In Illinois, the right of contribution is codified as 740 ILCS 100/2:

Right of Contribution. (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.

740 ILCS 100/2.

A contribution action is subject to the same statute of limitations as the underlying suit. In Illinois, the statute of limitations for a personal injury action is generally two years. Credit Gen. Ins. Co. v. Midwest Indem. Corp., 916 F. Supp. 766, 774 (N.D. Ill. 1996). However, the period does not begin to toll until under the Contribution Act, when the Defendant has been served or reasonably knew of the act or omission giving rise to the action, whichever period expires later. See 735 ILCS 5/13-204(b).

Illinois courts have held that when there is a pending action, the contribution claim must be asserted by counterclaim or by third-party claim in that action. Laue v. Leifheit, 105 Ill. 2d 191, 196, 473 N.E.2d 939, 941 (1984). Laue was abrogated by statute in 1995 with the amendment of the Contribution Act, under which, under current Illinois law, a contribution claim may be brought in a separate action. Harshman v. DePhillips, 218 Ill. 2d 482, 502, 844 N.E.2d 941, 953–54 (2006). That revision was declared unconstitutional by the Illinois Supreme Court. Best v. Taylor Machine Works, 1997, 689 N.E.2d 1057, 228 Ill.Dec. 636, 179 Ill.2d 367.

Therefore, the Laue holding still applies. Section 5 of the Contribution Act states that a claim for contribution must be asserted in the underlying action. The Laue court stated this for several public policy reasons: (1) one jury should decide both the liability to the plaintiff and the percentages of liability among the defendants; (2) one jury and suit avoids the possibility of inconsistent verdicts; (3) one jury and suit avoids a multiplicity of lawsuits in a crowded court system; and (4) one suit saves the court time and attorney fees. Laue, at 196-97, 942.

The Supreme Court in Illinois upheld the Laue holding in Harshman and further illustrated that a strict interpretation of Section 5 of the Contribution Act applied. Harshman v. DePhillips, 218 Ill. 2d 482, 504, 844 N.E.2d 941, 954 (2006); See also Certain Underwriters at Lloyd’s, London v. Reprod. Genetics Inst.., 2018 IL App (1st) 170923, ¶ 17, 103 N.E.3d 346, 350.

Accordingly, there are important deadlines to be aware of to make sure that a contribution action is filed on time. The clock may begin ticking as soon as service is achieved. In a personal injury action, defendants generally have two years to add a third-party defendant in contribution. However, there can be tactical advantages to bringing a contribution action earlier in the litigation.

About Xander M. Landy

Xander is an associate attorney and member of Tressler’s Litigation Practice Group in Chicago. Xander focuses his practice on a wide range of complex civil litigation matters and has a depth of experience in the areas of general liability, including product defense and premise liability defense. He frequently handles trucking and transportation litigation, taking cases from inception to resolution. Xander also has experience defending against civil rights claims in Federal Court. Read Xander’s full bio here.