The opinion of the court was delivered by: Foreman, Chief Judge:
Before the Court are third party defendant H.H. Hall
Construction Company's (Hall) Motion to Dismiss Count 1 of the
third party complaint (Document No. 53) and Hall's Motion to
Dismiss Count 1 of the crossclaim of Koehring Company (Koehring)
(Document No. 55). Plaintiff brings this action for damages
sustained from an injury incurred while working in a basket which
was lifted by a crane manufactured by Koehring, distributed by
Allied, and sold to Hall, plaintiff's employer.
Both of Hall's Motions to Dismiss assert that implied indemnity
no longer exists in Illinois, but that if it does, Allied, in its
third party complaint, and Koehring in its crossclaim, fail to
allege a qualitative distinction between the conduct of Hall and
that of Allied and Koehring. On May 31, 1984, this Court, in
response to a Motion to Dismiss Count 1 of the third party
complaint, dismissed Count 1 of the third party complaint for
failure to properly allege a pre-tort relationship giving rise to
a duty to indemnify, but granted Allied leave to amend. Allied
amended Count 1 of the third party complaint on June 15, 1984. On
August 22, 1984, Koehring cross-claimed Hall for indemnity and
The issue before the Court, as has been since the advent of the
Illinois Contribution Act, is whether implied indemnity survived
the birth of contribution among joint tort-feasors. The Illinois
Supreme Court has not resolved this issue. Therefore, as is so
often the case, this Court must engage in "judicial telepathy" in
order to ascertain what the Illinois Supreme Court would do if it
faced the issue. Amfac Mortgage Corp. v. Arizona Mall of Tempe,
Inc., 583 F.2d 426 (9th Cir. 1978). Cf. Lamb v.
Briggs Mfg., A Division of Celotex Corp., 700 F.2d 1092 (7th Cir.
Traditionally, implied indemnity was a common law doctrine
which provided for the complete shifting of liability on a
showing of a pre-tort relationship between the parties and a
qualitative distinction between their conduct. Contribution, on
the other hand, is a statutory remedy in Illinois which attempts
to apportion liability according to the relative fault of the
parties. It involves the sharing of damages in proportion to
fault and is available to all parties "subject to liability in
tort arising out of the same injury. . . ." Ill.Rev.Stat.Ann. ch.
70, § 302(a) (Smith-Hurd 1984).
Prior to the enactment of contribution among joint tortfeasors,
the implied indemnity doctrine was expanded to avoid the
harshness of a no-contribution rule. The courts first began to
change a "qualitative distinction" in the parties conduct to
"quantitative difference" in their conduct. Implied Indemnity
After Skinner and The Illinois Contribution Act: The Case for a
Uniform Standard, 14 Loy.U.Chi.L.J. 531, 536 (1982). Then the
courts did away with the pre-tort relationship in cases in which
the disparity in fault was great. Id. at 538.
In Van Jacobs v. Parikh, 97 Ill.App.3d 610, 52 Ill.Dec. 770,
422 N.E.2d 979, (1981), a panel of the Appellate Court of
Illinois, First District, held that the birth of the contribution
did not extinguish indemnity in Illinois, but instead placed
indemnity back on its traditional foundation. Id., 52 Ill.Dec. at
772, 422 N.E.2d at 981. Thus, the court reinstated both the
pre-tort relationship and the qualitative distinction between the
conduct of the parties requirements. Decisions subsequent to Van
Jacobs have interpreted it as authority for the proposition that
implied indemnity is still a viable concept. See LeMaster v.
Amsted Industries, Inc., 110 Ill.App.3d 729, 832-33, 66 Ill.Dec.
454, 442 N.E.2d 1367 (1982); Bednar v. Venture Stores, Inc.,
106 Ill. App.3d 454, 457, 62 Ill.Dec. 464, 436 N.E.2d 46 (1982).
In Heinrich v. Peabody Intern. Corp., 99 Ill.2d 344, 76
Ill.Dec. 800, 459 N.E.2d 935 (1984), the Illinois Supreme Court,
after a discussion of the differences between the contribution
and implied indemnity doctrines, refused to resolve the issue
since the appellate court did not address it.
In Lowe v. Norfolk and Western Ry. Co., 124 Ill.App.3d 80, 79
Ill.Dec. 238, 463 N.E.2d 792 (1984), a fifth district court held
that "upstream" indemnity is still available in a strict
liability case. The court reasoned that the policy behind strict
liability, namely to place the onus on the one who has placed a
defective product in the stream of commerce and reaped the profit
therefrom, would be circumscribed by contribution and its related
settlement rules replacing implied indemnity.
In Morizzo v. Laverdure, 127 Ill.App.3d 767, 83 Ill.Dec. 46,
469 N.E.2d 653 (1984), a different panel of the first district
attempted to clarify the Van Jacobs decision. The court, relying
on the fact that unlike the Uniform Contribution Among Joint
Tort-feasors Act or the New York Contribution Act, the Illinois
act did not contain a provision retaining indemnity, reasoned
that the Illinois Legislature intended to do away with implied
indemnity. The court stated:
As we interpret Van Jacobs, this court held that
implied indemnity is not extinguished by the passing
of the Contribution Act for cases involving some
pre-tort relationship between the parties which gives
rise to a duty to indemnify, e.g., in cases involving
vicarious liability (lessor-lessee;
employer-employee; owner and lessee; master and
servant). In Lowe this court held that implied
indemnity was still viable with respect to "upstream"
claims in a strict liability action.
Except possibly for those causes of action based on
the theories of indemnity just enumerated, it is our
opinion that the Contribution Act extinguished a
cause of action for active-passive indemnity in
Id. 469 N.E.2d at 658. Judge Shadur of the Northern District of
Illinois has adopted Morizzo in U.S. Home Corp. v. Kennedy
Construction Co., 601 F. Supp. 84 (N.D.Ill. 1984).
Finally, the Illinois Supreme Court in Simmons v. Union
Electric Company, 104 Ill.2d 444, 85 Ill.Dec. 347, 473 N.E.2d 946
(1984), again refused to address the issue since the parties
failed to raise or brief it. The Simmons court proceeded ...