dissenting:
At issue in this case is the extent of the City of Chicago’s liability when it is sued as a third-party defendant in a contribution action related to a wrongful death suit brought on behalf of a firefighter killed in the line of duty. The majority opinion holds that the City of Chicago’s liability in contribution is limited to the amount of death and medical benefits it has paid to the firefighter’s survivors under the Illinois Pension Code (40 ILCS 5/22 — 301 et seq. (West 1996)) and essentially extends the holding of Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), which limited a private employer’s liability in contribution to the amount of the employer’s liability to its employee under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 1996)). The majority reasons that the language and purpose of the Pension Code is so similar to that of the Workers’ Compensation Act that, logically, the Kotecki rule must apply to both. 181 Ill. 2d at 425. The majority’s opinion has a certain superficial appeal — there are similarities in the statutes. The majority’s rationale, however, is flawed in several respects, not the least of which is that the majority confuses the nature of an analogy — an analogy being an interpretative aid and not a substitute for legislation.
The essence of the dilemma is this. If the City of Chicago (the City) is liable in contribution, the City might be forced to pay its employee, albeit indirectly through a third-party tortfeasor, an amount in excess of its liability under the Pension Code. If the City is not liable in contribution, a third-party stranger to the employee-employer relationship is made to bear the burden of a full common law judgment despite the possibility of greater fault on the part of the City. Thus, the third-party tortfeasor would in effect be subsidizing the City’s pension system in a proportion greater than its own fault.
The City has an obvious interest in limiting its liability to the death and medical benefits required under the Pension Code. The employee has an interest in receiving full benefits under the Pension Code and, to the extent that a third party caused him injury, a common law recovery from that third party. In contrast, the third party’s interest is identical to that of any other joint tortfeasor, i.e., to limit its liability to no more than established fault. The majority’s answer to this quandary is to allow the third party to seek contribution from the City, but only to the extent of the death and medical benefits paid to the firefighter under the Pension Code. This rule, however, works a real inequity on the third party to the extent that it is forced to bear the burden of the plaintiffs recovery in an amount greater than its proportionate fault. The injured employee receives his assured compensation under the Pension Code as a substitute for a tort recovery against his employer, and the City limits its liability and is immune from suit from its employees. The only problem is that the third party — a stranger to the employee-employer bargain embodied in the Pension Code — must write the check for the difference.
Of course, the majority responds that this was precisely the same situation presented in Kotecki, the only difference being that Kotecki involved a private employer and this case involves a public employer. There are, however, two additional differences. First, the Kotecki holding rests on express language in the Workers’ Compensation Act to the effect that the statutory benefits provided thereunder were intended to be the full measure of an employer’s liability. Kotecki, 146 Ill. 2d at 165 (“The language of the Workers’ Compensation Act clearly shows an intent that the employer only be required to pay an employee the statutory benefits”). The Workers’ Compensation Act emphatically provides: “The compensation herein provided *** shall be the measure of the responsibility of any employer.” 820 ILCS 305/11 (West 1996). No such categorical language limiting liability appears in the Pension Code.
The Pension Code by its terms controls only the rights between the public employer and its employee. The right to contribution among tortfeasors was not even recognized at the time that the legislature adopted the Pension Code. See 1963 Ill. Laws 161 (adopting the Illinois Pension Code); Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill. 2d 1 (1977) (establishing the right of contribution). The majority responds that this is also true of the Workers’ Compensation Act; and so it is. As Chief Justice Freeman so eloquently opined in his dissent from the denial of rehearing in Kotecki, “[i]t could not have been that legislature’s intent to limit that right ***, as *** 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.” Kotecki, 146 Ill. 2d at 169 (Freeman, J., dissenting upon denial of rehearing). Because the concept of contribution as a legal right in Illinois “must necessarily have been totally foreign in the contemplation of any legislation adopted prior to 1977, the Workers’ Compensation Act *** cannot be deemed by this court as controlling a question which arises as a result of the Contribution Act, a post-1977 legislative enactment.” Kotecki, 146 Ill. 2d at 171 (Freeman, J., dissenting upon denial of rehearing). The same holds true here for the Pension Code.
The second critical difference between the Pension Code and Workers’ Compensation Act is this: under the Pension Code, the City’s lien against a judgment or settlement obtained by a firefighter from a third party is limited to the amount of medical and death benefits that the City had paid out “previous to such judgment or settlement.” 40 ILCS 5/22 — 308 (West 1996). Thus, the City’s statutory lien only includes the death and medical benefits paid under the Pension Code — here $58,231.80 — and does not include the estimated $1,623,403.24 in total benefits that the City will pay to the decedent’s widow and dependents under the Pension Code. Nor does the limited lien in the Pension Code include the additional payments the City will make to the firefighter’s survivors under the Firemen’s Annuity and Benefit Fund (40 ILCS 5/6 — 101 et seq. (West 1996)). In contrast, an employer’s hen under the Workers’ Compensation Act, and corresponding maximum liability in contribution under Kotecki, reflects the full and complete benefits paid to the employee. Kotecki, 146 Ill. 2d at 164-65; 820 ILCS 305/11, 5 (West 1996). Here the City’s lien under the Pension Code simply does not reflect the full measure of the City’s liability as an employer and, accordingly, is a dubious and insufficient basis for measuring its liability in contribution.
This situation requires legislation. It is ill-advised for a court to speculate about legislative intentions when the statute’s drafters were without the first notion of the current controversy. By attributing a nonexistent intent to the legislature that passed the Pension Code, the majority has “usurped the proper role and authority of the Illinois legislature.” Kotecki, 146 Ill. 2d at 174 (Freeman, J., dissenting upon denial of rehearing). Legislative inaction is not an invitation to the judiciary to write law, and reading statutes by strained analogy is a questionable basis for judicial decisions. Therefore, I must respectfully dissent.
JUSTICE NICKELS joins in this dissent.