## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

McMackin v. Webe rpal Roofin g, Inc. , 2011 IL App (2d) 100461

Appellate Court Caption SCOTT McM ACKI N and TAMARA McMACKI N, Plaintiffs, v. WEBERPAL ROOFI

NG, I NC., Def endant and Third-Par t y PlaintiffAppellant (Mc Mackin Construction, Third-Par ty Def endant- Appellee ).

District & N o. Second District Docke t No. 2-10-0461

Filed Rehea ringdenied October 17, 2011 November

28, 2011

Held (Note : This syl lab us

co n st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Wh e r e plaintiff’s employ er waived its worke rs’ c o mp e n s a ti o n li e n a g a in s t any rec overy plaintif

f m i gh t obtain from his lawsuit ag ainst defe ndant, defe ndant’s rig ht to seek contribution from plaintiff’s employer was exti nguished and the trial court proper ly g rante d the motion of plaintiff’s employ er to dismiss defenda nt’s contribution claim.

Dec ision Under Review Appea l from the Circuit Court of McHe nry County
, No. 07-LA-300; the Hon. Thomas A. Me y er, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Har vey A. Paulsen and J ulie L

. S impson, both of Paulsen, Malec & Malartsik, Ltd., of Wheaton, for a ppellant.

Catherine A. O’Connell, of Morse, Bolduc & Dinos, of Chicag o, for appellee McMac kin Construction.

Thomas J

. Popovich a

nd Mark J

. Vog g , both of L aw Offic es of Thomas J

. Popovich, P.C., of McHe nry , for appel l ee s S cott McMac kin and Tamar a McMa ckin.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion.
J ustices B owman and B urke c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Def

endant and third-par

ty plaintiff, Weberpa l Roofing, Inc., appea ls the dismiss al of its third-par ty c o mp lain

t f o r c o ntrib uti o n a g a in s t th ird

- p a r ty d e f e n d a nt, McMac kin Construction. On appea l, Weberpa l argues: (1) the trial court err ed by dismiss ing its third-par ty complaint for contributi o n ; and (2) the trial court abused its discretion by finding that the ag ree ment b e tw e e n M c M a c k in Co nstruction and the underly ing plaintiffs, Scott a

n d T a ma r a M c M a c k in
, was made in good f

aith. We affir

m.

¶ 2 I . BA CKGROUND ¶ 3 Initially
, we addre ss McM ac k i n C o n s t ru ct i o n ’s re q uest that we strike Weberpa l’s

s t at em en t of fac ts contained in its appellate brief. McMac kin Construction argues that it should be struck because it contains argument and is supported by citations to Weberpa l’s

own pleading s and supporting memoranda

. I llinois Supreme Court Rule 341(h)( 6) (ef f. Mar. 1 6
, 2007) require s in part that the statement of fac ts contain “the fac ts nece ssary to an und er s t an d ing of the case , stated acc urate ly and fairly without argument or comment, and with appropr iate ref

ere nce to the pag es of the rec ord on appea l.” Although our revie w of Weberpa l’s statement of fac ts reve als that it does not comport wi th Rule 341(h)( 6), Weberpa l’s violations of t h e ru l e do not hinder our revie w of the case

. Thus, we need not strike Weberpa l’s statement of fac ts. See John Crane Inc. v. Admiral Insurance Co.
, 391 I ll. App. 3d 693, 698 (2009). Howeve r, we will disreg ard arguments and unsupported statements contained the rein. We now provide the followingrele vant fa cts containe d in the rec ord. ¶ 4 The underlying plaintiffs in this case are Scott and Tamar a McMac kin (Scott), who filed suit on August 27
, 2 007, ag ainst Weberpa l, alleg ing neg lige nce afte r Scott was injured in

-2-August 2006 during the course of his employ ment with McMac kin Construction. On M ay 13, 2009, Weberpa l f

iled a third-par

ty complaint ag ainst McMac kin Construction, seeking contribution. On May 22, 2009, M c M a c k in Co n s tr u c ti o n f il e d a n a f f irmative defe nse alleg ing that Scott had filed a worke rs’ compensation claim and that its maxi mum liability in contribution was limited to the amount it paid Scott i n benef its. ¶ 5 On August 12, 2009, the trial court e ntere d an orde r statingthat it had been a dvised by Scott and Weberpa l that the y had ag ree d to submit their case to me diation. O n October 16, 2009, Weberpa l filed a motion to dismi ss Scott’s complaint. ¶ 6 On October 26, 2009, Scott signe d a “REL EASE OF AL L CL AI MS” (re lease ) in which 1 Scott rele ased Weberpa l and McMac kin Construction from any and all claims and cause s of action arising from the August 2006 acc ident in whi ch S cott was injured. The rele ase provided that, at the time of its execution, Scott received $450,000 from Weberpa l as consideration for the re lease

. 2 ¶ 7 T h e re l ea s e p rovi ded, in pertinent part: “This rele ase in no way rele ases McM ac k i n Construction from any worke r’s compensatio n c laim s a n d /o r th ird p a

r ty c o ntrib uti o n claims.” The release also provided: “This rele ase contains the entire agree ment betwee n the parties here to, and ar e [ sic ] nota mer e re cital.” ¶ 8 On November 14, 2009, pursuant to section 2-619 of the Code of Civil Procedur e (Code) (735 I L CS 5/2-619 (We st 2008)), McMac kin Construction filed a motion to dismiss Weberpa l’s compl aint for contribution. In its motion, McMac kin Construction alleg ed the following

. I ts employ ee, Scott, filed a worke rs’ compensation claim ag ainst McMac kin Construction, alleg ing that Sco tt sustained injuries in the course of his employ ment. Pursuant to the Workers’ Com p en s at i o n Act (820 I L CS 305/1 et seq. (West 2008)), McMac kin Construction had paid Scott $134,797.27, to date. Scott filed a complaint ag ainst Weberpa l, alleg ing neg lige nce, and Weberpa l filed a third-par ty complaint ag ainst McMac kin Construction, seeking contribution. McMac kin Construction and Scott enter ed i n to an ag ree ment wher eby McMac kin Construction waived its worke rs’ compensation lien ag ainst Scott’s rec overy of an awa rd fr o m h i s lawsuit ag ainst Weberpa l. See 820 I L CS 305/5(b) (West 2008). Fur

ther, McMac kin Construction alleg ed that, by waiving its lien under section 5(b) of the W orker s’ C ompensation Act, it was re lieved of a ny liability for c ontribution to Weberpa l and, there fore , Weberpa l’s contribution complaint should be dismiss ed. ¶ 9 Weberpa l’s response to McMac kin Construction’s motion to dismiss alleg ed that: (1) the
ag ree ment betw ee n Scott and McMac kin Construction did not “compor t with the require ments of” section 2 of the J oint Tortfe asor Contribution Act (Contribution Act) (740

Alt hough a cop y of the re le ase st at es tha t it was si gned on Oct obe r 26, 2010
, the par ti es do 1
not con te st tha t the year is a typograph ic al er ror and tha t it was act ual ly si gned on Oct obe r 26, 2009

. However, Scot t did not act ual ly re cei ve the $450 ,000 when the re le ase was exe cut ed. T he 2

re cor d ind ic at es tha t, in De c e mb e r 2009
, Scot t fi le d a new complai nt agains t We berpal and it s at tor ney, see king the $450 ,000 plu s cos ts and fe es. I n J anu ar y 2010
, We berpal pai d Scot t $450 ,000
, andSco tt ’s complai nt was dis m is sedin Apr il 201 0.

-3-I L CS 100/ 2 (West 2008)); (2) the ag ree ment was not made in good f aith; and (3) a llowing the ag ree ment to stand would frustrate the purposes of the Contribution Act beca use it would allow Scott a double rec overy

. Weberpa l’s pray er fo r re lief soug ht denial of McMac kin Construction’s motion to dism i s s and reque sted “that the pay ment pursuant to the [agr eeme nt] enter ed into betwee n [S cott] and Weberpa l Roofing be offse t by the amount of the Worker’ s Compensation lien waiver.” ¶ 10 Af

t er a h ea ri n g and arg

uments by counsel, the tr i al co u rt gra n t ed M cM ac k i n 3 Construction’s motion to dismiss Weberpa l’s contribution action. Web erpa l filed a notice of appe al.

¶ 11 I I . ANALYSI S ¶ 12 A. J urisdiction ¶ 13 Initially
, we addre ss McMac kin Constru c ti o n ’ s a r g u ment that this court lacks jurisdiction beca use Weberpa l’s notice of appea l was filed prematurely

. Weberpa l asser ts that this court has jurisdiction pursuant to I llinois Supreme Court Rules 301 (ef f. Fe b

. 1
, 1 9 9 4 ) and 303 (ef f. May 30, 2008). To under stand this issue the following f acts a re ne cessa

ry

. ¶ 14 On October 16, 2009, Weberpa l filed a motion to dismiss Scott’s underly ing complaint. Weberpa l’s third-par

ty contribution claim was d i s m i s s ed on April 21, 2010; the order contained no finding s under I llinois Supreme Court Rule 304(a) (ef f. Fe b. 26, 20 1 0 ). Weberpa l filed its n o t ice of appea l on May 10, 2010. On August 25, 2010, the trial court dismiss ed Scott’s underly ing suit ag ainst Weberpal, “pursua nt to settlement *** nunc pro tunc on April 21, 2010.” ¶ 15 I llinois Supreme Court Rule 303(a )(2) (ef f. May 30, 2008) provides in re levant par t: “(2) When a ti mely postjudgment mot ion has been filed by any party , whether in a jury case or a nonjury case , a notice of appea l filed befor e the entry of the order disposing of the last pending postjudgment motion, or before the final dispositi on of any separate claim
, become s eff

ective when the order disposing of said motion or claim is e ntere d.” (Emphasis adde d.)
McMac kin Construction argues that the April 21, 2010, order dismiss ing Weberpa l’s claim for contribution ag ainst McMac kin Construction was not a final order beca use Scott’s claim
ag ainst Weberpa l had not y et been dismiss ed and the April 21, 2010, dismiss al order did not contain an e x press finding of appea lability pursuant to I llinois Supreme Court Rule 304( a) (ef f. Fe b. 26, 2010). There fore
, acc ording to McMac kin Construction, Weberpa l’s notice of
appea l, filed on May

10, 2010, was pre mature. ¶ 16 Under the curr ent version of Rule 303(a) (2), a notice of appea l that once would have be en held t o be premature is now held to be timely when an order disposing of a separate claim is enter ed. See Suburban Auto Rebuilders, Inc. v. Associated Tile Dealers W arehouse, Inc.
, 388 I ll. App. 3d 81, 97-98 (2009). Weberpa l filed its notice of appe al duringthe pende ncy of Scott’s underlying complaint. Pursuant to Rule 303(a) (2), Weberpal’s notice of appea l

T he r eco rd on a ppe al doe s no t c ont ai n a tr ans cr ipt of th e he ar ing. 3

-4-beca me eff ective when this claim was decide d, at which time this court acquir ed jurisdiction

over this matter. See Suburban Auto
, 388 I ll. App. 3d at 97-98. We now addre ss the merits of this appea l.

¶ 17 B. Standa rd of Revie w ¶ 18 Weberpa l argues that the trial court erred b y d i s m i s sing its third-par ty complaint for contribution, pursuant t o s ection 2-619(a )(9) of the Code (735 I L CS 5/2-619(a) (9) (West 2008)). ¶ 19 A s ection 2-619 motion to dismiss admits as t ru e all well-plea ded facts, along with all

rea sonable infere nces that can be g leane d from those fac ts. W ackrow v. Niemi
, 231 I l l

. 2 d 418, 422 (2008). Howeve r, the moving party asser ts that the claim is barr ed by some aff irmative matter a

voiding the le g al eff

ect of or defe ating the claim. W ackrow , 231 I ll. 2d
at 422; see also 735 I L CS 5/2-619(a) (9) (West 2008). When a court rules on a section 2-619 motion to dismiss
, it must interpre t all pleading s and supporting documents in the light most fa v o ra b l e t o the nonm oving party

. W ackrow
, 231 I ll. 2d at 422. We revie w de novo a tr i al court’s grant of a

section 2-619 motion to dismi ss. W ackrow , 231 I ll. 2d at 422.

¶ 20 C. W aiver of Workers’ Compensation L ien ¶ 21 Weberpa l argues that the plain languag e of section 2 of the Contribution Act (740 I L CS 100/2 (West 2008)) supports its continued rig ht to seek contribut i on from McMac kin Construction. ¶ 22 Section 2 of the Contribution Act provides in re levant par t: “§ 2. Right of Contribution. (a) Ex cept as otherwise provided in this Act, wher e 2 or

more persons are subject to liability in t o rt ar i s i n g out of the same injury to person or proper ty , or the same wrong ful death, there is a rig ht of contribution among them, even though judg ment has not bee n enter ed ag ainst any or all of them. (b) The rig ht of contribution exist s only in favor of a tortfea sor who has paid more than h i s p ro ra t a share of the common liability
, and his total rec overy is limit ed to the
amount paid by him in excess of his pro rata share

. No t o rt feasor is liable to make contribution beyond his own pro rata share of the c ommon liabili ty

. (c) When a rele ase or covena nt not to sue or not to enfor ce judgme nt is g iven in g ood faith to one or more persons liable in tort arising out of the same inj u ry o r t h e s ame wrong ful death, it does not discharg e any of the other tortfea sors from liability fo r t he injury or wrongf

ul death unless its terms s o provide but it reduc es t h e recove ry on any claim ag ainst the others to the extent of any amount stated in the rele ase or the covena nt,

or in the amount of the consideration actua lly paid for it, whicheve r is g reater.” 740 I L CS 100/2(a), (b), (c ) (West 2008). ¶ 23 Weberpa l argues that it paid more than its pro rata share when it paid Scott $450,000 for the rele ase of all claims ag ainst itself and McMac kin Construction. Thus, Weberpa l argues, it has a rig ht to seek contrib u t i on for McMac kin Construction’s proportionate share of liability . We disag ree with Weberpal.

-5-¶ 24 “The concept of contribution contemplates that eac h party whose fault contributed to a n injury should pay its pro rata share of the common liability .” (Emphasis in orig inal.) Virginia Surety Co. v. Northern Insurance Co. of New Y ork
, 224 I ll. 2d 550, 557 (2007). Thus, when

an employ ee is injured in the course of his employ ment and seeks compensation from a third party , the Contribution Act provides that the third party may file a third-par ty suit ag ainst the employ er for contribution toward the employ ee’ s damag es. 740 I L C S 1 00/1 et seq. (West 2008). Howeve r, an employ er’ s maxi mum liability in a third-par ty suit for contr i b u t i o n is limit ed to its liability to its employ ee under the Workers’ Compensation Act. Kotecki v. Cyclops W

elding Corp.
, 146 I ll. 2d 155, 165-66 (1991). Fur ther, section 5(b) of the Workers’ Compensation Act allows the employ er to claim a lien on any rec ov ery the employ ee

rec eives from the third party , equal to the amount the employ er paid or will pay the employ ee in worke rs’ compensation. 820 I L CS 305/5(b) (West 2008). An employ er can also waive its lien on the employee’ s rec overy and not se ek re imbursement of its worke rs’ compensation
pay ments. 820 I L CS 305/5(b) (West 2008); LaFeve r v. Kemlite Co.
, 185 I l l

. 2 d 3 80, 399 (1998). By waiving its sec tion 5( b) lien, an employer c an avoid liability to a third party for contribution. LaFeve r , 185 I ll. 2d at 399; see also Gallagher v. Lenart
, 226 I ll. 2d 208, 231 (2007). ¶ 25 In this case , it is uncontrove rted that McMac kin Construction was Sc o tt ’ s employ er when th e accident occur

red and that, as such, McMac kin Construction had a lien ag ainst any

rec overy Scott obtained from Weberpa l. I t i s als o uncontrove rted that McMac kin Construction and Scott enter ed into an ag ree ment wher eby McMac kin Construction waived its rig ht to its worke rs’ compensation lien ag ainst Scott’s rec overy from his lawsuit ag ainst Weberpa l. When McMac kin Construction waived its lien, Weberpa l’s rig ht of contribution from McMac kin Constru ct i o n was exti nguished. See LaFeve r , 185 I ll. 2d at 399. Acc ording ly
, t h e t ri al court properly g rante d McMac kin Construction’s motion to dismiss Weberpa l’s contribution claim. ¶ 26 W eb erpa l argues that the trial court err ed by dismiss ing its claim, beca us e W eb erp al expli citly prese rved i t s ri gh t to seek contribution from McMac kin Construction in Scott’s rele ase. Howeve r, Weberpa l fails to understand that i t s prese rvation of its rig ht to seek contribution had no eff

ect on McMac kin Construction’s rig ht to exti nguish its contribution liability by waiving its worke rs’ compensation lien. McMac kin Construction was not a party to the rele ase. See W

i n z eler Trucking Co. v. State
, 32 I ll. Ct. Cl. 191 (1978) (bec ause the State was not a party to a contract, it could not be bound by it). In addition, the rele ase did
not contain a provision preve nting Scott from enter ing into an ag ree ment with McMac kin Construction, and the release provided t hat i t contained “ the entire ag ree ment betwee n the parties.” Thus, Scott wa s fre e to e nter into a n ag ree ment wher eby

McMac kin Construc tion waived its worke rs’ c ompensation lien, thus ex tinguishingWeberpa l’s contribution claim. There fore , the trial cour

t properly g rante d McMac kin’s motion to di smiss. ¶ 27 Weberpa l argues that the trial court err ed beca use it did not r ecognize that contribution liability in tort exis ts separ ate and apar t from an employ er’ s liability under t h e Workers’ Compensation Act. Weberpa l cites Hall v. Archer- Daniels-Midland Co.
, 122 I ll. 2d 448 (1988), to support its argument. ¶ 28 In Hall
, the supreme court held that a third-par ty tortfea sor was entitled to contribution

-6-from an employ er tortfea sor afte r the third party settled with the employ ee, even though the

rele ase did not exti nguish the employ er’ s worke rs’ compensation liability

. Hall
, 122 I ll. 2d
at 455. The supreme court held that the rele ase permitted contribution beca use it rele ased the employ er from liability in tort. Hall
, 122 I ll. 2d at 455. The supreme court explained that, to be entitled to contribution, the third party did not need to exti nguish the employ er’ s worke rs’
compensation obligation to the employ ee. Hall
, 122 I ll. 2d at 454. Howeve r, these f acts in Hall are distinguishable from the fac ts at bar. In this case , McMac kin Construc tion wa ived its worke rs’ compensation lien. Thus, Weberpal ’s rig ht of contribution was exti nguished. Acc ording ly
, Hall

is inapplicable to the c ase at bar. ¶ 29 Weberpa l also argues that the t ri al co u rt re l i ed o n t h e p endenc y of the worke rs’
compensation cl ai m , co n t ra ry to the holding in Hall
, 122 I ll. 2d at 454. To support its
argument, Weberpa l cites to the italicized portion of the rele vant part of the trial court’s order : “This Court finds that t h e release enter ed into betwee n Scott McMac kin and Weberpa l Roofing, Inc. did not preve nt Scott M c Mackin from enter ing into an ag ree ment to dismiss his claim under the workman’ s [ s ic ] compensation act. Fur thermore
, as McMac kin Construction was not a party to the rele ase, its rights to enter i n t o any ag ree ment with Scott McMackin wer e unaf fec ted. Whil e the rele ase enter ed into betwee n Scott McMac kin and Weberpa l Roofing, Inc. exti nguished the ‘potential liability ’ of McMac kin Constructio n fo r any direc t action broug ht by Scott McMac kin, it did not extingu is h the workman’s [sic] compe nsation claim or McM

ackin Construction’s liabili ty under said claim. This Court has bee n advised that the w orkman’s [ sic ] compensation claim of Scott M cM ackin was still pending at the time of the ag ree ment enter ed into betwe en M r. McMac kin and McMac kin Construction. As there has been no evidenc e sub m i tted by Weberpa l Roofing, Inc. sug g esting that the workman’ s [ sic ] compensation was no longe r valid this Court finds that there was adequate valuable consideration for the ag ree ment betwee n Scott McMac kin and McMac kin Construction. Fur thermore
, as both Scott McMac kin and McMac kin Construction wer e repr esente d by their o wn , i n depende nt counsel, and there is no evidenc e of collusion betwee n these parties the Court is satisfied that the transac tion was ‘at arm’s leng th’. This shifts the burden to the party challeng ing the agree ment to establish that [i t] was n o t i n ‘good faith’ as that term is used in the I llinois J oint Tortfea sor Contribution Act.” (Emphasis adde d.) ¶ 30 Thus, the trial court did not rule contra ry to Hall
, 122 I ll. 2d a

t 454, that Weberpal wa s not entitled to contribution beca use the rele ase did not exti nguish McMac kin Construction’s worke rs’ compensa

tion oblig ation to Scott. Rather, the trial court found that nothing in the rele ase pr evente d either Scott or Mc Mackin Construction from e ntering into an ag ree ment to dismiss Scott’s claim under t h e Workers’ Compensation Act. Thus, Scott’s worke rs’
compensation claim “wa s still pendin g ” wh e n Sc o tt a n d M c M a c k in Co n s truction enter ed into the re lease . Acc ording ly , Weberpa l misconstrues the trial cour t’s order

.

-7-¶ 31 D. Setoff or Credit ¶ 32 Next, Weberpa l argues that McM ac k i n C o n s t ru ct i o n ’s wa i v er o f i t s wo rk ers’
compens ati on lien require d a setoff to Weberpa l. Weberpa l argues that a setoff would
preve nt Scott from rec eiving a double rec overy

. Weberpa l fails to understand that, beca use it settled with Scott, the double rec overy doctrine does not apply

. See Kim v. Alvey

, Inc.
, 322 I ll. App. 3d 657, 672 (2001). Ty pically
, when an employer waives its worke rs’ compensation lien, a defe ndant/third-par ty plaintiff rec eive s i t s s etoff from the underly ing plaintiff afte r damag es are awa

rded at trial and fault is apportioned. See, e.g. , B r a n um v. Slezak Construction Co.
, 289 I ll. App. 3d 948, 951-52 (1997). How ever , this is not a ty pical case , beca use Weberpa l and Scott settled the case without g oing to trial. Th e d o ub l e rec overy doctrine does not apply to a case in which the parties settle prior to judgme nt on the pl aintiff’s underlying action, beca use a settlement is a contra ct that g overns the plaintiff’s

rec overy

. Kim
, 322 I ll. App. 3d at 672. In this case , it i s u n d i s p u t ed t hat the rele ase was a valid contra ct t hat di d not provide for a setoff and was not a pay ment require d pursuant to

a judgme nt afte r trial on the plaintiff’s underly ing action; thus, the double rec overy doctrine does not apply

. Kim , 322 I ll. App. 3d at 672. ¶ 33 Weberpa l cites Branum
, 289 I ll. Ap p

. 3 d 9 48, to support its argument. Howeve r, in Branum
, a jury awa

rded the plaintiff damage s and apportioned fault, the e mploy er waived its worke rs’ compensation lien, and the trial court dismiss ed the employ er fr o m the entire

case , which in cl uded dismiss ing the third-par ty plaintiff’s contribution claim ag ainst the

em ploy er. Branum
, 289 I ll. App. 3d at 951-52. Although the trial court awarde d the t hi rd

party plaintiff a setoff, the cruc i al d i s t inction for our purposes here is that the setoff came from the plaintif

f’s rec overy

. Branum
, 289 I ll. App. 3d at 951-52, 965. In this case , Weberpa l seeks a setoff not from Scott, the plaintiff, but from McMac kin Construction, the employ er. In Branum the trial cour

t dismi ssed the employer be cause , like McMac kin Construc tion in this case , the employ er waived its worke rs’ compensation lien. Branum
, 289 I ll. App. 3d at 952. Thus, Branum supports McMac kin Construction’s positi on and not Weberpa l’s. ¶ 34 We also note that nothing in the rec ord indicates that Weberpa l filed a complaint ag ainst Scott, seeking a setoff or any form of relief

. Fur ther, beca use Weberpa l has alre ady paid Scott $450,000 as provided in the rele ase and the rele ase does not provide for a setoff or a cre dit,

we fail to understand h o w W eberpal could rec over such relief from Scott. In addition, nothing in the rec ord indicates that Weberpa l soug ht a cre dit from McMac kin Construction in the trial court. Thus, this issue is f orfe ited on appea l. See Hudkins v. Egan
, 364 I ll. App. 3d 587, 592 (2006).

¶ 35 E. Good F aith of Waiver Agree ment ¶ 36 L astly
, Weberpa l argues that t h e t ri al co u rt abused its discretion by finding that the
ag ree ment betwee n McMac kin Constru ct i o n and Scott was made in g ood faith. Weberpa l
argues that the ag ree ment was not made in g ood faith beca u s e S co t t and McMac kin Construction knew that it could exti nguish Weberp al ’s rig ht to seek contribution from McMac kin Construction. ¶ 37 I t is within the discretion of the trial judge to deter mine whether a settlement was made

-8-in g ood faith, and a revie wing court may not disturb a finding of g ood faith absent an abuse

of discre tion. See Cellini v. Village of Gurnee , 403 I ll. App. 3d 26, 35 (2010). ¶ 38 Funes v. B&

B Equipment, Inc.
, 282 I ll. App. 3d 272 (1996), is simil ar to the case at bar

. In Funes
, the plaintiff rec eived a l u m p s u m i n satisfac tion of her worke rs’ compensation claim and her employ er waived its worke rs’ compensation lien ag ainst rec overy from the third-par ty plaintiff. Funes
, 282 I ll. App. 3d at 274. The trial court found that the settlement betwee n the p l aint iff and her employ er was made in g ood faith and it dismiss ed the thirdparty plaintiff’s contribution claim ag ainst the employ er. Funes
, 282 I ll. App. 3d at 274. The appellate court aff

irmed the trial court, rea soning that there was no evidenc e in the rec ord of collusion, unfair de aling , or wrong ful conduc t. Funes
, 282 I ll. App. 3d at 278. Fur ther, the appellate court stated that the fac t that the settlement barr ed contribution from the employ er did n o t establish that the trial court abused its discretion by finding that the settlement
ag ree ment was made in good f aith. Funes , 282 I ll. App. 3d at 278. ¶ 39 In this case , Weberpa l prese nts the same argument the third-par ty plai n t i ff i n Funes prese nted. See Funes
, 282 I ll. App. 3d at 278. Weberpa l arg ues that the trial court abused its discretion by finding that the ag ree ment was made in g ood fa i t h
, b ec ause the ag ree ment barr ed Weberpa l from obtaining contribution fr om McMac kin. Howeve r, this, alone, is insufficient to e stablish an abuse of discretion. See Funes
, 282 I ll. App. 3d at 278. Fur ther, Weberpa l’s citation to its response to McMac kin Construction’s motion to dismiss does not support its a

rgument. There fore , Weberpa l fails to establish that the trial court’s finding of
g ood faith wa s an abuse of discre tion.

¶ 40 I I I . CONCLUSI ON ¶ 41 For

the re asons stated, we aff irm the trial cour

t’s dismiss al of Weberpa l’s contribution claim ag ainst McMac kin Construction. ¶ 42 The judg ment of the trial c ourt of McH enry County is affirme d.

¶ 43 Affir

med.

-9-