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Zettel v. Paschen Contractors

OPINION FILED JULY 30, 1981.

FRANK J. ZETTEL, PLAINTIFF,

v.

PASCHEN CONTRACTORS, INC., ET AL., DEFENDANTS. — (PASCHEN-NEWBERG-GROVES ET AL., THIRD-PARTY PLAINTIFFS-APPELLANTS,

v.

GATEWAY ERECTORS DIVISION OF IMOCO-GATEWAY CORPORATION, THIRD-PARTY DEFENDANT-APPELLEE.) — JOHN J. RICHTER, PLAINTIFF,

v.

NEWBERG-PASCHEN-GROVES ET AL., DEFENDANTS. — (PASCHEN-NEWBERG-GROVES JOINT VENTURE ET AL., THIRD-PARTY PLAINTIFFS-APPELLANTS,

v.

GATEWAY ERECTORS DIVISION OF IMOCO-GATEWAY CORPORATION, THIRD-PARTY DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR A. SULLIVAN, JR., Judge, presiding.

MR. PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 15, 1981.

The sole issue in this case is whether an agreement by a subcontractor to obtain insurance covering, inter alia, claims arising under the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, pars. 60-69) against the contractor was void as prohibited by section 1 of "An Act in relation to indemnity in certain contracts" (Ill. Rev. Stat. 1975, ch. 29, par. 61). The trial court held that it was and dismissed the contractor's suit for damages for failure to obtain the promised insurance. We disagree and reverse.

On June 23, 1976, Gateway Erectors Division of Imoco-Gateway Corporation (Gateway), as a subcontractor, entered into a construction contract with Paschen-Newberg-Groves, a joint venture. Under the terms of the subcontract, Gateway agreed to perform certain services and to supply various materials in connection with the construction of a sewage treatment reclamation plant. The joint venture agreed to pay Gateway an amount in excess of $2,000,000 as consideration for Gateway's performance.

In section 10 of the subcontract, Gateway agreed to indemnify the joint venture for all losses arising out of any work connected with the performance of the work by the subcontractor, including all claims arising out of any structural work law. In section 11 of the subcontract, Gateway agreed to carry certain liability policies insuring the owner, architect, contractor and subcontractor for injuries or death of persons including Gateway's employees. That section further provided that:

"Subcontractor further agrees to cause contractual liability endorsements to be issued by the insurance companies and attached to the above-mentioned policies, to include under the coverage therein extended an obligation on the part of the insurers to insure against Subcontractor's contractual liability hereunder and to indemnify the Owner, Architect, and Contractor against loss, liability, costs, expenses, attorneys' fees and court costs as provided in section 10 hereof, and further agrees that said coverage shall be afforded therein against all claims arising out of the operation of any structural work law or law imposing liability arising out of the use of scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances."

Two employees (Richter and Zettel) filed suit against the joint venture under the Illinois Structural Work Act for damages for injuries suffered. In each case the joint venture demanded that Gateway tender the defense of the joint venture to Gateway's liability insurer. When Gateway failed to respond to these demands, the joint venture filed the third-party actions involved in this appeal. In the actions, the joint venture asked for judgment against Gateway in the amount of any judgment obtained against it together with the joint venture's attorney's fees and costs of defense.

In each case Gateway filed a motion to strike and dismiss these claims. After hearing extensive oral argument, the trial court in its order in each case found that the clear language of the subcontract required Gateway to procure insurance for the joint venture for all claims arising under the Structural Work Act, including claims for violations of the Act by the joint venture. Nevertheless, the court concluded that it was compelled under the rationale of Davis v. Commonwealth Edison Co. (1975), 61 Ill.2d 494, 336 N.E.2d 881, to hold the agreement was void and unenforceable pursuant to section 1 of "An Act in relation to indemnity in certain contracts" (Ill. Rev. Stat. 1975, ch. 29, par. 61). Accordingly the court granted the motions to dismiss. It also entered in each case an order under section 304(a) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)), providing for immediate reviewability.

The joint venture appealed both orders in both cases and the appeals were consolidated. The defendant did not cross-appeal. In its appeal, the joint venture has simply asked that the judgments be reversed with instructions to deny the motions to dismiss plus such other relief as the court may deem necessary.

I

• 1 On appeal Gateway contends that the judgment of dismissal should be affirmed, for two reasons: (1) any agreement to obtain insurance was void and (2) sections 10 and 11 of the subcontract do not clearly and unequivocally require Gateway to procure liability insurance to indemnify the joint venture for liability arising from the joint venture's actions. What, in effect, Gateway wishes this court to do is to reverse the trial court's judgment, which expressly found that the contract did require Gateway to obtain such insurance. But, since Gateway did not cross-appeal from that finding, we have no power to review it. As we recently reiterated in Gibson v. Village of Wilmette (1981), 97 Ill. App.3d 1033, ___ N.E.2d ___, since the appellee has not cross-appealed from the contested finding, it is final and we have no jurisdiction to review it here. (Clodfelter v. Van Fossan (1946), 394 Ill. 29, 67 N.E.2d 182; In re Marriage of Pieper (1979), 79 Ill. App.3d 835, 398 N.E.2d 868; Swenson v. Wintercorn (1968), 92 Ill. App.2d 88, 234 N.E.2d 91, appeal denied (1968), 38 Ill.2d 630.) Absent a notice of cross-appeal, the matters sought to be reviewed are not preserved for review and decision by the court. (Pioneer Trust & Savings Bank v. County of McHenry (1967), 89 Ill. App.2d 257, 232 N.E.2d 816, rev'd on other grounds (1968), 41 Ill.2d 77, 241 N.E.2d 454; Bawden v. Furlong (1958), 16 Ill. App.2d 174, 147 N.E.2d 889, appeal denied (1958), 13 Ill.2d 627.) It is true, as Gateway contends, that an appellee can sustain a decree upon any basis in the record even if that issue has not been previously urged. But where a general verdict for an appellee contains a specific finding not in its favor and the appellee fails to file a cross-appeal, the adverse finding is not properly before the reviewing court. Village of Arlington Heights v. National Bank (1977), 53 Ill. App.3d 917, 369 N.E.2d 502.

II

• 2 Accordingly, the only issue before this court is whether the trial court erred in holding the agreement void under section 1 of "An Act in relation to indemnity in certain contracts" (Ill. Rev. Stat. 1975, ch. 29, par. 61), which provides:

"With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person ...


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