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February 12, 1985


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

                             MEMORANDUM OPINION
                                 AND ORDER

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 part.


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 Summers.

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 this action.


Section 302(a) of the Illinois Contribution Among Joint Tortfeasors Act (the "Act," Ill.Rev.Stat. ch. 70, ¶¶ 301-305)*fn2 provides:

    Except as otherwise provided in this Act, where 2 or
  more persons are subject to liability in tort arising
  out of the same injury to person or property, or the
  same wrongful death, there is a right of contribution

  among them, even though judgment has not been entered
  against any or all of them.

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 ...

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