Appeal from the Circuit Court of Cook County; the Hon. Myron
Gomberg, Judge, presiding.
JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Does a cause of action for active-passive indemnity continue to exist in Illinois as the result of the adoption of the Contribution Among Joint Tortfeasors Act (hereinafter the Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.)? The trial court denied a motion to dismiss a third-party complaint based exclusively on active-passive indemnification, and certified three questions to this court. We granted interlocutory review. The pleadings allege the following facts.
Plaintiff Anthony Morizzo, the owner of Morizzo's Ridgewood Funeral Home in Chicago, entered into a contract with Bena Associates, Inc. (hereinafter Bena), for the construction of a building addition according to the plans and specifications prepared by architect Barnyk-Popwych, Ltd. Bena, as the general contractor, entered into a subcontract with Kay Laverdure, William Laverdure, Ronald Laverdure and Patricia Laverdure, d/b/a "K" Koncrete Company, later incorporated as "K" Koncrete, Inc. (hereinafter "K" Koncrete), to perform concrete, foundation and flatwork services for the project.
In performing its excavation work according to the subcontract, "K" Koncrete relied upon plans drafted by the architect and provided by Bena. The plans of the original structure were inaccurate in that they showed an L-lot line footing on the building that did not, in fact, exist. "K" Koncrete excavated to approximately four feet, or to the bottom of the foundation of the original building, which led to its collapse on May 8, 1979.
Plaintiff filed suit in November 1979, seeking compensation for the damages to his property and business; in his third amended complaint, he named both Bena and "K" Koncrete as defendants. Thereafter, a settlement agreement was reached between plaintiff and Bena. Plaintiff was paid the sum of $67,500, and Bena was dismissed from the action with prejudice.
"K" Koncrete, on November 6, 1981, initiated a third-party action against Bena and the architect. In its amended complaint, "K" Koncrete alleged, inter alia, that the architect and Bena submitted plans which were wrong and inaccurate; that it had to rely on the accuracy of the plans; that Bena and the architect had a duty to accurately inform it of the building's foundation; that it worked only at the direction and under the control of Bena; and that, therefore, any liability to plaintiff would be based solely on its passive conduct in performing the contract pursuant to Bena's direction and control. "K" Koncrete further alleged that any harm to plaintiff was the proximate result of the active and wrongful conduct of Bena and the architect. "K" Koncrete requested that if it was found liable to plaintiff, a judgment in like sum should be entered in favor of itself against the architect and Bena jointly and severally, and that it recover from the architect and Bena its costs and attorney fees.
In its motion to dismiss the third-party complaint, Bena claimed that section 2(c), (d) of the 1981 Contribution Act *fn1 protects a settling defendant, such as itself, from further liability to any alleged joint tortfeasor. The trial court denied Bena's motion to dismiss, and Bena thereafter requested that the court make a finding pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308), urging that the trial court's order involved questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.
The trial court certified the following questions of law as a result of Bena's request:
"1. A question of law exists as to whether a cause of action for active-passive indemnity exists in Illinois in light of the Contribution Statute, Ill. Rev. Stat. Ch. 70 sec. 301 et seq.
2. If the answer to the first question is in the affirmative, a question of law exists as to whether a pretort relationship between the indemnitor and indemnitee is a necessary prerequisite to an action for active-passive indemnity?
3. If the answer to the second question is in the affirmative, a question of law exists as to whether a pretort relationship as follows:
a subcontractor, who is sued by plaintiff for acts of negligence that allegedly resulted in injury to the plaintiff, brings a third-party action against the general contractor for indemnity;
is within the scope of a pretort relationship as that term was used by the First District Appellate Court in Van Jacobs v. Parikh, 97 Ill. App.3d 610 (1981) which will allow the potentially liable defendant to seek indemnity based on the active-passive theory."
Application for leave to appeal to this court was ...