The opinion of the court was delivered by: Decker, District Judge.
While working as a pipefitter on the construction of a facility
for Acme Steel Company (Acme), the plaintiff, Spurr, an employee
of S.J. Reynolds Company, Inc. (Reynolds), fell into an open pit
and was severely injured.
Spurr brought an action for negligence against Acme, as the
owner, American Bridge Division of United States Steel Corp.
(American Bridge), as the prime contractor, and LaSalle
Construction Company (LaSalle), as the general contractor. The
jury found in favor of Spurr against LaSalle and American Bridge
in the amount of $250,000 and found in favor of Acme. American
Bridge's motion for judgment notwithstanding the verdict has been
This is the third-party action by Acme and LaSalle against
Reynolds, which was a sub-contractor on the job. Both third-party
plaintiffs seek costs and attorneys' fees, and LaSalle seeks
indemnity for the judgment rendered against it. This cause of
action is based upon a contract between Reynolds and LaSalle
which inures to the benefit of Acme.
The indemnity agreement in issue states, in part, the
"The Sub-Contractor [Reynolds] shall indemnify and
save harmless the Owner [Acme], the Engineer, the
Contractor [LaSalle] and their respective agents from
any and all liability, payments and expenses of any
nature for injury or death to any person * * * caused
or alleged to have been caused by the Sub-Contractor,
or incidental to the execution of work under this
contract by the Sub-Contractor, his agents or his
employees; and the Sub-Contractor shall
maintain * * insurance * * * such as Workmen's
Compensation * * *."
The agreement clearly covers any injury which is caused or
alleged to have been caused by the sub-contractor; Reynolds
insists that this is the only interpretation. But if the clause
"incidental to the execution of work under this contract by the
Sub-Contractor" is read as suggested by Reynolds, that is, to
include only injuries caused or alleged to be caused by the
sub-contractor, then "or" is not given a natural meaning. In this
case "or" is a conjunction and the "or incidental to" clause must
be read as something different from that which has preceded it.
Every provision in a contract must, if possible, be given effect,
because it is presumed that each was deliberately inserted. Gay
v. S.N. Nielsen Co., 18 Ill.App.2d 368, 376, 152 N.E.2d 468
"Incidental" is generally defined as follows:
"A risk is incidental to the employment when it
belongs to or is connected with what a workman has to
do in the fulfillment of his contract of service, and
it may be incidental to the employment when it is
either an ordinary risk directly connected with the
employment, or an extraordinary risk which is only
indirectly connected therewith." Gustafson Co. v.
Industrial Comm., 348 Ill. 11, 15, 180 N.E. 567, 569
See, also, Northwestern Yeast Co. v. Indus. Comm., 378 Ill. 195,
197, 37 N.E.2d 806 (1941).
The accident which was the basis for Spurr's complaint was
within the language of the indemnity agreement — it was
incidental to the execution of Reynold's work under its contract
Therefore, without further question, Acme's motion for expenses
must be granted.
In the case of LaSalle, the problem now before the Court is
whether the indemnity agreement applies to the accident in
question where LaSalle, the indemnitee, was found negligent.
If the language of the indemnity clause is to be limited so
that it excludes liability for the negligence of the indemnitee,
the limitation either must be based upon the parties' intention
not to include such liability, or must be based upon
considerations of public policy that require a construction which
excludes such liability. As discussed above, it ...