Appeal from the Circuit Court of Cook County; the Hon. Paul F.
Elward, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Power Construction, Inc. (Power), appeals from an order of the circuit court of Cook County dismissing, with prejudice, its third-party amended complaint for indemnification against James Mansfield & Sons Company, Inc. (Mansfield), and its counterclaim against counter-defendant The Robert Irsay Company (Irsay).
On appeal, Power contends that (1) the trial court erred in dismissing, with prejudice, its third-party complaint for failure to state a cause of action for indemnity, and (2) the trial court erred by denying Power leave to file a third amended complaint and counterclaim.
Plaintiff, Harold Sullivan, filed suit against Power, Irsay, and various other defendants not involved in this appeal, to recover damages for personal injuries suffered while performing roofing work as an employee of Mansfield on March 2, 1977.
The complaint charged that plaintiff was injured as a result of Power's negligence when he fell two stories through an uncovered 30-inch square ventilation shaft opening on the construction site of the American Hospital Supply building in Evanston, Illinois.
A review of the pleadings indicates that Power functioned as general contractor for construction of the building while Irsay was the subcontractor in charge of furnishing, installing and completing all the ventilation and air conditioning work. Mansfield was the subcontractor in charge of roofing.
Count I of the complaint was based on common law negligence and alleged, inter alia, that defendants carelessly and negligently (1) left the ventilation shaft opening uncovered, (2) failed to erect guardrails and toeboards around the opening, and (3) failed to erect warning and caution signs around the open shaft.
Count II was based on the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60) and alleged that defendants were in charge of construction at the building and wilfully breached their duty to construct, erect and furnish the roof in a safe manner. The underlying complaint is not at issue in this appeal.
Power's answer to the complaint admitted that it had a contract for certain construction work being performed on the building, but denied that it was in charge of the work in the area of the ventilator shaft opening.
Power subsequently filed a single third-party complaint against both Irsay and Mansfield in a three count "Counterclaim and Third Party Complaint." Count I sought indemnification from both defendants based upon alleged breaches of the subcontractor contracts between the parties, in addition to violation of certain OSHA requirements. Count II sought contractual indemnification from Mansfield based upon the Structural Work Act, and count III sought indemnification based upon an active-passive theory of common law negligence.
Mansfield moved to dismiss count I on the grounds that any contractual agreement providing that Power could be indemnified against its own acts of negligence was void as against public policy, pursuant to section 1 of "An Act in relation to indemnity in certain contracts" (Ill. Rev. Stat. 1971, ch. 29, par. 61).
Irsay moved to dismiss counts II and III based upon its argument that Power failed to plead facts establishing a qualitative distinction between Power's conduct and that of Irsay and Mansfield. The trial court struck all three counts and granted leave to amend.
This amended pleading was subsequently stricken and Power again filed a one-count "Second Amended Counterclaim," which is the pleading in issue here.
The first portion of the second amended counterclaim was premised upon a theory of contractual indemnity, and set forth the violation of certain contractual obligations contained within the subcontractor's agreement.
It alleged, inter alia, that Irsay had contracted with Power to perform all work necessary in connection with the air conditioning and ventilation for the building; and that Irsay agreed to comply with all codes, statutes, and safety requirements regarding that work, including an OSHA regulation requiring a guardrail around a skylight opening where a danger of falling through it exists.
The latter portion of the pleading was based upon an active-passive theory of implied indemnity. Paragraph 7 set forth that any fault of the defendant would arise as a result of vicarious liability under the Structural Work Act. Paragraph 8 alleged certain major and primary acts of negligence without identifying the culpable party.
On April 16, 1981, the trial court granted Irsay's motion to strike and dismiss the counterclaim, with prejudice. The court stated that since there is no vicarious liability under the Structural Work Act, paragraph 7 was insufficient to allege acts of passive negligence. The trial court also denied Power's oral motion for leave to file a third amended counterclaim because of the "age of the case" and because Power had already had "three shots at [amending] it."
Power thereupon filed a motion to vacate the April 16 order and requested leave to file a third amended counterclaim and third amended third-party ...