The opinion of the court was delivered by: Baker, District Judge.
In this civil action for damages connected with the
operation of a corn cutting machine, the third party
defendant, Joan of Arc Company, has moved to dismiss the third
party complaint filed by the defendant FMC Corporation.
The plaintiff, Marilyn Davis, was injured on August 16,
1976, while operating a corn cutting machine for her employer,
Joan of Arc Company. The complaint based on
strict liability in tort was filed against the defendant FMC
Corporation on July 18, 1978. The complaint was subsequently
amended to allege diversity of citizenship. In 1981, after the
doctrine of comparative negligence was adopted in Illinois,
the plaintiff filed a second amended complaint raising Count
II in negligence against FMC Corporation. On September 9,
1981, the defendant FMC Corporation filed a third party
complaint against the third party defendant, Joan of Arc
Company. It is that pleading to which the motion under
consideration is directed. The third party complaint seeks
indemnity or contribution from Joan of Arc should the defendant
FMC Corporation be found liable to the original plaintiff,
Marilyn Davis, on Count II of the second amended complaint.
The third party complaint fails to state a cause of action
for contribution. Although the Illinois Supreme Court
recognized such a cause of action as between joint tortfeasors
in Skinner v. Reed-Prentice Division Package Machinery Co.,
70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437 (1977), the holding
of Skinner and its subsequent codification in Ill.Rev.Stat. ch.
70, ¶ 301 § 1 (1979), are applicable only to causes of action
which accrue after March 1, 1978. The instant cause of action
arose prior to March 1, 1978. Therefore, the principles of
contribution are not applicable.
Indemnity derives from principles of contract, and may be
express or implied. Implied indemnity traditionally requires
a pre-tort relationship which gives rise to a duty to
indemnify. See, e.g., Mierzejwski v. Stronczek, 100 Ill. App.2d 68,
241 N.E.2d 573 (1968) (lessor-lessee); Embree v. DeKalb
Forge Co., 49 Ill. App.2d 85, 199 N.E.2d 250 (1964)
(employer-employee); Blaszak v. Union Tank Car Co., 37 Ill. App.2d 12,
184 N.E.2d 808 (1962) (owner-lessee); Gulf, Mobile &
Ohio R.R. Co. v. Arthur Dixon Transfer Co., 343 Ill. App. 148,
98 N.E.2d 783 (1951) (master-servant). However, in response to
the harshness of the no-contribution rule, the Illinois courts
expanded the traditional doctrine of implied indemnity to
"passive-active" negligence cases. Van Jacobs v. Parikh,
97 Ill. App.3d 610, 52 Ill.Dec. 770, 422 N.E.2d 979 (1981).
Prior to the holding in Skinner and the enactment of the
Illinois Contribution Act, the requirement of a pre-tort
relationship under passive-active negligence indemnity was
relaxed. A cause of action was recognized if one tort-feasor
alleged that his negligence was qualitatively different from
that of a joint tort-feasor. Parr v. Great Lakes Express
Company, 484 F.2d 767 (7th Cir. 1973).
In Muhlbauer v. Kruzel, 39 Ill.2d 226, 234 N.E.2d 790 (1968),
the Illinois Supreme Court reaffirmed the requirement of a
pre-tort relationship. However, this court interprets Muhlbauer
as indicating the outer bounds of what constitutes a pre-tort
relationship and not for the proposition that a "traditional"
pre-tort relationship must be established.
Muhlbauer involved a case where the original plaintiff sued
Kruzel, the operator of a food market, in negligence alleging,
inter alia, that Kruzel had arranged for a clown to stand along
the sidewalk in front of the defendant's store for the purpose
of promoting Kruzel's business. Kruzel filed a third party
complaint against Wilson & Company, alleging that the acts
specified in the original complaint had been performed by
Wilson and that any wrongful acts allegedly committed by Kruzel
were passive only and not active. The alleged facts were void
of any relationship or circumstance connecting Kruzel and
Wilson. Therefore, the court dismissed the cause of action for
failing to allege the existence of a pre-tort relationship.
Muhlbauer reaffirmed the concept of passive-active negligence
indemnity. However, it is necessary to determine what impact
the adoption of the Illinois Contribution Act has had on
implied indemnity. This was answered in Van Jacobs v. Parikh,
97 Ill. App.3d 610, 52 Ill.Dec. 770, 422 N.E.2d 979 (1981),
where the Illinois Appellate
Court for the First District concluded that, although
contribution has not extinguished indemnity in Illinois, it
"permits the courts to place indemnity back upon its
theoretical foundation." Parikh at 613, 52 Ill.Dec. 770,
422 N.E.2d 979. It therefore appears that in cases accruing after
March 1, 1978, the traditional rules of implied indemnity will
be the controlling standard. Lundy v. Whiting Corp., 93 Ill. App.3d 244,
48 Ill.Dec. 752, 417 N.E.2d 154 (1981).
To state a cause of action under passive-active negligence
indemnity, the defendant FMC Corporation must allege a
pre-tort relationship and a qualitative difference between the
negligence of itself and the third party defendant, Joan of
Arc. The third party complaint contains those allegations.
Muhlbauer requires that a party allege sufficient facts that
some relationship or circumstance exists from which to imply a
duty to indemnify. The defendant FMC Corporation specifically
alleges the relationship of seller-purchaser between itself and
Joan of Arc. The complaint also alleges that both were involved
in the causation of injury to the plaintiff, Marilyn Davis.
Finally, the defendant FMC Corporation alleges that the acts of
Joan of Arc were primary or active vis-a-vis the acts of FMC
which were passive.
Despite the sufficiency of the pleading, Joan of Arc argues
that Illinois law does not recognize a cause of action for
indemnity on behalf of a manufacturer as against a
purchaser-employer. Although there appear to be no cases in
which a manufacturer has succeeded at trial on such a theory
of liability, the Illinois courts have recognized that a
manufacturer is entitled to maintain an action for indemnity
against a purchaser-employer when the underlying liability of
the manufacturer is premised on negligence as opposed to
strict liability. Vassolo v. Comet Industries, Inc., 35 Ill. App.3d 41,
341 N.E.2d 54 (1975); Kossifos v. Louden Machinery
Co., 22 Ill. App.3d 587, 317 N.E.2d 749 (1974); Stanfield v.
Medalist Industries, Inc., 17 Ill. App.3d 996, 309 N.E.2d 104
The pending action against the defendant FMC Corporation
includes a claim in strict liability and negligence. Although
FMC Corporation can only succeed on its indemnity claim if its
acts were passive, dismissal is not warranted on the basis
that the original complaint alleges acts of active negligence
on the part of FMC Corporation. ...