once the jury determined that the employer was vicariously
liable, or the contractor technically liable (as in a Structural
Work Act case), it would be free to apportion fault as it saw
fit. The contractor or employer, who under implied indemnity
would be able to recover the entire amount of the damages from
the indemnitor, would, more likely than not, pay some portion of
the damages; the jury basing its decision more on an allocation
of damages and an inability to assign a percentage to "technical
negligence" than on an allocation of liability. While this
potential abuse is present in any jury case, the Court benlieves
that in the traditional implied indemnity situation, the entire
loss should be placed on the indemnitor as a matter of law.
Having the technically negligent party pay damages, even minimal
damages, would only serve to circumvent the deterrent function of
In those cases where a party is more than technically
negligent, as where the employer has failed to properly supervise
the employee, the Court feels that implied indemnity would no
longer be an option to the employer since his negligence has
proceeded past the mere technical negligence stage.
The Court recognizes that if contribution were the only
option available to the technically negligent party the
possibility of settlement would increase. The technically
negligent party, apprehensive of the jury's assigning him a
percentage of fault, would be more willing to kick some money
into the pot available for the plaintiff. However, while
settlement should be encouraged, it should not be at the expense
of the deterrent objective of damage awards or based entirely on
a party's mere apprehension in taking a case before the jury.
As for Morizzo, the Court notes that although the opinion talks
as if implied indemnity is dead, the court did exempt from the
burial the implied indemnity doctrine recognized by Van Jacobs
and this Court. In any event, this Court does not accept the
Morizzo assertion that the Illinois Legislature's failure to
specify that the Illinois Contribution Act did not impair
indemnity meant that the Legislature intended to extinguish
indemnity. It is hard to imagine that the Legislature intended to
sweep away nearly a century of implied indemnity law in Illinois
by a mere omission of language which appeared in the New York and
Uniform Contribution Act.
Therefore, the Court is of the opinion, that in order to allege
a valid claim for implied indemnity in a negligence case the
indemnitee must allege a pre-tort relationship between itself and
the indemnitor which gives rise to a duty to indemnify and a
qualitative distinction between its actions and the actions of
the indemnitor. The types of pre-tort relationships the Court is
referring to are lessor-lessee, employer-employee,
master-servant, principal-agent, owner-leasee, and
contractor-subcontractor. A qualitative distinction between the
conduct of the indemnitee and indemnitor exists when the
indemnitee is only vicariously liable or technically liable. In
a strict liability situation, indemnity will lie only for
Applying the Van Jacobs standard to the facts at hand, the
Court finds that neither Allied, in its third-party complaint,
nor Koehring, in its crossclaim, allege the requisite pre-tort
relationship which gives rise to a duty to indemnify. Koehring,
as manufacturer of the crane in question, does not have a
pre-tort relationship with Hall, the plaintiff's employer, since
the crane was distributed to Hall by Allied. Further, although
Allied as the seller and Hall as the employer-buyer had pre-tort
contact, it is not a pre-tort relationship which gives rise to a
duty to indemnify since a buyer-seller relationship would never
support a traditional indemnity claim.
Further, even if the Allied-Hall relationship were a type of
pre-tort relationship recognized under traditional indemnity
concepts, Allied has failed to allege a qualitative distinction
between the conduct of it and Hall. If Allied were liable under
a negligence theory it would not be a result of technical
negligence, but rather would be a result of its failure to warn
the crane before it left its control. If Allied fulfilled these
duties, it would not be found liable under a negligence theory.
With regard to a strict liability theory, Allied, although
potentially liable as a retailer or seller of the alleged
defective crane, can not seek indemnity from Hall since Hall is
"downstream" in the chain of custody of the crane. See Lowe v.
Norfolk and Western Ry. Co., 124 Ill.App.3d 80, 79 Ill.Dec. 238,
463 N.E.2d 792 (1984).
Accordingly, Hall's Motion to Dismiss Count 1 of the
third-party complaint (Document No. 53) and Hall's Motion to
Dismiss Count 1 of Koehring's crossclaim (Document No. 55) are
hereby GRANTED. Count 1 of the amended third-party complaint and
Count 1 of Koehring's crossclaim are hereby DISMISSED.
IT IS SO ORDERED.
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