dissenting:
I agree with the majority in their well-expressed statement of the purposes of the Contribution Act (111. Rev. Stat. 1987, ch. 70, par. 302(a)). I also share their concern which arises because the judgment on appeal is not consistent with the purposes of the Contribution Act. However, I must dissent from decision of the majority because in attempting to be fair to St. John’s-Fitzgerald and consistent with the purposes of the Contribution Act, the decision (1) is unfair to plaintiff; (2) violates the express terms of the Contribution Act; and (3) is contrary to precedent binding upon us.
The majority treat the act of plaintiff in settling with SterlingBreon after judgment and pending appeal as a waiver of any liability owed by St. John’s-Fitzgerald beyond 7% of the amount of the joint and several judgment entered on the jury verdict for compensatory damages as modified by the circuit court. The majority correctly points out that section 2(c) of the Contribution Act states that “[wjhen a release *** is given in good faith to one [joint tortfeasor], it does not discharge any of the other tortfeasors” unless so stated but reduces recovery against others by the amount paid. (111. Rev. Stat. 1987, ch. 70, par. 302(c).) The majority does not maintain the settlement was not in good faith nor does the majority take the position that the settlement fully released St. John’s-Fitzgerald, as would have been the case prior to the Contribution Act, and might well be the case if the settlement was not in good faith.
Rather, the majority relies on the cases of Bartels v. City of Williston (N.D. 1979), 276 N.W.2d 113, and Prudential Life Insurance Co. v. Moody (Ky. 1985), 696 S.W.2d 503, in support of their theory. The Bartels court construed a statute concerning contribution, very similar to ours, in the context of a statute on comparative negligence which provided in tort cases for the jury to render separate verdicts as to each defendant, fixing damages in proportion to the fault of that defendant, but also stated the liability of the defendants was joint and several. The court concluded that based upon the construction given to the comparative negligence statute by the State from which it was adopted, in cases where one of the tortfeasors has settled with the plaintiff, the amount of judgment eventually awarded is reduced, not by the amount of the settlement but by the percentage of fault found by the trier of fact to be attributable to the settling tortfeasor. That rule was held to prevail over a provision in the legislation regarding compensation which stated, as does section 2(c) of the Contribution Act, that the judgment is reduced by the amount obtained from the release. Prudential concerned the operation of a comparative negligence statute which limited joint liability of joint tortfeasors to that for costs.
Subject to the provisions of sections 2 — 1116, 2 — 1117, and 2— 1118 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, pars. 2— 1116, 2 — 1117, 2 — 1118), which were not in force at times pertinent here and would not be applicable to these facts, the statutory format in Illinois is to spread fault in most tort cases, proportionately among tortfeasors indirectly through third-party action and cross-complaints under the Contribution Act rather than through directly apportioning the liability of each tortfeasor to the injured party. All tortfeasors remain jointly and severally liable to the injured party. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) There is no statutory provision or common law rule similar to that in Bartels whereby the proportion of liability of each defendant to the plaintiff is directly determined.
The Contribution Act, indirectly, achieves ultimate proportionate responsibility unless a joint tortfeasor is insolvent. The post-judgment settlement pending appeal is not what destroyed proportionality here. The majority does not dispute that plaintiff could have sought satisfaction of its entire judgment for compensatory damages from St. John’s-Fitzgerald and the latter could not have prevented them from doing so nor could St. John’s-Fitzgerald have obtained any contribution from Sterling-Breon. Proportionate ultimate financial responsibility was defeated here because, unfortunately, St. John’s-Fitzgerald failed to file a timely claim for contribution. In late 1984, the supreme court held in Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939, that if a tort action is brought, alleged tortfeasors seeking contribution from others must join their claims for contribution in the tort action. This was not always done previously. In the short time span involved here, filing a claim for contribution was overlooked by St. John’s-Fitzgerald until after the evidence had been presented in the trial on the merits and the circuit court ruled the request was untimely and denied it. Had St. John’s-Fitzgerald timely made such a claim, it could have required Sterling-Breon to reimburse it to the extent St. John’s-Fitzgerald had paid plaintiff more than St. John’s-Fitzgerald’s proportionate share of the joint and several judgment.
St. John’s-Fitzgerald rightfully calls our attention to the confusion and ambiguity in the record here. The form of the verdict could be taken to indicate that separate judgments in separate amounts were being entered as to the several defendants. In our opinion, modified upon denial of petition for rehearing in the underlying case, we concluded with the following statement:
“Therefore, we affirm the jury verdict less the court-ordered remittitur as to medical expenses and affirm St. John’s-Fitzgerald’s responsibility for 7% thereof.” (Henry v. St. John’s Hospital (1987), 159 Ill. App. 3d 725, 735, 512 N.E.2d 1044, 1050.)
This also could be taken to indicate we affirmed the judgment against St. John’s-Fitzgerald only to the extent of 7% of the amount of the compensatory damages. However, despite the foregoing, in view of the undisputed continued existence of the rule of joint and several liability as applied to the situation here, where there was no contention of negligence attributable to plaintiff, the foregoing can only be construed to consist of the award of a joint and several judgment for the compensatory damages as modified and an affirmance of the same. Sterling-Breon had filed cross-complaints against St. John’s-Fitzgerald for contribution, and the fixing of degrees of fault among the various defendants can be attributed to those claims.
In summary, I conclude: (1) under common law precedent, the liability of all defendants to plaintiff was joint and several and she could look to any one of them for satisfaction of the judgment rendered; (2) under section 2(c) of the Contribution Act, any good-faith settlement with one or more of the defendants reduces the liability of other defendants to her only in the amount of the settlement; (3) neither statute nor case law precedent changes the operation of the foregoing principles because the settlement was made pending appeal from an existing judgment; and (4) any fairness to St. John’s-Fitzgerald, awarded them by the majority because of their unfortunate predicament, results in corresponding unfairness to plaintiff, who was entitled to rely on existing law in settling with Sterling-Breon. Accordingly, I would affirm the judgment of the circuit court.