The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
George R. Germann ("Germann") has sued various defendants
(collectively "Midland") for violation of the Age
Discrimination in Employment Act of 1967 ("ADEA," 29 U.S.C. § 621
ff.). Midland has filed a third-party claim against
Guardian Life Insurance Company of America ("Guardian"),
asserting that if Midland is liable for violation of the Act
Guardian is in turn liable to Midland. Guardian has moved to
dismiss Midland's third-party complaint (for ease of reference,
the "Complaint")*fn1 for failure to state a cause of action.
For the reasons stated in this memorandum opinion and order
Guardian's motion is granted and the Complaint is dismissed.
In factual terms the Complaint is stated very simply indeed,
but its legal theory is not nearly so clear. Though the
Complaint's allegations appear to state a claim for
indemnity, Midland's memorandum opposing Guardian's
motion speaks only in terms of Guardian as a joint tort-feasor
liable for contribution.*fn3 On that score this
year's Supreme Court opinion in Northwest Airlines, Inc. v.
Transport Workers Union, 451 U.S. 77, 101 S.Ct. 1571, 67
L.Ed.2d 750 (1981) is fatal to Midland's claim. True enough,
Northwest Airlines dealt with the Equal Pay Act and
Title VII of the Civil Rights Act of 1964 rather than ADEA, but
in analytical terms the problems are essentially identical. It
is unnecessary to repeat the several facets of the
Northwest Airlines reasoning. Suffice it to say they
are dispositive in requiring rejection of an action for
contribution by Guardian.
That does not end the inquiry, however. If the Complaint
states a cause of action on any theory it must be
sustained against a motion to dismiss. Even though it is not
the Court's responsibility to try lawsuits for the litigants,
it is of course not bound by their analysis of the issues.
Two possibilities present themselves under the factual
allegations of the Complaint, both grounded in state law
(Northwest Airlines, 101 S.Ct. at 1582-84, negated a
federal common-law right to contribution):
(1) a state-created right of contribution based
on a duty owed by Guardian to Germann (see
Ill.Rev.Stat. ch. 70, §§ 301-05);
(2) a state-created right of indemnity based on
a duty owed by Guardian to Midland.
In either case such a claim could be asserted here under the
principles of pendent jurisdiction announced in United Mine
Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139,
16 L.Ed.2d 218 (1966).
Thus if it were proved for example that Guardian
knew of the illegality of the group life insurance
policy under ADEA when it sold the package group policy to
Midland, that might ground an action for fraud under Illinois
law. To choose another possibility, it might be proved that
Guardian breached its duty of care owed to an insured in
writing and issuing policies of insurance. See, Cleary v.
Country Mutual Ins. Co., 63 Ill. App.3d 637, 20 Ill.Dec.
547, 380 N.E.2d 525 (4th Dist. 1978). Or it might be proved
that Guardian had and breached some duty of disclosure as to
the ADEA-vulnerable flaw in its group life policy.
But even apart from Midland's failure to advance any of those
(or any other) legal theories to support liability,
the difficulty is that its Complaint (even construed most
broadly in favor of the pleader) fails to make out any of the
necessary allegations against Guardian. It states no source for
a duty owed by Guardian to either Germann or Midland, nor does
it identify any such duty. At best it alleges only that
Guardian required Midland to purchase the group life insurance
policy,*fn4 a form policy drafted