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SPURR v. ACME STEEL COMPANY

October 27, 1964

EDWARD RAYMOND SPURR, PLAINTIFF,
v.
ACME STEEL COMPANY, A CORPORATION, ET AL., DEFENDANTS. ACME STEEL COMPANY, A CORPORATION, AND LASALLE CONSTRUCTION COMPANY, A CORPORATION, THIRD-PARTY PLAINTIFFS, V. S.J. REYNOLDS COMPANY, INC., THIRD-PARTY DEFENDANT.



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 granted.

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 following:

  "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 (1958).

"Incidental" is generally defined as follows:

  "[B]eing likely to ensue as a chance or minor
  consequence — usu. used with
  to * * *" Webster's Third

  New International Dictionary (1963).
  "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
  (1932).

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 with LaSalle.

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 ...


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