the next case in our call of the docket is agenda number twenty two case number one one zero one seven zero helen aldridge versus christopher d joyce in the at all counsel that's what we have here so that section doesn't apply to section thirteen dish two twelve a is it a pluggable because by its terms this statute applies to and these are the exact words actions  damages for injury or death close quote and because this is also a point in controversy quote arising out of patient care close quote but macneill's counterclaim is not an action for right and there are well recognized differences between contribution and infirmity maybe this is a good place to start with with those differences let's go to hades and hayes says quote the basis or it contribute towards obligation rests on this building in toward the injured party soul contribution is based on an up or shipment of damages between the contribution points south and the contribution to finance to the original point here let's say the medical practice went right that's what it's implied indemnity is something very clear for the moment we're not asking the court to reexamine hayes we believe hayes was correctly decided based upon the nature of the contribution action is an action for damages for injury or death  focus on the nature of the contribution and i don't believe that's the case i do there is a component to this case that talks about public policy because there is a concern expressed in that case about long tail exposure right and remember in that case the doctors were brought in as third parties they were not parties to the original action unlike this case in this case the doctors were in from the from the very start they were the original the focus you  relying on the verbiage in action for damages for injury or death against any physician dentist that that i mean your you use that initially and says hey implied indemnity is not this  contribution action and action for damages for injury or death against a physician because you are passing on you are passing you are passing on you're passing on your torch your more than if you york you're passing the looking at a case for contribution separate and apart from the underline action just looking at the words of the of the complain it would literally be an action for damages against that right i i'm not sure that i would totally agree with it i think i think that based upon the nature of the case it would fit with no i'm not prepared to say that that that that the that hayes was somehow posing argument prevailed i don't believe so i'm because before you get to the public policy you have to address the language and asked if the claim doesn't fit with and thirteen to twelve a you don't you never get to the public policy right i mean you have to first be able to determine as i started whether the limitations pure or just going to be in thirteen to twelve eighty or in thirteen to all five the public policy may come agree with the commentators a subtleness between the principle and the point of merit different consideration such a settlement has the effect of creating in the blameless principal and interest indistinguishable from the contribution interests of the other fault in fact the contribution action therefore apply the release of the agent from liability to the plaintiff as well as the preservation of the principles implied indemnity claimed and then on the  named in the settlement where the agent's named in the settlement here i believe they were there we didn't settle later no i'm sorry this almost all at one time if i recall correctly it was on july twenty five two thousand and eight it was in response to a policy of limit time limit to me so there is no i don't believe that that i should say this i don't believe that question was really developed on the record i don't think the record necessarily answers that but if what does the american national give you some problems i think that would be something for a wee man i don't think that that's really an issue you know that we're talking about today details but i do think that there is a language in trailers that is directly applicable here in the term and whether thirteen to twelve applies or thirteen to all five applies now in trailers the says and it's not even it's coming to this conclusion based upon prior cases and the court is saying that quote we have long held so this is not just one decision trafford's we have long held that it is the nature of the plaintiff and here we're talking about the indemnity plaintiff indemnity point of injury where the nature rather then the nature of the facts from which the claim arises which should determine what limitations period should apply in the court goes on to say to determine the true character of the cause of action armstrong that's the earlier case involving indemnity emphasizes the focus of the inquiries on the nature of the liability i don't believe you would have if if there is no distinction between indemnity and information then i do think that the court's task depending on how you look at it c be easier or harder right but i don't believe that based upon the well recognized distinction between contribution and them to be that that's a road that you have to go fits within thirteen to twelve days then i think that it's sacrificed its decision in trailers and in all of the cases leading up to travelers which recognized is and it may be bad form to to the court from its own decisions but when the court is saying quite clearly that we're looking at the nature of what we're in this case being the hospital's injury as opposed to the nature of the medical malpractise  guess but the but the position we're advocating doesn't require you to reverse anything supreme court case it's asking you to reasons to to reexamine ashley and  the four years cancer repose and thirteen to twelve ten words in the statute states that the action must be one for damages for quote injury or death close quote against the physician under this court's analysis and travelers the nature of the injury to the hospital is a focus on determining which state should applies based on the language that i read out earlier the nature of the liability is what you cite contractual it's interesting that if you look at the statute of which was the statute involved in travelers relating to construction related activity and says tort contractor or otherwise actually i think you can argue that forth is actually broader  and thirteen twelve this thirteen thirteen to twelve broad yes is that all inclusive no it is not all inclusive and the best evidence of that is the fair for example  doctor as he did here the insurance company is still able to predict its future liability dr joyce doctors away were always potentially one hundred percent a lot of bull when they were named as original defendants i see my time is up concern that section does not expressly apply to actions for implied indemnity under the current legislative scheme our claim was timely under thirteen to zero five and we ask you to reverse and remand for the proceedings thank you thank you counsel good morning my name is julie to assure and i represent doctors the way akki and suburban surgical mcneil is asking this court to ignore the plain language of thirteen to one to mcneil is also asking this court to disregard the legislative intent behind in the acting section thirteen two one two in hayes this court said that the intent  thirteen two one two was limiting a physician's exposure to liability for damages for injury or death arising out of patient care under all theories of liability the language in thirteen to one to could not be more inclusive and that was intentionally done by the legislature it's the limitation period for all actions against physicians and hospitals is not confined to medical malpractise it's not confined to medical negligence it's the limitations statute for all actions against physicians or hospitals which arise out of patient care how do you distinguish travelers then were or how can you say that with meals liability is problems in connection with the construction i think that travelers is in opposite to this case because of the language and thirteen to one to the unique language in that statute which says all actions arising out of patient care that kind of language is not present in the construction statute of limitations thirteen to one four and that sets up an irreconcilable irreconcilable conflict between the language of thirteen two one two and the analysis  this court requested in an implied indemnity action or actually an express indemnity action outside of a case involving patient care the legislature commands the court to look to whether the allegations in the complaint arise out of patient care that's what the appellate court did here so we can't ignore as travellers instructs us to do in an expressed indemnity setting we cannot ignore the facts from which the claim arises because the statu still covered by the scripture because of the plain language of the statute and because of the reasoning that this court made in the hayes decision if you plug in an indemnity action for a contribution action the hayes reasoning applies with equal force in the implied indemnity setting as it does in the contributions setting it's no different what's happening here is the third party plaintiff is seeking damages against the third party defendant for negligence arising out of patient care that's the a fact it's no different in an implied indemnity action than it isn't a contribution action and that's what this court described in hades but in that in and the contribution action you're negligence is getting is getting stuck with the bill basically because of the apparent agency of these two factors how do you answer that i think that distinction of apportionment versus a complete passing on of culpability makes no difference when you look at the language of thirteen to one to the language of thirteen to one two and we can forget the legislative intent behind the enactment of the statute the language of thirteen to one to says any action in the construction statute of limitations in the construction of the statute of limitations includes the or otherwise language but here we have any action arising  the only exceptions to thirteen to one two are cases involving fragile and concealment early call disability the legislature had the option of creating additional exceptions and chose not to do so the legislature also had the option of confining thirteen to one two for actions for personal injury it didn't do that it said actions for injuries actions for damages for injuries or death not personal injur and we know that if the legislature wanted to make that distinction they could have done so because they did so in thirteen to all four which is limited to actions based upon personal injury i asked you know what was in council this was a record reflect whether or not your clients dr joyce were named in the settlement agreement were the hospital settled on the record does not reflect which defendants paid what money that that's what the court is asking the record does not reflect the book there was just one settlement agreement that included all defendants at the same time yes the encourage the relevant inquiry under thirteen to one to then becomes did the action arise out of patient care and this court has a body of law on their particular issue where the court has suggested that this is a very broadly interpreted in order to effectuate the intent behind the legislation in both brokering oarlock this court to find arising out of patient care as or originating from growing out of flowing from injuries that have their origin in or are incidental to a patients medical care this court has held that thirteen to one to applies to any action arising out of patient care under all theories of confusing law in an express indemnity case that can't be compared with thirteen to one to their irreconcilable thirteen to one to ask a dictates that you do something but travelers so if we look to whether the allegations here arise out of patient care this court has told us we need to look to the underlying complaint and the allegations contained in macneill's amended counterclaim there's no question th of patient care the ultra has sued the defendant physicians for the negligent performance of the surgery in its amended counter claim mcneil mirrors those allegations says that the defendant physicians negligently performed the surgery negligently failed to diagnose a complication after surgery resulting in mr aldrich is dead so the allegations in the amended complaint prove that this is an action which arises out of patient care the policy considerations in play which prompted thirteen to one to his enact meant could not be more clearly articulated or better understood i don't think there's ever been a statute of limitations which had a better understood legislative intent ensures were beginning not to insure physicians in the state of illinois they were raising premiums doctors were having difficulty obtaining insurance they were leaving the state they were stopping their practice if they couldn't afford their own premiums this is what the legislature was responding to and in responding to that their goal was to set an outside hard time limit by which time any action under any legal theory had to be filed against a physician if we carve out the exception that mcneil is urging you to do in this case you completely undermined the policy behind that statute if we carve out implied indemnity actions against physicians and surgeons then the purpose behind the statute is completely on time and you can't take that out and say ok we're going to have unpredictability this particular area of action against physicians it undermines in ruins the effectiveness of the statu this court has recognized that those cutoffs at certain points in time eliminate a cause of action before even a cruise but the court in the legislature were willing to accept those rare harsh results because of the importance of the public policy behind the statute mcneil argues that its claim wouldn't extend the physician's exposure if there are thirteen to a five were applied well that makes no sense because if the thirteen to a five applies to the facts of this case under mcneill's argument mcneil had until two thousand and thirteen to file its implied indemnity action against these positions thirteen to one to cuts that action off in two thousand and seven that's six additional years of liability exposure for these physicians if two hundred five is employed mcneil argues insurers ability to predict liability of a physician is not diminished by utilizing thirteen two or five again that makes no sense we're talking in just this case alone about a six year intuitional exposure to all five is used instead of two one two if macneill's theory is on the one side we have the plain language of the statute we have the well documented legislative intent and mcneil offers in response to that thirteen to all five a catchall statute of limitations when we know that the legislator excluded indemnity actions arising out of medical malpractise from thirteen to all four thirteen two of four is a statute that deals with statute of limitations dealing with well they excluded it from there so they can dump it into thirteen to all five they excluded any action against a physician in an implied indemnity setting so that it can go to the uncovered provisions of thirteen to all five it makes no sense to to then extended the physician's exposure for an additional year five years rather than for one thirteen to one to limit it makes a lot more sense that what the legislature did in excluding allegations arising out of medical negligence was that they intended it to all fall under thirteen to one  mcneil also argues well the application of thirteen to one to four words our ability to file an implied indemnity action well first of all and the facts of this case it certainly did not make neil was named as a defendant in this case from the first moment it was filed two thousand and five there served two thousand and six they write a letter their counsel writes a letter to the physician's counsel saying we expect indemnification in this case please let us know if you're going to do that and if you're not whether you'll agree to a waiver of the statute of limitations two thousand and seven map for your period of repose and in mcneil has filed nothing two thousand and eight files it's implied indemnity action this is not a case where mcneil also argues that its indemnity claim doesn't fall within thirteen to one two because it's not a claim for damages for injury or death but has rejected this argument in the contribution setting and this is the language i'm going to read it to you because it clearly applies with equal force to an indemnity action the third party plaintiff is seeking from the third party defendant those damages proximately caused by the negligent acts of a third party defendant which the third party plaintiff may be obligated to pay in the underlying suit this leads us to the conclusion that an action for contribution is an action for damages under the medical malpractise statute of re slipped the word implied indemnity in for contribution the analysis is exactly the same sort of moment ago that for whatever reasons the future or not the mcneil didn't like to file until much because they're claiming that under two of five they would have five years from the date of settlement or any liability or payment actually made could there be a situation where they were not wrong and shoot until after the statu e expired and i would have no no really yes and the legislature in this court has accepted that they've elevated the policy considerations behind thirteen to one to over the fact that sometimes on rare occasions the cause of action will be barred before it accrues we found that in the oarlock decision the ashley court i think summarize this well it said the suit for implied indemnity against a physician arising out of patient care exposes the insurance company to the same liability as the patients lawsuit and if that's the purpose behind the enactment of the statute it has to apply with equal force in the implied indemnity setting or the force of the statute is lost i wanted to spend a minute to mcneill makes a big deal out of the fact this isn't an action for injuries this is an action for choirs i contractual implied indemnity and the appellate court and walsh nurses barry harlem rejected that type of analysis the walsh case was a case where plaintiff sued her physician under the illinois consumer fraud act seeking damages for medical expenses and specifically said i am not saying this is medical negligence i'm saying this is my friday action for the recovery of medical expenses therefore to one two doesn't apply the appellate court said well i'm not sure i agree with you but even if it's an action just for medical expenses it still falls within the language of thirteen to one to the thirteen to one to was not limited to actions for personal injury that it extended to all actions for damages which arise out of patient care reasoning here was sound it started with the statute it looked at the arising out of language it looked at this court's interpretation arising out of and it looked at the legislative intent behind the statu complaint with prejudice morning your honors may it please the court counsel karen de grey and on behalf of the other defendant dr joyce and i see my time is short and as tension has covered most of our points i'll make a few quick points and  one is to follow up on the question that justice karma i are opposed to ms to sure about actions being cut off not like our case because the hospital that was there from the get go but actions in effect being cut off expressly contemplated in haste and the important all encompassing public policy that should lead this court i submit to from the appellate court's decision was recognized in their case that said you know this is what this is the decision that the legislature made that is more important to him as it is for your repose period and forced as a matter of policy that we can live with the fact that in certain situations contribution to actions can be cut off before can expire before the contribution plaintiff would he had to have the opportunity to file any action and this court was willing to live with the result in hayes and we asked the court to apply the same public policy in this instance briefly a few additional points about the travelers case i believe that contrary to what mr aris is says that the way to preserve all of these decisions of the court is to uphold the appellate court not to reverse the appellate court tray on words is a case that addresses a completely different situation it addresses two  has that all encompassing arising out of language to one form or simply does not to the extent that the hospital emphasizes the nature of the injury aspect i think it's interesting that the hospital repeatedly defines its injury merely by restating its legal theory and as we know from all of the cases the legal theory doesn't govern which statute  applicable and i will close by asking the court to keep in mind that if it's bigger in my in my opinion and i think it's it's correct borne out by the cases in the statute travelers doesn't have application in the situation if the court looks at travelers it should not do so to the exclusion of all i can broker which interpret the stand that is in play here thirteen to one to your liking brucker have the language defined the arising out of standard and i'll close by commenting that the upshot of the hospital's position in this case would have such a lengthy extension of the statue of limitations for these types of indemnities claims first of all i know you asking you to ignore any language in any stricture if you look at thirteen to twelve and from what i heard from the opposing counsel  they want to talk about arising out of patient care to the exclusion of the words leading up to that which start with no action for damage jews injury or before you ever got to arising out of patient care you have to start with no action for damages for injury or death now are implied indemnity claim seeks to recover defense that we said we are entitled to otherwise that's correct but if we go back to travelers in the cases leading up to travelers we're talking about the nature of the doctors live delivery to us not the nature of either our liability that is not the nature of their liability to us the nature of the i believe it's us again it's based upon an implied promise to pay when we are only by curiously liable because of their liability  northern insurance but it's all over the appellate of supreme court records very very different we talk about public policy a little bit for the moment i'm talking about any long tail exposure here the doctors were one hundred percent liable from the first day they were sued february nine two thousand and five as far as different limitation perio are concerned look the legislature has decided for whatever reason claims written contracts and implied or unwritten contracts are subject to longer which statute thirteen to twelve day or thirteen to all five because we're not hearing anything anymore about thirteen till or thirteen to twelve eight or thirteen twenty five a pause but the limitations period was set by the legislature there be any still claim perpetuated for years their liability is no greater to wast now then i was at the start of the lawsuit when they were sued in two thousand and five without the action being one for damages for injury or death arising out of patient care there is no either or and based on trailers we submit the neither section neither thirteen to all four nor th n twelve applies when the focus is on the doctor's liability to the hospital and on the doctor's liability to the original medical malpractise plaintiff we hear a lot about the language of the statute but the claim this issue here is a common law claim recognized by this court and the focus of this court has not been on the main action between the plaintiff in the original