1 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

 

TARA HOOVER, as Special Administrator of ) 

Estate of LORNE HOOVER, Deceased ) 

 ) 

Plaintiff, ) No. 3:20-cv-50247 

) 

 v. ) 

 ) Judge Iain D. Johnston 

ABDULLAHI SAID, Individually, MIDWAY ) 

TRANSPORTATION, LLC, C W LUCKY ) 

STAR TRUCKING, INC., and SHIRE CORP., ) 

 ) 

 Defendants. ) 

 ) 

MIDWAY TRANSPORTATION, LLC and ) 

ABDULLAHI SAID, ) 

 ) 

 Third-Party Plaintiffs, ) 

 ) 

v. ) 

 ) 

MULLER-PINEHURST DAIRY, INC., ) 

 ) 

 Third-Party Defendant. ) 

 

MEMORANDUM OPINION AND ORDER

Defendants ABDULLAHI SAID, a truck driver involved in a motor vehicle collision, and 

MIDWAY TRANSPORTATION, LLC (“Midway”), Said’s employer, bring a contribution claim 

against third-party defendant MULLER-PINEHURST. They allege multiple theories of 

negligence and bring a claim under the Illinois Joint Tortfeasor Contribution Act. MullerPinehurst now moves the court to dismiss under Federal Rules of Civil Procedure 12(b)(6) for 

failure to state a claim upon which relief can be granted. For the following reasons, the Court 

denies Muller-Pinehurst’s motion to dismiss the third-party complaint. 

Case: 3:20-cv-50247 Document #: 110 Filed: 09/20/22 Page 1 of 10 PageID #:462
2 

I. FACTUAL ALLEGATIONS1

Abdullahi Said drove a semi-truck for Midway. On January 30, 2019, his truck began 

experiencing mechanical issues while on a highspeed interstate. As a result, the truck slowed 

down to 30-45 mph in an area with a posted speed limit of 60 mph. Behind him was Lorne 

Hoover, who drove a semi-truck for Muller-Pinehurst. Hoover was unable to slow down his 

semi-truck in time and crashed into the rear end of Said’s semi-truck, causing Hoover’s 

immediate death. Hoover’s wife, Tara Hoover, acting as the special administrator for his estate, 

filed suit against Said and Midway for wrongful death. Said and Midway then filed a third-party 

complaint against Muller-Pinehurst alleging several alternative theories of negligence and that 

Hoover’s death was the result of Muller-Pinehurst’s negligent acts and/or omissions. Said and 

Midway further allege that if they are found liable to Hoover’s estate, they should be entitled to 

contribution from Muller-Pinehurst in an amount consistent with its pro-rata share of any 

common liability in accordance with the Illinois Joint Tortfeasor Contribution Act. 740 ILCS 

100/2. 

II. LEGAL STANDARD

Rule 8 requires a plaintiff to allege “enough facts to state a claim to relief that is plausible 

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under Rule 8(a)(2), a 

complaint must contain “a short and plain statement of the claim showing that the pleader is 

entitled to relief.” The statement must give the defendant fair notice of what the claim is and the 

grounds upon which it rests. Twombly, 550 U.S. at 555. A plaintiff’s well-pleaded factual 

allegations must allow “the court to draw the reasonable inference that the defendant is liable for 

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must also 

1 The Court draws all factual allegations from the first amended complaint, Dkt. 65 and Midway 

Transportation LLC’s and Abdullahi Said’s Amended Third-Party Complaint. Dkt. 98. 

Case: 3:20-cv-50247 Document #: 110 Filed: 09/20/22 Page 2 of 10 PageID #:463
3 

plausibly suggest that the plaintiff is entitled to relief, which “is not akin to a ‘probability 

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 

Id. The federal pleading standard does not require the plaintiff to plead every element; plaintiff 

need only plead enough facts to elevate his claim from conceivable to plausible. Twombly, 550 

U.S. at 570; Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (“Complaints need not plead 

law or match facts to every element of a legal theory.”). The burden of persuasion on a motion to 

dismiss rests with the defendant, not the plaintiff. Reyes v. City of Chicago, 585 F. Supp. 2d 

1010, 1017 (N.D. Ill. 2008) ("On a motion to dismiss, defendants have the burden of 

demonstrating the legal insufficiency of the complaint — not the plaintiffs or the court."). Thus, 

a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a 

complaint's allegations, and when evaluating a 12(b)(6) motion, the court must accept all wellpleaded facts as true and draw all reasonable inferences in favor of the plaintiff. See Calderone v. 

City of Chicago, 979 F.3d 1156, 1161 (7th Cir. 2020). 

III. ANALYSIS

Muller-Pinehurst moves to dismiss Said and Midway’s contribution claims against it, arguing 

that the claims are barred under the Illinois Joint Tortfeasor Contribution Act for the following 

reasons: (1) a third-party cannot base its contribution claim against an employer on the alleged 

acts of negligence committed by its employee, and (2) Muller-Pinehurst agreed to a Workers’

Compensation Commission Settlement Agreement, in good faith, with plaintiff-employee that

discharges it from any further liability for contribution. 

 

Case: 3:20-cv-50247 Document #: 110 Filed: 09/20/22 Page 3 of 10 PageID #:464
4

A. Said and Midway Have Adequately Pleaded an Independent Tort

The Illinois Joint Tortfeasor Contribution Act provides that when two or more persons are 

subject to liability in tort arising out of the same wrongful death, there is a right to contribution 

among them, even though judgment has not been entered against any or all of them. 740 ILCS 

100/2 (a). The Contribution Act also limits the right of contribution “to the amount paid [by the 

tortfeasor] in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his 

own pro rata share of the common liability.” 740 ILCS 100/2(b). An employer’s liability only 

extends to the injury the negligent employees cause third persons, not the injuries negligent 

employees cause themselves. Mattei v. Cessna Aircraft Co., 1992 U.S. Dist. LEXIS 5197 at * 12 

(N.D. Ill. Mar. 31, 1992). To successfully bring a third-party contribution claim against an 

employer, the defendant must be able to point to independent acts of negligence on the part of 

that employer. Shelvy v. Wal-Mart Stores East, L.P., No. 11-cv-9176, 2013 U.S. Dist. LEXIS 

17220, at *5–6 (N.D. Ill. Feb. 8, 2013). So, a theory of contribution cannot be based solely on 

vicarious liability. "Thus for a third-party claimant to be entitled to relief from a plaintiff's 

employer under a contribution theory at the same time it asserts that the employee was 

contributorily negligent, it must allege that the employer's negligence was separate and distinct 

from that of the plaintiff-employee." Id. at *6. Illinois law recognizes a cause of action against an 

employer for negligently hiring, or retaining in its employment, an employee it knew or should 

have known, was unfit for the job or could create a danger of harm to third persons. Van Horne 

v. Muller, 705 N.E. 2d 898, 904 (Ill. Sup. Ct. 1998). An employer’s liability for negligent hiring 

and retention is separate from respondeat superior liability for the acts of its employees. Id.

Under these theories, the proximate cause of the plaintiff’s injury is the employer’s negligence in 

hiring or retaining the employee rather than the employee’s wrongful action(s). Id.

Case: 3:20-cv-50247 Document #: 110 Filed: 09/20/22 Page 4 of 10 PageID #:465
5

Muller-Pinehurst contends that Said and Midway fail to state claims specific to MullerPinehurst and independent from Hoover’s negligent driving. The court is puzzled by this 

contention, as the third-party complaint clearly alleges independent negligent acts and/or 

omissions that are independent of Hoover’s negligent driving. Dkt. 89, ¶ 7. Muller-Pinehurst 

correctly points out that a third-party contribution action cannot be brought against it based on a 

theory of vicarious liability, but that is not the theory on which Said and Midway’s base their 

claims. Dkt. 103, at 2. Specifically, the third-party complaint alleges that Muller-Pinehurst failed 

to properly train, supervise, and direct Hoover. Id. The third-party complaint further alleges that 

Muller-Pinehurst negligently retained Hoover, negligently entrusted Hoover to drive a semitruck, and was negligent in its supervision, inspection, retention, and direction of Hoover’s work. 

Id. Although there is overlap between Hoover’s alleged contributory negligence and MullerPinehurst’s alleged negligent acts or omissions in the sense that they both involve Hoover’s 

driving, if the allegations relate only “‘indirectly’” to a plaintiff’s alleged contributory 

negligence, the third-party contribution claim may still be considered “‘sufficiently independent 

to preclude dismissal on motion.’” Shelvy, No. 11-cv-9176, 2013 U.S. Dist. LEXIS 17220, at *7

(quoting Evans v. Polaski, No. 08 CV 7405 (N.D. Ill. Oct. 21, 2009)) (allegations that plaintiff 

operated truck negligently were sufficiently independent from allegations that employer failed to 

properly train the plaintiff to operate the truck). Although Said and Midway’s theories that 

Muller-Pinehurst contributed to Hoover’s death by negligent acts and/or omissions may not 

succeed, they have adequately pleaded a claim, allowing them to pursue those theories through 

the discovery stage.

Case: 3:20-cv-50247 Document #: 110 Filed: 09/20/22 Page 5 of 10 PageID #:466
6

B. The Settlement Agreement is Not a Basis for Dismissal under Rule 12(b)(6)

In the alternative, Muller-Pinehurst further argues that the contribution claim against it

should be barred because it agreed to a Workers’ Compensation Commission Settlement

Agreement with Hoover’s estate, which included an agreement that the settlement was entered 

into in good faith. Muller-Pinehurst asserts that the agreement releases it from additional 

liability. Dkt. 98, at 4. This argument fails on two fronts. First, Muller-Pinehurst presents

extrinsic information outside of the third-party complaint and is thus inappropriate for 

consideration on a motion to dismiss. Second, even if the Court were to consider the extrinsic 

information about the terms of the Workers’ Compensation Commission Settlement Agreement, 

the parties cannot not simply agree that a settlement was made in good faith. The Contribution 

Act requires a judicial determination of good faith, which has not occurred. 

As a general rule, on a Rule 12(b)(6) motion, the court may consider only the contents of the 

party’s pleading. Rosenblum v. Travelyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002). Rule 

12(d) provides that, to consider documents outside of the pleadings, the Court must convert the 

Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. Tierney v. Vahle, 304 F.3d 

734, 738 (7th Cir. 2002).

2 Rule 12(d) is mandatory. Glob. Network Comm’ns, Inc. v. City of New 

York, 458 F. 3d 150, 155 (2d Cir. 2006); 2 JAMES WM. MOORE ET AL., MOORE’S FEDERAL 

PRACTICE § 12.34[3][a] at 12–50 (3d ed. 2022); see also Fleischfresser v. Directors of Sch. Dist. 

200, 15 F.3d 680, 684 (7th Cir. 1994) (the rule “commands that if a district court considers 

material that is not included in the pleadings, the district court must treat the motion to dismiss as 

one for summary judgment”). But extrinsic documents attached to a motion to dismiss may be 

considered without converting the motion to one for summary judgment if the documents are 

2 Rule 12(d) requires the Court to provide the parties “a reasonable opportunity to present all the material that is 

pertinent to the motion.” FED. R. CIV. P. 12(d).

Case: 3:20-cv-50247 Document #: 110 Filed: 09/20/22 Page 6 of 10 PageID #:467
7

attached to the pleading, referred to in the pleading, or central to the party’s claim. Hepp v. Ultra 

Green Energy Servs., LLC, 2014 U.S. Dist. LEXIS 173692, at *7 (N.D. Ill., Dec. 17, 2014) 

(citing 188 LLC v. Trinity Indus. Inc., 300 F.3d 730, 735 (7th Cir. 2002)).

Said and Midway do not reference the Workers’ Compensation Settlement Agreement in 

their third-party complaint against Muller-Pinehurst.3 Thus, the Settlement Agreement is not 

central to Said and Midway’s claim and the Court will not consider the Settlement Agreement as 

part of the pleadings. McCready v. eBay, Inc., 453 F.3d, 882, 891–92 (7th Cir. 2006). The Court 

therefore declines to continue as if it were proceeding on a Rule 12(b)(6) motion to dismiss.

Even if the Workers’ Compensation Settlement Agreement were part of the pleadings, 

Muller-Pinehurst would still not prevail on its argument that the agreement’s release bars it from 

future liability under the Contribution Act for two reasons. Dkt. 98, at 5. First, a release is an 

affirmative defense, not an argument against the sufficiency of the pleadings. FED. R. CIV. P. 8 

(c)(1). Hepp, 2014 U.S. Dist. LEXIS 173692, at *7 (citing Yassan v. J.P. Morgan Chase & Co., 

708 F.3d 963, 975 (7th Cir. 2013)). Dismissing a case based on an affirmative defense is 

properly done under FED. R. CIV. P. 56 or FED. R. CIV. P. 12(c), not Rule 12(b)(6). Yassan, 708 

F.3d at 975.

Second, there has been no judicial termination that the Workers’ Compensation Settlement 

Agreement was reached in good faith. The Court is unsure whether Muller-Pinehurst is arguing 

that the agreement between it and Hoover’s estate, the finding of good faith by the Workers’

Compensation Commission, or both bar the claim on a Rule 12(b)(6) motion. Dkt. 98, at 5–6; 

Dkt. 105, at 5–6. 

3 The first mention of the Workers’ Compensation Commission Settlement Agreement was in Muller-Pinehurst’s 

motion to dismiss.

Case: 3:20-cv-50247 Document #: 110 Filed: 09/20/22 Page 7 of 10 PageID #:468
8

The Contribution Act provides that a release or covenant not to sue will discharge other 

tortfeasors from liability only if its terms so provide and it is given in good faith. 740 ILCS 

100/2(c). The Contribution Act further states that the tortfeasor who settles with a claimant is 

“discharged from all liability for any contribution to any other tortfeasor.” 740 ILCS 100/2 (c), 

(d). The good faith nature of a settlement “is the only limitation which the Act places on the right 

to settle and it is the good-faith nature of a settlement that extinguishes the contribution liability 

of the settling tortfeasor.” Johnson v. United Airlines, 784 N.E. 2d 812, 818 (Ill. Sup. Ct. 2003). 

The settling parties bear the initial burden of making a preliminary showing of good faith. 

LaJeunesse v. Ford Motor Co., 642 F. Supp. 2d. 835, 839 (N.D. Ill. 2009) (citing Johnson, 784 

N.E. 2d at 818). The party challenging the good faith of the settlement “need prove the absence 

of good faith by a preponderance of the evidence.” LaJeunesse, 642 F. Supp. 2d. at 839 (citing 

Johnson, 784 N.E. 2d at 820). “The Contribution Act does not set forth a specific form that a 

release must take and does not even require the release to be in writing.” LaJeunesse, 642 F. 

Supp. 2d. at 843 (citing Lard v. AM/FM Ohio, Inc., 901 N.E. 2d 1006, 1016 (1st Dist. 2009)). 

And, as cases such as Alvarez v. Fred Hintze Construction make clear, an employer from whom 

contribution is sought “can make a good faith settlement of a workers’ compensation claim with 

its employee and thus be discharged from contribution liability to non-settling defendants.” 617 

N.E. 2d 821, 824 (3rd Dist. 1993).

But whether a settlement satisfies the good faith requirement of the Contribution Act is a 

determination to be made by a court. Johnson, 784 N.E. 2d at 821 (stating that the good faith 

requirement is a matter “left to the discretion of the trial court based on the court’s consideration 

of the totality of the circumstances”). See also Stickler v. Am. Augers, Inc., 757 N.E. 2d 573, 577 

(1st Dist. 2001) (finding that the Workers’ Compensation Commission’s approval of a proposed 

Case: 3:20-cv-50247 Document #: 110 Filed: 09/20/22 Page 8 of 10 PageID #:469
9

settlement is irrelevant to a good faith finding within the meaning of the Contribution Act,

because the Commission’s concern is whether the agreement provides the decedent’s dependents 

with sufficient funds on which to live). The purpose of requiring a judicial determination of good 

faith is to “allow trial courts to give effect to the strong public policy favoring peaceful 

settlement of claims, and at the same time allows trial courts to be on guard for any evidence of 

unfair dealing, collusion, or wrongful conduct by the settling parties.” Babb v. City of 

Champaign (In Re Babb), 642 N.E. 2d 1195, 1199 (Ill. Sup. Ct. 1994). 

Here, the Workers’ Compensation Commission Settlement Agreement between Hoover’s 

estate and Muller-Pinehurst contains a provision attempting to release Muller-Pinehurst from 

potential liability under the Contribution Act by explicitly stating that the settlement was agreed 

upon in good faith. Said and Midway respond that the Workers’ Compensation Commission 

Settlement Agreement language declaring itself to have been given in good faith “holds no merit 

whatsoever.” Dkt. 103, at 4. 

The Court agrees that the language and even the existence of the settlement agreement itself

is not dispositive. Initially, as previously noted, the Contribution Act’s requirement of good faith 

is determined by the trial court, not the settling parties. Johnson, 784 N.E. 2d at 821. The 

purpose of the good faith requirement is for courts to determine if there was “any evidence of 

unfair dealing, collusion, or wrongful conduct by the settling parties.” Babb, 642 N.E. 2d at 

1199. Without a judicial determination of good faith, the purpose of the requirement would not 

be met. Next, and relatedly, “the validity of the settlement as between the plaintiff and the 

settling defendant does not ipso facto mean the settlement was made in good faith for purposes 

of the Contribution Act.” Stickler, 757 N.E. 2d at 577. Finally, “[a] settlement agreement may be 

valid for purposes of the [Workers Compensation] Commission yet not in good faith for 

Case: 3:20-cv-50247 Document #: 110 Filed: 09/20/22 Page 9 of 10 PageID #:470
10 

purposes of the Joint Tortfeasor Contribution Act.” Id. at 577–78. A settlement agreement, such 

as the one between Muller-Pinehurst and the Hoover estate, is necessary but not sufficient to bar 

a claim under the Contribution Act. There must still be a judicial finding of good faith. Indeed, 

that is exactly what happened in Alvarez and the cases cited in that decision. There has been no 

judicial finding of good faith here, and this Court certainly can’t make that type of finding on a 

Rule 12(b)(6) motion to dismiss. 

IV. Conclusion 

For the reasons explained above, Muller-Pinehurst’s motion to dismiss Midway and Said’s 

third-party complaint under the Joint Tortfeasor Contribution Act is denied. 

Date: September 20, 2022 By: ___________________________ 

 IAIN D. JOHNSTON

United States District Judge 

Case: 3:20-cv-50247 Document #: 110 Filed: 09/20/22 Page 10 of 10 PageID #:471