dissenting:
The majority point to Holcomb v. Flavin (1966), 34 Ill. 2d 558, 216 N.E.2d 811, a case which preceded this statute, in support of the position that a covenant not to sue given an employee enures to the benefit of the employer and thus bars an action against him based upon the tortious conduct of the employee. They point out that, by this ruling, circuity of action is avoided. No action then exists by the employer against the employee for indemnification. Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 312 N.E.2d 259, however, stands for the proposition that an action can be maintained against an employer after a covenant is given to the employee when the covenant expressly reserves a right to proceed against the employer. I suggest that the proper application of Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361, to any covenant or release that does not specifically release an employer leaves us in the Edgar County situation. The action is in essence reserved against the employer.
The majority states that the employer is not at fault but becomes liable only because the employee’s negligence is imputed to him. Consequently, the employee should bear the entire loss. I suggest that the above proposition may not be as crystal clear as it purports to be. Consider the following: a factual setting where the employer provides defective equipment for the employee to use, resulting in liability on the part of the employee, i.e., a truck with defective brakes; the doctrine under Palmer v. Miller (1942), 380 Ill. 256, 43 N.E.2d 973, where the employer, while in a vehicle owned by him but driven by the employee, has a duty to control the operation of the vehicle; and the doctrine of negligent entrustment. The ingenuity of lawyers is limitless in this regard, and the holding of the majority would seem to release the employer from vicarious liability but not from these other potential liabilities.
I believe that the enactment of “an Act in relation to contribution among joint tortfeasors” (Act) (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.) abrogates the need for or use of implied indemnity in any tort cases. Holmes v. Sahara Coal Co. (1985), 131 Ill. App. 3d 666, 475 N.E.2d 1383; special concurring opinion of Justice Downing, Morizzo v. Laverdure (1984), 127 Ill. App. 3d 767, 469 N.E.2d 653; Heinrich v. Peabody International Corp. (1985), 139 Ill. App. 3d 289.
Under the Act, if an employee entered into a good faith settlement with a third party, his employer would have no action against him. The employer could then set off against any judgment rendered against him the amount paid to a third party by his employee. The scheme of the Act, that one be responsible for his own fault, would be served.
Moreover, the Act, along with decisions in cases such as Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361, and Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382, evidence a clear intent by both the legislature and the judiciary that liability be shared by culpable defendants. Clearly, contribution, and not indemnity,.is favored. The majority opinion here, however, moves in the opposite direction. The majority relies heavily on the opinion in Holcomb, which was handed down in 1966, years before Skinner was decided and the Act was passed.
The majority states that our Act is based upon the Uniform Contribution Among Tortfeasors Act and a New York statute, both of which included a provision preserving the right of indemnity. No such provision is included in our Act. Arguably, if the General Assembly had wished for indemnity to continue, it would have said so in the act as passed. It did not. Some justification can be found, therefore, for the belief that a strong public policy favoring a right of contribution, and not indemnity, exists in Illinois now.
Finally, the majority states that section 2(c) was designed to encourage settlements. It appears that the majority decision, however, leads to the opposite result. As the release of an employee by covenant not to sue would therefore discharge the employer (and vice versa), an adversarial position is promoted. Neither defendant would want to settle because each would know that such a settlement would discharge the other. Thus, each would try to “wait out” the other, hoping the other would settle first. As a result, the purpose of section 2(c) would be eviscerated. The only party hurt would be the plaintiff, attempting to obtain compensation for his injuries.
I would affirm the judgment of the trial court denying defendant’s motion for summary judgment.