisions of the Illinois Vehicle Code and the Human Rights Act as capable of being harmonized, it would consider whether the legislature intended the former to be an exception to the latter; since the language of neither the Act nor the Code was directed to the question, the court “must” consider general rules of statutory construction; and, the fundamental rule of statutory constmction is to give effect to the legislature’s intent. Mikusch, 138 Ill. 2d at 247.
Similarly to our observation in Mikusch, we recognized in our original decision herein that this case involves the reconciliation of “two, potentially conflicting, statutes.” Accordingly, consideration of the legislature’s intent in enacting the statutory provisions involved in this case is just as legitimate, and, therefore, should have been just as controlling, a factor in our original decision in this case as it was in Mikusch. Moreover, since the language of neither the Workers’ Compensation Act nor the Contribution Act is explicitly directed to the question to be resolved, general rules of statutory construction are just as legitimate, and, therefore, should have been just as controlling, a consideration in this case as they were in Mikusch in determining the legislature’s intent in enacting the statutory provisions involved.
There are myriad general rules of statutory construction which are used as aids in determining legislative intent. However, of all such rules, in re-examining the issue in this case, I find the following to be of paramount importance.
It is fundamental that statutes are to be read in light of the attendant conditions and the state of the law at the time of their enactment. The legislative intent that controls the courts in the construction of statutes has a reference to the legislature which passed a given act. Statutes are to be construed as they were intended to be construed when they were enacted. The office of the courts is to interpret the language used where it requires interpretation, not to annex new provisions which the legislature did not itself impose. People v. Boreman (1948), 401 Ill. 566, 572; see also Sayles v. Thompson (1983), 99 Ill. 2d 122, 125 (meaning of statute depends upon the intent of the drafters at the time of its adoption, and it is a long-standing principle of statutory construction that it is the court’s duty to ascertain and effectuate that intent).
Similarly, this court has also recognized that, in striving to achieve the primary goal of statutory construction, i.e., to ascertain and give effect to the legislature’s intent, courts should consider the reason or necessity for the act, the contemporaneous conditions, existing circumstances and the object sought to be achieved by the statute. People ex rel. Joseph v. Pennsylvania R.R. Co. (1959), 18 Ill. 2d 61, 66.
In view of the facts that the current Workers’ Compensation Act was enacted in 1951 (1951 Ill. Laws 1060 et seq.) and that contribution among joint tortfeasors was not allowed in Illinois until this court’s 1977 decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, a fact which Carus conceded in its original brief on appeal, application of the above-stated rules to the issue in Kotecki can yield but one conclusion. That conclusion is that it could not have been the intent of the legislature which passed the current Workers’ Compensation Act to limit to any extent the right to contribution, from an employer, of a manufacturer sued by an employee injured by a defective product. It could not have been that legislature’s intent to limit that right because, as Carus concedes, contribution did not exist in Illinois at the time of the enactment of the original Workers’ Compensation Act. That being the case, it was improper for this court to effectively attribute to the legislature which passed the Act an intent which it could not possibly have had at that time. Nor could this court properly conclude that, had the legislature considered the issue, it would have intended the result reached in this case.
In its main brief in the original appeal, Carus argued that inasmuch as contribution did not exist in Illinois at the time the Act was first enacted, it would not be unjust to now construe the Workers’ Compensation Act and the Contribution Act to deny the right of unlimited contribution asserted in this case. Carus’ argument does have a certain amount of practical and logical appeal. However, I believe that this court could reach such a conclusion only by ignoring the fundamental principles of statutory construction cited above. As such, I cannot join in the denial of the petition for rehearing.
Also convincing me that our original decision in this cause was wrong is the fact that this court has reached similar results to that mandated in this cause by the cited rules of statutory construction without relying, at least expressly, thereon.
In Stephens v. McBride (1983), 97 Ill. 2d 515, the court held that failure of the plaintiff in a primary lawsuit against a private individual to comply with the notice-of-injury requirements of the Local Governmental and Governmental Employees Tort Immunity Act did not bar that defendant’s contribution action against a municipality. In so doing, the court reasoned, inter alia:
“[T]he Tort Immunity Act’s notice provisions do not apply to an action for contribution. *** The doctrine of contribution was recognized in this jurisdiction in 1977 when this court decided [Skinner], *** The [Tort Immunity Act] was enacted prior to our decision in Skinner and did not purport to deal with contribution actions.” Stephens, 97 Ill. 2d at 521-22.
Similarly to this court’s reasoning in Stephens, the court in Kanellos v. County of Cook (1972), 53 Ill. 2d 161, held that a statutory requirement of referendum approval for the issuance of general obligation bonds by Cook County which predated the creation of home rule units of local government in the Constitution of 1970 was not thereafter of any force or effect upon the county. In so holding, this court, inter alia, noted that the statute containing the referendum requirement had been enacted prior to and not in anticipation of the recognition of the concept of home rule. The court therefore reasoned that, because the concept of home rule was “totally foreign in the contemplation of legislation” adopted prior to 1970, such legislation was inconsistent with and overridden by the creation of home rule powers. Kanellos, 53 Ill. 2d at 166-67.
Even setting aside the rules of statutory construction cited above, Stephens and Kanellos reveal an unavoidable conclusion: the fact that the Act was enacted prior to the recognition of the doctrine of contribution in Illinois absolutely precludes attributing to the legislature an intent, viz., to limit the right of contribution of third parties sued by an employee as against his employer, which it could not have had at the time the Workers’ Compensation Act was enacted. Because the concept of contribution must necessarily have been totally foreign in the contemplation of any legislation adopted prior to 1977, the Workers’ Compensation Act, enacted in 1951, cannot be deemed by this court as controlling a question which arises as a result of the Contribution Act, a post-1977 legislative enactment.
Stephens also disposes of any possible argument that, by allowing unlimited contribution from an employer, this court would be allowing an employee to do indirectly what section 5(a) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)) prohibits him from doing directly, i.e., recover from his employer over and above what the Act allows. (See, e.g., Redwing Carriers, Inc. v. Crown Central Petroleum Corp. (Ala. 1978), 356 So. 2d 1203.) In Stephens, this court wrote:
“[0]ur decision here does not permit the injured plaintiff to recover indirectly from the governmental entity although he is precluded from directly recovering from it. *** The Supreme Court of California noted [in People ex rel. Department of Transportation v. Superior Court (1980), 608 P.2d 673] that the plaintiff would still be barred from recovering directly from the governmental defendant, and if he failed to prove that the nongovernmental defendant was liable, or if that defendant were insolvent, the plaintiff would be able to recover nothing, either directly or indirectly, from the governmental defendant. Moreover, the doctrine of joint and several liability allows the plaintiff to recover fully for his injuries from the nongovernmental defendant whether or not that defendant can recover from the governmental defendant. As this court has recently reaffirmed the viability of the doctrine of joint and several liability [citation], plaintiff gains nothing if defendant is permitted to recover contribution from the village." (Emphasis added.) Stephens, 97 Ill. 2d at 524-25.
Stephens did not involve any claim under the Workers’ Compensation Act. That distinction notwithstanding, the rationale that allowing a contribution action does not allow the plaintiff in the primary action to do indirectly what he cannot do directly is as applicable to this case as it was therein.
The third and fourth reasons why I believe our original decision in this cause was erroneous, in addition to the previously cited rules of statutory construction and Stephens and Kanellos, are the rules that, where there is an undeniable conflict between them, a general statute relating to a subject must give way to a specific statute on the same subject and an earlier statute must give way to a later-enacted statute, as the later expression of legislative intent. See, e.g., State v. Mikusch (1990), 138 Ill. 2d 242, 254.
In its main brief on appeal, Carus argued that the Workers’ Compensation Act was the specific statute on the subject of an employer’s liability for workplace injuries while the Contribution Act was the general statute on the subject of contribution actions. Therefore, Carus concluded, the Workers’ Compensation Act should govern over the Contribution Act in this case. I now disagree with that conclusion.
Even assuming, arguendo, that the Workers’ Compensation Act and Contribution Act are in pari materia and that, therefore, the “general v. specific” rule of statutory construction can be applied to them, I fail to understand how the Workers’ Compensation Act can be characterized as “specific” on the subject of employer liability for contribution to third parties for injuries to employees. The Act nowhere specifically mentions such liability. Indeed, that failure by the legislature which enacted the Workers’ Compensation Act (which is understandable given the nonrecognition of the right of contribution in Illinois at the time of its enactment) is the root cause of the controversy in this case. Even ignoring the nonrecognition of contribution at the time of enactment, I simply do not understand how this court could, in the face of its failure to contain any specific reference thereto, consider the Act as specific on the subject of employer liability for contribution, especially in light of of the Contribution Act.
Rather than dealing specifically with an employer’s contribution liability, the Workers’ Compensation Act merely states in general terms: that no common law or statutory right to recover damages for injury or death sustained by an employee other than the compensation provided therein shall be available to a covered employee, any dependent or any one otherwise entitled to recover damages for such injury (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)); and that the compensation therein provided shall be the measure of the responsibility of a covered employer (Ill. Rev. Stat. 1987, ch. 48, par. 138.11).
In contrast, the Contribution Act specifically deals with contribution. To the extent that the Act does not limit the right thereto in “third party v. employer” actions, this court should, in view of the Workers’ Compensation Act’s failure to specifically limit that right, give effect to the evident legislative intent not to limit that right in such actions.
The foregoing principles of statutory construction and case law sufficiently call into question this court’s original decision in this case to warrant a complete reconsideration thereof pursuant to the petition for rehearing.
However, those principles and case law are not the sole reasons for granting a rehearing in this cause. In its petition for rehearing, Cyclops has posed many questions assertedly left unresolved by the original opinion in this cause. I believe that those questions do not, alone, warrant a reconsideration of this cause inasmuch as they can be answered by subsequent case law. What I do believe also warrants a granting of a rehearing, or, at least, a supplemental opinion of this court, is the question as to the operation of the result of our original opinion in this cause. As Cyclops correctly points out, this court has, in the past, explicitly confined fundamental changes in the law to prospective operation only. (See, e.g., Skinner, 70 Ill. 2d 1; Alvis v. Ribar (1981), 85 Ill. 2d 1.) The rule established in this cause is so fundamental a change in the law of contribution that this court should avoid unnecessary confusion by the bench and bar of Illinois as to its application by explicitly stating whether it is to applied retroactively or prospectively.
I, like my colleagues, am troubled by the “potentially conflicting” provisions of the Workers’ Compensation Act and the Contribution Act. However, in light of the nonexistence of the right of contribution at the time of the enactment of the Workers’ Compensation Act, I have now concluded that this court cannot avoid finding a conflict therein by, in effect, attributing to the legislature which first passed the Act a nonexistent intent in so doing. To the extent that we have done so in this cause, I believe we have usurped the proper role and authority of the Illinois legislature. In this regard, while this court has, as the opinion in this cause notes, acted in the past in the face of legislative inaction upon an issue, I do not believe that any amount of legislative inaction can justify a transgression of our constitutional role.
In the final analysis, I now agree with Professor Larson, who, on the very issue involved in this cause, viz., “did the compensation acts, in conferring immunity on the employer from common-law suits, mean to do so only at the expense of the injured employee, or also at the expense of outsiders,” concluded:
“A situation like this ought to be dealt with legislatively. It is rather inconsiderate to force courts to speculate about legislative intention on the strength of statutory language, in the framing of which the draftsmen had not the remotest trace of the present question in their minds. The legislature should face squarely the question whether the third party who happens to be so unfortunate as to get tangled up with a compensable injury, should, so to speak, individually subsidize the compensation system by bearing alone a burden which normally he could shift to the employer.” (Emphasis added.) Larson, Workmen’s Compensation Acts: Third Party’s Action Over Against Employer, 65 Nw. U. L. Rev. 351, 420 (1970).
For all of the reasons stated herein, I dissent from the denial of the petition for rehearing in this cause.