Stewart v. Village of Summit

JUSTICE RYAN,

dissenting:

I dissent from the opinion of the majority for the following reasons.

In Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 197, this court held that a release that released the payer “and all other persons, firms, and corporations, both known and unknown” was not sufficient to release a joint tortfeasor who was not specifically identified therein. However, this case holds that a covenant not to sue which reserves the right to bring a claim against “any other person or persons against whom [the claimant] may have or assert any claim” is sufficient to preserve a claim against any other joint tortfeasor. In other words, unlike a release, the reservation need not specifically identify the tortfeasor against whom the cause of action is sought to be reserved. The majority relies upon Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, but in that case the covenant specifically named the tortfeasor against whom the one giving the covenant was reserving the right to make a claim. I think this court should be consistent in construing the language of releases and covenants. We should not condemn the use of general language and require a specific identification when to do so favors the claimant, but not when it would benefit a defendant.

The rationale in support of the holding in this case, as stated in the majority opinion, is that the reservation in the covenant unambiguously demonstrates that the parties intend that the right to sue anyone was all inclusive, and that the parties intended that the right to sue anyone other than Rankovich survive the execution of the covenant. This is the same argument as to the effect of the release, and the intent of the parties executing the same, stated in my dissent in Alsup. Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 203 (Ryan, C.J., dissenting).

In addition to the above inconsistency, I have a further concern about the inequitable result to which the holding of this case may lead. The tortfeasor primarily responsible for the plaintiff’s injury in this case was absolved of all liability on payment of $5,000. The plaintiff may now proceed against the village of Summit for damages in whatever amount may be supported by the evidence. The responsibility of the village is only derivative. It would not be liable at all if it were not for the wrongful act of Rankovich, the driver of the vehicle whose negligence caused the accident.

The same result will flow from the construction the majority has placed on this covenant in other cases where the wrongdoer who causes the injury covenants out, leaving another tortfeasor unprotected. This will be the case in those situations where the formerly recognized relationships of active/passive and primary/secondary existed between the tortfeasors. Formerly, the passive tortfeasor, the one secondarily responsible, would be protected by his right of indemnity against the active tortfeasor, or the one primarily responsible. (Carver v. Grossman (1973), 55 Ill. 2d 507.) However, in Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, this court recently held that the need for implied indemnity based upon the active/passive or primary/secondary relationship between tortfeasors no longer exists, and the remedy of the less culpable must be found through contribution. Under section 2(d) of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(d)), however, the tortfeasor who settles is discharged from all liability for any contribution to any other tortfeasor. The net result is that the passive or secondarily responsible individual will be saddled with the entire amount of the judgment, subject only to the right to have the nominal amount paid for the covenant offset against the amount of the judgment, as is provided in section 2(c) of the Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(c)). In summary, the open-ended construction given to the covenant by the majority opinion, coupled with our previous decision in Allison and the provisions of the Contribution Act, will lead to some very inequitable results which permit the party actually causing the injury to be absolved by paying a nominal amount, while requiring the party who was only nominally responsible to shoulder the entire burden. This is just as inequitable as was the former common law rule of no contribution among joint tortfeasors.

I wish to recognize that Allison left open and undecided the situation which apparently would cover the case at bar by stating, “[W]e do not here decide whether a tortfeasor whose liability is vicariously imposed by policy of law rather than culpability of conduct may shift the whole of its liability to those parties actually and solely at fault.” (Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 35.) Whether or not indemnity is still a viable remedy for factual situations such as those now before us is a case for another day. When that day comes we must be careful to preserve the right of implied indemnity for those who may be only vicariously responsible.

As noted in Allison, the law of implied indemnity developed in a wide area and covered cases involving active/passive and primary/secondary concepts, as well as cases involving vicarious liability imposed by law. The line of demarcation between those areas in which implied indemnity, by virtue of Allison, is no longer permissible and those in which it is, is not easily defined. Some parties falling into a category formerly designated as passive negligence, who are now denied indemnity by virtue of Allison and contribution under section 2 of the Contribution Act, will actually be no more culpable than some who are properly said to be vicariously liable.

Many of these comments more appropriately should have been voiced as a dissent to the holding of Allison. However, the full potential for unjust and inequitable results became apparent in considering the broad construction given the covenant in this case in conjunction with our holding in Allison and coupled with sections 2(c) and 2(d) of the Contribution Act.

There have been dramatic changes in our tort law in recent years. Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, altered our thinking about contribution among tortfeasors. This was followed by the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.). Soon thereafter we abandoned contributory negligence and adopted “pure” comparative negligence in Alvis v. Ribar (1981), 85 Ill. 2d 1. Since these changes have been made we have, on an ad hoc basis, been trying to fit our new doctrines into the contours of our old tort law and vice versa. In the case now before us the majority opinion, in arriving at its construction of the covenant, relied entirely on cases decided before Skinner. We have been developing a body of tort law in a piecemeal manner, case by case, with no comprehensive plan. As a consequence we find such inequities as is evidenced by the result that may flow from the opinion in this case.

I discussed in my dissent in Alvis v. Ribar that there existed an interrelationship of the various segments of our tort law. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 42-43 (Ryan, J., dissenting.).) I concluded then, and I believe now, that legislative action is required to maintain a semblance of balance. The legislature is not restricted to deciding one issue at a time on a case-by-case basis, but can approach the problem on a much broader scope. Without such an approach we will zigzag our way through the field of torts with such inequities as I see flowing from this case and from Allison. No one seems to get very excited about such results unless he happens to be the innocent party who is stuck with the large damage award.

For the above reasons, I dissent.