McNamee v. Federated Equipment & Supply Co.

                                             Fourth Division
                                             February 13, 1997









No. 1-96-1825

JOHN McNAMEE, Independent Executor of   )    APPEAL FROM THE
the Estate of STEVEN McNAMEE, Deceased, )    CIRCUIT COURT OF
                                        )    COOK COUNTY.
          Plaintiff-Appellee,           )
                                        )
     v.                                 )
                                        )
FEDERATED EQUIPMENT & SUPPLY COMPANY,   )
a Corporation, and DEUTSCHE SCHLAUCHBOOT)
FABRIK HANS SCHEIBERT GMBH & CO., K.G., )
                                        )
          Defendants/Third Party        )
          Plaintiffs-Appellees,         )
                                        )
     v.                                 )
                                        )
CITY OF CHICAGO,                        )
                                        )    HONORABLE           
          Third-Party                   )    JULIA M. NOWICKI,
          Defendant-Appellant.          )    JUDGE PRESIDING.


     PRESIDING JUSTICE WOLFSON delivered the opinion of the 

court:

     In Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 585 N.E.2d 1023 (1991), the Supreme Court held that an employer's
liability in contribution was limited to that employer's
liability to its employee under the provisions of the Workers'
Compensation Act.  Kotecki involved a private employer.  The
question in this case is whether the Kotecki doctrine applies to
a public employer under the provisions of the Pension Code.  We
conclude it does not.

BACKGROUND
     Steven McNamee, a Chicago fireman, lost his life when he
attempted to jump into a "Life Cube" during a training exercise
at the Chicago Fire Academy. 
     The Life Cube was an inflatable rescue device.  Its German
manufacturer had placed a German language label on the device
warning that it was to be used only to catch jumping or falling
persons in emergency rescue situations, and was not to be used
for exercise, training, or sport-jumping.  The American
distributor replaced the German language warning label with a
warning, in English, that the product was to be used only in
emergency rescue situations.
     McNamee, a 36-year-old candidate for a firefighter position, 
had been ordered to jump into the inflatable rescue device during 
a training program.  His estate brought suit against the
manufacturers and distributors of the Life Cube--Deutsche
Schlauchboot Fabrik Hans Scheibert GMBH & Co. (DSB), Federated
Equipment & Supply (Federated), Emetko, Inc., and Amkus, Inc. 
DSB and Federated then brought a third-party action for
contribution against the City of Chicago under the Joint
Tortfeasors Contribution Act (740 ILCS 100/5 (West 1994)),
alleging wilful and wanton misconduct by the City.
     The City moved to dismiss the third-party claims for
unlimited contribution, arguing that its liability was limited to
the medical and death benefits it had provided pursuant to
section 22-307 of the Pension Code.  40 ILCS 5/22-307 (West
1994).
     The trial court denied the City's motion in an order dated
June 7, 1995.  A motion to reconsider was denied on April 3,
1996.  On May 13, 1996, the trial court certified a question of
law for immediate appeal under Supreme Court Rule 308(a).  We
granted the City's application for leave to appeal.
     The question certified for review is:
          "What limits, if any, are there on the City of
     Chicago where it is sued as a third-party defendant
     under the Contribution Act, 740 ILCS 100/1 et seq.,
     where the City has paid and continues to pay benefits
     pursuant to the Pension Code, 40 ILCS 5/6-101 et seq.,
     to the plaintiff whose decedent was a firefighter?"
     The City admits it has "some liability in contribution."
City's reply brief, page 5, note 2.  Because of the City's
concession, we will assume, without deciding, that a contribution
action may be brought against the City under these circumstances.
We also will assume, without deciding, that the City can assert
its statutory lien (section 22-308) in cases where its wilful and
wanton conduct has been found to be a proximate cause of its
employee's injury.  In short, we confine ourselves to
consideration of the certified question.  Our answer to the
question is that we find no limits to recovery against the City
as a third-party defendant in contribution.

DECISION
     To determine whether Kotecki should be extended to the
Pension Code, we first examine and compare the relevant
provisions of the Pension Code and the Workers' Compensation Act
(WCA) (820 ILCS 305/5 (a), (b) (West 1994)):
Section 22-307 of the Pension      Section 5(a) of the Workers'
Code, in pertinent part,           Compensation Act, in pertinent
provides:                          part, provides:  

"Whenever any city or village      "No common law or statutory
enacts an ordinance pursuant       right to recover damages from
to this Division, no common        the employer, his insurer, his
law or statutory right to          broker, any service
recover damages against such       organization retained by the
city or village for injury or      employer, his insurer or his
death sustained by any             broker to provide safety
policeman or fireman while         service, advice or
engaged in the line of duty        recommendations for the
as such policeman or fireman,      employer or the agents or
other than the payment of the      employee of any of them for
allowances of money and of         injury or death sustained by
medical care and hospital          any employee while engaged in
treatment provided in such         the line of duty as such
ordinance, shall be available      employee, other than the
to any such policeman or           compensation herein provided,
fireman who is covered by the      is available to any employee
provisions of such ordinance,      who is covered by the
or to anyone wholly or             provisions of this Act, to any
partially dependent upon such      one wholly or partially
policeman or fireman, or to        dependent upon him, the legal
the legal representative of        representative of his estate,
the estate of such policeman       or any one otherwise entitled
or fireman, or to any one who      to recover damages for such
would otherwise be entitled to     injury."
recover damages for such 
injury."









Section 22-308 of the Code, in     Section 5(b) of the Workers'
pertinent part, states:            Compensation Act, in pertinent
                                   part, states:
"Where the death of a
policeman or fireman for which     "Where the injury or death for
an award or allowance of money     which compensation is payable 
is payable by any city or          under this Act was caused
village under any ordinance        under circumstances creating a
enacted pursuant to the            legal liability for damages on
provisions of this Division,       the part of some person other
was not proximately caused by      than his employer to pay
the negligence of such city or     damages, then legal 
village, and was caused under      proceedings may be taken
circumstances creating a legal     against such other person to  
liability for damages on the       recover damages
part of some person other than     notwithstanding such
such city or village, then         employer's payment or
legal proceedings may be taken     liability to pay compensation
against such other person to       under this Act.  In such case,
recover damages                    however, if the action against
notwithstanding such award or      such other person is brought
allowance by such city or          by the injured employee or his
village.  If the action            personal representative and
against such other person is       judgment is obtained and
brought by the personal            paid, or settlement is made
representative of such             with such other person, either
deceased policeman or fireman,     with or without suit, then    
and judgment is obtained and       from the amount received...
paid, or settlement is made        there shall be paid to the
with such other person, either     employer the amount of   
with or without suit, then the     compensation paid or to be
amount received by such            paid by him to such employee
representative shall be            or personal representative
deducted from such award or        including amounts paid or to
allowance.  Such city or           be paid pursuant to paragraph
village may have or claim a        (a) of Section 8 of this Act.
lien upon any judgment or fund                   ***
out of which such                  If the injured employee or his
representative might be            personal representative agrees
compensated from such third        to receive compensation from
party, for any moneys paid out     the employer or accept from   
of such award or allowance         the employer any payment on
previous to such judgment or       account of such compensation,
settlement."                       or to institute proceedings to
                                   recover the same, the employer
                                   may have or claim a lien upon
                                   any award, judgment or fund
                                   out of which such employee
                                   might be compensated from such
                                   third party."


     The City contends the two acts are so similar, and so
parallel in purpose, that it naturally follows Kotecki should
apply to both.  No reported case in this State has directly
addressed the issue framed by the certified question.  While the
Pension Code has been compared to the WCA in some decisions, in
each instance the case involved direct actions by an employee
against the municipality or against a public employee entitled to
indemnification by the municipality.  See Mitsuuchi v. City of
Chicago, 125 Ill. 2d 489, 532 N.E.2d 830 (1988); Fligelman v.
City of Chicago, 275 Ill. App. 3d 1089, 657 N.E.2d 24 (1995);
Village of Winnetka v. Industrial Comm'n, 232 Ill. App. 3d 351,
597 N.E.2d 630 (1992); and Sweeney v. City of Chicago, 131 Ill.
App. 2d 537, 266 N.E.2d 689 (1971).  These decisions do not help
us in this case.
     The City's argument has a surface attraction.  The relevant
provisions of the Pension Code and the WCA bear some
similarities.  Each, for example, seems to eliminate the
employee's ability to sue his or her employer directly.  Closer
inspection, however, persuades us we cannot make the leap of
faith urged on us by the City.
     Section 22-307 of the Pension Code provides that a policeman
or fireman, or the dependent of a policeman or fireman, or anyone
who would be entitled to recover damages for injury to a
policeman or fireman, has no common law or statutory right to
recover damages directly from any city or village that enacts an
ordinance pursuant to the Pension Code.  All that any of these
people would be entitled to is "payment of allowances of money
and of medical care and hospital treatment" provided in the
ordinance.
     The City suggests the section 22-307 phrase "or anyone who
would otherwise  be entitled to recover damages for such injury"
refers to a third-party plaintiff in contribution.  Putting aside
the City's concession that it may be sued directly in a
contribution action, we note that the Pension Code, in its
present form, was in existence well before 1960.  The legislature
could not have been thinking about contribution actions when it
enacted the Pension Code.  At that point, no Illinois court, and
certainly not the legislature, recognized a contribution action
in this State.
In addition, we note that a plaintiff in contribution does not
"recover damages for such injury," but instead is entitled to an
apportionment of damages based on "his own pro rata share of the
common liability."  740 ILCS 100/2 (b)(West 1992). 
     The right of contribution among tortfeasors was created
by the Supreme Court in 1977, in Skinner v. Reed-Prentice
Division Package Machinery Co., 70 Ill. 2d 1, 374 N.E.2d 437
(1977).  There, for the first time, the court determined that a
defendant  manufacturer sued in strict liability had the right of
contribution against an employer, despite the fact that the WCA
limited the employee's ability to sue the employer directly.
The Contribution Act codified the Skinner decision.
     In Doyle v. Rhodes, 101 Ill. 2d 1, 461 N.E.2d 382 (1984), 
the Court was asked to reexamine the issues presented in Skinner 
in light of the Contribution Act.  Again, the Court decided
employers were not immune from liability for contribution.
     The Court never considered in Doyle whether there were any
limits to the amount employers could be liable for in
contribution actions, although it did "caution that some
accommodation between these two statutes [the Contribution Act
and the WCA] may be in order."  Doyle, 101 Ill. 2d  at 14-15. 
That "accommodation" was the issue in Kotecki.
     Looking to other jurisdictions, the Kotecki court searched 
for harmony between the two "potentially conflicting" statutes
[the Contribution Act and the WCA] which would provide
the fairest and most equitable balance between the competing
interests of the employer and the third-party plaintiff.  The
Court adopted the "Minnesota Rule," which allowed the third-
party plaintiff to obtain limited contribution, yet preserve the
employer's interest in not paying more than its liability under
the WCA.
     Kotecki is at the heart of the City's position in this case.
The City contends there is no real difference between the wording
and purpose of the Pension Code and the WCA.  Therefore, says the
City, Kotecki applies, limiting the third-party plaintiff's 
recovery to the amount of the City's lien under section 22-308 of
the Pension Code.  We see some differences, crucial differences.
     The Kotecki court found that the "language of the Workers'
Compensation Act clearly shows an intent that the employer only
be required to pay an employee the statutory benefits."  Kotecki,
146 Ill. 2d  at 165.  That finding of legislative intent was based
on section 11 of the WCA:  "The compensation herein provided ***
shall be the measure of the responsibility of any employer."  The
Pension Code does not contain similar language.  It does not
contain any indication that the liability of a municipal employer
was intended to be limited to the compensation provided for in
the Pension Code.
     Kotecki struck a balance between competing interests of the
employer, as a participant in a no-fault system of recovery, and
the third-party plaintiff, who seeks to pay no more than its
established fault.  But an injured private employee's right of
recovery under the WCA can be much broader that the City's
limited lien under section 22-308.  The balance becomes unhinged.
     Section 22-308 provides that the City's lien against a
judgment or settlement obtained from a third party is limited to
the amount paid out by the City "previous to such judgment or
settlement."  Any money paid or payable after the judgment or
settlement would not be included in the statutory lien.  The
pension payouts to widows and dependents, funded in whole or
in part by employees, would not be included in the section 22-308
lien.
     In this case, where the trainee died soon after the
accident, the City's lien would be limited to a one-time death
benefit and medical payments, a total of slightly more than
$58,000.  (Actually, the death benefit paid was twice as high as
required, since the City Council voted to double the statutory
award for McNamee's widow.)  Compare that figure to the potential
recovery the trainee's personal representative could claim under
the WCA had the employer been private, not public. 
     A private employer's liability under the WCA would consist
of widow's benefits (payable for 20 years), burial expense, and
medical payments.  Assuming the employee earned $41,375.12 a
year, and further assuming medical expenses of $28,231.80, as was
the case here, the private employer's liability under the WCA
would total slightly more than $584,000.   We believe that the
limited scope of the City's lien under section 22-308 is not
consistent with Kotecki's desire to find "the fairest and most
equitable balance" between the competing interests of the joint
tortfeasors.  Kotecki, 146 Ill. 2d  at 165.
     While the Pension Code elsewhere provides for payment of
widow's and dependents' benefits, the City contends, and we
agree, that those sums of money are not part of the City's
statutory lien.  The payments, however, are part of the City's
liability to the deceased's widow and dependents.  The section
22-308 lien does not reflect the "full measure" of the employer's
liability.  The linchpin for the Kotecki holding does not apply
in this case.
     The City contends that applying the Kotecki doctrine to
public employers would be good policy.  Otherwise, the City says,
it would be open to a contribution award far beyond the amounts
it paid and then could recover under its statutory lien.  That
could happen. Of course, first, the contribution plaintiff would
have to satisfy a jury that the City's conduct was wilful and
wanton.  See Buell v. Oakland Fire Protection District Board, 237
Ill. App. 3d 940, 605 N.E.2d 618 (1992).  (Again, we are assuming
without deciding that the City would have a section 22-308 lien
after a jury found its wilful and wanton conduct was a proximate
cause of the injury.)
     Part of the equation in Kotecki was a consideration of the
nature of private industry.  That is, after Skinner and Doyle
seemed to place a private employer in financial jeopardy because
of the risk of large contribution awards, Kotecki returned to the
employer an element of economic stability.  Its potential
liability would be a known quantity--the extent of its liability
under the WCA.  See Bilandic, Hon. Michael A., Workers'
Compensation, Strict Liability, and Contribution in Illinois: A
Century of Legal Progress?  Ill. Bar J., June 1995. vol. 83, p.
292.
     A public entity is in a different position.  The City will
have to have a fire department and a police department.  It
cannot go out of business.  A governmental entity, "unlike a
private entity, cannot ordinarily avoid the risks created by its
activities by simply ceasing to engage in those activities."
Stephens v. McBride, 97 Ill. 2d 515, 523, 455 N.E.2d 54 (1983)
(holding that the notice provisions of the Local Governmental and
Government Employees Tort Immunity Act do not apply to an action
for contribution).
     We understand the City's concern.  Jury trials are risky.
Exposure in a contribution action where the employee suffers
grave or fatal injuries can be substantial.  Predictability is
important for budget and planning departments.  But it is this 
court's role to interpret statutes, not rewrite them based on 
some vague notion of proper public policy.  See Citizens Utility
Board v. Illinois Commerce Comm'n, 275 Ill. App. 3d 329, 341, 655 N.E.2d 961 (1995).  That is, "[t]he primary expression of
Illinois public and social policy should emanate from the
legislature."  Charles v. Seigfried, 165 Ill. 2d 482, 493, 651 N.E.2d 154 (1995).
CONCLUSION
     We find no principled reason for reading into the Pension
Code and the Contribution Act any limitation on the City's
liability when it is being sued as a third-party defendant under
the Contribution Act in a case where the City's employee suffered
a fatal injury.  Our answer to the certified question is that
there are no limits.
     McNAMARA and BURKE, JJ., concur.