APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
P. COMAN, Judge, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Commonwealth Edison Company (hereinafter Edison) appeals from an order of the circuit court of Cook County dismissing Edison's third-party complaint for indemnity against Walsh Construction Company (hereinafter Walsh). The following issues are presented for review: (1) whether the third-party complaint failed to adequately state a cause of action for indemnity; and (2) whether Walsh's purchase of an insurance policy covering Edison's liability relieves Walsh of any liability, either contractual or implied, to indemnify Edison.
For reasons hereinafter stated, we reverse.
Plaintiff, Harry J. Rome, filed a complaint against Commonwealth Edison Company to recover for injuries sustained by plaintiff on February 20, 1975, while he was working on a construction project at the Seneca Power Plant in Seneca, Illinois. Plaintiff alleged that he was an employee of Walsh Construction Company and he was injured when he fell into an excavated area. Count I of the complaint was based on the Structural Work Act and alleged that Edison owned and was in charge of construction at the Seneca plant, that Edison participated in coordinating, scheduling and inspecting the work and had authority to stop the work, and that Edison failed to operate a safe excavating area. Count II alleged negligence by Edison in failing to make reasonable inspections, failing to maintain a safe place to work, failing to warn of dangerous conditions and failing to supervise and provide safeguards. The original complaint is not involved in the appeal.
Edison filed a third-party complaint for indemnity against Walsh Construction Company. Count I was based on the theory of implied indemnity and alleged that any negligent acts of Edison were passive while the acts of Walsh were active. Count II was based on the indemnity provision of the contract between Walsh and Edison.
On October 28, 1976, pursuant to a motion filed by Walsh, the trial court dismissed count II of the third-party complaint on the basis that the contractual indemnity provision was void under section 1 of "An Act in relation to indemnity in certain contracts." (Ill. Rev. Stat. 1975, ch. 29, par. 61.) Section 1 provides that an agreement in a construction contract to indemnify another person from that person's own negligence is void as against public policy and is unenforceable. The order dismissing count II is not contested and is not involved in this appeal. Although the indemnity provision of the contract was invalid, the other provisions of the contract remained in force.
Walsh filed a motion to dismiss count I of the third-party complaint alleging that the contract between Walsh and Edison required Walsh to obtain a general liability insurance policy naming Edison as the beneficiary and covering all work-related acts performed by Walsh and that the obtaining of said insurance policy satisfied any right of indemnity, either contractual or implied, that might exist in connection with acts performed by Walsh. In an amendment to the motion to dismiss, Walsh further alleged that count I should be dismissed as a matter of law because it failed to plead sufficiently a distinction between the conduct of the parties in that one party's conduct was active while the conduct of the other party (Edison) was passive.
On July 11, 1978, the trial court granted Walsh's motion to dismiss count I of the third-party complaint and dismissed count I with prejudice. Edison appeals from the order dismissing count I.
1, 2 Initially it should be noted that the order dismissing count I stated neither specific findings of fact nor the specific grounds upon which the court based its ruling. However, a general order of dismissal may be sustained on any basis found in the record, regardless of what led the trial court to its conclusion. (Glick v. Sabin (1977), 53 Ill. App.3d 96, 99, 368 N.E.2d 625.) Further, we note that the contractual indemnity provision did not preclude Edison from seeking recovery on a common law implied indemnity theory. This court recently held in McGinn v. Northwestern Steel & Wire Co. (1978), 68 Ill. App.3d 632, 638, 386 N.E.2d 71 (supplemental opinion), appeal denied (1979), 75 Ill.2d 591, that although recovery through indemnification may be had on only one theory, either contractual or implied indemnity, there is nothing to prevent a party from seeking recovery under both theories. The rule is well established that a party has the right to plead and introduce proof on all possible theories of recovery, even if the theories are inconsistent.
Walsh contends that the trial court properly dismissed count I of the third-party complaint because count I failed to state a cause of action for indemnity. Walsh further contends that Edison waived the issue of the sufficiency of the complaint because Edison did not argue the point in its appellate brief and therefore the appellate court should affirm the dismissal. In its reply brief Edison contends that there is a waiver of an issue raised by appellee only if the appellant does not respond thereto in its reply brief and that the third-party complaint was sufficient to withstand a motion to dismiss because it alleged a relationship between Walsh and Edison sufficient to warrant the conclusion that there was a qualitative difference between the negligence of the two parties, Walsh and Edison.
3 With reference to the waiver issue, the general rule is that an issue not raised in appellant's brief may be considered waived. (Ill. Rev. Stat. 1977, ch. 110A, par. 341(e)(7); People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1978), 58 Ill. App.3d 28, 31, 373 N.E.2d 772.) Further, the appellant's reply brief should be confined strictly to replying to arguments presented in appellee's brief. (Ill. Rev. Stat. 1977, ch. 110A, par. 341(g).) In the case at bar appellee Walsh raised the issue of sufficiency of the third-party complaint to support the trial court's dismissal. It is well established that an appellee may urge any point in support of the judgment on appeal so long as the factual basis for such point was before the trial court. (Shaw v. Lorenz (1969), 42 Ill.2d 246, 248, 246 N.E.2d 285.) Edison replied to Walsh's argument in its reply brief, which was proper under Supreme Court Rule 341. In City of West Chicago v. Clark (1978), 58 Ill. App.3d 847, 853, 374 N.E.2d 1277, appellee raised an issue in support of the trial court's dismissal of a third-party complaint. Appellant in Clark did not provide either argument or authority in response to appellee's contention, and the appellate court held that the issue could be considered waived by appellant. The inference from Clark is that if the appellant had responded to the contention raised by appellee, the issue would not have been waived. In the case at bar, since Edison did respond to Walsh's contention, the issue will not be considered as waived for purposes of appeal.
4-7 The judicially created theory of implied indemnity holds that a party whose conduct is limited to negligence in a passive or secondary nature may obtain indemnification from the party whose negligent conduct is active or primary in nature. (Mierzejwski v. Stronczek (1968), 100 Ill. App.2d 68, 75, 241 N.E.2d 573.) It is established that under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.) more than one person may be "in charge of" the work and be liable to the injured party; however, there can be degrees of fault among those who are liable, and the passively delinquent party, if held accountable, may transfer its statutory liability to the actively delinquent party. (Miller v. DeWitt (1967), 37 Ill.2d 273, 226 N.E.2d 630.) In Miller v. DeWitt the court held that a third-party complaint should not be dismissed unless it appears from the pleadings that in no event would the indemnitee have an action against the indemnitor. In City of West Chicago v. Clark (1978), 58 Ill. App.3d 847, 854, the court held that in order for a third-party complaint to withstand a motion to dismiss, it must allege some relationship between the third-party plaintiff and third-party defendant sufficient to warrant application of indemnity principles. Thus, the third-party complaint must allege that the third-party plaintiff's conduct was passive while that of the third-party defendant was active. Reynolds v. Illinois Bell Telephone Co. (1964), 51 Ill. App.2d 334, 201 N.E.2d 322.
8 In the case at bar, the third-party complaint alleged that there was a contract between Edison and Walsh whereby Walsh was to perform work and that plaintiff was an employee of Walsh and was acting within the scope of his employment at the time of his injury. The complaint further alleged:
"That if third party plaintiff is found liable to the plaintiff for all or any amount of the damages sought by plaintiff, it can only be for some passive act or omission and from the active acts of negligence of third party defendant in failing to place or operate the excavated area in a safe and suitable manner, ...