2011 IL App (2d) 100998
Ill. App. Ct.2011Background
- Department sued Valdivia for prevailing wage violations on a Woodridge public-works project; Valdivia contracted with Divito for topsoil/sod work and was paid $44,493.75.
- Valdivia paid his workers prevailing wages; the Department audited and claimed back wages were owed.
- Valdivia asserted Divito failed to inform him of the Act and failed to post rates; Divito denied liability.
- Valdivia filed a two-count third-party complaint against Divito: Count I for Act notice/posting duties; Count II Fraudulent Concealment seeking contribution.
- Trial court dismissed Count I; Count II was initially dismissed as a contribution claim, then the court allowed supplemental briefing and ultimately dismissed Count II with prejudice.
- Valdivia appealed challenging the dismissal of Count II as a contribution claim and arguing Divito owed a tort duty under the Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count II states a viable contribution claim. | Valdivia argues Divito owed a tort duty under the Act, making him liable to Valdivia's employees. | Divito asserts no tort duty exists under the Act and that Count II fails to state a claim. | Count II fails; no tort duty under the Act supports contribution under the Practice Act. |
| Whether the Prevailing Wage Act creates a tort duty by notice/posting requirements. | Valdivia contends notice and posting duties create tort liability for Divito. | Divito maintains the Act does not create tort duties for general contractors. | No tort duty arises from notice/posting requirements; not a basis for contribution. |
| Whether the 2010 amendment (4(b-2)) alters analysis of contribution. | Amendment clarifies notice penalties; supports contribution claim. | Amendment applies to notice penalties, not posting; does not create tort duty. | Amendment does not support a contribution claim for posting, thus not viable. |
| Whether Cement Masons or Brockman support a contribution claim here. | Argues general contractor’s violation creates tort duty under Brockman/related authorities. | Cement Masons limits general contractor liability; Brockman distinguishable. | Cement Masons/Brockman do not render Divito liable in tort; contribution denied. |
| Equity considerations vs. statutory requirements in denying contribution. | Valdivia cites potential unjust enrichment if no contribution. | Equity cannot override statutory requirements for contribution. | Court cannot override statute; contribution claims denied consistent with the Act. |
Key Cases Cited
- Brockman v. People, 143 Ill.2d 351 (1991) (underlying duty required for tort-based contribution common law principles)
- Cement Masons Pension Fund v. William A. Randolph, Inc., 358 Ill.App.3d 638 (2005) (general contractor not guarantor of subcontractor payment; no contribution under Act)
- Sackville Construction, Inc. v. 402 Ill.App.3d 195, 402 Ill.App.3d 195 (2010) (notice to subcontractor does not relieve obligation to pay prevailing wage)
- Rommel v. Illinois State Toll Highway Authority, 405 Ill.App.3d 1124 (2010) (statute may create duty if designed to protect life/ property; not here)
- Calloway v. Kinkelaar, 168 Ill.2d 312 (1995) (safety statute can create tort duty; analysis of duty source)
- Doyle v. Rhodes, 101 Ill.2d 1 (1984) (statutory-based tort duties; limits on equitable relief over statute)
- 601 West 81st Street Corp. v. City of Chicago, 129 Ill.App.3d 410 (1984) (equity cannot contravene statutory requirements)
- Jodelis v. Harris, 118 Ill.2d 482 (1987) (Dramshop Act is exclusive non-tort liability; limits to contribution)