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Sears Roebuck & Co. v. Employers Mutual Ins.

MAY 10, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. HARRY G. HERSHENSON, Judge, presiding.


William Morris was an employee at a service station in Alabama. He was requested by Billy Joe Grogan, an owner of a boat trailer, to check for a leak in the tire and inner tube on a metal wheel of said boat trailer. After the inner tube had been checked and Morris was inflating it, the rim of the metal wheel split, disintegrated and flew apart, injuring Morris in various parts of his body.

Morris sued Sears Roebuck & Company, the seller of the boat trailer in Birmingham, Alabama. The boat trailer was manufactured by Dunbar Kapple, Inc., which was insured by Zurich Insurance Company whose policy contained a vendor's endorsement. The wheels of the boat trailer were manufactured by Kamin Die Casting & Manufacturing Company, which was insured by Employers Mutual Liability Insurance Company of Wisconsin. A written tender of defense was made by Sears and Zurich to Kamin and its insurer, Employers Mutual Liability Insurance Company of Wisconsin, Employers, individually, and as insurer of Kamin, refused to take over said defense. Morris recovered judgment in the sum of $17,500 which was affirmed by the Alabama Supreme Court and satisfied by Zurich.

The instant action is a subrogation and indemnity suit brought by Sears in the Circuit Court of Cook County, Illinois, for the use of its insurer, Zurich, under said vendor's endorsement in the policy issued to Dunbar Kapple, Inc. against Kamin Die Casting & Manufacturing Company, and against Kamin's insurer, Employers. A pre-trial motion of Employers Mutual to dismiss the complaint against it was granted. Subsequently, a motion for summary judgment by the plaintiffs against Kamin was denied. After trial by the court, judgment was entered in favor of the defendant.

Three issues are presented on appeal. (1) Whether the trial court erred in denying plaintiffs' motion for summary judgment; (2) whether defendant Kamin's insurer was properly dismissed; and (3) whether the trial court erred in finding the issues in favor of Kamin.

• 1 Plaintiffs contend on appeal that the denial of their motion for summary judgment was error. It is well settled that after an evidentiary trial, a previous order denying a motion for summary judgment is not reviewable. Home Indemnity Co. v. Reynolds & Co., 38 Ill. App.2d 358, 187 N.E.2d 274; Croy Mfg Co. v. Marks, 62 Ill. App.2d 373, 210 N.E.2d 814; LaSalle Nat. Bank v. Little Bill `33' Flavors, 80 Ill. App.2d 298, 225 N.E.2d 465; Simon v. Jones, 96 Ill. App.2d 1, 238 N.E.2d 259.

• 2, 3 Plaintiffs contend further that it was reversible error to dismiss Employers as defendant. In their brief and in oral argument before us, plaintiffs failed to present any law in support of this contention. Illinois does not permit direct action against a liability insurer in a situation similar to one presented in the instant matter. Plaintiffs contend that defendant, Employers, was given the opportunity to defend and refused. There was no judgment against Kamin which might form the basis for the garnishment type proceeding against its insurer. The insurer was not amenable under law to a suit by Sears' subrogee. In Marchlik v. Coronet Ins. Co., 40 Ill.2d 327, the Illinois Supreme Court affirmed the dismissal of a complaint against two insurance companies holding that such complaints are against public policy. (Pohlman v. Universal Mutual Casualty Co., 12 Ill. App.2d 153; Mutual Service Casualty Co. v. Prudence Mutual Casualty Co., 25 Ill. App.2d 429.) We find no fault with the trial court's ruling in dismissing defendant, Employers.

Plaintiffs in their third objection to the trial court's decision state that the parts manufacturer, Kamin, was obligated to indemnify the vendor and ostensible manufacturer of the whole product and anyone subrogated to Sears' rights. Plaintiffs maintain that in legal contemplation Kamin is a party ultimately responsible for the loss and is the one on whom in good conscience the loss ought to fall and that it is no defense to Kamin that another party might also be liable to Sears.

Zurich defended on the basis of an insurance policy which Zurich originally issued to Dunbar Kapple Company covering any liability such as might have incurred in this lawsuit, and then extended that coverage under that policy to products manufactured by Dunbar Kapple which they in turn assembled and sold to Sears. In reality this was Dunbar Kapple's policy.

There was some evidence that the wheel was not properly put together and that the projections did not fit into the depressions or the pimples did not fit into the dimples, and that is what caused the wheel to explode. Kamin manufactured the wheel according to a sample and used an alloy which Dunbar wanted. Dunbar Kapple performed all assembly operations concerning the parts of the wheel and the parts of the trailer, except those subsequently performed by Sears.

• 4, 5 It is clear that whenever indemnity recovery is allowed, it is allowed only against the person who should bear the loss. It is not allowed simply because an indemnity defendant was a predecessor in the chain of distribution of a product involved in an injury. If the indemnity-defendant, as Kamin in the case at bar, was not the party actually responsible for the injury, the loss cannot be thrust upon it. Suvada v. White Motor Co., 32 Ill.2d 612, 624.

• 6 Plaintiffs presented a supplemental memorandum in which they relied on the decision in Jelleff Inc. v. Pollak Bros. Inc. (D.C. Ind. 1957), 171 F. Supp. 467, holding that where a retailer established a prima facie case of liability against a manufacturer of the product which caused injury to a purchaser and the manufacturer had notice and tender of defense of the purchaser's action against the retailer, summary judgment against the defendant was affirmed. The court stated in Jelleff, at page 471:

"`To establish his right to recover against the original seller under such a judgment the purchaser, in a subsequent action over against the seller, must prove that the article involved was purchased by him from such seller and that the warranties under which it was sold to him were identical to those under which he subsequently resold it. In addition, it would be incumbent upon him to establish that in the prior action it was determined that such warranties had been breached in the resale of the article; * * *.'"

Also in Jelleff the court required proof of an "additional fact" if the retailer is to claim indemnity from his supplier: "I feel that proof of an additional fact is essential if the plaintiffs are to prevail; namely, the plaintiffs must demonstrate that there was no change or alteration in the condition of the goods ...

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