McNamee v. Federated Equipment and Supply Co.

Annotate this Case
McNamee v. Federated Equipment, No. 82954 (2/20/98)

Docket No. 82954--Agenda 14--November 1997.
JOHN McNAMEE, Independent Ex'r of the Estate of Steven McNamee,
Deceased, Appellee, v. FEDERATED EQUIPMENT & SUPPLY COMPANY,
INC., et al., Appellee (The City of Chicago, Appellant).
Opinion filed February 20, 1998.

CHIEF JUSTICE FREEMAN delivered the opinion of the court:
In Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), this court
held that where an injured employee sues a third party who then brings a
contribution action against the plaintiff's employer, the third party may obtain
contribution from the employer. However, this court limited the contribution to the
amount of the employer's liability to the employee under the Workers' Compensa-
tion Act (820 ILCS 305/1 et seq. (West 1996)). Kotecki involved a private
employer.
In this case, the question presented for review is whether the Kotecki cap
limits a public employer's third-party contribution liability to the amount of
benefits paid to an injured firefighter under article XXII, division 3, of the Illinois
Pension Code (40 ILCS 5/22--301 et seq. (West 1996)). We hold that it does.

BACKGROUND
The City of Chicago (the City) moved to dismiss this issue pursuant to
section 2--619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(9)
(West 1996)). The motion admits all well-pled facts in the complaint and
reasonable inferences drawn therefrom. Fireman's Fund Insurance Co. v. SEC
Donohue, Inc., 176 Ill. 2d 160, 161 (1997).
The several complaints allege the following pertinent facts. In 1993, the
Chicago fire department accepted a "Life Cube" from the product's American
distributor, defendant Federated Equipment & Supply Company, Inc. (hereinafter,
Federated, also referred to in the record as FEDESCO). The Life Cube's German
manufacturer, defendant Deutsche Schlauchtboot Fabrik Hans Scheibert GMBH
& Company, K.G. (hereinafter, DSB), had placed a German-language label on the
product warning that it was to be used solely to catch jumping or falling persons
in emergency rescue situations and was not to be used for exercise, training, or
sport jumping.
Federated replaced the Life Cube's German-language warning label with
a label, in English, warning that the product was to be used exclusively in emer-
gency rescue situations. Federated also provided the fire department with literature
containing various product information, instructions, and warnings. One warning
repeated that the Life Cube was intended for use solely in emergency rescue
operations in which there were no other means of egress and descent.
On November 22, 1993, Steven McNamee (decedent) was a fire
department cadet firefighter at the Chicago Fire Academy. As part of a training
exercise, decedent was ordered to jump from a height onto the Life Cube.
Decedent jumped, but the product failed to properly support him, causing him to
be fatally injured.
Decedent's estate eventually filed a fourth-amended complaint in the circuit
court of Cook County against DSB, Federated, and other corporations related to
Federated. The complaint contains survival and wrongful-death counts, alleging
negligence and product liability.
Federated then brought a third-party contribution action against the City,
pursuant to the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS
100/5 (West 1996)). DSB brought, inter alia, a third-party contribution action
against Federated and its related corporations, and the City. We note that DSB and
Federated each sought from the City unlimited contribution and, alternatively,
contribution limited by the Kotecki cap.
The City moved to dismiss the third-party claims for unlimited
contribution. See 735 ILCS 5/2--619(a)(9) (West 1996). Relying on section 22--
307 of the Pension Code (40 ILCS 5/22--307 (West 1996)) and Kotecki, the City
argued that its contribution liability was limited to the benefits it had provided
decedent's estate pursuant to article XXII, division 3, of the Pension Code (40
ILCS 5/22--301 et seq. (West 1996)).
The circuit court denied the City's motion to dismiss, holding that the
Kotecki cap did not limit the City's third-party contribution liability to decedent's
Pension Code benefits. The circuit court subsequently certified the following
question for interlocutory review (see 155 Ill. 2d R. 308):
"What limits on liability, if any, are there on the City of Chicago
where it is sued as a third party defendant under the Contribution
Act [citation], where the City paid and continues to pay benefits
pursuant to the Pension Code [citations] to the plaintiff whose
decedent was a firefighter."
The appellate court upheld the circuit court. The appellate court held that
"there are no limits" to the City's third-party contribution liability when a City
employee is injured. 286 Ill. App. 3d 806, 814.
We allowed the City's petition for leave to appeal. 166 Ill. 2d R. 315(a).
We subsequently granted the Illinois Municipal League and the Illinois
Governmental Association of Pools leave to file amicus curiae briefs in support
of the City. 155 Ill. 2d R. 345. We now reverse the judgments below and remand
the cause to the circuit court for further proceedings.

DISCUSSION
The City argues that Pension Code section 22--307 limits its contribution
liability to DSB and Federated to the medical and death benefits it provided to
decedent's estate. The City contends that section 22--307 must be interpreted in
accord with this court's interpretation of the Workers' Compensation Act in
Kotecki. Thus, to better understand the certified question for review, we initially
discuss the Workers' Compensation Act in relation to the Kotecki decision.

Workers' Compensation Act
Section 5(a) of the Workers' Compensation Act provides in pertinent part:
"No common law or statutory right to recover damages
from the employer *** for injury or death sustained by any
employee while engaged in the line of his duty as such employee,
other than the compensation herein provided, is available to any
employee who is covered by the provisions of this Act *** or any
one otherwise entitled to recover damages for such injury." 820
ILCS 305/5(a) (West 1996).
Section 11 of the Act further provides in pertinent part: "The compensation herein
provided, together with the provisions of this Act, shall be the measure of the
responsibility of any employer *** for accidental injuries sustained by any
employee arising out of and in the course of the employment according to the
provisions of this Act ***." 820 ILCS 305/11 (West 1996).
This court has explained the purposes of the Workers' Compensation Act
as follows:
" `Pursuant to the statutory scheme implemented by the Act,
the employee gave up his common law rights to sue his employer
in tort, but recovery for injuries arising out of and in the course of
his employment became automatic without regard to any fault on
his part. The employer, who gave up the right to plead the
numerous common law defenses, was compelled to pay, but his
liability became fixed under a strict and comprehensive statutory
scheme, and was not subjected to the sympathies of jurors whose
compassion for fellow employees often led to high recovery.
[Citation.] This trade-off between employer and employee
promoted the fundamental purpose of the Act, which was to afford
protection to employees by providing them with prompt and
equitable compensation for their injuries.' " Mitsuuchi v. City of
Chicago, 125 Ill. 2d 489, 494 (1988), quoting Kelsay v. Motorola,
Inc., 74 Ill. 2d 172, 180-81 (1978); see M. Bilandic, Workers'
Compensation, Strict Liability, and Contribution in Illinois: A
Century of Legal Progress?, 83 Ill. B.J. 292 (1995); 1 T.
Angerstein, Illinois Workmen's Compensation secs. 8, 9, 14, 15, 31
(rev. ed. 1952); 2 T. Angerstein, Illinois Workmen's Compensation
sec. 951 (rev. ed. 1952).
We note that section 5(b) of the Act essentially provides that:
"an employee who has received compensation under the Act
is required to reimburse the employer from any recovery the
employee receives from a third party legally responsible for the
employee's injuries. The obligation is to reimburse for the full
amount of benefits paid or payable by the employer and a lien in
favor of the employer is provided upon any recovery by the
employee for the amount of the benefits. [820 ILCS 305/5(b) (West
1996).] The employee is entitled to retain only that portion of a
recovery from the tortfeasor which exceeds the benefits received
under the Act from the employer." Ullman v. Wolverine Insurance
Co., 48 Ill. 2d 1, 7 (1970).
Where an injured employee sues a third party, the plaintiff's employer and
the third party have competing interests. Under the Workers' Compensation Act,
the employer does not want to pay more than his or her workers' compensation
liability. Indeed, the large majority of American jurisdictions do not allow the
third party to seek contribution from the employer. Kotecki, 146 Ill. 2d at 163;
accord 7 A. Larson & L. Larson, Larson's Workers' Compensation Laws sec.
76.20, at 14--730 (1997). However, under the Contribution Act, the third party has
the right to contribution from the employer regardless of the Workers' Compen-
sation Act. Kotecki, 146 Ill. 2d at 158-60 (explaining Doyle v. Rhodes, 101 Ill. 2d 1 (1984)).
In Kotecki, this court balanced these competing interests by holding that
the third party may obtain contribution from the employer, but limited to the
employer's workers' compensation liability. Kotecki, 146 Ill. 2d at 164-65. With
this interpretation of the Workers' Compensation Act in mind, we now turn to the
Pension Code.

Pension Code
Article XXII, division 3, of the Pension Code authorizes a municipality to
enact an ordinance providing death and medical benefits for police officers and
firefighters who are injured or killed while performing their duties. 40 ILCS 5/22--
301 (death), 22--306 (medical) (West 1996). The City has enacted such an
ordinance pursuant to this division of the Pension Code. See Chicago Municipal
Code sec. 3--8--010 et seq. (1990). Indeed, we note that, with an exception not
relevant to this case, firefighters in cities with populations exceeding 200,000 are
expressly exempted from the Workers' Compensation Act. 820 ILCS 305/1(b)(1)
(West 1996). We also note that these payments are in addition to payments
firefighters or their survivors would receive from the Firemen's Annuity and
Benefit Fund when a firefighter is disabled or dies while performing his or her
duties. See 40 ILCS 5/6--101 et seq. (West 1996).
Pension Code section 22--307 limits the liability of a municipality that
enacts an ordinance pursuant to article XXII, division 3:
"Whenever any city or village enacts an ordinance pursuant
to this Division, no common law or statutory right to recover
damages against such city or village for injury or death sustained
by any policeman or fireman while engaged in the line of his duty
as such policeman or fireman, other than the payment of the
allowances of money and of the medical care and hospital
treatment provided in such ordinance, shall be available to any
policeman or fireman who is covered by the provisions of such
ordinance *** or to anyone who would otherwise be entitled to
recover damages for such injury or death." 40 ILCS 5/22--307
(West 1996).
As is readily apparent, the language of Pension Code section 22--307 is
nearly identical to section 5(a) of the Workers' Compensation Act. Also, Pension
Code section 22--308, tracking the language of section 5(b) of the Workers'
Compensation Act, requires a police officer or firefighter who has received death
benefits under Pension Code section 22--301 to reimburse the municipality from
any recovery the employee's estate receives from a third party. The section also
creates a corresponding lien in favor of the municipality. Compare 40 ILCS 5/22--
308 (West 1996) with 820 ILCS 305/5(b) (West 1996).


Kotecki
We agree with the City that Pension Code section 22--307 must be
interpreted in accord with the Kotecki court's interpretation of the Workers'
Compensation Act. The cardinal rule of interpreting statutes, to which all other
canons and rules are subordinate, is to ascertain and give effect to the intent of the
legislature. In determining legislative intent, a court first should consider the
statutory language. Moreover, a court will avoid an interpretation of a statute that
would render any portion of it meaningless or void. Also, a court presumes that
the legislature, in enacting a statute, did not intend absurdity, inconvenience, or
injustice. Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 194-95
(1992).
"Reference to another statute by analogy is also a common method of
interpretation and has been relied upon by this court on many occasions." Waste
Management of Illinois, Inc. v. Illinois Pollution Control Board, 145 Ill. 2d 345,
351 (1991). As a noted authority has explained:
"On the basis of analogy the interpretation of a doubtful
statute may be influenced by language of other statutes which are
not specifically related, but which apply to similar persons, things,
or relationships. By referring to other similar legislation, a court is
able to learn the purpose and course of legislation in general, and
by transposing the clear intent expressed in one or several statutes
to a similar statute of doubtful meaning, the court not only is able
to give effect to the probable intent of the legislature, but also to
establish a more uniform and harmonious system of law." 2B N.
Singer, Sutherland on Statutory Construction sec. 53.03, at 233 (5th
ed. 1992).
Illinois courts have long recognized that the system for the compensation
of injured police officers and firefighters under article XXII, division 3, of the
Pension Code is analogous to that established by the Workers' Compensation Act.
Mitsuuchi, 125 Ill. 2d at 493-94; accord Sweeney v. City of Chicago, 131 Ill. App.
2d 537, 542 (1971). In the Pension Code, the legislature intended to motivate
municipalities to provide police officers and firefighters with protections available
to private employees under the Workers' Compensation Act. To encourage
municipalities to enact ordinances pursuant to the Code, the legislature gave them
the same protections available to employers under the Workers' Compensation
Act. Fligelman v. City of Chicago, 275 Ill. App. 3d 1089, 1091 (1995). Because
of the similarity of language in the Pension Code and the Workers' Compensation
Act, and because of the analogous compensation systems established in both stat-
utes, the standards developed under the Act apply to the Code (O'Donnell v. City
of Chicago, 126 Ill. App. 3d 548, 552 (1984)) and guide courts in interpreting the
Code (Fligelman, 275 Ill. App. 3d at 1092).
The appellate court did not consider these holdings to be relevant to the
present case. 286 Ill. App. 3d at 810. However, we agree with the City that, given
the significant similarities between the Workers' Compensation Act and the
Pension Code, an accommodation between the Pension Code and the Contribution
Act should be made similar to that made between the Workers' Compensation Act
and the Contribution Act in Kotecki. See Kotecki, 146 Ill. 2d at 165. As noted,
Pension Code section 22--307 and section 5(a) of the Workers' Compensation Act
use almost identical language to limit employers' exposure to suits. The plain
language of section 22--307 limits the City's liability to any plaintiff seeking to
recover damages for a firefighter's injury or death. The City's liability is limited
to "the payment of the allowances of money and of the medical care and hospital
treatment provided in [the City's pension] ordinance." 40 ILCS 5/22--307 (West
1996).
In addition to the largely identical language in these sections of the
Pension Code and the Workers' Compensation Act, the purpose and operation of
both statutes are identical. Both statutory schemes provide compensation on a no-
fault basis to employees injured in the scope of their duties. In return, both
statutory schemes sharply limit rights of action. And both statutes provide the
employer with a statutory lien on a portion of the damages that an employee
might obtain from a third party. So as the employer in Kotecki was entitled to the
liability limitation that the Workers' Compensation Act provided as a trade-off for
the no-fault compensation scheme, the City is entitled to the Pension Code's
liability limitation because it participates in the no-fault compensation scheme
under article XXII, division 3, of the Pension Code.
The appellate court stated several reasons to avoid this natural conclusion.
These reasons are unpersuasive.
The appellate court noted that the liability limitation of Pension Code
section 22--307 applies to injured police officers and firefighters and, among
others, " `anyone who would otherwise be entitled to recover damages for such
injury' " or death. 286 Ill. App. 3d at 811, quoting 40 ILCS 5/22--307 (West
1996). The court concluded that this provision does not include third-party
plaintiffs seeking contribution for two reasons.
First, citing the Contribution Act, the appellate court reasoned that a third-
party contribution plaintiff does not "recover damages for such injury," but rather
is entitled to an apportionment of damages based on his or her pro rata share of
the common liability. 286 Ill. App. 3d at 811, citing 740 ILCS 100/2(b) (West
1996). However, this court has held that actions for "damages" include actions for
contribution. Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450, 457
(1990); accord Bradley v. Sandoz Nutrition Corp., 274 Ill. App. 3d 381, 384
(1995).
The appellate court also noted that the current version of the Pension Code
(1963 Ill. Laws 161) predates the availability of contribution among tortfeasors in
Illinois (see Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill. 2d 1 (1977)). According to the appellate court, since contribution was not recognized
here when the legislature enacted the Pension Code, the legislature could not have
intended to limit to any extent a third party's right of contribution against the
City. 286 Ill. App. 3d at 811.
The appellate court's interpretation of Pension Code section 22--307 allows
the City to be liable in contribution for the full amount of its percentage of fault.
This interpretation essentially nullifies that section's plain language, which
establishes limits on the City's liability. However, where there is an alleged
conflict between two statutes, a court has a duty to construe those statutes in a
manner that avoids an inconsistency and gives effect to both statutes, where such
an interpretation is reasonably possible. Lilly Lake Road Defenders v. County of
McHenry, 156 Ill. 2d 1, 9 (1993); accord Jahn v. Troy Fire Protection District,
163 Ill. 2d 275, 279-80 (1994).
The appellate court's conclusion that the liability limitation of Pension
Code section 22--307 does not apply to third-party contribution plaintiffs
contravenes this court's reasoning in Kotecki. In Kotecki, this court concluded that
the liability limitation of section 5(a) of the Workers' Compensation Act, which
applies to "any one otherwise entitled to recover damages for such injury" (820
ILCS 305/5(a) (West 1996)), includes third-party contribution plaintiffs. Also, the
Kotecki court found accommodation between the Workers' Compensation Act and
the Contribution Act, notwithstanding the fact that the Workers' Compensation
Act, like the Pension Code, predates the adoption of contribution among
tortfeasors (1951 Ill. Laws 1060).
The appellate court next found "crucial differences" between the plain
language of the Pension Code and the Workers' Compensation Act. To the
appellate court, these differences were sufficient to preclude an application of
Kotecki to article XXII, division 3, of the Pension Code.
The appellate court first noted that the Workers' Compensation Act
contains section 11, which provides that "[t]he compensation herein provided ***
shall be the measure of the responsibility of any employer." 820 ILCS 305/11
(West 1996). The court then stated that the Pension Code does not contain similar
language. Therefore, the court concluded, the liability of a municipal employer
was not intended to be limited to the compensation provided for in article XXII,
division 3, of the Pension Code. 286 Ill. App. 3d at 812.
The appellate court's dissection of the Workers' Compensation Act was
erroneous. Generally, a court determines the legislative intent in enacting a statute
by examining the entire statute and by construing each material part or section of
the legislation together, and not each part or section alone. Castaneda v. Illinois
Human Rights Comm'n, 132 Ill. 2d 304, 318 (1989); Huckaba v. Cox, 14 Ill. 2d 126, 131 (1958). Specifically, in construing the Workers' Compensation Act, all
portions thereof must be read as a whole, and in such a manner as to give them
the practical and liberal interpretation intended by the legislature. Laffoon v. Bell
& Zoller Coal Co., 65 Ill. 2d 437, 444-45 (1976), quoting Vaught v. Industrial
Comm'n, 52 Ill. 2d 158, 165 (1972).
The plain language of section 5(a) of the Workers' Compensation Act
clearly includes the purpose and meaning of section 11. As previously quoted,
section 5(a) includes the phrase: "other than the compensation herein provided."
This obviously means that "[t]he compensation herein provided *** shall be the
measure" of the employer's responsibility. 820 ILCS 305/5(a), 11 (West 1996).
The two phrases say the same thing. Section 5(a) limits an employer's
responsibility to the requirements of the Act exactly as does section 11. Based on
this plain language, it is quite settled that the meaning of these two provisions are
closely related. In construing any one of them, they must be considered together.
See 2 T. Angerstein, Illinois Workmen's Compensation secs. 952, 1831, 1832 (rev.
ed. 1952).
We note that this court and commentators long have spoken of sections
5(a) and 11 of the Workers' Compensation Act as operating together to limit the
employer's liability to that provided by the Act. See, e.g., Meerbrey v. Marshall
Field & Co., 139 Ill. 2d 455, 462-63 (1990); W.C. Ropiequet & T. Keefe,
Coverage of the Illinois Workmen's Compensation Act, 1957 U. Ill. L.F. 169, 183-
84. Courts have also described section 5(a) alone as both (1) providing a substitute
for an employee's previous rights of action against an employer and extending the
liabilities of the employer, and (2) fixing limits to the amount to be recovered and
covering the whole ground of the employer's liabilities. Duley v. Caterpillar
Tractor Co., 44 Ill. 2d 15, 18 (1969); see also Villanueva v. O'Gara, 282 Ill. App.
3d 147, 152 (1996); Bloemer v. Square D Co., 8 Ill. App. 3d 371, 372 (1972).
The appellate court also misapprehended the plain language of Pension
Code section 22--307. Sections 5(a) and 11 of the Workers' Compensation Act
have a clear analogue in Pension Code section 22--307. As previously quoted,
section 22--307 includes the phrase: "other than the payment of the allowances of
money and of the medical care and hospital treatment provided in [the City's
pension] ordinance." 40 ILCS 5/22--307 (West 1996). By this language, as with
section 5(a) of the Workers' Compensation Act, section 22--307 provides a
substitute for a police officer's or a firefighter's previous rights of action against
a municipality and extends the municipality's liabilities, but also limits the amount
to be recovered under article XXII, division 3, and covers the whole ground of the
municipality's liabilities under that article.
The appellate court also concluded that a municipality's lien rights under
the Pension Code were so different from those under section 5(b) of the Workers'
Compensation Act as to preclude the application of Kotecki to article XXII,
division 3, of the Pension Code. The appellate court noted that, under Pension
Code section 308, the City's lien against a firefighter's award from a third party
is limited to the amount of medical and death benefits that the City paid out
"previous to such judgment or settlement." 40 ILCS 5/22--308 (West 1996). The
appellate court stated that the City's lien would not include any money paid or
payable after the judgment or settlement, or payments from the Firemen's Annuity
and Benefit Fund (see 40 ILCS 5/6--101 et seq. (West 1996)).
The appellate court surmised that a private employer's liability under the
Workers' Compensation Act could be much broader than a municipality's limited
lien under Pension Code section 22--308. The court viewed Kotecki as balancing
the competing interests of the employer, as a participant in a no-fault system of
recovery, and the third party, who seeks to pay no more than its established fault.
To the appellate court, the City's lien under section 22--308 does not reflect the
fairest and most equitable balance between the competing interests of the
tortfeasors. Since the City's lien does not reflect the full measure of the City's
liability, then the rationale of Kotecki does not apply to this case. 286 Ill. App. 3d
at 812-13.
We conclude that the difference in the lien rights of section 5(b) of the
Workers' Compensation Act and Pension Code section 22--308 does not preclude
an application of Kotecki to article XXII, division 3, of the Pension Code. We
agree with the City that Kotecki was not based on the reasonableness of that
employer's lien, or the determination of any particular amount of compensation.
Rather, this court looked to the underlying purpose of the workers' compensation
scheme, which is in part to limit an employer's liability to what it is already
paying in benefits under a no-fault system. That this purpose also applies to article
XXII, division 3, of the Pension Code "can hardly be doubted." Mitsuuchi, 125 Ill. 2d at 493. Kotecki reconciled this legislative intent to limit an employer's liability
with a third party's right to contribution. Likewise, it can hardly be doubted that
this reconciliation should apply to article XXII, division 3, of the Pension Code
and the Contribution Act.

CONCLUSION
In sum, we answer the certified question as follows. The benefit scheme
in article XXII, division 3, of the Pension Code operates similarly to the workers'
compensation scheme:
"In the ordinary case, when an employee sustains injuries in the
course of employment, the employer pays workers' compensation
benefits to the employee regardless of fault. If the employee
thereafter successfully sues a third-party tortfeasor for his injuries,
the employer has the right to recover workers' compensation
payments it made to the employee from the award the employee
receives from the third-party tortfeasor. If the third party brings a
contribution action against the employer, the amount of
contribution the employer must pay is limited to `an amount no
greater than' its workers' compensation liability. (Kotecki v.
Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 157.) Ultimately,
a negligent employer pays out no more than the amount it is
obligated to pay under the workers' compensation statute." Schrock
v. Shoemaker, 159 Ill. 2d 533, 542-43 (1994).
The statutory limit of the City's liability is the "payment of the allowances
of money and of the medical care and hospital treatment provided in [the City's
pension] ordinance" enacted pursuant to article XXII, division 3, of the Pension
Code (40 ILCS 5/22--307 (West 1996)). This is the amount that the City can be
reimbursed from a firefighter's award from a third party, and it is the amount of
the City's corresponding lien. 40 ILCS 5/22--308 (West 1996).
For the foregoing reasons, the judgments of the appellate court and the
circuit court of Cook County are reversed, and the cause remanded to the circuit
court for further proceedings consistent with this opinion.

Judgments reversed;
cause remanded.

JUSTICE HEIPLE, dissenting:
At issue in this case is the extent of the City of Chicago's liability when
it is sued as a third-party defendant in a contribution action related to a wrongful
death suit brought on behalf of a firefighter killed in the line of duty. The majority
opinion holds that the City of Chicago's liability in contribution is limited to the
amount of death and medical benefits it has paid to the firefighter's survivors
under the Illinois Pension Code (40 ILCS 5/22--301 et seq. (West 1996)) and
essentially extends the holding of Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991), which limited a private employer's liability in contribution to the
amount of the employer's liability to its employee under the Workers'
Compensation Act (820 ILCS 305/1 et seq. (West 1996)). The majority reasons
that the language and purpose of the Pension Code is so similar to that of the
Workers' Compensation Act that, logically, the Kotecki rule must apply to both.
Slip op. at 8. The majority's opinion has a certain superficial appeal--there are
similarities in the statutes. The majority's rationale, however, is flawed in several
respects, not the least of which is that the majority confuses the nature of an
analogy--an analogy being an interpretative aid and not a substitute for legislation.
The essence of the dilemma is this. If the City of Chicago (the City) is
liable in contribution, the City might be forced to pay its employee, albeit
indirectly through a third-party tortfeasor, an amount in excess of its liability
under the Pension Code. If the City is not liable in contribution, a third-party
stranger to the employee-employer relationship is made to bear the burden of a
full common law judgment despite the possibility of greater fault on the part of
the City. Thus, the third-party tortfeasor would in effect be subsidizing the City's
pension system in a proportion greater than its own fault.
The City has an obvious interest in limiting its liability to the death and
medical benefits required under the Pension Code. The employee has an interest
in receiving full benefits under the Pension Code and, to the extent that a third
party caused him injury, a common law recovery from that third party. In contrast,
the third party's interest is identical to that of any other joint tortfeasor, i.e., to
limit its liability to no more than established fault. The majority's answer to this
quandary is to allow the third party to seek contribution from the City, but only
to the extent of the death and medical benefits paid to the firefighter under the
Pension Code. This rule, however, works a real inequity on the third party to the
extent that it is forced to bear the burden of the plaintiff's recovery in amount
greater than its proportionate fault. The injured employee receives his assured
compensation under the Pension Code as a substitute for a tort recovery against
his employer, and the City limits its liability and is immune from suit from its
employees. The only problem is that the third party--a stranger to the employee-
employer bargain embodied in the Pension Code--must write the check for the
difference.
Of course, the majority responds that this was precisely the same situation
presented in Kotecki, the only difference being that Kotecki involved a private
employer and this case involves a public employer. There are, however, two
additional differences. First, the Kotecki holding rests on express language in the
Workers' Compensation Act to the effect that the statutory benefits provided
thereunder were intended to be the full measure of an employer's liability.
Kotecki, 146 Ill. 2d at 165 ("The language of the Workers' Compensation Act
clearly shows an intent that the employer only be required to pay an employee the
statutory benefits"). The Workers' Compensation Act emphatically provides: "The
compensation herein provided *** shall be the measure of the responsibility of
any employer." 820 ILCS 305/11 (West 1996). No such categorical language
limiting liability appears in the Pension Code.
The Pension Code by its terms controls only the rights between the public
employer and its employee. The right to contribution among tortfeasors was not
even recognized at the time that the legislature adopted the Pension Code. See
1963 Ill. Laws 161 (adopting the Illinois Pension Code); Skinner v. Reed-Prentice
Division Package Machinery Co., 70 Ill. 2d 1 (1977) (establishing the right of
contribution). The majority responds that this is also true of the Workers'
Compensation Act; and so it is. As Chief Justice Freeman so eloquently opined
in his dissent from the denial of rehearing in Kotecki, "[i]t could not have been
that legislature's intent to limit that right ***, as *** contribution did not exist in
Illinois at the time of the enactment of the original Workers' Compensation Act.
That being the case, it was improper for this court to effectively attribute to the
legislature which passed the Act an intent which it could not possibly have had
at that time." Kotecki, 146 Ill. 2d at 169 (Freeman, J., dissenting upon denial of
rehearing). Because the concept of contribution as a legal right in Illinois "must
necessarily have been totally foreign in the contemplation of any legislation
adopted prior to 1977, the Workers' Compensation Act *** cannot be deemed by
this court as controlling a question which arises as a result of the Contribution
Act, a post-1977 legislative enactment." Kotecki, 146 Ill. 2d at 171 (Freeman, J.,
dissenting upon denial of rehearing). The same holds true here for the Pension
Code.
The second critical difference between the Pension Code and Workers'
Compensation Act is this: under the Pension Code, the City's lien against a
judgment or settlement obtained by a firefighter from a third party is limited to
the amount of medical and death benefits that the City had paid out "previous to
such judgment or settlement." 40 ILCS 5/22--308 (West 1996). Thus, the City's
statutory lien only includes the death and medical benefits paid under the Pension
Code--here $58, 231.80--and does not include the estimated $1,623,403.24 in total
benefits that the City will pay to the decedent's widow and dependents under the
Pension Code. Nor does the limited lien in the Pension Code include the
additional payments the City will make to the firefighter's survivors under the
Firemen's Annuity and Benefit Fund (40 ILCS 5/6--101 et seq. (West 1996)). In
contrast, an employer's lien under the Workers' Compensation Act, and
corresponding maximum liability in contribution under Kotecki, reflects the full
and complete benefits paid to the employee. Kotecki, 146 Ill. 2d at 164-65; 820
ILCS 305/11, 5 (West 1996). Here the City's lien under the Pension Code simply
does not reflect the full measure of the City's liability as an employer and,
accordingly, is a dubious and insufficient basis for measuring its liability in
contribution.
This situation requires legislation. It is ill-advised for a court to speculate
about legislative intentions when the statute's drafters were without the first notion
of the current controversy. By attributing a nonexistent intent to the legislature that
passed the Pension Code, the majority has "usurped the proper role and authority
of the Illinois legislature." Kotecki, 146 Ill. 2d at 174 (Freeman, J., dissenting
upon denial of rehearing). Legislative inaction is not an invitation to the judiciary
to write law, and reading statutes by strained analogy is a questionable basis for
judicial decisions. Therefore, I must respectfully dissent.

JUSTICE NICKELS joins in this dissent.