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Mareci v. George Sollitt Construction Co.

OPINION FILED JUNE 22, 1979.

VINCENT MARECI, PLAINTIFF,

v.

GEORGE SOLLITT CONSTRUCTION CO. ET AL., DEFENDANTS. — (GEORGE SOLLITT CONSTRUCTION CO., THIRD-PARTY PLAINTIFF-APPELLANT,

v.

ILLINOIS HEATING & VENTILATING CO., INC., THIRD-PARTY DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES DURHAM, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court granting third-party defendant's motion for summary judgment and denying third-party plaintiff's motion for judgment on the pleadings in an action for contractual indemnity. The sole issue raised is whether the trial court erred in its decision. We affirm.

This third-party action arose out of a personal injury action brought by Vincent Mareci, an employee of Illinois Heating and Ventilating Company, Incorporated (hereinafter Illinois Heating), against George Sollitt Construction Company (hereinafter Sollitt). Mareci allegedly sustained injuries when he tripped and fell on a ramp while working at a jobsite where Sollitt was acting as general contractor and Illinois Heating was acting as subcontractor. Mareci's suit against Sollitt was based on theories of negligence and violation of the Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, pars. 60-69). After Mareci filed suit, Sollitt filed a third-party complaint against Illinois Heating claiming, inter alia, that under an indemnification clause in a contract entered into on May 14, 1971, Illinois Heating had agreed to indemnify Sollitt for personal injury claims arising out of Illinois Heating's work at the jobsite where Mareci was injured. The clause reads:

"That the Sub-contractor [Illinois Heating] assumes entire risk and responsibility for any injuries, alleged injuries, or injuries resulting in death, sustained by himself, his employees or representatives, and/or by anyone employed by any sub-contractor or contractor, whose contract is subordinate to or let in pursuance of this agreement, in the performance of this agreement. Such aforesaid injuries shall include, but not be limited to, those resulting from the use or misuse of hoists, rigging, blocking, stays, scaffolding, formwork, cranes, ladders, supports, staging, elevators, or other mechanical contrivances, structures, materials, or site conditions, whether or not there was a right to use any such aforesaid, or whether or not any such aforesaid were furnished, owned, or operated by the Owner, General Contractor [Sollitt], Architect, and/or the employees or representatives of the Owner, General Contractor, or Architect."

Sollitt alleged that this clause applied to the injury sustained by Mareci.

On May 31, 1977, Illinois Heating filed a motion for summary judgment. Along with the motion, it filed an affidavit of Albin Olson, Sollitt's superintendent at the jobsite where Mareci was injured. Olson stated that Sollitt had constructed, positioned, and maintained the ramp. Also, Illinois Heating filed a letter, dated June 14, 1971, which it sent to Sollitt, stating:

"I am sure that the intent of your contract is to have us responsible for our own work only and damages to the structure or surrounding properties caused by Illinois Heating & Ventilating."

On August 26, Sollitt filed a motion for judgment on the pleadings. The trial court granted Illinois Heating's motion for summary judgment and denied Sollitt's motion for judgment on the pleadings on August 29, the day on which Mareci's lawsuit proceeded to trial. Ultimately, Mareci dropped his negligence claim and obtained a verdict against Sollitt based on his Structural Work Act claim.

OPINION

Sollitt contends that the trial court erred in granting the motion for summary judgment and in denying its motion for judgment on the pleadings because the contractual indemnity clause clearly requires Illinois Heating to indemnify Sollitt for the injuries to Mareci. It argues that the clause specifically provides for indemnity under the precise circumstances as were involved in the instant case. It also argues that the contract as a whole clearly indicates that Illinois Heating had undertaken the obligation to indemnify regardless of who caused the injuries. We reject Sollitt's contention.

The law applicable to the instant indemnification clause is that an indemnity clause will not indemnify against one's own negligence unless such indemnification is expressed in clear and explicit language or such intention is expressed in unequivocal terms. *fn1 (Zadak v. Cannon (1974), 59 Ill.2d 118, 319 N.E.2d 469; Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604; McGinn v. Northwestern Steel & Wire Co. (1978), 68 Ill. App.3d 632, 386 N.E.2d 71.) Each agreement is to be given a "fair and reasonable interpretation based upon a consideration of all of its language and provisions." (Tatar v. Maxon Construction Co. (1973), 54 Ill.2d 64, 67, 294 N.E.2d 272, 274.) In the event of any ambiguity in the language, the contract will be construed strictly against the party seeking indemnity for his own negligence. Valerio v. R & R Construction Co. (1974), 20 Ill. App.3d 48, 312 N.E.2d 713.

Sollitt claims that the language in the instant indemnification clause is "extremely specific" because it refers to the precise injury which allegedly occurred in this case — an injury which results from the use or misuse of a support, regardless of who furnished the support. A similar contention was made in Cotter v. Consolidated Construction Co. (1977), 50 Ill. App.3d 332, 365 N.E.2d 636, a case factually similar to the instant case. In Cotter, plaintiff, an employee of a subcontractor, was injured when he fell from planking which had been erected by the general contractor. Plaintiff brought an action against the general contractor under the Illinois Structural Work Act. Subsequently, the general contractor filed a third party action against plaintiff's employer based inter alia, on an indemnification clause which read:

"[subcontractor] shall * * * indemnify and save harmless * * * [general contractor] against all loss, * * * on account of * * * injuries, * * * to persons (including, without limiting the generality of the foregoing, employees of * * * [subcontractor]) * * * in any way arising out of or connected with the performance of the work by * * * [subcontractor] or the use by * * * [subcontractor] or its employees, * * * of facilities or equipment furnished or owned by * * * [general contractor], * * * including, without limiting the generality of the foregoing, all claims arising out of the operation of the structural work law * * *." (50 Ill. App. 332, 333, 365 N.E.2d 636, 637.)

The trial court directed a verdict against the subcontractor on the basis of the indemnification clause. On appeal, ...


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