Third-Party Actions: A Plaintiff 's Perspective

INTRODUCTION Paragraph 2-406 of the Illinois Code of Civil Procedure permits a defendant to join a third party who may be liable to him for all or part of the plaintiffs claim against him. , Although paragraph 2-406 pertains directly to actions that may be initiated by defendants, third-party practice poses significant ramifications for the plaintiff in terms of trial strategy and negotiation, since parties otherwise immune from direct suit by the plaintiff may nevertheless be drawn into the litigation by a third-party complaint. The approach ultimately adopted by the plaintiff is dependent, to a significant degree, on the particular theory supporting the cause of action and the likelihood of a third-party complaint. This article will discuss third-party practice in the context of various areas of tort law frequently encountered by Illinois practitioners. First, the article will examine cases where an employer, immune from a direct suit by his employee under the Workers' Compensation Act, is impleaded by the employee's defendant as a third-party defendant, and where an initial tort injury is aggravated by another's negligence. It will then discuss thegraph 2-406(b) provides in pertinent part: Within the time for filing his or her answer or thereafter by leave of court, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him or her for all or part of the plaintiffs claim against him or her. Subsequent pleadings shall be filed as in the case of a complaint and with like designation and effect. The third-party defendant may assert any defenses which he or she has to the third-party complaint or which the third-party plaintiff has to the plaintiffs claim and shall have the same right to file a counterclaim or third-party complaint as any other defendant. obsolescence of equitable apportionment and the erosion of immunities which traditionally prevented certain direct suits by plaintiffs. Each of these areas will be considered in light of Skinner v. Reed-Prentice Division Package Machinery Co. 2 and Illinois' Contribution Act 3 and their effect on plaintiffs litigation strategy. Also considered is the doctrine of joint and several liability, its implications for plaintiffs, and its reaffirmance in Coney v. J.L.G. Industries, Inc., 4 recently decided by the Illinois Supreme Court.