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AMERICAN PECCO CORP. v. CONCRETE BUILDING SYS. CO.

April 8, 1975

AMERICAN PECCO CORPORATION, PLAINTIFF,
v.
CONCRETE BUILDING SYSTEMS CO., AND GATEWAY ERECTORS, INC., DEFENDANTS. CONCRETE BUILDING SYSTEMS CO., A CORPORATION, THIRD-PARTY PLAINTIFF, V. GATEWAY ERECTORS, INC., A CORPORATION, THIRD-PARTY DEFENDANT. CONCRETE BUILDING SYSTEMS CO., THIRD-PARTY PLAINTIFF, V. CENTRAL CONTRACTORS SERVICE, INC., A CORPORATION, THIRD-PARTY DEFENDANT. CENTRAL CONTRACTORS SERVICE, INC., A CORPORATION, DEFENDANT AND CROSS-PLAINTIFF, V. GATEWAY ERECTORS, INC., A CORPORATION, DEFENDANT AND CROSS-DEFENDANT.



The opinion of the court was delivered by: Kirkland, District Judge.

  MEMORANDUM OPINION AND ORDER

This cause comes before the Court on motion of defendant Gateway Erectors, Inc., (Gateway) to dismiss Counts I and II of defendant Central Contractors Service, Inc.'s (Central) cross-complaint.

On November 22, 1971, defendant/cross-defendant, Gateway entered into an agreement with co-defendant, Concrete Building Systems Company, (Concrete) whereby Gateway agreed to furnish labor, material and helper cranes to dismantle two tower cranes allegedly owned by plaintiff, American Pecco Corporation (Pecco). The tower cranes were used by Concrete in construction of buildings at the Campus Green Project at Taylor and Ashland Streets in Chicago, Illinois.

On December 3, 1971, Gateway entered into an agreement with another co-defendant, Central Contractors Service, Inc. (Central). Central agreed, for a stipulated consideration, to lease and supply the necessary crane, crane operator and crane oiler to dismantle the two tower cranes at the Campus Green Project. After part of one tower crane had been connected to the Central crane, preparatory to lowering the part to the ground, the Central crane allegedly began to tip. The operator allegedly dropped the part to the ground to prevent the crane from tipping over. Pecco has filed suit to recover for the damaged tower crane. Central thereupon filed the instant cross-complaint against Gateway.

Central's cross-complaint consists of two counts. Count I is based upon an indemnity provision contained within the December 3, 1971 lease between Central and Gateway. This agreement provides:

"B. THE LESSEE COVENANTS AND AGREES:

    7. It is expressly understood and agreed that the
    Lessee shall be responsible for any and all damage
    to property, and all injury, damage or disease to
    or death of any person arising directly or
    indirectly from or in connection with the use of
    the leased equipment during the rental period, and
    the Lessee agrees to indemnify, defend and save the
    Lessor harmless for any and all loss, claims, or
    demands arising out of said injury, damage, disease
    or death."

In Count II, Central seeks indemnity based upon an active/passive negligence theory.

Turning first to Count I, both parties allege that the above quoted indemnity provision is broad enough to cover Central against its own negligence.

The leading case on the subject of indemnity agreements in Illinois is Westinghouse Company v. LaSalle Monroe Building Corporation, 395 Ill. 429, 70 N.E.2d 604 (1947). In that case, the Illinois Supreme Court announced the standard which has been applied in subsequent Illinois cases involving indemnity agreements. The court stated at page 432, 70 N.E.2d at page 606:

  "It is a general rule governing the construction of
  contracts that unless a contract is ambiguous, its
  meaning must be determined from the words used; and
  the courts will not, because a more equitable result
  might be

  reached thereby, construe into the contract
  provisions that are not therein."
  "It is quite generally held 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
  (citations)."

The indemnity agreement which the court examined in the Westinghouse case provided:

  "The contractor further agrees to indemnify and hold
  the owner, the owner's employees and agents, the
  Architects and Engineers, and the City of Chicago,
  wholly harmless from any damages, claims, demands or
  suit by any person or persons arising out of any acts
  or omissions by the Contractor, his agents, servants
  or employes in the course of any work done in
  connection with any of the matters set out in these
  specifications, and the contractor ...

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