*1 as a chiro plaintiff’s review of conduct appears very negative (Chapski Copley It refer to other than practor. anyone plaintiff did not Press imputed 92 Ill. 2d and (Costello Capitol Cities Me and integrity honesty want dia, 1009, 1014, 445 13, 17). above, of Kane for the reasons set forth the trial court
Accordingly, County is affirmed.
Affirmed. NASH, JJ.,
LINDBERG and concur. MORIZZO, al., Plaintiff-Appellee, ANTHONY v. KAY LAVERDURE et Defendants-Appellees. (“K” Koncrete, Inc., al., Third-party Plaintiffs-Ap pellees; Associates, Inc., Third-Party k- Defendant-Appellant; any Bar Ltd.,
Popwych, Third-Party Defendant). (2nd Division) First District No. 83 — 1125 Opinion September filed DOWNING,J., specially concurring. Pitts, Gustman, Rooks, Fullagar
Stephen E. both of Sward David C. Poust, Chicago, appellant. & Charles, Chicago, Spiezer, Ferleger, ap-
Aaron M. of St. and Eric Laverdure, Koncrete, Inc., Laverdure, Ronald Patricia d/b/a pellees Company. *2 opinion JUSTICE delivered the court: DOWNING action continue to ex Does a for in Illinois as the result of the adoption ist (Ill. Rev. (hereinafter Act) the Contribution Joint Tortfeasors seq.)? 301 trial a motion to court denied Stat. in complaint on third-party exclusively dismiss a demnification, granted three We and certified court. questions following facts. pleadings allege review. interlocutory Morizzo, the of Morizzo’s Fu- Ridgewood owner Anthony Plaintiff Associates, with entered into a contract Bena Chicago, neral Home a addition ac- (hereinafter Bena), building for the construction of Inc. by and architect cording plans prepared Barnyk- specifications contractor, into a Bena, as the entered subcon- general Ltd. Popwych, Laverdure, and Laverdure, Ronald Laverdure tract with William Kay Laverdure, incorporated later Company, d/b/a “K” Koncrete Patricia Koncrete), “K” con- Koncrete, (hereinafter perform “K” crete, project. flatwork services foundation and subcontract, according In its excavation work performing provided and “K” Koncrete relied drafted the architect upon plans that were inaccurate in original structure plans Bena. not, fact, that did footing building an L-lot line on the showed they feet, four or to to approximately “K” Koncrete excavated exist. which led to its col- building, the original of the foundation of bottom 8,1979. May on lapse seeking compensation suit
Plaintiff filed November business; in his third amended com- to his and property the damages There- and “K” Koncrete as defendants. named Bena he both plaint, and plaintiff was reached between after, agreement a settlement $67,500, dismissed and Bena was the sum paid Plaintiff was Bena. prejudice. from the action action a initiated Koncrete, on November “K” Kon- complaint, amended architect. its Bena and the
against alia, plans Bena submitted and inter that architect alleged, crete accuracy inaccurate; rely that had and wrong were which in- duty accurately the architect had that Bena and plans; the direc- at foundation; that it worked it of the building’s form that, therefore, liability Bena; and tion and the control of performing conduct in passive on its solely would be based plaintiff and control. to Bena’s direction the contract pursuant result of the proximate harm further alleged “K” Kon- the architect. of Bena and wrongful and conduct active a judgment to plaintiff, crete that if it was found liable requested and the architect against of itself like sum should be entered in favor architect and from the and and that it recover jointly severally, Bena fees. attorney Bena its costs claimed Bena complaint, to dismiss the third-party its motion settling protects Act1 2(c), (d)
that section of the 1981 Contribution itself, alleged joint defendant, such as from further dismiss, tortfeasor. The trial court denied Bena’s motion to Su finding pursuant the court make a thereafter requested the trial court’s Rule R. preme (87 urging Court as to which there substantial questions order involved of law immediate would ground appeal for difference of and that an materially advance ultimate termination litigation. law as a result following questions The trial court certified the request: of Bena’s *3 A as to whether a cause of action question
“1. of law exists of the in Illinois in for exists active-passive indemnity Statute, seq. Ill. Rev. Stat. Ch. 70 sec. 301 affirmative, a 2. If the to the first is question answer relationship be- of law exists as to whether a question pretort necessary prerequi- is a tween the indemnitor and indemnitee action active-passive indemnity? site to an for affirmative, is in the question 3. If the answer to the second relationship a as pretort a of law exists as to whether portions 1 Therelevant of the Act are: Right “Sec. 2. of Contribution.
given terms so other tortfeasors amount of the consideration same discharged Rev. Stat. (c) (d) When a release The tortfeasor who settles with injury extent of good provide from all or the same faith ch. any but from liability amount or pars. one or reduces the liability convenant wrongful actually paid for whichever is for 302(c), (d). stated more any contribution to not to sue or not to enforce recovery [*] in the death, persons a claimant ** * injury release or the it, liable does any pursuant wrongful claim discharge any other covenant, or in the against arising greater. death paragraph tortfeasor.” judgment out of the the others unless its (c) is is follows: subcontractor, negli- acts of
a who is sued for brings plaintiff, resulted in gence allegedly injury in- contractor for against general a action demnity; as that term was scope pretort
is a relationship within Van Appellate the First District Court in Jacobs used Parikh, (1981) poten 3d 610 which will allow the to seek based on the active- liable defendant tially passive theory.” subsequently for to this appeal leave
Application granted.
I Act has super- that the Contribution appeal, On Bena contends indemnity, concept active-passive implied created judicially ceded created enacting and that by of their seeking tortfeasors remedy joint apportionment exclusive Act, a who settles As tortfeasor provided relative culpabilities. all discharged a “is from with claimant 302(d).) Stat. (Ill. other tortfeasor.” Rev. Bena, if who has bring allowed argues thus into lawsuit theory back already plaintiff, settled scheme will be undermined. indemnity,
A Pre-Contribution addressed, the development theory Before this issue is briefly in Illinois will be examined. indemnification loss doctrine which shifts entire Indemnity is common law loss, tortfeasor, to an pay one who has compelled from been (4th 1971).) ed. Some cases have (Prosser, Torts sec. at other. must be with the indemnitor shown relationship held a pretort in the nature of their significant respective as some difference well (See, Muhlbauer shifting liability. justifies conduct which *4 230-31, 790.) Other cases 226, 39 Ill. 2d 234 N.E.2d (1968), Kruzel of a indemnity, pre even the absence implied have recognized Co. Telephone Loehr v. Illinois Bell relationship. (See, e.g., 555, 558, indemnity, In 251.) 316 N.E.2d 21 Ill. 3d (1974), v. Interna nothing. (Heinrich Peabody is all or recovery measure of 349, 935.) 344, previ- Illinois (1984), 99 Ill. 2d 459 N.E.2d tional
771 among contribution barring law rule ously adhered to common Bakeries, Inc. 86 Ill. Interstate (1967), (See Sargent v. tortfeasors. indem 187, 193-94, implied 769.) concept App. 2d devel doctrine was negligence nification upon based harsh ef mitigate courts in order by oped expanded bar. fects no-contribution everyone the principle stands upon v. Inter (Sargent of his own acts. consequences
responsible Bakeries, 187, 190, 769.) 229 N.E.2d state 86 Ill. (1967), parties, agreement Indemnity express, upon can be based upon law, the courts implied by implied operation theory negligence. common 1977, supreme long-standing
In court overturned the v. (Skinner among tortfeasors. law rule which prohibited Machinery Co. 1, Ill. 2d Package Reed-Prentice Division (1977), cert, Plastic, sub Inc. Reed- Hinckley denied nom. 437, 374 N.E.2d 946, 56 Package Machinery Prentice Division L. (1978), U.S. Skinner, 787, S. Ct. which involved a workman’s 2849.) Ed. 2d claim, com filed a compensation original defendant plaint against claiming supreme plaintiff’s employer contribution. court held there was no continued existence valid reason rule. the no-contribution
B
Post-Contribution
1979,
Act. As
Assembly
the General
the Contribution
adopted
8-9,
Doyle
Rhodes
said in
Ill. 2d
461 N.E.2d
Skin
statute,
adopted
Illinois,
as
codify
was intended
“[t]he
“
decision,
ner
adopted
not to
its
rule
diminish
scope”;
‘[t]he
Skinner was codified and clarified
in 1979 in
Assembly
the General
(Ill.
Joint Tortfeasors Act
Rev. Stat.
Among
the Contribution
seq.).’
recently
These unanimous utterances filed so
this court
put
should
to rest
to whether
believes
in this
Joint Tortfeasors Act as
adopted
rather
it.”
modify
codify
State was intended
than
must look at
respond
questions,
To
to the first of the certified
we
legislature.
unambig
the intent of the
If
intent is clear and
in
uous and can be ascertained from the
Village
Bank
Kildeer
Western National
tent must
prevail.
v. Trinko
342, Franzese
169;
167 N.E.2d
Callahan v. Mar-
People
ex rel.
585;
Ill. 2d
*5
813-14,
ence Committee On Third Study Contributions, to the annual conference. reported judicial table of adoption principle committee recommended the of contribution tortfeasors in Illinois. It also recommended that the among legis- joint modified, lature a statute similar to the New York statute adopt amongst other to state: provisions, Affected; Not Rights Damages
“Sec. 5 Persons Entitled or Preserved. Rights Indemnity Subrogation
* * * (b) Nothing impair any contained in this article shall law right indemnity subrogation existing except or of one at fault right personally that the indemnification shall limited to those where he fails merely be circumstances condition created another.” dangerous discover added.) of the Illinois Judicial Conference (Emphasis Report (1976). statute, York as amended in provides, “Nothing New in this article shall impair any right indemnity subroga- contained existing 1404(b)(McKinney 1976). tion under law.” N.Y. Civ. Prac. sec. (1955 Joint Tortfeasors Act Uniform Contribution rev.) 1(f): in section provides
“(f) indemnity This Act does not under ex- impair right of from isting indemnity law. Where one tortfeasor is entitled another, right obligee is for indemnity indemnity contribution, obligor and the is not entitled to indemnity portion indemnity from the of his obligee Annotated added.) Uniformed Laws obligation.” (Emphasis (1975). 63-64 1978, the legislature ignored the Contribution Act in adopting statute, Committee’s recom-
the New York the Judicial Conference mendation, Act. The statute is silent with respect and the Uniform doctrine of or im- express the continued of the common law vitality plied indemnity. legislature intentionally if the have not been able to determine
We Bill as introduced into Senate rejected suggested language. no And, we find language. did not contain legislature, or House of either the Senate topic transcripts reference to this prior in the legislative process, We can assume proceedings. New York Act, the adoption Judi Act, as as the recommendations the Uniform well Committee, Even if considered cial were considered. Conference not conclu consider but would a factor to rejected, would People ex rel. Callahan (See intent. determine sively “K” Kon 815-16.) Marshall Field & “did not act when curtail argues legislature crete hand, But, failure by Act.” other passed the Contribution or implied preserve doctrine created strongly suggests judicially an intent eliminate tort cases. *6 various ignoring sugges- that the the legislature, Does the fact of ex- tions, right to the language preserving failed include specific that did not intend press clearly indicate implied indemnity preserve right?2 the Doyle, legislature adopted in the supreme
As the court stated decision of Skinner. The codify Contribution Act the rule, court, in the of the continued existence no-contribution rejecting that the of was de acknowledged active-passive theory indemnity the the of the signed mitigate harsh effect of no-contri application Machinery (Skinner Package v. Reed-Prentice Division bution rule. that Co. 1, 2d It to conclude 12-13.) 70 Ill. seems reasonable (1977), Skinner, in Act based on legislature, adopting of negligence theory indemnity. was also rejecting suggested Therefore the did not include intentionally ***.” any right indemnity shall “[njothing impair Heinrich, question. not Cit court did answer supreme decision in State reported numerous articles and then one ing (Van Jacobs v. Parikh 610, 979), Ill. 422 N.E.2d App. 97 3d (1981), which noted the “is one awaits resolu important the court issue the role of contribution regarding tion in law developing v. 2d Peabody Illinois.” Heinrich International (1984), in 99 Ill. in viability indemnity The first case to address the issue of the Van Ja- the enactment of our contribution statute was Illinois after act has cobs. There, court stated that appellate “[t]he 1973): Sutherland, 48.04, (4th Statutory sec. at 197 ed. 2 See2A Construction “History process. of enactment occurring immediately time when an act becomes prior The events comprise of what law a most instructive source for information indicative legislature intended it to mean.” extinguished in indemnity instead, permits Illinois but the courts back place upon its theoretical indemnity (Van foundation.” Jacobs 610, v. Parikh Ill. 3d App. 613.) Decisions subsequent Van Jacobs interpreted have it as for the im authority principle in plied indemnification is still a (Bednar cases viable concept. Stores, Venture 46; 106 Ill. 3d App. N.E.2d Industries, LeMaster v. Amsted Inc. (1982), 732- 1367; Associates, Design Inc. v. Quincy Winfield Jef (N.D. Venture Ill. F. 1983), n.4; Supp. Davis ferson FMC Corp. (C.D. 466, 467-68; 537 Supp. F. see also Lowe Ry. & Western Norfolk 792, where the recognized “upstream” allowa However, liability cases.) strict ble none of these cases addressed the legislature provide raised failure of specific preservation or implied indemnity. As Jacobs, we Van interpret this court held that implied indem- is not nity extinguished by passing Contribution Act cases involving pretort relationship some between the parties which rise gives to a lia- duty indemnify, involving cases vicarious (lessor-lessee; bility lessee; owner employer-employee; master servant). Lowe, this court held that via- implied indemnity still respect “upstream” ble claims a strict action.
Except those causes of action on the possibly theories enumerated, indemnity just it is our that the Contribution Act extinguished a action for Illinois.
II *7 complaint Koncrete’s amended on third-party active-passive theory fact, it negligence. alleges it although was subcontractor the work actually performing negligent which caused if plaintiff’s building collapse, whereas and B ch ac passively negligent, aranyk-Popwy were tively negligent. The third-party plaintiffs’ complaint, being based any theory negli vicarious but rather on liability, should have been gence, judgment dismissed trial court. be must reversed and the cause court remanded the circuit of Cook with the answer of County “no” to the certified of “whether question action for active-passive indemnity light exists Illinois in Statute, of the Contribution Ill. Rev. Stat. Ch. 70 sec. 301 et seq.” In view of our resolution of the certified it is question, not impor- tant dwell on in the the characterizations amended com- however, Suffice it be plaint. say, appropriate might pas- “K” Koncrete was as to whether the facts us raised based on before sively negligent.
Reversed and remanded.
HARTMAN, P.J., O’CONNOR, J., concur. concurring: specially
JUSTICE DOWNING “no” as to answered the question before court My opinion in Blinois exists “whether a cause of action for active-passive Statute, 70 sec. 301 Ill. Rev. Stat. Ch. seq.” comments, I out may point proceeding
Before additional concurrence to be written unprecedented separate is not See, Justice Brennan’s concurrence to opinion. author of an States Brennan Abbate United 666, 671; accord, 187, 196, 729, 735, 3 L. 79 S. Ct. Wheel U.S. Ed. 2d 562, 576, L. Ed. ing Steel Glander U.S. noted, “It cannot 1291, 1299, where Justice Jackson 69 S. Ct. in cases is the mere instrument of suggested that where author he of his own convictions.” See also forego expression Court must 586 P.2d Superior Hawkins Court Cal. 923, 150 Cal. 442. Rptr. passage I that with the my opinion, believe that,
Act, with- it is to conclude that intended reasonable I rea- longer no exist. see no qualification, implied indemnity out should cases, in tort liability, indemnity son to between vicarious distinguish strict alleging “upstream” liability. cases SHELTON, Petitioner-Appellant,
In re MARRIAGE OF LINDA LOU SHELTON, Respondent-Appellee. SAMUEL EDWIN District No. 5 — 83 — 0660 Fifth August Opinion filed