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WINFIELD DESIGN ASS. INC. v. QUINCY JEFFERSON VENTURE

United States District Court, Northern District of Illinois, E.D


August 26, 1983

WINFIELD DESIGN ASSOCIATES, INC., PLAINTIFF,
v.
QUINCY JEFFERSON VENTURE, ETC., AND REES W. CANDEE, ETC., DEFENDANTS.

The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Winfield Design Associates, Inc. ("Winfield") initially sued its fellow-tenant Rees Candee ("Candee") and its landlord Quincy Jefferson Venture ("Quincy"), alleging Winfield's business inventory and other property were damaged as a result of:

    1. negligent acts by Candee (Complaint Count I) and
  Quincy (Complaint Count III) and

    2. Candee's breach of provisions of a Candee-Quincy
  lease that operated for the benefit of Winfield
  (Complaint Count II).*fn1

Quincy then crossclaimed against Candee for its own alleged damages (Crossclaim Count I) and (should Quincy be found liable to Winfield) for indemnity (Crossclaim Count II) and contribution (Crossclaim Count III). Candee has now moved to "strike" (really dismiss) Crossclaim Count II for failure to state a claim upon which relief can be granted.*fn2 For the reasons stated in this memorandum opinion and order Candee's motion is granted.

Now at issue is whether, assuming the facts pleaded, Illinois law would allow Quincy to recover from Candee on an indemnity theory.*fn3 Kuhn v. General Parking Corp., 98 Ill.App.3d 570, 576, 54 Ill.Dec. 191, 197, 424 N.E.2d 941, 947 (1st dist. 1981) teaches (citations omitted):

  In Illinois indemnification is available only when
  there is a qualitative distinction between the
  negligent of the two tortfeasors . . ., that is, the
  two indemnification must have been passively negligent
  whereas the party against whom indemnification is
  sought must have been actively negligent. . . . Where
  the joint tortfeasors owe the same duty to the injured
  person, there can be no indemnification.*fn4

Accord, Sears v. Kois Brothers Co., 110 Ill. App.3d 884, 888-89, 66 Ill.Dec. 531, 535, 443 N.E.2d 214, 218 (1st Dist.1982). Candee argues (Mem. 2) Illinois law bars indemnity here because there can be no qualitative difference between its own and Quincy's alleged negligence.

True, Crossclaim Count II ¶ 5 asserts any liability of Quincy to Winfield "will not be on account of any active or major acts on its part, but as a result of its passive and technical status as a landlord, and the active, major and wrongful negligence of [Candee]." But Paragraph 5 alleges no facts in support of its conclusory assertion. Indeed Crossclaim Counts II and III as a whole necessarily suppose Quincy's liability to Winfield on the facts pleaded in Winfield's Complaint*fn5 — and Compliant Counts I and III allege (1) active negligence by Candee and Quincy and (2) the same duty owed by them to Winfield. Thus, assuming Quincey's negligence as pleaded in the Complaint (the predicate for Crossclaim Counts II and III), indemnity will not lie against Candee. See Kuhn, 98 Ill.App.3d at 576, 54 Ill.Dec. at 197, 424 N.E.2d at 947.

Conclusion

Crossclaim Count II is dismissed.


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