The opinion of the court was delivered by: Shadur, District Judge.
Intamin, Inc. ("Intamin") has filed what is now a six-count Amended
Complaint (the "Complaint")*fn1 against Figley-Wright Contractors, Inc.
("Figley-Wright") and related parties, charging defendants' breach of
contract, breach of express and implied warranties, breach of contractual
indemnity and negligence—all arising out of the construction of a
roller coaster at Marriott's Great America Theme Park ("Great America")
in Gurnee, Illinois. Figley-Wright has in turn filed a two-count Third
Party Complaint (the "F—W Complaint") against Curtis D. Summers,
Inc. ("Summers"), seeking recovery via contribution and contractual
indemnity. Summers now moves to dismiss the F—W Complaint under
Fed.R.Civ.P. ("Rule") 12(b)(6). For the reasons stated in this
memorandum opinion and order, the motion is granted in part and denied in
On June 2, 1980 Intamin contracted with Marriott Corporation
("Marriott") to provide a roller coaster for Marriott at Great America
(Complaint Ex. A). Intamin in turn contracted with Summers to provide all
professional engineering design services (Complaint Ex. C, Art. 2) and
with Figley-Wright to construct the roller coaster (Complaint Ex. B,
Art. 2). No contractual relationship existed between Figley-Wright and
After the roller coaster had been constructed and put into operation,
Marriott discovered design and construction defects and required Intamin
to make repairs under the warranty terms of the Marriott-Intamin
contract. Intamin in turn sought compensation from Summers and
Figley-Wright. On July 10, 1984 Intamin entered into a settlement
agreement with Summers by which Intamin released all present and future
claims against Summers in return for the payment of $203,820.49 (Mo.
Dismiss Ex. C). In the meantime, Intamin and Figley-Wright continue to do
battle here. Now Figley-Wright seeks contribution and indemnity from
Summers for any liability of Figley-Wright to Intamin as determined in
Section 302(a) of the Illinois Contribution Among Joint Tortfeasors
Act (the "Act," Ill.Rev.Stat. ch. 70, ¶¶ 301-305)*fn2 provides:
Thus the Act expressly requires each party to the contribution action to
be "subject to liability in tort" to the injured party. Figley-Wright's
claim fails to meet that threshold requirement as to itself—and
very possibly as to Summers as well.
1. Summers' Potential Tort Liability To Intamin
There is serious doubt whether Summers is liable in tort to Intamin.
Summers argues it is not so liable because Moorman Manufacturing Co. v.
National Tank Co., 91 Ill.2d 69, 86, 61 Ill.Dec. 746, 753, 435 N.E.2d 443,
450 (1982) prohibits recovery in tort for purely economic losses that
result from a breach of contract. Figley-Wright counters with Ferentckak
v. Village of Frankfort, 121 Ill.App.8d 599, 76 Ill.Dec. 950,
459 N.E.2d 1085 (3d Dist. 1984) and Rosos Litho Supply Corp. v. Hansen,
123 Ill. App.3d 290, 78 Ill.Dec. 447, 462 N.E.2d 566 (1st Dist. 1984),
which it contends create a general exception to Moorman for architects
and engineers such as Summers.*fn3
Ferentchak does not stand for that proposition. It permitted tort
recovery against an architect for economic losses where (and because)
plaintiff had no recourse to contract remedies. 121 Ill.App.3d at
607— 08, 76 Ill.Dec. at 956—57, 459 N.E.2d at 1091—92.
Rosos Litho, although it contains more sweeping language than
Ferentehak, also involved a situation in which no contract remedies
comparable to those in a negligence action were available against the
architect. 123 Ill.App.3d at 295—96, 78 Ill.Dec. at 452—53,
462 N.E.2d at 571—72.
In contrast to the plaintiffs in Ferentchak and Rosos Litho, Intamin
was specifically entitled to invoke contract remedies against Summers,
and the scope of those remedies appears no narrower than those available
in a tort action. That renders the Appellate Court limitations on
Moorman questionable in terms of their applicability here. And ...