Illinois Official Reports 

Appellate Court

Certain Underwriters at Lloyd’s, London v. Reproductive Genetics Institute,

2018 IL App (1st) 170923

Appellate Court 

Caption

CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, PlaintiffAppellant, v. REPRODUCTIVE GENETICS INSTITUTE,

Defendant-Appellee.

District & No. First District, Sixth Division

Docket No. 1-17-0923

Filed March 9, 2018

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 13-L-3963; the 

Hon. Brigid M. McGrath, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Burke, Wise, Morrissey & Kaveny, LLC, of Chicago (Brian T. 

Monico, of counsel), for appellant.

Enterprise Law Group, LLP, of Chicago (Jon K. Stromsta, of counsel), 

for appellee.

Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with 

opinion.

Justices Connors and Delort concurred in the judgment and opinion.
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 OPINION 

¶ 1 Plaintiff, Certain Underwriters at Lloyd’s, London (Lloyd’s), appeals from the dismissal of 

its amended complaint, which sought contribution against the defendant, Reproductive 

Genetics Institute (Genetics Institute). On appeal, the plaintiff argues that the trial court 

improperly dismissed its complaint because neither the Joint Tortfeasor Contribution Act 

(Contribution Act) (740 ILCS 100/5 (West 2016)) nor case law prohibits its contribution 

claim. For the following reasons, we affirm the judgment of the circuit court of Cook County. 

¶ 2 BACKGROUND 

¶ 3 This contribution claim arises from a settlement in an Oklahoma state court action against 

Lloyd’s insured, The New England Cryogenic Center (NECC), a Massachusetts company that 

collects and sells human sperm. In 1999, NECC purchased the assets of Snake River 

Technology, d/b/a Rocky Mountain Cryobank (Cryobank), a corporation in the business of 

fertility assistance through cryopreservation. Its principal place of business was Wyoming. 

The Cryobank sent sperm donor samples to the Genetics Institute, an Illinois corporation that 

conducts genetic testing, to determine if the sperm donation samples contained the delta-F508 

mutation for cystic fibrosis. In 1992, the Genetics Institute sent a letter to the Cryobank, stating 

that certain sperm samples, including donor N-170, did not have the delta-F508 mutation. 

NECC’s purchase of the Cryobank in 1999 included the purchase of donor N-170’s sperm, 

which NECC later advertised as free of the delta-F508 mutation. 

¶ 4 In 2009, NECC sold donor N-170’s sperm to an Oklahoma couple, the Kretchmars. Donor 

N-170’s sperm was fertilized with Mrs. Kretchmar’s egg, and she gave birth to a child with 

cystic fibrosis. Testing later revealed that donor N-170 is a carrier of the delta-F508 cystic 

fibrosis gene mutation. 

¶ 5 On October 21, 2011, the Kretchmars filed a lawsuit against NECC in Oklahoma state 

court, alleging that their child’s cystic fibrosis was caused by the delta-F508 mutation in donor 

N-170’s sperm. On July 5, 2012, the court in Oklahoma approved a settlement agreement 

reached between the Kretchmars and NECC. Lloyd’s, as NECC’s insurer, paid the settlement 

proceeds on behalf of NECC. The Genetics Institute was never made a party to the Oklahoma 

action. 

¶ 6 On August 17, 2013, Lloyd’s filed its initial complaint against the Genetics Institute in the 

circuit court of Cook County. The complaint sought to recover the settlement proceeds that 

Lloyd’s had paid to settle the Kretchmar lawsuit in Oklahoma. The complaint had five counts: 

contribution, negligence, negligent misrepresentation, breach of warranty of merchantability, 

and breach of warranty for a particular purpose. The Genetics Institute filed a motion to 

dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 

ILCS 5/2-615 (West 2012)). The circuit court granted the motion and dismissed the complaint 

without prejudice. 

¶ 7 On June 26, 2014, Lloyd’s filed an amended complaint, repleading the counts for 

contribution, negligence, and negligent misrepresentation, but replaced the two warranty 

counts with one count for breach of express warranty. The Genetics Institute again filed a 

motion to dismiss the complaint, pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 

5/2-615, 2-619 (West 2014)). Relying upon Laue v. Leifheit, 105 Ill. 2d 191 (1984), for the 
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proposition that a claim for contribution must be asserted in the underlying lawsuit, the trial 

court granted the Genetics Institute’s motion and dismissed the complaint in its entirety, with 

prejudice. 

¶ 8 Lloyd’s filed a motion to reconsider, arguing, inter alia, that neither the Contribution Act 

nor Laue applies when the underlying action is in a different jurisdiction. The trial court denied 

the motion as to the contribution claim, stating: “whether or not defendant may have been 

subject to jurisdiction in the Oklahoma litigation is not a factor in dismissal of these counts 

under the Laue doctrine.” The trial court, however, granted the motion to reconsider its 

dismissal of the count for breach of express warranty. Lloyd’s subsequently filed a second 

amended complaint, repleading the contribution claim, along with an amended count for 

breach of express warranty. Again, the Genetics Institute filed a motion to dismiss the 

complaint pursuant to section 2-615.

¶ 9 On March 22, 2017, the trial court granted the Genetics Institute’s motion to dismiss the 

second amended complaint. Lloyd’s then filed a notice of appeal, challenging the trial court’s 

dismissal of its contribution claim.1

¶ 10 ANALYSIS 

¶ 11 We note that we have jurisdiction to review the trial court’s final order dismissing the 

complaint, as the notice of appeal was timely filed. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 

(eff. Jan. 1, 2015). 

¶ 12 Lloyd’s asserts that the trial court erred by interpreting Laue to require that a claim for 

contribution must be brought in the underlying lawsuit, even when the underlying litigation 

commenced in a jurisdiction outside of Illinois. Lloyd’s argues that neither case law nor the 

Contribution Act prohibit it from filing a contribution claim in a new action where the Genetics 

Institute was not subject to the jurisdiction of the court in the underlying action. Specifically, 

Lloyd’s claims that Laue cannot apply to the facts of this case because the court in Oklahoma 

did not have personal jurisdiction over the Genetics Institute; thus, it was impossible for 

Lloyd’s to have asserted its contribution claim against the Genetics Institute in the underlying 

lawsuit. Lloyd’s further argues that public policy considerations support the filing of a separate 

contribution action in Illinois because there would be no additional burden, other than on 

Lloyd’s itself, and there is no risk of inconsistent verdicts because there was a settlement in the 

underlying Oklahoma action. 

¶ 13 A motion to dismiss brought pursuant to section 2-615 challenges the legal sufficiency of a 

complaint by alleging defects on its face. Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 

722, 735 (2009). A motion to dismiss pursuant to section 2-615 should not be granted unless it 

is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recovery. 

Id. We review de novo the trial court’s dismissal of a complaint pursuant to section 2-615. Id.

Further, our analysis involves statutory interpretation, which is a question of law that we also 

review de novo. Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 6 (2009). Section 5 of the 1992 

version of the Contribution Act stated: “A cause of action for contribution among joint 

tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by 

third-party complaint in a pending action.” 740 ILCS 100/5 (West 1992). In Laue, 105 Ill. 2d at 

 

1On appeal, Lloyd’s does not raise any issues regarding the trial court’s dismissal of its breach of 

express warranty claim. 
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196, our supreme court held that section 5 of the Contribution Act requires parties to bring 

claims for contribution in the underlying action, stating, “We believe it is clear from the 

statutory language in section 5 that if there is a pending action *** then the party seeking 

contribution must assert a claim by counterclaim or by third-party claim in that action.” 

¶ 14 In light of the pronouncement by our supreme court, it is clear to us that the Laue court read 

section 5 of the Contribution Act literally and simply in determining that a claim for 

contribution must be brought in the pending, underlying action. The court did not discuss any 

exceptions or other factors for consideration. Moreover, contrary to argument by Lloyd’s, 

nothing in the Laue opinion indicates that the Laue court presumed that the trial court in the 

underlying action would have had personal jurisdiction over a third-party defendant. 

¶ 15 In an apparent response to Laue, the legislature enacted Public Act 89-7 (eff. Mar. 9, 1995) 

(amending 740 ILCS 100/5), which allowed a contribution claim to be brought in a separate 

action even if not filed in the pending, underlying litigation. See Harshman v. DePhillips, 218 

Ill. 2d 482, 502 (2006). However, that amendment was declared unconstitutional by our 

supreme court in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997). Notwithstanding the 

supreme court’s ruling of unconstitutionality in Best, the legislature has not made any 

amendments to section 5 of the Contribution Act. If the legislature intended to allow 

contribution claims that were not filed in the underlying action, it could have done so in the 21 

years since the Best decision. 

¶ 16 Further, we find our supreme court’s decision in Harshman, 218 Ill. 2d 482, to be 

instructive. In that case, the plaintiffs were sued for negligence in the United States District 

Court for the Northern District of Indiana. Id. at 484. The district court denied the plaintiffs 

leave to file a third-party complaint against the defendant. Id. The plaintiffs then filed a 

separate contribution action against the defendant in the circuit court of Cook County. Id. The 

defendant filed a motion to dismiss, which was denied by the circuit court. Id. However, our 

appellate court granted the defendant’s petition for leave to appeal to address the certified 

question of whether Illinois law permits a party to bring a contribution claim in a separate 

proceeding after a court of another jurisdiction has denied the party leave to file the claim in 

the underlying proceeding. Id. This court answered the certified question in the negative, 

relying on Laue. Id. at 487. The plaintiffs then appealed to the Illinois Supreme Court. Id. at 

488. In affirming the appellate court, the supreme court stated: 

“This court will not read exceptions, conditions, or limitations into a statute which 

the legislature did not express if the statutory language is clear and unambiguous. *** 

We are not unmindful of the possibility that a court of another jurisdiction might deny 

an Illinois defendant leave to file a contribution claim in a pending action, despite the 

requirement of section 5, in an instance where an Illinois court would be more sensitive 

to the effect of the statute’s application. However, we are unconvinced that, in enacting 

section 5, the legislature intended the actions taken by plaintiffs in this case to 

constitute the assertion of a contribution claim by third-party complaint in the pending 

lawsuit.” Id. at 501. 

¶ 17 Harshman illustrates that the rule of Laue is strictly applied, even if the court in the 

underlying action denied a plaintiff’s attempt to bring a contribution claim. Lloyd’s argues that 

Laue cannot apply because the court in Oklahoma did not have personal jurisdiction over the 

Genetics Institute, and thus, the court there would have denied its claim for contribution. That 

is sheer speculation, as, unlike in Harshman, there is no showing that Lloyd’s attempted to 
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bring a contribution claim in the Oklahoma litigation. In any case, our supreme court in 

Harshman made it clear that section 5 strictly requires a party to file a claim for contribution in 

the underlying action and that the rule does not deviate, even when the original court denies the 

claim seeking contribution. Clearly, the ruling in Harshman yielded a harsh result, although 

the plaintiff in that case attempted to comply with section 5 of the Contribution Act by trying to 

file the contribution action in the underlying lawsuit. In this case, Lloyd’s made no such 

attempt. Thus, even assuming that the contribution claim would have been denied by the 

Oklahoma court because of lack of personal jurisdiction, that affords no relief to Lloyd’s, as 

Laue and the Contribution Act strictly required Lloyd’s to bring its claim for contribution in 

the original, underlying lawsuit in Oklahoma. 

¶ 18 Further, we disagree with Lloyd’s that public policy considerations support the filing of a 

separate action in Illinois. Our supreme court in Laue identified several public policy 

considerations that support barring contribution claims that are not brought in the underlying 

litigation. These considerations include additional burdens on parties and the courts and 

inconsistent verdicts. Laue, 105 Ill. 2d at 196-97. Those public policy concerns also apply here. 

It is clear that a separate lawsuit would create an additional burden on the parties and court 

system. Moreover, the argument that Laue does not apply when there is a settlement in the 

underlying case has already been rejected by this court in Lesnak v. City of Waukegan, 137 Ill. 

App. 3d 845, 846 (1985) (“[i]n referring to ‘a pending action,’ the supreme court [in Laue] did 

not distinguish between actions that proceed to trial and those that do not”). 

¶ 19 Finally, we note that Lloyd’s has argued that, in the alternative, this court should 

“undertake to correct the errors in Laue” and determine that it was wrongly decided by the 

supreme court. It is well settled that this court is bound to follow the supreme court’s 

precedent, and “when our supreme court has declared law on any point, only [the supreme 

court] can modify or overrule its previous decisions, and all lower courts are bound to follow 

supreme court precedent until such precedent is changed by the supreme court.” Rosewood 

Care Center, Inc. v. Caterpillar, Inc., 366 Ill. App. 3d 730, 734 (2006). Although Lloyd’s 

makes a strong and reasonable public policy argument, which highlights a harsh result, we are 

bound to follow Laue. The argument is plainly not supported by current Illinois case law. The 

argument, taken to its logical conclusion, calls upon this court to overrule existing case law 

established by our supreme court. This we cannot do. 

¶ 20 CONCLUSION 

¶ 21 For the foregoing reasons, we affirm the circuit court of Cook County’s dismissal of 

Lloyd’s complaint. 

¶ 22 Affirmed.