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March 8, 1985


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 contribution.

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. 1983).

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 ...

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