Illinois Appellate Court Rules That a Party’s Failure to Seek a Contribution Action in the Underlying Lawsuit Would Be Barred from Later Filing

The First District Appellate Court affirmed a decision of a Cook County trial court.

In 1999, Snake River Technology d/b/a Rocky Mountain Cryobanks, a Wyoming company, was purchased by the New England Cryogenics Center, a Massachusetts corporation that collects, stores and sells human sperm.

The purchase included the sperm donor samples in possession of Snake River. In 2009, one such sperm sample was sold to an Oklahoma couple, the Kretchmars, who had a child. The child developed cystic fibrosis; a genetic test revealed that the child had received the Delta-F508 cystic fibrosis gene mutation from the donor sperm.

The sperm sample had been certified as free of a Delta-F508 cystic fibrosis mutation in 1992 by the Reproductive Genetics Institute, an Illinois corporation that conducts genetic testing. The New England Cryogenics had advertised it as such.

The Kretchmars sued New England Cryogenics in Oklahoma. The sperm bank was insured by the Certain Underwriters at Lloyd’s of London. When a settlement agreement between the New England Cryogenics and the Kretchmars was reached, Lloyd’s paid the settlement proceeds.

And on Aug. 17, 2013, Lloyd’s filed suit against the Reproductive Genetics Institute (the “Institute”) in Cook County, seeking to recover the settlement proceeds that had been paid to settle the Kretchmars’ lawsuit. Lloyd’s alleged contribution, negligence, negligent representation and breach of express warranty.

The Institute moved to dismiss, arguing that any claim for contribution in Illinois must be asserted in the underlying lawsuit according to Section 5 of the Joint Tortfeasor Contribution Act, as interpreted by the Illinois Supreme Court in Laue v. Leifheit, 105 Ill. 2d 191 (1984).

The Institute was never made party to the underlying lawsuit in Oklahoma. The trial court granted dismissal with prejudice. Lloyd’s appealed.

Lloyd’s argued that because the underlying lawsuit occurred outside of Illinois (in Oklahoma), the Illinois Contribution Act could not be applied.

Then Lloyd’s asserted that it was impossible for them to make a contribution claim against the Institute in the Oklahoma lawsuit because the Institute was not subject to personal jurisdiction in Oklahoma.

Lloyd’s urged the court that public policy consideration supported permitting the separate contribution action as there was no risk of inconsistent verdicts and no additional burden other than on Lloyd’s.

Even though the appellate court found that Lloyd’s arguments “makes a strong and reasonable public policy argument, which highlights a harsh result,” it found that Lloyd’s were bound by precedent to the rule against them.

The appellate court noted that the legislature amended the Contribution Act’s Section 5 in 1995 to permit such claims for contribution, but the amendment was found unconstitutional by the Illinois Supreme Court in 1997.

The Illinois Appellate Court noted that the legislature had not altered the act in the ensuing 21 years and noted that the Illinois Supreme Court had since found that the act’s Section 5 bars a contribution claim not raised in the underlying lawsuit even when the plaintiff attempted to raise it in the underlying lawsuit and was denied leave to do so by the court at the time.  Accordingly, the appellate court affirmed the circuit court’s decision.

Certain Underwriters at Lloyd’s of London v. Reproductive Genetics Institute, 2018 IL App (1st) 170923 (July 31, 2018).

Kreisman Law Offices has been handling car accident lawsuits, truck accidents, motorcycle accidents, bicycle accidents, pedestrian accidents and traumatic brain injury cases for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Oak Forest, Orland Park, Burr Ridge, Hinsdale, Homewood, Highwood, Bridgeview, Burbank, Forest Park, Franklin Park, Itasca, Wood Dale, Arlington Heights, Chicago (Little Village, Lincoln Square, Lawndale, Lakeview, Kenwood, Kelvyn Park, North Ravenswood, Pill Hill, Pilsen, Portage Park, Printer’s Row), Glencoe, Glenview, Northfield, Wheeling, Buffalo Grove and Vernon Hills, Ill.

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