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U.S. HOME CORP. v. GEORGE W. KENNEDY CONST.

December 21, 1984

U.S. HOME CORPORATION, PLAINTIFF,
v.
GEORGE W. KENNEDY CONSTRUCTION COMPANY, INC., ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

George W. Kennedy Construction Company, Inc. ("Kennedy") has moved to dismiss Count I of the recently-filed Crossclaim (the "Cross-claim") by Mackie Consultants, Inc. ("Mackie") and William Lorek ("Lorek") (collectively "Mackie-Lorek"), two of Kennedy's codefendants to the First Amended Complaint (the "Complaint") of U.S. Home Corporation ("U.S. Home").*fn1 For the reasons stated in this memorandum opinion and order, Kennedy's motion is granted.

Facts

In light of the limited nature of the current motion, only a bare bones outline of the setting for the motion is required. This summary statement is drawn from U.S. Home's Complaint, of course with no implication of any findings as to the Complaint's accuracy.

U.S. Home, a real estate developer, suffered more than $450,000 in damages when the sanitary sewer installation for its major single-family residence development in Lindenhurst, Illinois proved defective and actually collapsed in part. Mackie had designed the system (its employee Lorek was the responsible professional engineer) and Kennedy had installed it, each under a separate contract with U.S. Home.

U.S. Home sues Kennedy on four theories:

    1. for breach of contract (including Kennedy's nonconformity
  to Mackie's plans and specifications for the sewer system)
  (Complaint Count I);
    2. for breach of warranty of workmanship (Complaint Count
  II);
    3. for negligence including Kennedy's (a) nonconformity to
  Mackie's plans and specifications and (b) faulty workmanship)
  (Complaint Count III); and
    4. for another, much smaller and separate breach of contract
  claim (Complaint Count IV).

U.S. Home sues Mackie on two theories, the second of which charges Lorek as well:

    1. for Mackie's breach of contract (including its provision
  of improper plans and specifications for the sewer system and
  its failures of consultation, technical assistance and
  supervision) (Complaint Count V); and
    2. for Mackie-Lorek's professional negligence (in the same
  respects charged in Count V) (Complaint Count VI).

Mackie-Lorek's Cross-claim Count I asserts the familiar "active-passive" dichotomy as the predicate for Kennedy's claimed obligation of indemnity ...


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