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Vandygriff v. Commonwealth Edison Co.

OPINION FILED AUGUST 7, 1980.

MELVIN VANDYGRIFF, PLAINTIFF,

v.

COMMONWEALTH EDISON CO., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT. — (GUST K. NEWBERG CONSTRUCTION CO., THIRD-PARTY DEFENDANT-APPELLEE.) — WILLIAM KJELLESVIK, PLAINTIFF,

v.

COMMONWEALTH EDISON CO., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT. — (GUST K. NEWBERG CONSTRUCTION CO., THIRD-PARTY DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN ENGELSTEIN, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

These cases arose out of two accidents on the same construction site where Commonwealth Edison Co. (Edison) was the owner and Gust K. Newberg Construction Co. (Newberg) was the general contractor. Edison, defendant and third-party plaintiff, initiated third-party actions against Newberg, third-party defendant, which employed the two plaintiffs, based on common law indemnity. Newberg moved for summary judgment on the third-party actions and the motions were granted. Edison appeals from the orders. The appeals have been consolidated on the basis that they involve the same issues.

The issues presented for review are (1) whether Edison can sue Newberg for common law indemnity and (2) whether Edison is precluded from bringing suit against Newberg since Harbor Insurance Co. insured both Edison and Newberg under separate policies.

On June 9, 1973, Edison and Newberg entered into a contract wherein Newberg, as general contractor, agreed to construct certain buildings and tunnels on property owned by Edison in Grundy County, Illinois, known as "Collins Station."

The contract was prepared by Edison and contained an indemnity agreement requiring Newberg to indemnify Edison for any liability incurred by Edison for personal injury caused by or connected with the work to be done by Newberg. The contract contained a further provision whereby Edison, at its option, could require Newberg to purchase a liability insurance policy covering Edison against bodily injury claims arising from the work of Newberg, its subcontractors or employees. Edison subsequently made such a request and Newberg purchased insurance from Harbor Insurance Co. (Harbor) under which Edison was the named insured. The effective policy dates extended from February 1, 1972, until canceled.

During construction of the "Collins Station," William Kjellesvik suffered personal injuries on November 11, 1973, and Melvin Vandygriff suffered personal injuries on June 25, 1975. Both men were employed by Newberg at the time they were injured, and they both brought personal injury actions against Edison under the Illinois Structural Work Act.

Harbor engaged counsel to defend Edison in both cases. Both personal injury cases were settled. In addition to defending Edison against the Kjellesvik and Vandygriff claims, the attorneys representing Edison filed third-party actions against Newberg based on common law indemnity.

Newberg filed an answer to the third-party complaint in both cases. The answer contained affirmative defenses challenging Edison's right to pursue the indemnity claim in light of the provisions of the contract, the intent of the parties, and Newberg's compliance with the contract by purchasing the Harbor policy for Edison.

Newberg moved for summary judgments on the third-party complaints and its motions were granted. Edison appeals, and we affirm the trial court.

The first issue for review is whether Edison has a right to bring suit against Newberg on a common-law indemnity theory. Edison contends that it has a right to seek common law indemnity from Newberg, and the purchase of the liability insurance policy for Edison pursuant to Newberg's contractual obligation does not relieve Newberg of its liability to indemnify Edison. Newberg asserts that Edison was fully protected and indemnified by the insurance Newberg purchased and there is no right to a second indemnity from Newberg personally.

The contract between Newberg and Edison contained the following provision regarding insurance.

"11. Insurance Against Liability for Bodily Injuries and Damage to Property. The Contractor shall provide and maintain in such amounts and in such companies as shall be acceptable to the Owner:

(a) Workmen's compensation insurance in the name of the Contractor * * *;

(b) Contractor's public liability insurance in the name of the Contractor against claims for injuries to or death of persons and damage to property arising directly or indirectly from operations under the contract, whether such injuries, death or damage result from any act or neglect of the Contractor, any subcontractor, or any other person directly or indirectly employed by either or any of them;

(c) When requested by the Owner, owner's contingent liability insurance in the name of the Owner and such other corporations or persons as the Owner may direct, against claims of the nature specified in (b) above; and

(d) Such other insurance as, in the opinion of the Owner, the nature of the work and the circumstances may require."

This provision regarding Newberg's obligation to obtain insurance followed a clause in the contract relating to the obligation of Newberg to indemnify Edison. The indemnification clause was subsequently declared void. (Ill. Rev. Stat. 1975, ch. 29, par. 61.) Accordingly, the contract entered into by both parties must be carefully scrutinized.

In Martindell v. Lake Shore National Bank (1958), 15 Ill.2d 272, 154 N.E.2d 683, the court held that a contract is to be construed as a whole, and the primary object of the construction of a contract is to give full effect to the intention of the parties. Generally, the intention of the parties is to be determined from the final agreement they execute. See ...


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