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Hanley v. James McHugh Construction Co.

June 17, 1971


Hastings, Senior Circuit Judge, and Kerner and Pell, Circuit Judges.

Author: Hastings

HASTINGS, Senior Circuit Judge.

This appeal arises from a third party complaint for indemnity filed by James McHugh Construction Company (McHugh) against Titan Ornamental Iron Works, Inc. (Titan), both Illinois corporations. In a diversity action, third party plaintiff McHugh was sued by Roy D. Hanley, an Indiana resident and an employee of third party defendant Titan, for personal injuries received by him while working at a construction site where McHugh was general contractor. Prior to trial, McHugh and Titan moved for summary judgment against each other in the third party action. The trial court denied McHugh's motion and granted summary judgment to Titan. A jury subsequently awarded plaintiff Hanley a money judgment in the primary suit. McHugh's post-trial motions for vacation of the summary judgment rulings were denied. McHugh appeals from the summary judgment favorable to Titan and the rulings on the above motions. We affirm.

The facts relevant to this appeal are not substantially in dispute. Roy Hanley was employed by Titan as an iron worker. On the afternoon of February 14, 1967, he was struck and injured by an eight foot section of a wooden 4 inches x 4 inches as he was unloading a truck at the construction site of the Lincoln Park Tower Apartments in Chicago.

McHugh was general contractor at the site and had engaged Titan as a subcontractor to furnish and install metal and structural steel work. Robert Skinner, McHugh's superintendent, was in general charge of the job and was authorized to stop work under severe emergency conditions.

The morning of the accident, Titan's foreman, Schedin, talked with Skinner to ascertain when and where materials could be delivered. Skinner gave him a time schedule*fn1 for delivery and directed him to unload at the east end of the loading dock on the north side of the building, an area close to the building entrance and the materials hoist which had been cleared of snow. The accident occurred while Schedin and Hanley were unloading materials in the designated place pursuant to the time schedule.

Although the day was windy,*fn2 the only testimony which related to the cause of the accident was from John Montalbano, then an employee of McHugh. Montalbano witnessed the occurrence from about the seventeenth floor of the building. He testified on deposition that he saw some men working on a hoist that was being constructed between the nineteenth and twentieth floors of the building. In an attempt to position the cathead -- the mechanism that raises and lowers the hoist's mancage -- one of the men was using an eight foot 4 inches x 4 inches as a lever. Montalbano did not see the plank leave anyone's hands, but he testified he saw it as it was "just about leaving the hoist." He watched the plank as it fell. It struck a tower on the third floor level, bounced off intact and then broke in half upon striking Hanley. He further stated that there were other 4 inches x 4 inches planks in use in the framing of the then top decks of the building. Titan had no employees working above the eighth floor.

McHugh based its third party complaint on the subcontracting agreement between Titan and McHugh which contained the following "hold harmless" clause:

"Sub -contractor agrees to indemnify Contractor and Owner against and save them harmless from any and all claims, losses, liabilities, costs, expenses, attorney's fees and judgments arising out of or asserted because of: (a) any acts or omissions of Sub-contractor, his employees, agents, suppliers or sub-contractors, * * * or (c) Contractor's contractual or legal liability for damages suffered or claimed to be suffered by any person, firm or corporation on account of any acts or omissions of Sub-contractor, his employees, agents, suppliers or sub-contractors, regardless of whether or not such act or omission constitutes negligence."

The trial court, applying Illinois law, denied McHugh's motion for summary judgment since "the contract [made] no mention of negligence by McHugh being a subject of indemnification." The court granted summary judgment for Titan since there was "no basis for finding Titan responsible for the fall of the 4 x 4 from the 18th or 19th floor of the building under construction," and since there were no acts or omissions of Titan sufficient to constitute an intervening cause of the accident and thereby trigger the indemnity clause.

The principal issue presented for our determination is whether McHugh and Titan, by incorporating the above-quoted indemnity provision in the subcontracting agreement, intended that even if McHugh were guilty of misconduct, it would nevertheless be indemnified by Titan for losses sustained because of an injury to one of Titan's employees while engaged in work on the project.

Both parties recognize and adhere to the continuing vitality of the Illinois rule that an indemnity contract cannot be construed to protect the indemnitee from the consequences of its own negligence unless clear and explicit language of the contract requires it. Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp., 395 Ill. 429, 70 N.E.2d 604 (1946). See, e. g., Granite City Steel Co. v. Koppers Co., Inc., 7 Cir., 419 F.2d 1289, 1290 (1969); Bentley v. Palmer House Co., 7 Cir., 332 F.2d 107, 110 (1964). However, we have also held that general inclusive language may be sufficiently explicit without specific reference to liability arising out of the indemnitee's negligence. Spurr v. LaSalle Construction Co., 7 Cir., 385 F.2d 322, 330 (1967); cf., Bentley v. Palmer House Co., supra. See, e. g., De Tienne v. S. N. Nielsen Co., 45 Ill.App.2d 231, 195 N.E.2d 240 (1963); Gay v. S. N. Nielsen Co., 18 Ill.App.2d 368, 152 N.E.2d 468 (1958).

Subsection (a) of the indemnity clause in the instant case contains language admittedly substantially identical to that construed in the Westinghouse case, supra. In Westinghouse, an employee of a contractor hired to reconstruct a building's elevators was killed in the performance of his duties. An employee of the building's owners was requested by a subcontractor to move an elevator to the top of the building. After taking the elevator up, the employee left it unattended in neutral. The elevator broke loose from its moorings and fell catching the contractor's employee who had his head in the shaft.

The building owner raised the language of the contract as an affirmative defense to a suit by the contractor to recover compensation paid on behalf of the dead employee. The contract contained the following provision: "The contractor agrees to indemnify and hold the owner * * * wholly harmless from any damages, claims * * * arising out of any acts or omissions by the Contractor * * * in the course of any work done * * *." The Illinois Supreme Court thought the above-quoted language was plain and unambiguous and that indemnification under the agreement was specifically limited to acts or omissions by the contractor. It thus held that such language was not sufficiently inclusive to ...

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