dissenting:
It is only after a careful review of the authorities cited and a studied consideration of their import that I find I must respectfully dissent from the views of my colleagues. I reach a different conclusion in the case before us not because any decision of our supreme court unequivocably dictates such a course. I believe it is fair to say the court has not directly addressed the issue certified here. Instead, it is from comments which are admittedly dicta that I infer authority which persuades me the court would disagree with today’s majority if confronted with the same facts. Therefore, I would hold the Contribution Act supersedes the Tort Immunity Act in this instance.
The Illinois statute in relation to contribution among joint tortfeasors (Ill. Rev. Stat. 1983, ch. 70, pars. 301 through 305) is modeled after the uniform act which itself is broadly worded so that each jurisdiction may determine whether to apply common law immunities. (Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236.) In making such a determination for Illinois, the supreme court reviewed the legislative history of the Contribution Act and established to its “satisfaction that the intent of the *** statute was to reach anyone who is culpable regardless of whether they have been immunized from a direct tort by some special defense or privilege.” (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 9, 461 N.E.2d 382, 386.) While the language of Doyle appears broad enough to abolish any defense of immunity in contribution actions, we have continued to utilize a balancing test to determine whether the public policy considerations associated with the Contribution Act prevail over various statutory and common law immunities. Stephens v. Cozadd (1987), 159 Ill. App. 3d 452, 512 N.E.2d 812.
It is the Cozadd case upon which the majority principally rely. There, in weighing the policies underlying public official’s immunity, the panel concluded it would be impossible to find responsible employees willing to serve in public service unless public officials’ immunity barred all personal liability, even in actions for contribution. On that basis, it held that public officials’ immunity provided a defense to an action for contribution.
In the case at bar, it is not the public employee but rather the governmental entity from whom contribution is sought. Cozadd is not persuasive when the personal liability of the public employee is not at issue.
The supreme court has indicated a preference for the policies underlying the Contribution Act. In Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54, the justices held the notice provisions in the Tort Immunity Act were inapplicable to a defendant seeking contribution from a governmental entity covered by the Act. Given the supreme court’s sweeping statement in Doyle relative to immunities and the express holding in McBride finding the policies underlying the Contribution Act should prevail, I would affirm the order of the lower court.