The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Intamin, Inc. ("Intamin") has asserted several claims — breach
of contract, breach of express and implied warranties and
breach of contractual indemnity — against Figley-Wright
Contractors, Inc. ("Figley-Wright") and related parties,
stemming from construction of a roller coaster at Marriott's
Great America Theme Park ("Great America") in Gurnee, Illinois.
Figley-Wright has in turn filed a Third Party Complaint against
Curtis D. Summers, Inc. ("Summers"), seeking recovery via
contractual indemnity. In response Summers has counterclaimed,
charging Figley-Wright with negligence.
Figley-Wright now moves under Fed.R. Civ.P. ("Rule") 12(b)(6)
to dismiss Summers' counterclaim. For the reasons stated in
this memorandum opinion and order, the motion is granted.
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 most of the professional engineering design
services (Complaint Ex. C, Art. 2)*fn1 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 built 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 Summers' payment of $203,820.49.
In the meantime Figley-Wright has engaged in battle with both
Intamin and Summers. In August 1984 Figley-Wright filed its
Third Party Complaint seeking both contribution and indemnity
from Summers for any liability of Figley-Wright to Intamin as
determined in this action. On February 12, 1985 (in the
"Opinion") this Court (1) dismissed Figley-Wright's
contribution claim but (2) held its indemnity claim stated a
cause of action for any liability of Figley-Wright to Intamin
resulting from Summers' negligence. 605 F. Supp. 707 (N.D. Ill.
Summers' counterclaim against Figley-Wright asserts Summers'
settlement payment to Intamin covered damages caused by
Figley-Wright's negligence. Summers seeks to recover that
payment — or at least the portion that represents damages
attributable to Figley-Wright's negligence.
Figley-Wright advances three independent grounds for dismissal:
1. Moorman Manufacturing Co. v. National Tank Co.,
91 Ill.2d 69, 61 Ill. Dec. 746, 435 N.E.2d 443 (1982) prohibits
recovery in tort for purely economic losses of the type
claimed by Summers.
2. Figley-Wright owed no duty of care to Summers.
3. Summers' counterclaim is an attempt to obtain
indemnification for its own negligent acts.