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Serafine v. Metropolitan San. Dist.

MAY 13, 1971.

DAN SERAFINE ET AL., PLAINTIFFS,

v.

THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT — (SANTUCCI CONSTRUCTION CO. ET AL., THIRD-PARTY DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. NICHOLAS J. BUA, Judge, presiding.

MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Dan Serafine and the Exchange National Bank, as trustee of certain land for the benefit of Serafine, brought suit against The Metropolitan Sanitary District of Greater Chicago, hereinafter referred to as District, for damages arising out of a trespass to the land. The trespass had occurred when a sewer was built on the property without an easement having been obtained. A judgment in the amount of $53,000, not in issue on this appeal, was entered against the District and in favor of Serafine, and the judgment was satisfied by the District. The District filed a third-party complaint against Santucci Construction Company, a corporation, as principal and its surety, Aetna Casualty and Surety Company, hereinafter referred to as defendants, claiming that they had a duty to indemnify the District for damages recovered by Serafine. A motion for judgment on the pleadings was filed by the District, and a motion for summary judgment was requested by defendants. The court denied the District's motion, but granted summary judgment in favor of defendants. The District appeals, contending that judgment should have been entered in its favor; and that since there was a material issue of fact, summary judgment should not have been granted in favor of defendants.

On March 7, 1958, the District entered into a contract with Santucci for the construction of a sewer system in Mount Prospect, Illinois. On March 13, 1958, defendants executed a Contractor's Bond. The sewer work was completed in November 1958.

Serafine purchased the property on February 26, 1959, and began construction of a building in April 1959. In his complaint, Serafine charged that the District had not obtained an easement for the installation of a sewer, and was trespassing on his property. He also charged that as a result of the trespass, the earth around the sewer was weakened and the building collapsed. The District in its amended third-party complaint against defendants charged that the District had been sued by Serafine for damages resulting from execution of work performed in the construction of the sewer. The District also charged that under the bond executed by defendants, they were liable for the judgment paid to Serafine.

In their answer, defendants denied that the damages to Serafine resulted from the work performed in the construction of the sewer, but stated that the damages resulted from the failure of the District to obtain the necessary easement and from its failure to notify Santucci that no easement was obtained. Defendants also denied that they had any duty to indemnify the District for the judgment paid to Serafine.

The District filed a motion for judgment on the pleadings, and in support of that motion, stipulated that it did not have an easement to install the sewer on the land in question. The District also stipulated, for the purpose of its motion only, that Santucci had no notice of the lack of easements.

In support of their motion for summary judgment, defendants filed an affidavit stating that the terms of the contract between the parties required the District to obtain all necessary easements and permits. The affidavit went on to say that the District, in its sworn answer to interrogatories, admitted that it had the obligation to obtain the necessary easements, and had failed to do so. The affidavit also recited that the District in its answer to interrogatories had also admitted that Santucci built the sewer according to specifications.

We believe that proper procedure requires us to consider first the District's argument that summary judgment was improperly granted in favor of defendants since there were several genuine issues as to material facts. The District argues in this court that there were questions of fact as to whether Santucci performed the work in good and workmanlike manner, whether there was a faulty construction of the sewer, and whether Santucci had notice that no easement had been obtained. In connection with Santucci's lack of notice, the District notes that its stipulation as to that point was made only for the purposes of its own motion for judgment.

An examination of the record reveals that there is no merit to the District's contention that there are genuine issues as to material facts remaining in the instant case. At the hearing on the respective motions for judgment, the trial judge questioned trial counsel for the District on this point. Counsel stated unequivocally that there were no questions of fact, and that the stipulation filed in behalf of its motion for judgment on the pleadings would also stand for the purpose of defendants' motion for summary judgment. Counsel for the District also stated that Santucci violated no provision of the contract except that it placed a sewer on land where the District had obtained no easement. Moreover, the District, in sworn answers to interrogatories, conceded that it had the responsibility of obtaining the necessary easements, and had not done so. It also conceded in answer to an interrogatory that Santucci had done its work according to specifications. The trial court did not err in finding that there were no genuine issues of material fact in the instant cause.

The District next contends that the trial court erred in refusing to enter judgment on the pleadings in its favor. It argues that defendants are absolutely liable for losses arising from the performance or execution of the contract, and also argues that the loss which gave rise to this litigation arose from the performance or execution of the contract. Defendants maintain that the damages did not arise from the performance or execution of the contract, but rather from the District's failure to obtain an easement.

The contract between the parties recited as follows:

"All of the covenants, terms and stipulations in these Contract Documents form the Contract and are hereby made a part thereof."

The contract documents, as enumerated in the contract, included the performance bond. The contract provided for the liability of Santucci, and stated as follows:

"The Contractor covenants and agrees that he shall be solely responsible for and will pay all damages for injury to real or personal property, or for any injury or death occurring on account of and during the performance of the work hereunder, and he hereby agrees to indemnify and save the Sanitary District harmless against all suits and actions of every name and description brought against the Sanitary District, for, or on account of any such injuries to real or personal property, or injuries received or death sustained by any person or persons, caused by said Contractor, his servants, agents or employees, in the execution of said work; or by or in consequence of any negligence in guarding the same; or by or on account of any omission or act of the Contractor, his agent or employees; whether such injuries be attributable to the negligence of the Contractor or his employee or otherwise; and the said Contractor further agrees that so much of the money due him under and by virtue of this contract as shall be considered necessary by the Board of ...


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