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Burns v. Ford Motor Co.

OCTOBER 3, 1974.

GERALDINE BURNS, ADMRX. OF THE ESTATE OF ROBERT C. BURNS, DECEASED, ET AL., PLAINTIFFS,

v.

FORD MOTOR COMPANY, DEFENDANT. FORD MOTOR COMPANY, THIRD-PARTY PLAINTIFF-APPELLEE,

v.

PIPING SYSTEMS, INC., THIRD-PARTY DEFENDANT-APPELLANT. PIPING SYSTEMS, INC., THIRD-PARTY PLAINTIFF-APPELLEE,

v.

ARMSTRONG CONTRACTING AND SUPPLY CORP., THIRD-PARTY DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Mr. PRESIDING JUSTICE McGLOON delivered the opinion of the court:

In this case, we are asked to determine the validity of two indemnification clauses. The original action was brought by the plaintiff against the defendant Ford Motor Company pursuant to the Structural Work Act (Ill. Rev. Stat. 1965, ch. 48, pars. 60-69), to recover damages arising from her husband's fatal fall from a scaffold. Ford, the owner of the premises where the fall occurred, was found by the jury to be liable under the Act, and judgment was entered against Ford for $180,000. Ford proceeded against its general contractor, Piping Systems, Inc., in an action for indemnification based upon the contract between Ford and Piping. The trial court directed a verdict in favor of Ford and against Piping for $180,000. Piping, in turn, sued the subcontractor, Armstrong Contracting and Supply Corporation, for indemnification under the provisions of the Piping-Armstrong contract. The verdict was directed against Armstrong for $180,000. Judgments were entered upon the directed verdicts. At the time of the fall, the decedent was employed by the subcontractor, Armstrong.

Defendant Piping Systems, Inc. appeals from the judgment entered against it on the grounds that its liability was based upon an indemnification clause that was not a part of its contract with the Ford Motor Company. Defendant Armstrong Contracting and Supply Corporation appeals from the judgment entered against it on the grounds that the indemnification clause in its contract with Piping does not apply to indemnify Piping for Piping's contractual obligation to indemnify Ford.

We affirm.

The record reveals the following facts. On November 22, 1965, two employees of the subcontractor, Armstrong Contracting and Supply Corporation, were engaged in insulating pipes in the Ford Motor Company's Chicago Assembly Plant pursuant to Armstrong's contract with Ford's general contractor, Piping Systems, Inc. Since the pipes ran close to the ceiling, the men used a scaffold in their work; one man remained on the ground and handed the insulation materials to the decedent, Robert Burns, who was atop the scaffold. During the course of the work, Mr. Burns fell face down to the floor, sustaining injuries which resulted in his death. Evidence was presented to show that one of Ford's fork lift truck drivers drove his vehicle by the scaffold at the time the decedent fell, but the driver testified that his vehicle never touched the scaffold and his truck was stopped in front of the scaffold at the moment the decedent fell. Ford's safety engineer investigated the matter shortly after the fall, and the engineer testified at trial that the information contained in his accident report was the substance of his conversation with the fork lift truck driver. The report said that "* * * as the driver approached the scaffold, he slowed down and checked the clearance between the load and the edge of the scaffold. Seeing it was okay he proceeded. The next thing the driver knew was that one leg of the scaffold was hanging in the track way and the man was lying on the floor next to him." Other evidence was introduced to show that the scaffold was not being used properly because the safety guardrail was not attached and only one of the scaffold's four wheels was locked in place. Customarily, all four wheels are locked so the scaffold will not move about, but in this case only one of the wheels was locked and the evidence tended to show that the scaffold pivoted about on the one locked wheel.

Pursuant to the Structural Work Act (Ill. Rev. Stat. 1965, ch. 48, pars. 60-69), Burns' widow brought this action against Ford Motor Company. The plaintiff's complaint alleged that the scaffold was placed too close to the fork lift truck paths, was used without a guardrail, and was not constructed and operated in a safe, suitable manner.

Ford filed a third-party complaint against Piping Systems, Inc., its general contractor on the job, for indemnity based upon the indemnification clause in its contract with Piping. Similarly, Piping filed a third-party complaint against Armstrong Contracting and Supply Corporation, the subcontractor, for indemnification based upon its contract with Armstrong.

After hearing the evidence, the jury returned a verdict of $180,000 for the plaintiff against Ford, having found that Ford had charge of the work within the context of the Act. Judgment was entered upon the verdict. Based upon the contractual indemnification clauses, the trial court directed verdicts and entered judgments for Ford against Piping, and for Piping against Armstrong. Piping and Armstrong appeal from these judgments. Ford has already paid the plaintiff, so that she is not a party in these appeals.

We first consider the appeal of Piping Systems, Inc., against Ford Motor Company. Piping contends that its contract with Ford did not include the indemnification clause its liability was based upon, and therefore the trial court erred as a matter of law in directing a verdict against Piping based upon the indemnification clause in question.

The contract between Ford and Piping was entered into on March 3, 1965, the date of Ford's purchase order. Ford's purchase order incorporated by reference a certain Attachment 4770-B (par. J), which reads as follows:

"Buyer's [Ford's] General Conditions for Lump Sum Construction Contracts dated 1/57, attached hereto are made a part of the terms and conditions of this purchase order. In those cases where this attachment may be in conflict with the terms and conditions appearing on the reverse side of this order, the General Conditions shall prevail." (Emphasis provided.)

The General Conditions supplement contains the indemnification clause Ford relied upon in its action against Piping. The complication arises, however, due to the undisputed and admitted fact that the General Conditions supplement referred to in Attachment 4770-B (par. J) was not attached to the purchase order. Piping's position is that the indemnification clause indemnifies Ford from the effects of its own negligence, that Ford was negligent with regard to the operation of fork lift trucks in the vicinity of the scaffold, and that the Illinois Supreme Court's rule in Tatar v. Maxon Construction Co. (1973), 54 Ill.2d 64, 294 N.E.2d 272, and Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (1947), 395 Ill. 429, 70 N.E.2d 604, should apply to these facts. The rule is that "`* * * an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language of the contract [citations], or such intention is expressed in unequivocal terms.'" (54 Ill.2d at 67.) Applying the rule to these facts, Piping submits that Ford's failure to attach the General Conditions to either the purchase order or Attachment 4770-B creates an ambiguity, and the Tatar rule should operate so that Ford will not be indemnified against its own negligence.

Ford's position is that the General Conditions supplement was included in the Ford-Piping contract, and that this court must give effect to the intention of the parties as expressed in the documents that the General Conditions should be part of the contract. As proof of Piping's intentions, Ford calls our attention to Piping's proposal to Ford for the job, which stated that Piping "will furnish all labor, materials, supervision, equipment, and incidentals * * * in accordance with * * * General Conditions dated 11-1-56, revised January, 1957; as prepared by the Ford Motor Company * * *." Defendant appellant Piping's ...


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