Carmichael v. Union Pacific R.R. Co. , 2019 IL 123853 ( 2019 )

2019 IL 123853
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 123853)
MARY TERRY CARMICHAEL, Appellant, v. UNION PACIFIC RAILROAD
COMPANY et al. (Professional Transportation, Inc., Appellee)
Jesse White, Secretary of State, Intervenor-Appellant.
Opinion filed September 19, 2019.
JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Theis, and
Neville concurred in the judgment and opinion.
OPINION
¶1 The plaintiff in this case was injured in a motor vehicle accident caused by a
third party while riding in an employee transport van owned by defendant
Professional Transportation, Inc. (PTI). She filed a declaratory judgment action in
the circuit court of Cook County seeking a declaration that defendant was legally
responsible for her damages due to a statutory violation. Specifically, plaintiff
alleged that defendant’s vehicle insurance policy did not contain the minimum
coverage required by section 8-101(c) of the Illinois Vehicle Code (625 ILCS 5/8-
101(c) (West 2010)). In response, PTI filed affirmative defenses alleging that
section 8-101(c) was unconstitutional. At the same time, PTI filed a counterclaim
based on grounds identical to those alleged in its affirmative defenses. The trial
court dismissed the counterclaim with prejudice. The appellate court affirmed the
dismissal of the counterclaim, but on different grounds. 2018 IL App (1st) 170075.
We now hold that the counterclaim was not a proper counterclaim under Illinois
law. Accordingly, we strike the counterclaim, vacate the lower courts’ judgments,
and remand the cause to the trial court for further proceedings consistent with this
opinion.
¶2 BACKGROUND
¶3 In 2010, plaintiff, Mary Terry Carmichael, was an employee of Union Pacific
Railroad Company (Union Pacific). Union Pacific contracted with PTI to transport
its employees to and between job sites. On November 13, 2010, plaintiff was riding
in one of PTI’s vans in the course of her employment when the van collided with
another vehicle, causing plaintiff severe injuries. The driver of the other vehicle,
Dwayne Bell, carried an automobile insurance policy with liability coverage of
$20,000 per person and $40,000 per accident, the minimum coverage required by
Illinois law.
¶4 On September 15, 2011, plaintiff filed a complaint in the law division of the
circuit court of Cook County against Union Pacific, PTI, and Bell. Plaintiff sought
money damages for her injuries based on negligence and violations of the Federal
Employers’ Liability Act (45 U.S.C. §§ 51-60 (2006)). Subsequently, Union
Pacific and PTI were dismissed from the case after it was determined that their
conduct did not cause the accident. Plaintiff ultimately reached a settlement with
Bell in the amount of $20,000, the maximum amount of his liability coverage.
¶5 On October 17, 2012, while her negligence action was pending, plaintiff filed a
three-count complaint for declaratory judgment and other relief in the chancery
division of the circuit court against PTI, Union Pacific, and ACE American
Insurance Company (ACE). In count I, plaintiff alleged that PTI was legally
responsible for her damages because it was in violation of section 8-101(c) of the
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Illinois Vehicle Code (625 ILCS 5/8-101(c) (West 2010)). The version of section
8-101(c) in effect at the time of the accident required “a contract carrier transporting
employees in the course of their employment on a highway of this State in a vehicle
designed to carry 15 or fewer passengers” to maintain uninsured and underinsured
motor vehicle coverage “in a total amount of not less than $250,000 per passenger.”
Id. The statute required affected contract carriers to file proof of financial
responsibility with the Secretary of State. Id. Pursuant to section 8-116 of the
Vehicle Code, a contract carrier who failed to comply with section 8-101(c) was
guilty of a Class A misdemeanor. Id. § 8-116.
¶6 Plaintiff alleged that PTI’s liability policy did not meet the statutory minimum
because its uninsured and underinsured motor vehicle coverage was limited to
$20,000 per passenger and $40,000 per occurrence. She sought a judicial
declaration that PTI was legally responsible for her damages sustained in the
accident in excess of Bell’s insurance policy limits, up to a maximum of $250,000. 1
¶7 PTI initially filed an answer and affirmative defenses on April 23, 2013. On
October 2, 2013, PTI filed its amended answer, five affirmative defenses, and
counterclaim. The first four affirmative defenses alleged that sections 8-101(c) and
8-116 of the Vehicle Code were unconstitutional. First, PTI alleged that the statutes
constitute prohibited special legislation, in violation of article IV, section 13, of the
Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, § 13).
¶8 Second, PTI alleged that the statutes violate the equal protection clauses in the
state and federal constitutions (Ill. Const. 1970, art. I, § 2; U.S. Const., amend.
XIV), on the grounds that “no other motor vehicle passenger carriers in Illinois are
burdened with the unique requirement of maintaining such insurance, and there is
no reasonable basis to impose such a requirement on PTI and others who are
similarly situated.”
¶9 Third, PTI alleged that the statutes violate the due process clauses in the state
and federal constitutions (Ill. Const. 1970, art. I, § 2; U.S. Const., amend. XIV)
because they “are unconstitutionally vague and uncertain *** in that the
underinsured motorist insurance requirements contained therein make ambiguous
1
Counts II and III of the complaint against Union Pacific and ACE were dismissed with
prejudice and are not at issue in this appeal.
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references to vehicles designed to carry ‘fifteen or fewer’ passengers and impose
ambiguous levels of insurance in a ‘total amount’ of ‘not less than $250,000 per
passenger.’ ”
¶ 10 Fourth, PTI alleged that the statutes “constitute an undue and unreasonable
burden on interstate commerce,” in violation of the commerce clause of the United
States Constitution (U.S. Const., art. I, § 8, cl. 3), “in that contract motor carriers,
such as PTI, which transport passengers in interstate commerce, could not know
how much underinsured motorist coverage to obtain in advance of operating, ***
and this and other burdens imposed by the statute would unreasonably burden PTI
and other similarly situated contract carriers.”
¶ 11 PTI’s fifth affirmative defense alleged that section 8-101(c) does not provide
any civil remedy for statutory violations. It alleged that the criminal penalty in
section 8-116 is the sole enforcement mechanism for section 8-101(c) and, thus,
plaintiff could not rely on the statute as grounds for filing a private cause of action.
¶ 12 Along with its amended answer and affirmative defenses, PTI filed a separate
counterclaim seeking a declaratory judgment against plaintiff and the State of
Illinois, by and through the Illinois Attorney General and the Illinois Secretary of
State. The counterclaim restated the identical constitutional arguments alleged in
PTI’s first four affirmative defenses. The constitutional claims were the only legal
grounds set forth in the counterclaim. In its prayer for relief, PTI asked that the trial
court declare unconstitutional section 8-101(c) and section 8-116, to the extent it
applies to section 8-101(c). PTI also requested “that [plaintiff’s] declaratory
judgment action be dismissed with prejudice as to PTI.”
¶ 13 On December 3, 2013, then-Attorney General Lisa Madigan filed a motion to
dismiss the counterclaim pursuant to sections 2-615 and 2-619 of the Code of Civil
Procedure (735 ILCS 5/2-615, 2-619 (West 2010)). Attorney General Madigan
argued that PTI’s claims should be dismissed because it failed to follow the
procedure set forth in Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006). Under
this rule, a party challenging the constitutionality of a statute must provide notice
to the Attorney General in order to afford the appropriate state officer “the
opportunity, but not the obligation, to intervene in the cause or proceeding for the
purpose of defending” the statute. Ill. S. Ct. R. 19(c) (eff. Sept. 1, 2006). Here, PTI
avoided this process by filing a declaratory judgment action directly against state
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officials. Thus, Attorney General Madigan argued that the counterclaim should be
dismissed as procedurally improper.
¶ 14 Attorney General Madigan also argued that PTI’s constitutional claims failed
on the merits. Thus, the counterclaim should be dismissed with prejudice.
Alternatively, she suggested that the court could avoid addressing the constitutional
issues by resolving the case on nonconstitutional grounds, i.e., by holding that
section 8-101(c) does not provide for a private cause of action.
¶ 15 In response, PTI argued that deciding the case on nonconstitutional grounds
would not completely resolve its counterclaim, for the following reasons:
“This Court’s declaration that 5/8-101(c) does not provide a civil remedy
would not be binding in other civil cases brought by other plaintiffs against PTI
under the statute. Moreover, such a finding would not fix PTI’s rights regarding
any criminal prosecution that might be conducted against PTI under the statute.
Resolving PTI’s counterclaim, which seeks a determination that the offending
UM/UIM insurance obligation imposed by 5/8-101(c) is unconstitutional, is the
only way to finally determine the rights of all of the parties to this case.”
¶ 16 With leave of court, on May 16, 2014, PTI filed its third amended counterclaim
naming Illinois Secretary of State Jesse White and plaintiff as the only
counterdefendants. On the same day, PTI filed a motion to dismiss count I of
plaintiff’s complaint, arguing that section 8-101(c) does not provide for an express
or implied private right of action. PTI also argued that its vehicles did not fit the
definition of “a vehicle designed to carry 15 or fewer passengers” and, therefore,
that section 8-101(c) was inapplicable.
¶ 17 On January 30, 2015, the trial court entered an order granting the State’s motion
to dismiss the third amended counterclaim with prejudice. In a written decision, the
court examined all of PTI’s constitutional claims and determined that each of the
claims lacked merit. The court did not address any procedural irregularities
presented by the counterclaim, nor did it address the private right of action or
statutory interpretation issues raised by PTI.
¶ 18 On May 12, 2015, PTI filed a renewed motion to dismiss count I of the
complaint. On July 24, 2015, the trial court entered an order denying the motion.
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The court held that the statute did provide for an implied private right of action and,
therefore, that count I need not be dismissed on that basis. PTI filed a motion to
reconsider or for certification under Illinois Supreme Court Rule 308 (eff. July 1,
2017). The trial court denied the motion to reconsider but granted the motion to
certify a question under Illinois Supreme Court Rule 308. However, on January 13,
2016, the appellate court exercised its discretion to deny PTI’s appeal.
¶ 19 Subsequently, plaintiff filed a motion in the trial court to voluntarily dismiss
her complaint. On December 13, 2016, the trial court ordered the case dismissed
without prejudice upon plaintiff’s motion.
¶ 20 After the voluntary dismissal of the case, PTI filed a timely notice of appeal
seeking review of the court’s January 30, 2015, order dismissing its counterclaim.
PTI alleged the appellate court had jurisdiction because the December 13, 2016,
voluntary dismissal of the case rendered all prior final orders in the case
appealable. 2 While the appeal was pending, on January 26, 2017, plaintiff refiled
her complaint in the trial court. The trial court ordered a stay of the matter pending
resolution of PTI’s appeal.
¶ 21 In the appellate court, PTI reversed its previous position. It argued that there
was no need for the appellate court to reach the constitutional issues if the court
determined that plaintiff had no private right of action under the statute. PTI
conceded that the trial court’s order denying its motion to dismiss based on the
private right of action issue was a nonfinal order. Nevertheless, PTI argued that the
appellate court could address the legal basis for its motion as a means of resolving
the case on nonconstitutional grounds. See Marconi v. City of Joliet, 2013 IL App
(3d) 110865, ¶ 16 (the appellate court has a duty to “avoid the adjudication of
constitutional questions when a case can be decided on other grounds”).
¶ 22 On June 26, 2018, the appellate court filed a published opinion affirming the
trial court’s dismissal of the counterclaim, but on different grounds than those relied
on by the trial court. 2018 IL App (1st) 170075, ¶¶ 24-25. Addressing the issue of
whether a private right of action was implied in the statute, the court held that the
2
“It is well settled that final orders entered in a case become appealable following a voluntary
dismissal.” Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 503 (1997).
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criminal and civil penalties for violations of section 8-101(c) 3 were sufficient
enforcement mechanisms, rendering unnecessary a separate civil remedy for
injured plaintiffs. Id. ¶¶ 21-23. Thus, the court held that the statute did not provide
for an implied private right of action (id. ¶ 24) and, accordingly, that “Carmichael’s
complaint against PTI should have been dismissed” (id. ¶ 2). The court further held
that it need not reach the constitutional issues raised in the counterclaim because its
decision rendered the counterclaim moot. Id. ¶ 24.
¶ 23 This court allowed plaintiff’s petition for leave to appeal (Ill. S. Ct. R. 315(a)
(eff. July 1, 2018)) and granted the State’s motion for leave to intervene. PTI
requests cross-relief on the constitutional issues raised in its counterclaim.
¶ 24 ANALYSIS
¶ 25 The order at issue in this appeal is the trial court’s January 30, 2015, order
dismissing PTI’s third amended counterclaim with prejudice. Section 2-608 of the
Code of Civil Procedure governs the filing of counterclaims. 735 ILCS 5/2-608
(West 2010). Section 2-608 provides:
Ҥ 2-608. Counterclaims. (a) Any claim by one or more defendants against
one or more plaintiffs, or against one or more codefendants, whether in the
nature of setoff, recoupment, cross claim or otherwise, and whether in tort or
contract, for liquidated or unliquidated damages, or for other relief, may be
pleaded as a cross claim in any action, and when so pleaded shall be called a
counterclaim.
(b) The counterclaim shall be a part of the answer, and shall be designated
as a counterclaim. Service of process on parties already before the court is not
necessary.
(c) Every counterclaim shall be pleaded in the same manner and with the
same particularity as a complaint, and shall be complete in itself, but allegations
3
In addition to the criminal penalty in section 8-116, the Vehicle Code provides that contract
carriers who cancel or withdraw their insurance policy required by section 8-101(c) are subject to
suspension of their vehicle registrations. 625 ILCS 5/8-113 (West 2010).
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set forth in other parts of the answer may be incorporated by specific reference
instead of being repeated.
(d) An answer to a counterclaim and pleadings subsequent thereto shall be
filed as in the case of a complaint and with like designation and effect.”
(Emphasis added.) Id.
¶ 26 This court has defined a counterclaim as “an independent cause of action” “in
favor of the defendant against the plaintiff, which the defendant is authorized to
litigate in opposition to the plaintiff’s claim in the same action.” Wilson v. Tromly,
404 Ill. 307, 309-10 (1949). As an independent action, a counterclaim “must stand
or fall on its own merits, regardless of the disposition of the complaint.” Health
Cost Controls v. Sevilla, 307 Ill. App. 3d 582, 589 (1999); see also 735 ILCS 5/2-
608(c) (West 2010) (“[e]very counterclaim *** shall be complete in itself”). “In
order to state a cause of action, [a] counterclaim must be both legally sufficient and
factually sufficient, setting forth a legally recognized claim as its basis for recovery,
as well as pleading facts which bring the claim within the legally recognized cause
of action alleged.” Nuccio v. Chicago Commodities, Inc., 257 Ill. App. 3d 437, 443
(1993). In contrast to an affirmative defense, which merely seeks to defeat the
plaintiff’s cause of action by a denial or confession and avoidance, a counterclaim
seeks affirmative relief. Wilson, 404 Ill. at 309; Citicorp Savings of Illinois v.
Rucker, 295 Ill. App. 3d 801, 806 (1998); In re Estate of Soderholm, 127 Ill. App.
3d 871, 875 (1984).
¶ 27 A purported counterclaim that fails to allege an independent, substantive cause
of action against the plaintiff and fails to make a specific prayer for relief is not a
true counterclaim. See Rayman v. Peoples Savings Corp., 735 F. Supp. 842, 852
(N.D. Ill. 1990) (“The label ‘counterclaim’ has no magic. What is really an ‘answer
or defense to a suit does not become an independent piece of litigation because of
its label ***.’ ” (quoting Tenneco Inc. v. Saxony Bar & Tube, Inc., 776 F.2d 1375,
1379 (7th Cir. 1985))). For instance, in Kendle v. Village of Downers Grove, 156
Ill. App. 3d 545, 554 (1987), the court held that neither of the defendants’ answers
“contained a specific prayer for relief or raised a substantive cause of action against
plaintiffs.” Thus, they could not be considered counterclaims. Id. at 553-54.
¶ 28 By contrast, in Soderholm, 127 Ill. App. 3d 871, the court held that a responsive
pleading was, in actuality, a counterclaim. The plaintiffs in that case filed a
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declaratory judgment action seeking a judicial determination that Myrtle B.
Soderholm, an incompetent person, had the requisite mental capacity to create a
number of trust accounts under which the plaintiffs were the beneficiaries. Id. at
873. In response, LaSalle National Bank, the conservator of Soderholm’s estate,
filed an answer alleging in part that plaintiffs had fraudulently abused a fiduciary
relationship they owed to her. Id. In its prayer for relief, the bank asked the court to
order plaintiffs to turn over any property in their possession belonging to
Soderholm and requested a judicial declaration that plaintiffs had no legal or
equitable rights in any of Soderholm’s property. Id. at 873-74. The appellate court
held that the bank’s answer constituted a viable counterclaim because it contained
independent allegations against plaintiffs in support of its claims for relief. Id. at
875.
¶ 29 A counterclaim that requests no affirmative relief and only seeks to defeat the
plaintiff’s claims is really an affirmative defense, not a counterclaim. See Rayman,
735 F. Supp. at 852-53. For this reason, the federal courts routinely hold that
counterclaims that essentially duplicate the parties’ affirmative defenses should be
dismissed or disregarded by the trial court as repetitious and unnecessary. See
Malibu Media, LLC v. Parsons, No. 12-1331 (BAH), 2013 WL 12324463, at *10
(D.D.C. May 31, 2013) (“[I]f the defendant prevails on these [affirmative] defenses,
the result she seeks in the counterclaims will be moot. In these circumstances, the
redundant counterclaims are simply superfluous ***.”); Malibu Media, LLC v. Doe
1, No. DKC 12-1198, 2012 WL 6681990, at *3 (D. Md. Dec. 21, 2012) (“Courts
have typically declined to consider counterclaims for declaratory relief that are
duplicative of affirmative defenses.” (collecting cases)); Rayman, 735 F. Supp. at
853 (count of counterclaim that duplicated affirmative defense added nothing to the
pleadings already before the court and would be disregarded).
¶ 30 Turning to the language in PTI’s third amended counterclaim, the first seven
paragraphs summarize the declaratory judgment action filed by plaintiff against
PTI. Following these summary paragraphs, paragraph eight alleges:
“8. PTI’s Amended Answer raises affirmative defenses I-IV, directed
against 625 ILCS 5/8-101(c) which assert that said statute is unconstitutional,
and the claims of unconstitutionality are hereby restated as follows:”
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Paragraphs 8(a) through 8(d) then restate the identical constitutional arguments set
forth in PTI’s affirmative defenses. The remaining paragraphs in the counterclaim
allege:
“9. JESSE WHITE, ILLINOIS SECRETARY OF STATE, is an appropriate
party in this case because he is charged with enforcing the Illinois Vehicle
Code, particularly 625 ILCS 5/8-101(c), which is relied upon by MARY
TERRY CARMICHAEL, and which PTI alleges is unconstitutional.
10. No other motor carriers in Illinois, other than those who contract to
transport employees in the course of their employment in vehicles designed to
carry 15 or fewer passengers, are required to carry underinsured motorist
insurance coverage in the amount of $250,000 per passenger.
11. There is no reasonable basis for concluding that those motor carriers
who transport employees in the course of their employment in motor vehicles
designed to carry 15 passengers or less, are more likely to have their vehicles
struck by underinsured motorists, or that motor carriers, such as PTI, should be
singled out by law and burdened with the unique obligation to secure $250,000
in underinsured motorist coverage, per passenger, to guard against such an
eventuality.
12. According to the terms of 625 ILCS 5/8-101(c) and related penal statute,
625 ILCS 5/8-116, PTI, and others similarly situated, could avoid the penal
terms of the statute by owning and operating motor vehicles designed to carry
16 or fewer passengers, rather than 15 or fewer passengers, and there is no
reasonable basis for making such a distinction in the penal reach of said statute.
13. House Transcript, 2005 Regular Session No. 28, which pertains to the
passage of 625 ILCS 5/8-101(c), documents that the underinsured motorist
insurance provision at issue was enacted at the behest of railroad labor unions
which sought to burden contract motor carriers who transported their union
membership with the unique obligation to carry underinsured motorist
insurance coverage in no less an amount than $250,000 per passenger. (See,
EXHIBIT C attached hereto).
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14. Plaintiff, MARY TERRY CARMICHAEL, is a railroad union member
who has brought her declaratory judgment action against PTI, in an attempt to
benefit from the special legislation that was enacted at her union’s behest,
allegedly burdening PTI, and others similarly situated, with the obligation to
obtain underinsured motorist insurance coverage in an amount no less than
$250,000 per passenger.
15. That by virtue of the foregoing, there is a case or controversy existing
between PTI, MARY TERRY CARMICHAEL and JESSE WHITE, ILLINOIS
SECRETARY OF STATE, and according to the terms and provisions of 735
ILCS 5/2-701, this Court is vested with the power to declare the rights and
liabilities of the parties hereto, as regards the constitutionality of 625 ILCS 5/8-
101(c).
WHEREFORE, Defendant/Counter-Plaintiff, PROFESSIONAL
TRANSPORTATION, INC. prays that 625 ILCS 5/8-101(c) which is cited as
the basis for MARY TERRY CARMICHAEL’S cause of action against
PROFESSIONAL TRANSPORTATION, INC., be declared unconstitutional,
null and void; that the penal provision in 625 ILCS 5/8-116 be declared
unconstitutional as applied to the provisions of 625 ILCS 5/8-101(c) here at
issue; that MARY TERRY CARMICHAEL’S declaratory judgment action be
dismissed with prejudice as to PTI; and that PTI be awarded such further relief
as seems just and proper.”
¶ 31 It is clear that PTI’s counterclaim does not state an independent cause of action
against plaintiff. Instead, it requests a declaratory judgment on the identical legal
grounds PTI already asserted in its affirmative defenses. Furthermore, the
counterclaim’s prayer for relief requests that the trial court declare the statutes
forming the basis of plaintiff’s complaint unconstitutional and dismiss the
complaint with prejudice. It is apparent from this language that the only purpose of
the counterclaim is to defeat plaintiff’s claim against PTI based on allegations that
the statute is unconstitutional, i.e., that “the claim asserted against defendant is
barred by other affirmative matter avoiding the legal effect of or defeating the
claim” (735 ILCS 5/2-619(a)(9) (West 2010)). Since the counterclaim requests no
affirmative relief other than a judicial declaration that the claim filed against PTI is
barred, it is not an actual counterclaim. Moreover, because the purported
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counterclaim essentially duplicates the claims in PTI’s affirmative defenses without
requesting affirmative relief, it is superfluous and carries no legal weight as an
independent action against plaintiff. See Rayman, 735 F. Supp. at 853.
¶ 32 With respect to PTI’s claims against the Secretary of State, its counterclaim is
also not a true counterclaim. PTI asserts that it must expend significant sums to
procure the uninsured and underinsured motorist coverage required by section 8-
101(c) of the Vehicle Code or risk the loss of its operating privileges. It contends
that this establishes an independent cause of action against Secretary White separate
from its cause of action against plaintiff. However, we reject any suggestion that
this means PTI’s purported counterclaim is a true counterclaim. “A counterclaim is
an action brought by a named party against another existing party to the action, and
is governed by section 2-608 of the Illinois Code of Civil Procedure [citation].”
(Emphasis added.) People v. Fiorini, 143 Ill. 2d 318, 329 (1991). Secretary White
was not an existing party to the action at the time PTI filed its counterclaim. PTI
attempted to bring him into the action as a new party. Accordingly, PTI’s cause of
action against Secretary White is not an actual counterclaim. 4
¶ 33 PTI’s claim against the Secretary of State appears to be a claim for declaratory
judgment based on the constitutionality of the statutes at issue in this case. PTI
inserted its claim against Secretary White into a counterclaim in the present
litigation. This was improper. Rather than bringing in Secretary White as a named
party to its purported counterclaim, PTI should have followed the procedure in
Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006). Rule 19 requires that a litigant
raising a constitutional challenge to a statute “shall serve an appropriate notice
thereof on the Attorney General, State’s Attorney, municipal counsel or agency
attorney, as the case may be.” Ill. S. Ct. R. 19(a) (eff. Sept. 1, 2006). The purpose
of Rule 19 is to “afford the State, political subdivision, agency or officer, as the
case may be, the opportunity, but not the obligation, to intervene in the cause or
proceeding for the purpose of defending the law or regulation challenged.” Ill. S.
Ct. R. 19(c) (eff. Sept. 1, 2006). Accordingly, at the time it filed its answer and
affirmative defenses, PTI should have notified the Illinois Attorney General of its
4
Nor can defendant’s cause of action against Secretary White be recharacterized as a third-party
complaint because it does not seek indemnification or contribution for defendant’s liability to
plaintiff. See 735 ILCS 5/2-406(b) (West 2010); People v. Brockman, 143 Ill. 2d 351, 364-65
(1991).
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intention to challenge the constitutionality of sections 8-101(c) and 8-116 of the
Vehicle Code. The Attorney General then would have had the option to intervene
in the proceeding for the purpose of defending the statutes.
¶ 34 Although the deficiencies in the counterclaim are readily apparent, the parties
and the lower courts nevertheless treated the counterclaim as though it were a
complete, independent cause of action seeking affirmative relief against plaintiff
and Secretary White. This was error that led to several procedural irregularities. For
one, the appellate court’s decision was based solely on the legal grounds alleged in
PTI’s motion to dismiss plaintiff’s complaint. As a result, PTI effectively attained
appellate review of its motion to dismiss, even though the trial court’s July 24,
2015, order denying that motion was neither final nor appealable. See Vasquez
Gonzalez v. Union Health Service, Inc., 2018 IL 123025, ¶ 10 (an order denying a
motion to dismiss is not a final and appealable order). 5 This result illustrates why
it is improper to treat PTI’s purported counterclaim as a true counterclaim. By filing
a separate “counterclaim” that duplicated its affirmative defenses, PTI was
rewarded with appeal rights to which it was otherwise not entitled.
¶ 35 Another odd aspect to this case is that the appellate court declined to address
the legal issues raised in the counterclaim. Instead, at PTI’s request, the appellate
court held that plaintiff’s complaint “should have been dismissed” on the grounds
that there was no private cause of action implied in the statute. 2018 IL App (1st)
170075, ¶ 2. Thus, the appellate court ruled on the merits of the complaint despite
the fact that it had been voluntarily dismissed and plaintiff’s refiled complaint was
pending in the trial court below. In so ruling, the appellate court essentially
approved PTI’s strategy of treating the counterclaim as an independent action for
purposes of jurisdiction, while treating it as an affirmative defense for purposes of
deciding the merits.
¶ 36 All of the procedural anomalies in this case stem from PTI’s improperly filed
counterclaim. The purported counterclaim is not an actual counterclaim because it
does not state an independent cause of action or request affirmative relief against
5
The December 13, 2016, voluntary dismissal did not render the July 24, 2015, order appealable
because a denial of a motion to dismiss is not final in nature. See Saddle Signs, Inc. v. Adrian, 272
Ill. App. 3d 132, 140 (1995).
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counterdefendants. The only issues raised in the counterclaim—constitutional
challenges to sections 8-101(c) and 8-116 of the Vehicle Code—were already
before the trial court in the form of affirmative defenses. We therefore strike the
counterclaim as duplicative of PTI’s affirmative defenses. We also vacate both the
trial court’s order dismissing the counterclaim on the merits and the appellate
court’s judgment on appeal from that order. Further, we remand to the trial court,
where PTI is free to proceed on its affirmative defenses as if the counterclaim had
never been filed.
¶ 37 We express no opinion on the constitutional or private right of action issues
raised and argued by the parties. Although this court has supervisory authority to
evaluate judgments of the lower courts (Ill. Const. 1970, art. VI, § 16), that
authority should be reserved for exceptional circumstances. See People ex rel.
Birkett v. Bakalis, 196 Ill. 2d 510, 515 (2001). In the case at bar, it would be
inappropriate for us to exercise our supervisory authority at this stage in the
proceedings. Had PTI not filed its improper counterclaim, it would not have had a
right to appeal the order denying its motion to dismiss the complaint. As we stated
earlier, an order denying a motion to dismiss is neither final nor appealable.
Accordingly, if we were to decide the issues raised in PTI’s affirmative defenses,
we would be rewarding PTI for circumventing the normal appellate process. See
Bakalis, 196 Ill. 2d at 513 (supervisory orders are “disfavored” and to be used only
if “the normal appellate process will not afford adequate relief”).
¶ 38 CONCLUSION
¶ 39 For the foregoing reasons, the trial court’s January 30, 2015, order and the
appellate court’s judgment are hereby vacated. The cause is remanded to the circuit
court for further proceedings consistent with this opinion.
¶ 40 Judgments vacated.
¶ 41 Cause remanded.
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