People v. Valdivia
2011 IL App (2d) 100998
Ill. App. Ct.2011Background
- Divito, the general contractor, hired Valdivia to install topsoil and sod for the Suburban Estates Water Main Improvements project for $44,493.75, which Valdivia completed in November 2004 and was paid by Divito.
- In February 2005, the Department of Labor audited Valdivia and asserted he failed to pay the prevailing wage to his employees, demanding back wages within 10 days.
- Valdivia’s counsel responded; Divito denied liability and indicated he was not responsible for Valdivia’s compliance, while the Department threatened Divito with a bond claim for the project.
- On October 23, 2009, the Department filed a complaint against Valdivia alleging Prevailing Wage Act violations and seeking back wages, a statutory penalty, and punitive damages.
- Valdivia asserted a two-count third-party complaint against Divito alleging (Count I) Divito’s violation of the Prevailing Wage Act and (Count II) fraudulent concealment, seeking contribution for any judgment against Valdivia.
- The trial court dismissed Count I with prejudice and, after a later hearing, dismissed Count II with prejudice; Valdivia appealed challenging the Count II dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether count II states a contribution claim | Valdivia argues Divito’s duties under the Act create tort liability, supporting contribution. | Divito contends no tort duty exists under the Act to support contribution under the Joint Tortfeasor Contribution Act. | Count II cannot support a contribution claim; no tort duty under the Act. |
| Does the Prevailing Wage Act create a tort duty for contribution purposes | Valdivia relies on Act provisions (notice/posting) to show a tort duty by Divito to Valdivia’s employees. | Divito maintains the Act does not create a tort duty; damages arise under the Act itself, not tort law. | Act does not create a tort duty sufficient for contribution. |
| Impact of 2010 amendment on contribution viability | Amendment clarifies contractor liability for penalties when not notifying, implying duty to contribute. | Amendment applies to notice not posting; does not support contribution forValdivia’s claim. | Amendment does not support viable contribution claim. |
Key Cases Cited
- Sackville Construction, Inc. v. Department of Transportation, 402 Ill. App. 3d 195 (2010) (notice to subcontractor not a condition precedent to payment of back wages)
- Cement Masons Pension Fund v. William A. Randolph, Inc., 358 Ill. App. 3d 638 (2005) (general contractor not guarantor of subcontractor’s payment; no tort duty created)
- Brockman v. Illinois, 143 Ill. 2d 351 (1991) (statutory duty may support tort liability under the Contribution Act in environmental context)
- Rommel v. Illinois State Toll Highway Authority, 405 Ill. App. 3d 1124 (2010) (some statutes imply tort duties when protecting life/ property; not applicable here)
- Doyle v. City of Chicago, 101 Ill. 2d 1 (1984) (equitable considerations do not override statutory requirements)
- Jodelis v. Harris, 118 Ill. 2d 482 (1987) (strictly construes statutory duties and limits on tort implications)
- Calloway v. Kinkelaar, 168 Ill. 2d 312 (1995) (statutory duties may give rise to tort obligations in certain contexts)
- 601 West 81st Street Corp. v. City of Chicago, 129 Ill. App. 3d 410 (1984) (equity cannot contradict clear statutory requirements)
- Hartigan v. E&E Hauling, Inc., 153 Ill. 2d 473 (1992) (contracts implied in law; limitations on unjust enrichment here)