*1 Munsterman is, truth, not a case where It liability. in tort with the manufacturer liable jointly not applied. Act should and the Contribution product, should be right “upstream” Munsterman’s preserved.
(No. 64309. al., THATCHER et v. COMMON Appellees, PAUL al., Appellants. WEALTH EDISON COMPANY 20, 1988. Opinion July filed STAMOS,J., part. took no
MILLER, J., dissenting. of Peoria and Brian D. Mooty,
David J. Dubicki Frederick, P.C., of Sudow, White & (Kavanagh, Scully, Company. Commonwealth Edison counsel), appellant *2 Johnston, Henderson Dunham, Quinn, W. Bradley Pretorius, Peoria, & for Dow Chemical Company al. delivered the of the court: opinion
JUSTICE WARD an in the Thatcher, Paul action brought plaintiff, defendants, circuit court of Tazewell County against and Dow Ed) Edison Company (Com Commonwealth in for personal to recover (Dow), Chemical Company working of Com Ed he sustained at a while juries plant manufac designed a hose and with water high-pressure tured Dow. Com Ed filed a by Act in an “An relation Dow contribution under seeking Stat. (Ill. Rev. among to tortfeasors” joint contribution and under 70, seq.) ch. 301 et par. The third- common law doctrine of alia, li asserted, inter a strict products party complaint a settle Ed entered into Com recovery. ability theory Com court dismissed ment with the and trial plaintiff to section Dow pursuant Ed’s contribution claim 1979, ch. 2(e) of the Contribution Ed’s in also dismissed Com The trial court 302(e)). par. of contri with the claim, adoption demnity stating Ill. Rev. Stat. (see tortfeasors among joint bution Divi v. Reed-Prentice 302 et Skinner seq.) par. 1), Ill. 2d actions Machinery sion Co. Package The appellate were abolished. affirmed. dissenting, one court, justice with to for leave Com Ed’s petition granted Ill. 2d R. Rule 315.107 under our appeal Thatcher, Paul 29, 1981, the plaintiff, On January Schnider, Inc., as a boilermaker. Under was by employed Schnider, the Ed and plaintiff a contract between Com clean condenser Ed’s power plant was sent Com work, this tubes. Dow’s Normally employees performed the actual of a union jurisdictional dispute, but because cleaning work was boilermaker’s being performed union, a To clean the of which was member. plaintiff tubes, the was to stand on a scaffold required hose, which, stated, and large designed insert a as was Dow, and manufactured into the mouth of the tube. When the would operator equipment activate scaffold, foot which on the the hose was pedal, placed would a stream of water into high pressure propel when the scaffold he injured tube. standing rocked,” said, on “wobbled and he causing him, so, without his to do to activate the foot intending The stream of from the hose struck pedal. water his hand, causing injuries. *3 in the plaintiff filed a four-count circuit complaint
court of Com Ed and County against Tazewell Dow. I III Counts and set out a cause of action Com against (Ill. Ed and Dow under the Structural Work Act Rev. 1979, 48, II 69); alleged Stat. ch. count pars. through Com Ed in with providing plaintiff devices; without sufficient and count safety equipment IV Dow with and man charged design of the hose. ufacturing seeking
Com filed an action Dow contribu against Ed 1979, tion Stat. ch. (Ill. Contribution Act Rev. 70, and on the com seq.) par. indemnity predicated mon law doctrine implied re as the for liability ground
complaint pleaded products had using that the hose the covery, stating in an unreasonably been manufactured Dow and was Dow’s control. condition at the time left dangerous trial, entered into a settlement Before Ed Schnider. The trial court with Com and agreement was in faith” under sec “good found that settlement 1979, Stat. ch. (Ill. tion of the Contribution Act Rev. 2(c) Ed’s counts for con 70, and dismissed Com par. 302(c)) 2(d) in accordance with sections tribution Dow 1979, ch. and (e) (Ill. Contribution 70, 302(d), (e)). pars.
Section of the Act 2(d) provides: pursuant settles with a claimant
“The tortfeasor who liability any from all for paragraph (c) discharged is (Ill. Rev. Stat. any contribution to other tortfeasor.” 70, 302(d).) par. ch. 2(e) Section provides: pursuant a claimant
“A tortfeasor who settles with entitled to recover contribution paragraph (c) is not extinguished by is not liability another tortfeasor whose 302(e).) par. the settlement.” Stat. Rev. claim for indem- The trial court also dismissed Com Ed’s Dow, that all nity against Act. actions were abolished Contribution claim indemnity the dismissal of its Com Ed appealed affirmed, with one Dow, and the court that “the Contribu The court stated justice dissenting. joint indemnity among tion Act did with away implied in its place.” tort and contribution feasors substituted Com Ed’s granted petition 3d Ill. 2d 315. leave to under our Rule 315.107 appeal Munsterman, 123 Ill. A. F. Frazer v. a claim for this court held that defective “regarding based on an underlying 26) Oil Co. product” (Allison Shell seeking indemnity the one cannot maintained where *4 the loss. causing at fault in or otherwise in v. Oil decision Allison Shell cited this court’s 26, 31: 113 Ill. 2d (1986), Co.
“ jurisdiction ‘[Governing principle^] this [dictate] are to injury apportioned the costs of accidental be of all concerned in in accordance with the relative fault ” Munsterman, (1988), A. F. action.’ Frazer v. here from Frazer in that situation does differ there the to negli had been found be not gent. Com Ed was held to have been but negligent, under the circumstances of this case Com Ed should be considered as a denied party be under indemnity Frazer a subject as tortfeasor to the of principle compar ative fault. Here Com Ed sued for negligence and for violating Structural Act. Work Under either theory recovery, was claimed to have been at fault. Liability under the Structural Work Act does not contemplate strict liability. Shell Oil Co. Ill. 2d {Allison If it were shown that Com Ed’s or vio lation of the provisions the Structural Work Act was a causative factor in the Com Ed plaintiff’s injuries, would, Frazer, be barred from To avoid implied indemnity. trial and, it must considered, that it was lia ble, Com Ed made a substantial settlement with the plain tiff. (Under settlement, the terms the plaintiff was $130,000. be paid $80,000 Com Ed was to pay and the $50,000. addition, employer employer agreed to waive a workers’ lien of compensation $104,798. Both Com Ed and the were employer repre sented the same and, as the attorney court appellate noted, “it appears that Com Ed all furnished the consid eration for the settlement.”)
It should be noted that the trial and courts here too spoke when declared that broadly they had been abolished Contribution Act. See Allison v. Shell 26; Oil Co. Frazer Munsterman, v. A. F. Inc. (1988), 123 Ill. 2d 253-56 (for not questions determined). finally
For stated, the reasons the the judgment court is affirmed.
Affirmed. JUSTICE STAMOS took no in the consideration part or decision of this case. MILLER,
JUSTICE dissenting: I do not with the that agree Commonwealth majority Edison the action settlement of Company’s plaintiff’s now Edison an against should bar from bringing action Chemical for in against Dow Company implied that the settlement has demnity. majority presumes established Edison’s to the on the liability asserted in the grounds plaintiff’s complaint, grounds that would an action Edison for in preclude implied Edison demnity. The therefore concludes that is majority “a tortfeasor to the subject principle comparative for 279) fault” Ill. 2d at and hence a whom party remain the doctrine must unavailable. I the in the majority’s analysis, cannot first accept step I and for that reason dissent. both Edison and Dow for common sued
law and for of the Structural violations Work pars. through 69); Edison in turn from Dow as the “up sought indemnity or of a defective prod stream” manufacturer distributor the Edison’s ei plaintiff proved liability upon uct. Had would now ther in his Edison theory complaint, barred, our in Frazer v. A. F. Munster- man, an action bringing Edison chose to set Dow for implied indemnity. action, however, tle and I do not agree the plaintiff’s with the the mere settlement of those majority or verdict finding sustaining claims is to a equivalent their validity. allega reasoning, unproved
Under majority’s Edison control tions in the plaintiff’s complaint here, Edison its third-party the outcome denying effect, treats majority claims as an admission settlement of bare reconciled with Edison. This cannot be of negligence by the effects of settlements view regarding customary Fire Pientka v. Board Com (See and offers to settle. missioners In the ab 125 Ill. of fault sence of an admission or other acknowledgment I of the dis Edison, cannot that the settlement agree *6 must an action bringing claims bar Edison puted Dow. Edison’s implied indemnity against culpability, determined, if has not and whether Edison any, been yet or otherwise of conduct that would guilty an action for is an issue that preclude should be decided Edison’s action. reasons,
For those I do not that Edison’s believe mere to settle the action should agreement have the effect claimed for it Accord- majority. I dissent. ingly,
(No. 64 709. BECKMAN, JAMES T. FREEMAN Appellee, COMPANY, UNITED COAL MINING Appellant. Opinion July filed