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Hibbler v. Ockerlund Construction Co.

OPINION FILED JANUARY 10, 1985.

CHARLES HIBBLER, PLAINTIFF,

v.

OCKERLUND CONSTRUCTION COMPANY ET AL., DEFENDANTS (OCKERLUND CONSTRUCTION COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT,

v.

CEISEL MASONRY, INC., THIRD-PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The setting in this case is most familiar. The general contractor, Ockerlund Construction Company, entered into an indemnity agreement with the subcontractor, Ceisel Masonry, Inc. The agreement provided that Ceisel would indemnify Ockerlund for any claims of injuries for which Ockerlund might be responsible and which "may arise out of or on account of in consequence of the Sub-contractor's [i.e., Ceisel's] performance of his contract." During the course of the construction, Ceisel's employee, Charles Hibbler, was injured. Hibbler then filed an action based on the Structural Work Act against the general contractor, Ockerlund. (Ill. Rev. Stat. 1977, ch. 48, pars. 60 through 69.) Ockerlund in turn filed a three-count complaint against Ceisel seeking indemnity based on an active-passive theory, contribution and on the express indemnification quoted above. On Ceisel's motion the trial court dismissed the count based on express indemnification. That is the only count in issue in this appeal.

There can be little doubt that the terms of this contract are covered by section 1 of "An Act in relation to indemnity in certain contracts," which provides that in every construction contract "every covenant, promise or agreement to indemnify or hold harmless another person [i.e., Ockerlund] from that person's [i.e., Ockerlund's] own negligence is void as against public policy and wholly unenforceable." (Ill. Rev. Stat. 1977, ch. 29, par. 61.) Ockerlund, solely for the purpose of its third-party complaint, has alleged that it is negligent and that Ceisel has agreed to indemnify Ockerlund for Ockerlund's own negligence. This is the type of agreement that is proscribed by statute.

In Davis v. Commonwealth Edison (1975), 61 Ill.2d 494, 498-99, 336 N.E.2d 881, the Illinois Supreme Court determined the above statute to be constitutional. In explaining its decision, the court used the instant factual setting as an example as to why in the construction trades it is against public policy for the general contractor to be indemnified for his own violations of the Structural Work Act. The court stated that such indemnification agreements diminish the general contractor's motivation to lessen the extent of the danger to an employee. Moreover, in Cox v. Lumbermens Mutual Casualty Co. (1982), 108 Ill. App.3d 643, 439 N.E.2d 126, the court stated that conduct that violates the Structural Work Act can be characterized as ranging from passive negligence to wilful misconduct and that all indemnification agreements for the above conduct are per se prohibited by section 1 (Ill. Rev. Stat. 1977, ch. 29, par. 61).

As interpreted by the above case law, the statute expressly forbids Ceisel from agreeing to indemnify Ockerlund for Ockerlund's own negligence. It is for that reason that the trial court properly granted Ceisel's motion to dismiss the count on express indemnification.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

ROMITI, J., concurs.

JUSTICE LINN, dissenting:

The majority reads the indemnity provision at issue as Ceisel agreeing to indemnify Ockerlund against Ockerlund's own negligence. While I readily concur that such an agreement would clearly be void pursuant to Davis v. Commonwealth Edison Co. (1975), 61 Ill.2d 494, 336 N.E.2d 881, and section 1 of the indemnity statute (Ill. Rev. Stat. 1983, ch. 29, par. 61), the instant provision simply is not such an agreement. For this reason, I respectfully dissent.

It is clear from the plain language of the indemnity agreement included in the Ceisel/Ockerlund contract that Ceisel expressly agreed to indemnify Ockerlund against Ceisel's negligence, not against Ockerlund's own negligence. Ockerlund alleged in its third-party complaint not, as the majority seems to interpret, that it was negligent, but that

"10. If OCKERLUND CONSTRUCTION COMPANY is liable to Plaintiff, it will be solely because of the alleged non-delegable duty imposed upon it by reason of the Illinois Structural Work Act, rather than because of any act and/or omission regarding the work and/or materials and equipment involved.

11. If OCKERLUND CONSTRUCTION COMPANY is liable to Plaintiff it will be liable solely because of the acts of negligence and/or misconduct of the Third-Party Defendant, CEISEL MASONRY, INC., to-wit: its failure to adequately supervise Plaintiff's job; provide appropriate and stable scaffolds; provide sufficient, suitable and safe materials; provide tight toe boards and brackets, etc.

12. The conduct of the Third-Party Plaintiff, if any, within the meaning of the Illinois Structural Work Act is solely passive in nature whereas the conduct ...


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